GUIRGUIS MATTA v. BOULEVARD COURT CONDOMINIUM ASSOCIATION, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GUIRGUIS MATTA,

Plaintiff-Respondent,

v.

BOULEVARD COURT CONDOMINIUM

ASSOCIATION, INC., KENNEDY BOULEVARD

PROPERTIES, COMMUNITY PRESERVATION

CORPORATION, SAFEGUARD REALTY MANAGEMENT,

MENDEL POMERANTZ, THOMAS D. GAGLIANO,

DURALIFT ELEVATOR,

Defendants-Respondents.

___________________________________________

September 22, 2015

Argued December 2, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2612-13.

John J. Hallanan, III, Assistant Corporation Counsel, argued the cause for appellant City of Jersey City (Jeremy Farrell, Corporation Counsel, attorney; Mr. Hallanan, on the brief).

Kenneth W. Elwood argued the cause for respondent Guirguis Matta (Blume, Donnelly, Fried, Forte, Zerres & Molinari, attorneys; Mr. Elwood, on the brief).

The opinion of the court was delivered by

SUMNERS, J.A.D.

Appellant City of Jersey City appeals the Law Division order granting the motion by plaintiff Guirguis Matta for leave to file a late notice of claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA). We reverse.

I.

The essential facts are not in dispute. On October 31, 2012, plaintiff's apartment building had no electricity due to Hurricane Sandy. Sometime in the morning, without the benefit of emergency lights, plaintiff walked down the dark stairway to the basement to throw out his trash. While returning to his apartment, plaintiff mistakenly opened and walked into the elevator door instead of the stairway door, and fell down the elevator shaft to the basement, sustaining injuries.

Within two weeks of his accident, plaintiff retained counsel who subsequently hired a private investigator, Thomas Dello Russo, Jr., to identify culpable parties. On December 3, 2012, Della Russo submitted a request for public records from Jersey City pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. On January 22, 2013, Dello Russo received a response to his OPRA request, which included a computer aided dispatch (CAD) report regarding the response by the Jersey City Fire Department to an emergency call at plaintiff's apartment building, the day prior to plaintiff's accident, to rescue an individual who was stranded in the same elevator wherein plaintiff was injured.

At some point thereafter, the record does not disclose when, Dello Russo issued a report containing more than 250 pages of documents and identified potential defendants responsible for plaintiff's injuries. The Jersey City Fire Department was not listed among the potential defendants, and was not named in the lawsuit that plaintiff filed on June 3, 2013.

During the subsequent discovery period, in a telephone conversation on October 17, 2013, counsel for defendants Thomas D. Gagliano and Safeguard Realty Management (collectively, Safeguard Realty), the rent collectors for the apartment building, suggested to plaintiff's counsel that Jersey City police and firemen responded to an emergency call the day prior to plaintiff's elevator accident and rescued someone stuck in the same elevator, and may have contributed to, or even caused, an elevator malfunction which led to plaintiff's accident. Consequently, on October 23, 2013, plaintiff filed a motion for leave to file a late notice of claim against the Jersey City Fire Department, Jersey City Police Department, City of Jersey City, (collectively Jersey City), as well as the State of New Jersey and County of Hudson. N.J.S.A. 59:8-9.

In support of his motion, plaintiff contended there were "extraordinary circumstances" to justify filing a late notice of claim because it was not until he learned from Safeguard's counsel that the fire department may have been involved in the elevator's malfunction. In its opposition, Jersey City conceded that it did not suffer substantial prejudice by the filing of a late tort claim notice, but challenged the contention that there were extraordinary circumstances justifying the filing of a late notice of claim.

The motion judge found that Jersey City suffered no substantial prejudice and that plaintiff had "sufficient reasons and extraordinary circumstances" in not filing a timely notice of claim against Jersey City. Relying on our decision in Blank v. City of Elizabeth, 318 N.J. Super. 106 (App. Div.), aff'd in part and modified in part, 162 N.J. 150 (1999), the judge allowed the late notice of claim, reasoning that plaintiff had no basis to suspect the fire department was associated with his accident and acted with diligence in pursuing his claim against identifiable defendants. The judge was persuaded by the fact that plaintiff's complaint was "based on a 250-page report from an investigator who did not make a determination . . . that a public entity was involved." The judge also noted that upon reviewing the CAD report, he could not connect the fire department to this incident merely based on the report's "description of removal of a victim from a stalled elevator[.]" This appeal followed.

II.

Tort claims against public entities for damages are governed by the TCA. It mandates that a plaintiff file a notice of claim against a public entity within ninety days from the accrual of his claim. N.J.S.A. 59:8-8. If the deadline is not met, the plaintiff may seek leave of the court "within one year after the accrual of his claim provided that the public entity . . . has not been substantially prejudiced thereby." N.J.S.A. 59:8-9. The motion must be "supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for" the failure to file a timely notice of claim. Ibid.

The decision to grant permission to file a late notice of claim is a matter left to the sound discretion of the trial court. Beyer v. Sea Bright Borough, 440 N.J. Super. 424, 429 (App. Div. 2015) (internal quotation marks and citation omitted). Even so, the trial court's discretion is limited to circumstances where the plaintiff can establish "sufficient reasons constituting extraordinary circumstances for the delay and [that] there is no substantial prejudice to the public entity or employee," as required by the statute. Ibid. (quoting R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006)). Thus, we reverse such decisions only if we conclude the judge abused his discretion, McDade v. Siazon, 208 N.J. 463, 476-77 (2011), particularly when the judgment is "arbitrary, capricious, whimsical, or manifestly unreasonable[.]" SeeFlagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and citations omitted).

"The [TCA] does not define what circumstances are to be considered extraordinary" and so the meaning is determined on a case-by-case analysis. Rogers v. Cape May Cnty. Office of Pub. Defender, 208 N.J. 414, 428 (2011) (quoting Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (internal quotations omitted)). In determining whether the reasons given rise to the level of extraordinary, judicial inquiry must focus on the "reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor." McDade, supra, 208 N.J. at 477.

We find instructive two decisions that have recognized instances where extraordinary circumstances were not present to warrant late filing of a notice of claim. In D.D. v. Univ. of Med. and Dentistry of N.J., 213 N.J. 130 (2013), the plaintiff claimed that she repeatedly attempted to contact her attorney regarding the status of her case, and he assured her that he would diligently represent her. Id. at 136. Thereafter, the attorney stopped returning her calls and she was unable to reach him. Id. at 137. The plaintiff retained new counsel, who filed an untimely notice of tort claim. Ibid. The motion judge, with our affirmance on appeal, allowed plaintiff to file a late tort claim. Ibid. The Court reversed, stating, that claims are barred "when the identity of the correct defendant was readily discoverable within the ninety days that the statute allows but timely notice was not filed[.]" Id. at 153. The Court reasoned that neither inattention nor incompetence of counsel constitute extraordinary circumstances, and declined to extend the doctrine "to relieve plaintiffs of their obligation to comply with the [TCA]'s requirement[.]" Id. at 159-60.

In Leidy v. County of Ocean, 398 N.J. Super. 449 (App. Div. 2008), the plaintiff alleged his accident was caused by a poorly maintained road and mistakenly sent a timely notice of claim to the wrong county, but sought permission to file a late notice when the correct county was identified. Id. at 454. Given that the plaintiff had not been "thwarted in his or her diligent efforts to determine the responsible party[,]" we found that no extraordinary circumstances existed. Id. at 457, 462. In so finding, we determined that "the record [was] barren of any reasonable efforts undertaken by plaintiff during the ninety-day [27] period to ascertain ownership, control or operation" of the relevant portion of the roadway at issue. Id. at 461; see Blank, supra, 162 N.J. at 152-53 (concluding that the failure to conduct a reasonable investigation to determine the proper public entity allegedly responsible for a plaintiff's injury is not an extraordinary circumstance).

With these principles in mind, we first address Jersey City's contention that the motion judge abused his discretion because the order allowing a late notice of claim provides that there is no substantial prejudice to Jersey City - without addressing the requirement that extraordinary circumstances must be established. A handwritten notation on the order states, "Reasons: Since the public entities will not suffer any prejudice to the late filing of the notice of claim under the TCA, the application is granted . . . ."1 Jersey City's reliance on the order is misplaced. As noted, the judge's oral ruling specifically addressed his finding that there were extraordinary circumstances for allowing a late notice of claim. Thus, we conclude that this contention has no merit.

On the other hand, we do find merit to Jersey City's contention that no extraordinary circumstances existed to grant plaintiff's motion to file a late notice of claim. Based upon our review of the record, we find no reasonable basis to conclude that plaintiff could not have determined he had potential claims against Jersey City in a timely manner. Dello Russo's affidavit in support of plaintiff's motion states that he had no information showing that there was a potential claim against Jersey City for plaintiff's accident. Yet, Dello Russo, and plaintiff's counsel as well, had the CAD report evidencing the fire department's rescue of someone trapped in the same elevator wherein the plaintiff was injured the next day. As Jersey City contends, "[p]resumably this is why [p]laintiff's investigator sought a CAD report identifying emergency incidents at this building prior to [plaintiff's] accident in the first place: to determine if a prior incident at the same site may have had a causal relationship with the [p]laintiff's accident." Thus, plaintiff knew or should have known that the last persons known to address the functioning of the elevator might have been the fire department and plausibly link it to the mishap that befell plaintiff the next day. We therefore disagree with the motion judge that the CAD reports could not have led plaintiff to identify a possible claim against Jersey City.

In turn, we are convinced that plaintiff provides no basis under the TCA to support his counsel's receipt of "new" information that warrants a late notice of claim. Plaintiff relies solely on Safeguard's counsel's advice that Jersey City was culpable for plaintiff's accident. At oral argument on the motion, plaintiff's counsel stated a representative of Safeguard claims that the fire department "may have done something" to the elevator the day before plaintiff's accident that contributed to plaintiff's accident. However, this fails to satisfy the TCA mandate that relief to file a late notice of claim "must be [supported] by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for" the failure to file a timely notice of claim. N.J.S.A. 59:8-9. Such use of hearsay, especially in the vague manner expressed here, cannot sustain late claims against public entities or employees.

In the present case, similar to the plaintiffs in D.D. and Leidy, who did not make reasonable efforts to identify public entity defendants, plaintiff failed to timely identify Jersey City's possible culpability for plaintiff's accident. Given the noted hearsay used to link Jersey City to plaintiff's accident, it seems readily apparent that Safeguard had a different view of the CAD report and suggested a litigation strategy that plaintiff or his investigator should have discovered when the CAD report was obtained. Under these circumstances, we conclude the motion court abused its discretion in finding plaintiff showed extraordinary circumstances to file a late notice of claim.

Lastly, we address plaintiff's reliance on Lutz v. Semcer, 126 N.J. Super. 288 (Law Div. 1974), superseded by statute on other grounds noted by, Serrano v. Gibson, 304 N.J. Super. 314, 315-16, (App. Div. 1997), which maintained that under N.J.S.A. 59:8-1, a cause of action does not accrue until facts exist which authorize one party to maintain an action against another. Id. at 297. In support of this position, plaintiff cites medical malpractice cases where the court found that extraordinary circumstances exist when "the public entity, intentionally or unintentionally, obscured the identity of the appropriate responsible entity to be sued." Eagan v. Boyarsky, 158 N.J. 632, 641 (1999) (citing Lowe v. Zarghami, 158 N.J. 606, 627-29 (1999)) (finding that the apparent status of the defendant as a private physician obscured his true status as a public employee); see also Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74 (2000) (holding that an extraordinary circumstance exists when the plaintiff knew the hospital was operated by a public entity but reasonably believed the hospital was operated by the United States rather than the State of New Jersey). Reliance upon these cases are misplaced.

As noted, this is not a case where plaintiff lacked knowledge that Jersey City was potentially responsible. Not only is plaintiff charged with knowledge of the fire department's involvement with the elevator the day prior to his accident through the CAD reports, but there is no evidence suggesting that Jersey City "intentionally or unintentionally, obscured" its identity to avoid being sued. Eagan, supra, 158 N.J. at 641 (citation omitted). Consequently, we do not view the present facts to be extraordinary circumstances warranting relaxation of the time constraints of N.J.S.A. 59:8-8.

Reversed. We do not retain jurisdiction.

1 We presume the motion judge made the notations, as it is a common practice of trial court judges to make handwritten notations to amend or supplement the typed proposed form of order submitted by a party.