MAHESH SWAMINATHAN v. STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MAHESH SWAMINATHAN,

Plaintiff-Appellant,

and

KAVITA SWAMINATHAN,

Plaintiff,

v.

STATE OF NEW JERSEY, OFFICE

OF THE ATTORNEY GENERAL,

DEPARTMENT OF TRANSPORTATION,

NEW JERSEY TURNPIKE AUTHORITY,

NEW JERSEY TRANSIT, MIDDLESEX

COUNTY and TOWNSHIP OF SOUTH

BRUNSWICK,

Defendants-Respondents.

______________________________

September 23, 2015

Submitted September 17, 2015 Decided

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3343-14.

Eichen, Crutchlow, Zaslow & McElroy, L.L.P., attorneys for appellant (Edward McElroy, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondents State of New Jersey, New Jersey Department of Transportation, and New Jersey Transit (Jeffrey S. Widmayer, Deputy Attorney General, on the brief).

Chiesa Shahinian & Giantomasi, P.C., attorneys for respondent New Jersey Turnpike Authority (Christopher R. Paldino and Lauren Tardanico, on the brief).

Martin Kane & Kuper, attorneys for respondent County of Middlesex (John F. Gillick, of counsel and on the brief).

John R. Parker, attorney for respondent Township of South Brunswick.

PER CURIAM

Plaintiff, Mahesh Swaminathan, appeals from a June 20, 2014 order denying his motion to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9 to pursue suit against defendants the State of New Jersey, Office of Attorney General; Department of Transportation; New Jersey Turnpike Authority; New Jersey Transit; Middlesex County; and Township of South Brunswick (collectively "defendants"). We affirm.

On December 17, 2013, plaintiff injured himself when he slipped and fell at a public park and ride facility in South Brunswick. Plaintiff was obligated to file a notice of tort claim within ninety days, or by March 17, 2014. Ibid. Plaintiff retained counsel on March 29, 2014, who filed a notice on April 2, 2014.

Plaintiff's counsel filed a motion for leave to file a late notice of tort claim. Both plaintiff and plaintiff's counsel filed certifications. Plaintiff certified that he missed the filing deadline solely because he was unaware "the parking lot at the bus station was owned by a public entity." In his certification, plaintiff stated that the accident caused "injuries to his shoulder which required surgery." Plaintiff and his counsel, however, did not maintain that plaintiff's medical condition prevented plaintiff from pursuing his legal rights. Rather, plaintiff's counsel contended solely that the ninety-day deadline should be extended because plaintiff was unable to "ascertain with certainty" whether a public entity was involved in the incident.

After receiving opposition to the motion, plaintiff and his counsel raised for the first time, without producing medical records or physician reports, that plaintiff missed the deadline because of plaintiff's injuries. Plaintiff submitted a new certification adding that he "sustained a severe fracture to [his] humerus and underwent a complicated and extremely serious surgical procedure on December 30, 2013." He elaborated further that he was "essentially" homebound until the end of January 2014. Plaintiff explained that he retained counsel at the end of March 2014, when he was able to leave home "freely and independently."

In June 2014, the judge conducted oral argument, denied the motion, and rendered an oral opinion. In rejecting plaintiff's argument that he was unaware whether a public entity had owned the property, the judge concluded that plaintiff failed to use reasonable efforts to timely identify the owner of the property. To show that such an investigation was uncomplicated, she indicated it took counsel two days to determine that fact. The judge rejected plaintiff's belated medical argument concluding that plaintiff's injury was insufficient to constitute "extraordinary circumstances" under the statute.

On appeal, plaintiff argues that the judge abused her discretion by denying his motion. He contends primarily that defendants were not prejudiced and that his medical condition constitutes "extraordinary circumstances" warranting an extension of the ninety-day deadline. Plaintiff's counsel also maintains that plaintiff was under a mistaken but reasonable impression that a public entity was not involved in the accident.

The decision to grant permission to file a notice of late claim is left "'to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013) (alteration in original) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). "Although deference will ordinarily be given to the factual findings that undergird the trial court's decision, the court's conclusions will be overturned if they were reached under a misconception of the law." Ibid. Following our review of the record and applicable law, we conclude the judge correctly interpreted the law and did not abuse her discretion in denying plaintiff's motion.

A claimant must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. However, N.J.S.A. 59:8-9 alleviates the rigidity of the ninety-day requirement by authorizing a Superior Court judge to permit the filing of a notice of claim beyond the ninety-day limit for a period of up to one year after the accrual of the claim, provided two requirements are met. First, the movant must show there are sufficient reasons constituting extraordinary circumstances for the failure to timely file a notice of claim. Second, there is no substantial prejudice to the public entity. D.D., supra, 213 N.J. at 147. We need not reach the second prong because plaintiff's medical condition and purported inability to identify a public entity are insufficient to constitute extraordinary circumstances.

In general, medical conditions may satisfy the extraordinary circumstances test if they are "severe or debilitating." Id. at 149. Whether an injury rises to this level requires the judge to analyze the "severity of the medical condition and the consequential impact on the claimant's very ability to pursue redress and attend to the filing of a claim." Id. at 150. A judge performs this analysis with knowledge that the extraordinary circumstances test is a "'more demanding' one." Id. at 148 (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)).

We have previously addressed whether "severe or debilitating" medical conditions have met the extraordinary circumstances standard. See, e.g., Mendez v. So. Jersey Transp. Auth., 416 N.J. Super. 525, 533-36 (App. Div. 2010) (satisfying the test where the plaintiffs were unconscious at the accident scene, suffered from severe head trauma requiring ambulance transport to a nearby trauma center, spent considerable time in hospitals and rehabilitation facilities, and had no recollection of events occurring immediately before or after the accident); R.L. v. State-Operated School Dist., 387 N.J. Super. 331, 340-41 (App. Div. 2006) (meeting the extraordinary circumstances test where a high school student was preoccupied with thoughts of death after learning that she contracted HIV infection from sexual relationship with teacher); Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006) (constituting sufficient extraordinary circumstances where a severe staph infection was treated with an induced coma with little chance of survival). These cases illustrate the magnitude of what is meant by "severe or debilitating."

Plaintiff failed to show that his medical condition satisfies the extraordinary circumstances test. Plaintiff produced no medical records to the judge or us about his injury. As a result, we are unable to determine the exact injury that he sustained; what surgical procedure was performed; whether he required hospitalization, and if so, for how long; whether he experienced post-operative medical complications; whether a doctor prescribed medication that would have affected his ability to concentrate; or whether a doctor limited plaintiff's "mobility" after the accident, and if so, for how long. In other words, plaintiff offered no medical information to substantiate his contention that he was unable to "secure the representation of a lawyer."1

We conclude that plaintiff's remaining argument, that he was unable to identify whether a public entity was involved in the accident, is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by the judge. We add the following brief remarks.

As the judge correctly pointed out, a reasonable investigation would have readily shown that a public entity was involved in the accident. Plaintiff offers no evidence that he, or his wife, made any attempt to timely learn who owned the property. It was not until after the ninety days passed that plaintiff contacted counsel, who readily identified that fact two days later.

Affirmed.

1 There is nothing in the record to show that plaintiff's wife, who apparently lived with plaintiff and asserted a per quod claim, was unable to assist plaintiff in retaining counsel.