RONALD WAY v. NEWARK HOUSING AUTHORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONALD WAY,

Plaintiff-Respondent,

v.

NEWARK HOUSING AUTHORITY,

Defendant-Appellant.

___________________________________________

January 4, 2017

Argued November 15, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5420-15.

James G. Serritella argued the cause for appellant (Biancamano & DiStefano, P.C., attorneys; Mr. Serritella, on the brief).

Lisa L. Pugliese argued the cause for respondent (Pugliese & Salemi, LLP, attorneys; Ms. Pugliese, on the brief).

PER CURIAM

Defendant Newark Housing Authority (NHA) appeals from an order entered by the Law Division on August 21, 2015, which granted plaintiff Ronald Way leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9, and the trial court's order of October 9, 2015, which denied the NHA's motion for reconsideration of the August 21, 2015 order. We affirm.

We briefly summarize the relevant facts and procedural history. On February 17, 2015, plaintiff slipped and fell in the bathroom of an apartment owned by the NHA in Newark. He allegedly struck his head on an exposed pipe, and sustained personal injuries. Plaintiff sought medical treatment at University Hospital for burns and scarring to his head.

Plaintiff retained counsel on February 19, 2015, who subsequently wrote to the Newark Tax Assessor (NTA) and requested the identity of the property owner. The NTA informed counsel that the NHA was the record owner of the property, and the NHA was located at 57 Sussex Avenue in Newark.

On March 11, 2015, plaintiff's counsel wrote to plaintiff and asked him to make an appointment to come to her office to complete and sign the notice of tort claim. Plaintiff did not respond to that letter. On March 30, 2015, April 21, 2015, and May 6, 2015, plaintiff's counsel attempted to reach plaintiff to make the appointment but plaintiff did not respond.

Plaintiff's counsel became concerned because she was aware that the notice of claim must be submitted to the public entity involved within ninety days after the cause of action accrues. Therefore, on May 6, 2015, counsel completed the notice of claim form on plaintiff's behalf and on May 12, 2015, submitted the notice by regular and certified mail to the City of Newark (City), Department of Law, at 950 Broad Street, Newark.

On June 8, 2015, plaintiff's counsel received a letter from the City, dated May 15, 2015, which stated that the NHA is an entity that is separate and independent from the City. On June 9, 2015, plaintiff's counsel mailed a notice of claim to the NHA at the address at 57 Sussex Avenue, Newark, which the NTA had previously provided. The notice of claim was returned to plaintiff's counsel, marked "return to sender, refused, not deliverable as addressed, unable to forward."

On June 24, 2015, plaintiff's counsel forwarded the notice of claim to the NHA at the correct address of 500 Broad Street. On July 18, 2015, counsel for the NHA replied by fax, stating that the claim was barred because the notice had not been served within the time required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

Plaintiff thereafter filed a motion in the trial court for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. In support of the motion, plaintiff's counsel submitted a certification which detailed the relevant facts. Because oral argument had not been requested, the judge decided the motion on the papers. The judge entered an order dated August 21, 2015, granting the motion. The NHA then filed a motion for reconsideration of the August 21, 2015 order. The judge heard oral argument and on October 9, 2015, denied the motion. The NHA's appeal followed.

Thereafter, pursuant to Rule 2:5-1(b), the motion judge filed an amplification of her reasons for granting plaintiff leave to file the late notice of claim. The judge stated that

[t]he facts are clear and demonstrate the City Tax Assessor did not provide the correct address for the [NHA]. Had plaintiff mailed the notice initially to the address given by the Tax Assessor, it likely would not have reached defendant within the tort claims period. Plaintiff's counsel was diligent and would have been able to remedy her initial misstep in sending the notice to the City as opposed to the [NHA] had she been given the correct address information, and had the City not delayed its response effectively to June 8. N.J.S.A. 59:8-9 provides a claimant who fails to file within ninety days may make application to the court for permission to file a late notice of claim. Such application must be supported by an affidavit showing sufficient reasons constituting extraordinary circumstances for the failure to file the notice within the prescribed ninety day period. The law provides that in the discretion of the court, a plaintiff may be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity has not been substantially prejudiced thereby. Defendant makes no showing of prejudice. The court found that the totality of the circumstances and interests of justice warranted the exercise of discretion to permit the late filing.

On appeal, the NHA argues that the motion judge erred by granting plaintiff leave to file a late notice of claim because the judge never made a finding that plaintiff's failure to file a timely notice was due to extraordinary circumstances, as required by N.J.S.A. 59:8-9. The NHA contends that a finding that the public entity involved would not be substantially prejudiced by the late claim is not a sufficient basis for allowing a claimant to file a late notice of claim.

The NHA further argues that there is no evidence plaintiff was physically or mentally incapable of filing the notice of claim within the ninety-day period mandated by the TCA, and counsel's failure to recognize that the NHA was an entity separate and independent of the City does not constitute extraordinary circumstances under N.J.S.A. 59:8-9.

The TCA governs claims against public entities and employees and imposes strict limits on those who seek to assert such claims. McDade v. Siazon, 208 N.J. 463, 468 (2011). As noted, a claimant must file a notice of claim with the public entity or employee within ninety days after the claimant's cause of action has accrued. N.J.S.A. 58:8-8. Here, it is undisputed that plaintiff's cause of action accrued on February 17, 2015, when he allegedly was injured on NHA's property. However, plaintiff failed to serve the notice of claim within ninety days after February 17, 2015, as required by N.J.S.A. 59:8-8.

Therefore, plaintiff filed a motion seeking leave to file a late notice of claim, pursuant to N.J.S.A. 58:8-9, which states

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act[.]

The grant or denial of relief under N.J.S.A. 59:8-9 is committed to "'the sound discretion of the trial court'" and the trial court's decision on the motion will not be disturbed on appeal unless shown to be a mistaken exercise of discretion. McDade, supra, 208 N.J. at 476-77 (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). In making its determination, the trial court's "inquiry is fact-specific" and the question of whether the reasons provided rise to the level of "extraordinary circumstances" is decided on a case-by-case basis. Id. at 477 (quoting Lowe v. Zarghami, 158 N.J. 606, 626 (1999)).

Here, the trial court's determination granting plaintiff leave to file a late notice of claim was not a mistaken exercise of its discretion under N.J.S.A. 59:8-9. As the record shows, plaintiff's counsel made diligent efforts to identify the public entity involved and file a notice of claim within ninety days after February 17, 2015, the date the claim accrued.

As we have explained, plaintiff's counsel mistakenly believed that the NHA was a City agency, and on May 6, 2015, mailed a notice of claim, naming the NHA as the responsible entity, to the City. As noted, the City wrote to counsel on May 15, 2015, advising that the NHA was a separate and independent entity. For reasons that are not clear from the record, plaintiff's counsel did not receive that letter until June 8, 2015.

Had the City written sooner, or had the letter been received promptly after the date it was apparently written, counsel would have had sufficient time in which to file the notice of claim with the NHA. We are therefore convinced that plaintiff established he did not submit a timely notice of claim due to extraordinary circumstances. Furthermore, the NHA does not claim it will be substantially prejudiced if plaintiff is permitted to submit a late notice.

The NHA nevertheless argues that the motion judge mistakenly believed that plaintiff's failure to file a timely notice was due to a severe or debilitating medical condition, which affected the claimant's ability to file a timely notice of claim. See, e.g., Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533 (App. Div. 2010) (finding extraordinary circumstance to file a late notice in part because the plaintiff sustained injuries in a motor vehicle accident which required hospitalization). However, plaintiff is not arguing that his injuries, which required a period of hospitalization, constitute extraordinary circumstances. Rather, plaintiff referred to his hospitalization to explain why his attorney waited for two months to file the initial notice.

The NHA further argues that the motion judge erred by permitting plaintiff to file the late notice of claim because a timely notice of claim was not submitted due to attorney error or inattention which is not a basis for finding extraordinary circumstances. In support of this argument, the NHA relies upon D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130 (2011). The NHA's reliance upon D.D. is misplaced.

Here, there is no indication that plaintiff's attorney gave plaintiff erroneous advice, or that plaintiff's attorney was not aware of the notice-of-claim requirements of the TCA. Moreover, the record shows that plaintiff's attorney was attentive to the matter. Plaintiff's attorney acted with reasonable promptness to comply with the ninety-day filing requirement, and sent the notice of claim to the City. Counsel's assumption that the NHA was a City agency or department was not unreasonable, but wrong. Even so, despite the error, plaintiff's attorney would have been able to file a timely notice with the NHA if the City had been more prompt in bringing the error to counsel's attention.

Affirmed.