J.C. v. CAROL D'ANNUNZIO

NOT FOR PUBLICATION WITHOUT THE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-1984-16T3

J.C.,

        Plaintiff-Appellant,

v.

CAROL D'ANNUNZIO,

        Defendant,

and

LENAPE VALLEY REGIONAL HIGH SCHOOL,
LENAPE VALLEY REGIONAL SCHOOL BOARD,
and LENAPE REGIONAL SCHOOL DISTRICT,

        Defendants-Respondents.


              Submitted December 5, 2017 – Decided December 21, 2017

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Sussex County, Docket No. L-
              0193-16.

              Fuggi Law Firm, PC, attorneys for appellant
              (Robert R. Fuggi, Jr., of counsel and on the
              brief; Carrie Ayn Smith, on the brief).

              Sciarrillo, Cornell, Merlino,              McKeever &
              Osborne, LLC, attorneys for                respondents
          (Anthony P. Sciarrillo, of counsel; Paul E.
          Griggs and Jaclyn M. Morgese, on the brief).

PER CURIAM

     Plaintiff, J.C., appeals from a June 1, 2016 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 Lenape Valley Regional

School Board, Lenape Valley Regional High School (LVHS), and Lenape

Valley Regional School District, and a November 30, 2016 order

denying reconsideration.   We affirm.

                                I.

     The essential facts are not in dispute.       Plaintiff was a

student at LVHS from 1990 to 1994.   He alleges his French teacher,

Carol D'Annunzio, sexually abused him from 1991 to 1993, when he

was between fifteen and seventeen years old.

     Following his high school graduation, plaintiff earned a

Bachelor's degree in French from Old Dominion University and a

Master's degree in Education from Seton Hall University.   In 2000,

he began teaching French at Kittatinny Regional High School.       In

2007, plaintiff was arrested for sexually abusing a fifteen-year-

old student at the school.     Plaintiff was charged with first-

degree sexual assault, second-degree endangering the welfare of a

child, and third-degree criminal sexual contact, and ultimately

pled guilty to second-degree sexual assault.        At plaintiff's


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sentencing, the court found as a mitigating factor that plaintiff

"was [himself] the subject of sexual victimization as a teenage[r]

. . . by one of his high school teachers who was a female."

Plaintiff received a three-year prison sentence and was required

to register as a sex-offender.

     Following his arrest, plaintiff entered therapy with Dr.

Michael Fiore, a psychologist, and was still receiving weekly

psychotherapy from him in 2016.         In 2013, plaintiff authored a

memoir, with the help of Dr. Fiore.        The book detailed plaintiff's

abusive relationship with D'Annunzio, as well as a trip he took

to Florida to confront D'Annunzio in February 2013.             The book

received news and media attention, including a two-part newspaper

article about plaintiff, his crime, and his allegations against

D’Annunzio, which was published in November 2014.             Around that

time,   detectives   from   the   Sussex    County   Prosecutor’s    Office

investigated plaintiff's allegations, but did not bring charges

against D’Annunzio.

     In October 2015, plaintiff's attorney referred him to Dr.

Christine   Hatchard,   a   licensed    psychologist,    to   conduct      an

evaluation.   In her March 7, 2016 report, Dr. Hatchard concluded

plaintiff "did not fully realize that he was a victim of sexual

abuse until May 2015, and has since developed Post Traumatic Stress

Disorder" (PTSD).

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     On March 30, 2016, plaintiff's counsel filed a motion for

leave to file a late notice of tort claim, and simultaneously

served defendants with a tort claim notice alleging plaintiff was

a victim of sexual abuse while a student at LVHS.       Plaintiff

contended his claim did not accrue until May 2015, when he finally

recognized he was a victim of sexual abuse by D'Annunzio.         He

argued he then began experiencing symptoms of PTSD and other

psychological   disorders,   which   constituted   "extraordinary

circumstances" justifying the late filing.

     In their opposition, defendants argued plaintiff's position

was belied by: (1) plaintiff's numerous psychiatric evaluations

in 2007 relating to his criminal case, where the sentencing court

accepted his prior abuse by D'Annunzio as a mitigating factor; (2)

plaintiff's 2013 book, in which he admitted being sexually abused

by D'Annunzio; (3) the November 2014 newspaper article in which

plaintiff detailed his three-year relationship of sexual abuse by

D'Annunzio; and (4) plaintiff's meetings with detectives in August

and September 2014, when the Sussex County Prosecutor's Office was

considering whether to criminally charge D'Annunzio.   Defendants

also asserted they suffered substantial prejudice by the filing

of the late tort claim notice.

     The trial court denied the motion on June 1, 2016.       In a

comprehensive written opinion, Judge Robert M. Hanna reasoned:

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         Here, the claim accrued as early as 1993[,]
         when the alleged sexual abuse began between
         [p]laintiff and . . . D'Annunzio.     Indeed,
         [p]laintiff acknowledges this in his [2013]
         book . . . .         In Chapter Eleven of
         [p]laintiff's [b]ook, plaintiff describes in
         detail the alleged sexual abuse by his former
         teacher . . . D'Annunzio albeit under an
         alias.    Plaintiff further describes his
         negative connotations and feelings of anxiety
         associated with the sexual abuse as depicted
         in [p]laintiff's [b]ook.

              . . . .

         The [statutory] ninety[-]day notice [period]
         could also have been triggered in 2007 when
         [p]laintiff underwent evaluations relative to
         his criminal conviction, during the eight
         years of therapy with Dr. Fiore, when
         [p]laintiff authored his book and admitted to
         the sexual abuse, or when detectives from the
         Sussex     County     Prosecutor's     Office
         investigated the alleged abuse by . . .
         D'Annunzio and did not pursue a claim of
         abuse. All of the aforementioned events show
         that [p]laintiff knew of his claim and failed
         to act upon it.

    Judge Hanna rejected plaintiff's contention that his PTSD,

related symptoms, and other psychological disorders constituted

the "extraordinary circumstances" required by 
N.J.S.A. 59:8-9 to

excuse the late filing.   The judge instead found:

         Before May 2015, [p]laintiff wrote his [b]ook,
         traveled to Florida to confront . . .
         D'Annunzio, was interviewed for a two-part
         article, and was interviewed by the Sussex
         County Prosecutor's Office.     Plaintiff was
         counseled by Dr. Fiore as [p]laintiff's
         therapist for eight years. Plaintiff had to
         have known of his sexual abuse before May 2015

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          when he perceived      himself   as   a   victim   of
          sexual abuse.

     Plaintiff filed a motion for reconsideration, which the court

denied on November 30, 2016.    The court again rejected plaintiff's

contention, based on Dr. Hatchard's expert report and opinion,

that plaintiff's cause of action did not accrue until May 2015,

when he then purportedly had sufficient knowledge of his injury

and its causal relationship to the alleged abuse by D'Annunzio.

The court also rejected plaintiff's further contention that, at a

minimum, Dr. Hatchard's report and opinion gave rise to factual

issues that required a Lopez1 hearing to determine the accrual

date of plaintiff's claims.

     The judge concluded plaintiff failed to meet the standard for

reconsideration established in D'Atria v. D'Atria, 
242 N.J. Super.
 392, 401 (Ch. Div. 1990).      In his written statement of reasons,

Judge Hanna elaborated:

          The [c]ourt concludes that it correctly denied
          [p]laintiff's motion to file a late notice of
          tort claim, and takes this opportunity to
          clarify and amplify its reasoning.         The
          [c]ourt found and confirms that two events –
          [p]laintiff's 2007 criminal sentencing and the
          writing and publication of [p]laintiff's book
          . . . - each independently establish as a
          matter of law that [p]laintiff had sufficient

1
  Lopez v. Sawyer, 
62 N.J. 267, 272 (1973) (requiring a hearing
when "a plaintiff claims a right to relief from the bar of the
statute of limitations by virtue of the so-called 'discovery'
rule").

                                  6                               A-1984-16T3
knowledge of his injury and the causal
relationship between such injury and the
alleged abuse by . . . D'Annunzio so that his
claims accrued as of the dates thereof. Both
of those dates - 2007 for the criminal
sentencing and 2013 for [p]laintiff's book -
exceed the maximum two years from accrual
permitted for a [l]ate [t]ort [c]laim under

N.J.S.A. 59:8-9.   The [c]ourt did not find,
and does not find, that [p]laintiff's claims
accrued as of the time of the sexual abuse
allegedly perpetrated by . . . D'Annunzio
while [p]laintiff was a high school student.

The   [c]ourt    carefully   considered    Dr.
Hatchard's report and opinions, proffered as
the "sufficient reasons" to permit a [l]ate
[t]ort claim.    Dr. Hatchard's opinion that
[p]laintiff "did not fully realize he was a
victim of sexual abuse until May 2015" does
not mean, for purposes of accrual under the
discovery rule, that [p]laintiff lacked
sufficient realization to trigger accrual of
his causes of action. The [c]ourt found, as
a matter of law, that [p]laintiff had
sufficient knowledge and understanding of
injury and causal connection to seek and
receive mitigation of his criminal sentence
in 2007, and that such knowledge and
understanding was sufficient to trigger
accrual of his civil claims.      Again, it is
undisputed   that   [p]laintiff    sought  and
received a criminal sentencing benefit by
citing the sexual abuse he endured at the
hands of . . . D'Annunzio.      The sentencing
proceeding, the [c]ourt notes, was reviewed
by this [c]ourt and is a readily available
matter of public record.      As the [c]ourt
previously noted, Dr. Hatchard did not address
this point in her report.

     A similar analysis applies to plaintiff's
book, which reveals that [p]laintiff, as a
matter of law upon his own undisputed
statements, had sufficient knowledge and

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            understanding and causal connection to seek
            to trigger accrual of his civil causes of
            action.

            [(Footnote omitted).]

                                   II.

     On    appeal,   plaintiff   argues   the   trial   court   abused   its

discretion by denying his motion to file a late tort claim.

Specifically, he contends the court failed to appreciate the

significance of Dr. Hatchard's report, and should have conducted

a Lopez hearing to determine the accrual date of plaintiff's claim.

     A "claimant shall be forever barred from recovering against

a public entity or public employee if: (a) The claimant failed to

file the claim with the public entity within [ninety] days of

accrual of the claim except as otherwise provided in N.J.S.A.

59:8-9."    
N.J.S.A. 59:8-8.     Pursuant to 
N.J.S.A. 59:8-9,

            [a] claimant who fails to file notice of his
            claim within [ninety] 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.

     Trial courts are empowered to permit the filing of a late

notice only upon a claimant's showing of "sufficient reasons

constituting extraordinary circumstances" for the failure to file

a timely notice of claim.      
N.J.S.A. 59:8-9.    The Supreme Court has

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recently emphasized that "[t]he Legislature has commanded that

relief be granted only in circumstances that are extraordinary."

D.D. v. Univ. of Med. & Dentistry of N.J., 
213 N.J. 130, 158

(2013).   Extraordinary circumstances is a "strict standard."   Zois

v. N.J. Sports & Exposition Auth., 
286 N.J. Super. 670, 673 (App.

Div. 1996).

     The decision to grant or deny 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., 
213 N.J. at 147 (alteration

in original) (quoting Lamb v. Global Landfill Reclaiming, 
111 N.J.
 134, 164 (1998)).    "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. (citing McDade v. Siazon,


208 N.J. 463, 473-74 (2011)).   Following our review of the record

and applicable law, we conclude Judge Hanna correctly interpreted

the law and did not abuse his discretion in denying plaintiff's

motion.

     As noted, 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.

Relying on Dr. Hatchard's report, plaintiff argues his claim did

not accrue until May 2015, and the court erred in concluding it

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accrued    earlier.   Alternatively,   plaintiff   contends   a     Lopez

hearing should have been conducted to ascertain the appropriate

accrual date.

       We recently rejected such arguments in a strikingly similar

context.    J.P. v. Smith, 
444 N.J. Super. 507 (App. Div.), certif.

denied, 
226 N.J. 212 (2016).    We noted:

            
N.J.S.A. 59:8-1 . . . clarifies that, for
            purposes of the statute's notice and filing
            limitations, "[a]ccrual shall mean the date
            on which the claim accrued and shall not be
            affected by the notice provisions contained
            herein." Under the [Tort Claims Act],[2] "the
            discovery rule is part and parcel" of
            determining when a claim accrued "because it
            can toll the date of accrual." Beauchamp [v.
            Amedio, 
164 N.J. 111, 118 (2000)]. "Until the
            existence of an injury (or, knowledge of the
            fact that a third party has caused it) is
            ascertained, the discovery rule will toll
            accrual."   Id. at 122.     "However, once an
            injury is known, even a minor one, the ninety
            day notice is triggered."      Ibid. (emphasis
            added).   "Worsening of that injury does not
            extend the time [to serve a notice] or
            otherwise alter the party's obligation."
            Ibid.; see also Maher v. Cnty. of Mercer, 384
            N.J. Super. 182, 186 (App. Div. 2006).

            [Id. at 528-29.]

       Like J.P., in the present case plaintiff was undoubtedly

aware of the abuse, D'Annunzio's identity as his abuser, and

D'Annunzio's status as a teacher with LVHS, when: (1) he argued




2 N.J.S.A. 59:1-1 to 12-3.

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D'Annunzio's abuse as a mitigating factor at sentencing on his

2007 criminal charges; (2) he wrote his 2013 book, in which he

admitted being sexually abused by D'Annunzio; (3) he detailed his

three-year relationship of sexual abuse by D'Annunzio in a November

2014 newspaper article; and (4) he discussed the allegations of

sexual      abuse     with   detectives        in       August    and     September      2014.

Moreover, at least as early as his sentencing on the 2007 criminal

charges, plaintiff was aware he was harmed by D'Annunzio's alleged

abuse, and in his 2013 book he referenced his feelings of anxiety

associated with that abuse.

      In short, by no later than November 2014, "a reasonable

person, possessing plaintiff's knowledge, could have discovered a

basis      for   a   cause     of    action    with       the    exercise       of   ordinary

diligence."          J.P., 
444 N.J. Super. at 528.                  Plaintiff was thus

required to file his tort claim notice within ninety days of that

time.      He failed to do so.          He also failed to seek leave to file

a   late    claim     within    one    year        of   the     accrual    of    his    claim.

"Plaintiff's         failure    to    comply       with    the    time     requirement        of


N.J.S.A. 59:8-8(a) constitutes an absolute bar to recovery against

[these defendants]."            Id. at 529 (citing Karczewski v. Nowicki,


188 N.J. Super. 355, 357 (App. Div. 1982)).

      Even if we accept May 2015 as the accrual date of the claim,

as plaintiff urges, plaintiff must still show: (1) there are

                                              11                                       A-1984-16T3
sufficient reasons constituting extraordinary circumstances for

his failure to file the tort claim notice within ninety days of

that time; and (2) there is no substantial prejudice to the public

entities.     D.D., 
213 N.J. at 147.             We need not reach the second

prong because plaintiff's medical condition is 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. S. 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

                                          12                                  A-1984-16T3
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 he contracted

HIV infection from sexual relationship with teacher); Maher, 384

N.J.   Super.     at   189-90   (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 his medical condition meets this

standard.     Plaintiff's own expert, Dr. Hatchard, opined that his

"symptoms comprising PTSD began in May 2015."                        As a result,

plaintiff reported experiencing nightmares, "the frequency of

[which] can range anywhere from twice a month to every night if

he is reminded of the abuse."           Plaintiff also reported difficulty

sleeping.     However, Dr. Hatchard further wrote "[plaintiff does

not appear to be experiencing any additional mental disorders" and

"[h]e is not currently taking any prescription medication and

reports no current or past physical health problems."                  Also, "[h]e

currently works full-time as a self-employed mechanic with his

father."     We do not conclude from this evidence that plaintiff's

mental condition is so "severe and debilitating" that it prevented

                                        13                                    A-1984-16T3
him from filing a timely tort claim notice within ninety days of

May   2015.   Accordingly,   plaintiff   has   failed   to   demonstrate

extraordinary circumstances that would excuse the late filing.

      Affirmed.




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