BRIAN KRUZEL v. CITY OF NEWARK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5231-15T2
BRIAN KRUZEL,
Plaintiff-Appellant,
v.
CITY OF NEWARK, the Department of
Engineering, the Department of
Water and Sewer, the Department
of Neighborhood and Recreational
Services, and the Department of Police,
Defendant-Respondent,
and
COUNTY OF ESSEX, the Department of
Public Works, the Utilities Authority,
and the Improvement Authority,
Defendant,
and
CITY OF NEWARK,
Third-Party Plaintiff,
v.
NEWARK HOUSING AUTHORITY,
Third-Party Defendant-
Respondent.
_______________________________________
Argued October 24, 2017 – Decided December 19, 2017
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-3974-
16.
Glenn A. Montgomery argued the cause for
appellant (Montgomery, Chapin & Fetten, PC,
attorneys; Glenn A. Montgomery, of counsel and
on the brief; Michael D. Noblett, on the
brief).
Handel T. Destinvil, Assistant Corporation
Counsel, argued the cause for respondent City
of Newark (Willie L. Parker, Corporation
Counsel, attorney; Gary S. Lipshutz, Assistant
Corporation Counsel, of counsel; Handel T.
Destinvil, on the brief).
James G. Serritella argued the cause for
respondent Newark Housing Authority
(Biancamano & DiStefano, attorneys; James G.
Serritella, on the brief).
PER CURIAM
Plaintiff Brian Kruzel appeals the July 22, 2016 denial of
his motion to file a late notice of claim against defendant Newark
Housing Authority (NHA), pursuant to the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to 13-10. We affirm.
I.
The motion judge's oral opinion and the certification of
plaintiff's counsel include the following facts. On September 18,
2015, plaintiff, while working as a New Jersey state trooper, fell
2 A-5231-15T2
into an uncovered manhole. As a result, he allegedly suffered
personal injuries and had surgery on his ankle.
The manhole was in the middle of a street near the
intersection of Van Duyne Street and Frelinghuysen Avenue in
Newark. As plaintiff acknowledges, the street runs through the
NHA's Seth Boyden Project Complex, which was vacant and abandoned
at the time of the accident. Plaintiff argues there was no sign
indicating the street was called Seth Boyden Terrace.
On October 15, 2015, plaintiff retained counsel. On October
19, 2015, plaintiff's counsel served a notice of claim on the City
of Newark. On June 10, 2016, plaintiff filed a complaint against
the City, the County of Essex, and their various subdivisions.1
Despite filing against nine public entities, plaintiff did not
file a notice of claim against the NHA.
It is undisputed that "public housing authorities are public
entities under the Tort Claims Act." Bligen v. Jersey City Hous.
Auth.,
131 N.J. 124, 131 (1993); accord Ramapo Brae Condo. Ass'n,
Inc. v. Bergen Cty. Hous. Auth.,
328 N.J. Super. 561, 569 (App.
Div. 2000), aff'd o.b.,
167 N.J. 155 (2001). A housing authority
1
The nine public entities were the City of Newark, including its
Department of Engineering, Department of Water and Sewer,
Department of Neighborhood and Recreational Services, and
Department of Police; and the County of Essex and its Department
of Public Works, Utilities Authority, and Improvement Authority.
3 A-5231-15T2
is itself "a body corporate and politic." Ramapo Brae,
328 N.J.
Super. at 566 (citing
N.J.S.A. 40A:12A-17). Thus, the Newark
"housing authority is a separate, independent entity," and "is not
a subordinate branch of the governing body" but "a unique separate
entity, possessing and enjoying many governmental powers and
privileges." English v. Newark Hous. Auth.,
138 N.J. Super. 425,
430 (App. Div. 1976); see Nat'l Newark & Essex Bank v. Hous. Auth.,
75 N.J. 497, 506 (1978).
On June 22, 2016, the City informed plaintiff that the manhole
into which he fell was owned or controlled by the NHA. On June
28, 2016, plaintiff filed a notice of motion for leave to serve a
late notice of claim against the NHA. Plaintiff's motion was
denied by the trial court on July 22, 2016. Plaintiff appeals.2
II.
The TCA "imposes strict requirements upon litigants seeking
to file claims against public entities." McDade v. Siazon,
208 N.J. 463, 468 (2011). "No action shall be brought against a public
entity or public employee under this act unless the claim upon
which it is based shall have been presented" to the appropriate
public entity in a written notice of claim.
N.J.S.A. 59:8-3; see
2
The NHA does not concede it is the actual owner of the street
where plaintiff was injured. We offer no opinion whether NHA is
the owner.
4 A-5231-15T
2 N.J.S.A. 59:8-4 to -7. "A claim relating to a cause of action for
death or for injury or damage to person or to property shall be
presented as provided in this chapter not later than the 90th day
after accrual of the cause of action."
N.J.S.A. 59:8-8.
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 . . . 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 or to file a
motion seeking leave to file a late notice of
claim within a reasonable time thereafter[.]
[
N.J.S.A. 59:8-9 (emphasis added).]
"By its terms, the statute commits the authority to grant a
plaintiff's motion for leave to file late notice '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)); see Jones v. Morey's Pier,
Inc.,
230 N.J. 142, 154 n.3 (2017) (citation omitted) (quoting
5 A-5231-15T
2 N.J.S.A. 59:8-9). Indeed, the extraordinary circumstances prong
of
N.J.S.A. 59:8-9 "requires the trial court to conduct a fact-
sensitive analysis of the specific case." McDade,
208 N.J. at
478.
Nevertheless, plaintiff argues the denial of his motion to
file a late notice of claim is an issue of law requiring plenary
review. However, plaintiff has failed to show that the trial
court's conclusion was "reached under a misconception of the law."
D.D.,
213 N.J. at 147. Accordingly, we hew to the abuse of
discretion standard.
III.
On the record before us, we are unable to find the motion
judge abused his discretion because plaintiff's motion failed to
satisfy the extraordinary circumstances requirement for the late
filing of a notice of claim.
A.
Under the TCA, the claimant must show "extraordinary
circumstances for his failure to file notice of claim within the
period of time prescribed by section 59:8-8 of this act[.]"
N.J.S.A. 59:8-9. The Supreme Court has emphasized that "[t]he
Legislature has commanded that relief be granted only in
circumstances that are extraordinary." D.D.,
213 N.J. at 158.
Extraordinary circumstances is a "strict standard." Zois v. N.J.
6 A-5231-15T2
Sports & Exposition Auth.,
286 N.J. Super. 670, 673 (App. Div.
1996). In applying this "more exacting standard," courts "must
ensure that their decisions are faithful to the overall legislative
framework in order that the [immunity] statute's essential
purposes be preserved and not eroded through excessive or
inappropriate exceptions." D.D.,
213 N.J. at 148-49.3
It is undisputed plaintiff's claims accrued when he was
injured on September 18, 2015. Under the TCA, he had until
December 17, 2015 to file a notice of claim against the NHA
pursuant to the TCA. Although he timely filed the notice of claim
against the City of Newark, he did not file a notice of claim
against the NHA for over nine months after the accrual of the
claim.
Plaintiff argues he was unaware who owned the street where
the manhole resided, he thought it was an extension of Van Duyne
Street, he was under the impression the City was the owner, and
3
The original text of
N.J.S.A. 59:8-9 stated that "mere
'sufficient reasons' sufficed to warrant relief from the statutory
bar." Leidy v. Cty. of Ocean,
398 N.J. Super. 449, 456 (App. Div.
2008) (quoting Lowe v. Zarghami,
158 N.J. 606, 625 (1999)). "The
'extraordinary circumstances' language was added by amendment in
1994, L. 1994, c. 49, § 5, in order to 'raise the bar for the
filing of late notice from a "fairly permissive standard" to a
"more demanding" one.'" Id. (quoting Beauchamp v. Amedio,
164 N.J. 111, 118 (2000)). We have viewed the 1994 amendment as
"signal[ing] the end to a rule of liberality," ibid. (quoting
Lowe,
158 N.J. at 626), and "sending a strong message that . . .
relief should be granted less frequently." D.D.,
213 N.J. at 157.
7 A-5231-15T2
the City did not correct his misimpression until after he filed
his complaint. The trial court found plaintiff had not shown
"extraordinary circumstances" as required by
N.J.S.A. 59:8-9. We
agree.
First, the TCA requires that the motion for permission to
file a later notice of claim be "supported by affidavits based
upon personal knowledge of the affiant showing sufficient reasons
constituting extraordinary circumstances."
N.J.S.A. 58:8-9.
However, plaintiff did not supply such an affidavit. Plaintiff's
arguments about his thoughts and impressions are not supported by
the record.
Plaintiff's counsel provided a certification, but it did not
relate any efforts to determine the ownership of the manhole.
Rather, it simply asserted that "the manhole was located in the
center of a paved street in which motor vehicles travel on, and
that the paved street is located in the City of Newark." Cf.
Lamb,
111 N.J. at 153 (accepting "affidavits submitted by the
plaintiffs' attorneys [that] describe the investigations they
undertook in order to identify the cause of action and the public
entities involved").
Thus, plaintiff failed to provide the required affidavit
showing any efforts to ascertain ownership. See S.P. v. Collier
High Sch.,
319 N.J. Super. 452, 465 (App. Div. 1999). "The
8 A-5231-15T2
existence of a reasonably prompt and thorough investigation is
thus the crucial inquiry," and its absence is damning. McDade,
208 N.J. at 477-79.
Even if plaintiff's alleged beliefs and impressions are
accepted as true, his claim fails. This case strongly resembles
Leidy v. Cty. of Ocean,
398 N.J. Super. 449 (App. Div. 2008). In
Leidy, the plaintiff, also a police officer, was "under the
impression that since [his roadway] accident occurred in Jackson
[Township], the property was controlled and maintained by Ocean
County," so he filed a notice of tort claim against Jackson, Ocean
County, and the State. Id. at 454. However, the roadway formed
the boundary with the County of Monmouth, which had exclusive
jurisdiction over and maintained that portion of the road. Id.
at 453-54. Eight months later, the plaintiff filed a motion for
leave to file a late notice of tort claim against the County of
Monmouth. Id. at 454.
We held Leidy could not show extraordinary circumstances,
because a "reasonable investigation within a reasonable time
following the accident would, no doubt, have led to prompt
identification of the County of Monmouth as the responsible party."
Id. at 460. "The issue then boils down to whether plaintiff was
diligent and made reasonable efforts to discover the identity of
the true tortfeasor." Id. at 461.
9 A-5231-15T2
Here, plaintiff argues it was reasonable "to attribute
ownership and control over the street containing the uncovered
manhole at issue to the City of Newark and, perhaps, the County
of Essex given the proximity to Frelinghuysen Avenue."4 However,
performing basic investigative tasks, such as conducting a title
search or requesting the record owner of the property from the
Newark Tax Assessor, would have revealed the ownership of the
street. Here, "the record is barren of any reasonable efforts
undertaken by plaintiff during the ninety-day period to ascertain
ownership, control or operation of the portion of the roadway[.]"
Id. at 461.
Like plaintiff here, Leidy tried to excuse his failure to
investigate by blaming the public entity he did serve with a notice
of claim for not informing him that another public entity was
responsible. He "cit[ed] as 'extraordinary circumstances' the
fact that the County of Ocean never suggested 'another public
entity was responsible for the roadway.'" Id. at 457. We did
"not view this circumstance under the present facts to be a
sufficient, much less extraordinary, reason warranting relaxation
of the time constraints of N.J.S.A. 59:8-8." Ibid. We found that
4
Plaintiff assumes Frelinghuysen Avenue is a county road. But
this section of Frelinghuysen Avenue is State Route 27.
N.J.S.A.
27:6-1.
10 A-5231-15T2
it was unreasonable to expect Ocean County, to have responded to
the plaintiff when the plaintiff waited to file the notice of
claim two days before the ninety-day deadline. Id. at 461.
Plaintiff here served a notice of claim on the City and County
two months before the ninety-day deadline. However, plaintiff
still must show defendant thwarted his investigation or obscured
its identity. Leidy,
398 N.J. Super. at 457-58.
Even before the 1994 amendment, when a more
permissive standard governed, courts
recognized that sufficient reasons could exist
for the filing of late notice of claim based
on misidentification of the responsible party
only where a plaintiff had been thwarted in
his or her diligent efforts to determine the
responsible party or where the tortfeasor's
identity had been actively obscured by the
original defendants.
[Id. at 457 (emphasis added).]
"Post-1994 amendment cases, utilizing the more demanding
'extraordinary circumstances' test, continued to insist that the
identity of the proper party be 'obscured' as a condition of
relaxing the time bar of N.J.S.A. 59:8-8." Id. at 458.
Here, as in Leidy, "there is no thwarting by the original
defendants of any efforts by plaintiff to discover that actual
fact." Id. at 461. There was no "official[] misrepresentation."
Id. at 457-58, 460 (distinguishing Zwirn v. Cty. of Hudson,
137 N.J. Super. 99, 101 (Law Div. 1975) (permitting late claim where
11 A-5231-15T2
the county police mistakenly told the plaintiff that a state road
was a county road), and Dambro v. Union Cty. Park Comm.,
130 N.J.
Super. 450, 453 (Law Div. 1974) (permitting late claim where the
borough tax assessor mistakenly told the plaintiff that borough
property was county property)).
Also "[a]bsent here is the dilatory conduct present in
Feinberg [v. N.J. Dep't of Envtl. Prot.,
137 N.J. 126 (1994)]."
Leidy,
398 N.J. Super. at 457-58, 460. In Feinberg, the State
Department of Environmental Protections leased a canal to a State
Authority with the knowledge of the Attorney General.
137 N.J.
at 129. After Feinberg gave notice to and sued the Department and
the Attorney General, they did not tell the plaintiff of the
unrecorded lease, failed to file a timely answer, defaulted, filed
an answer which did not name the Authority, failed to answer
interrogatories, had their answer stricken, drew a motion to
dismiss their answer with prejudice, and only right before the
hearing disclosed the involvement of the Authority. Id. at 129-
31.
In Feinberg, our Supreme Court emphasized that, "through
delay in answering the complaint and interrogatories, defendants
failed to disclose the identity of the Authority for two years
beyond the accrual of the claim." Id. at 135. Further, "[b]ecause
the lease between the [department] and the Authority was
12 A-5231-15T2
unrecorded, plaintiff and her counsel could not have known of the
Authority's involvement in the Canal" except from the defendants.
Ibid. Thus, the Court found the "problem was not that [Feinberg]
failed to make reasonable efforts to ascertain the identity of
such parties, but that the original defendants thwarted those
efforts." Id. at 134-35. Stressing "the singular context of this
case," the Feinberg Court held that, given "defendants' dilatory
tactics, the unique facts of this case support the conclusion that
notification to the [Department] constituted notification to the
Authority." Id. at 135.
By contrast, here the City told plaintiff the NHA was
responsible for the manhole within two weeks of plaintiff filing
his complaint, before its answer or any discovery was due.
Moreover, unlike Feinberg, it appears the ownership of the street
was a matter of public record which plaintiff could have
ascertained independently, but he made no effort and the City did
nothing to thwart such efforts. See D.D.,
213 N.J. at 152-53
(distinguishing cases where "correct identification of the
defendant as a public entity or public employee was not possible").
Notably, the Court in Feinberg relied on the defendants'
failure to answer the complaint or the interrogatories, and did
not suggest the defendants had a duty to inform the plaintiff,
during the ninety-day period for filing a notice of claim or the
13 A-5231-15T2
six-month period before suit can be filed, that another public
entity was responsible. See
N.J.S.A. 59:8-8. The Supreme Court
has not included such a duty in the goals of those periods:
"to allow the public entity at least six
months for administrative review with the
opportunity to settle meritorious claims prior
to the bringing of suit"; (2) "to provide the
public entity with prompt notification of a
claim in order to adequately investigate the
facts and prepare a defense"; (3) "to afford
the public entity a chance to correct the
conditions or practices which gave rise to the
claim"; and (4) to inform the State "in
advance as to the indebtedness or liability
that it may be expected to meet."
[McDade,
208 N.J. at 475-76 (citations
omitted).]
We reject plaintiff's suggestion that the City had a duty to
inform him within the ninety-day period if it believed that another
public entity was responsible. His service of a notice of claim
"upon the incorrect public entity . . . did not absolve plaintiff[]
of the obligation to promptly identify the [street]'s owner and
serve a timely notice of claim." See id. at 479 (citing Leidy,
398 N.J. Super. at 457). Plaintiff cannot excuse his failure to
do so where the City did nothing to thwart his investigation. In
any event, nothing in the record indicates the City knew that the
NHA owned or controlled the street, and that plaintiff had not
served a notice of claim against the NHA, until after he served
his complaint, which alerted the City he had not sued the NHA.
14 A-5231-15T2
Thus, this case is not "like Feinberg, Zwirn, and Dambo,
where the unique facts of the case obscured the public employment
of defendant" despite diligent efforts by the plaintiff. Lowe,
158 N.J. at 630 (citations omitted); see Eagan v. Boyarsky,
158 N.J. 632, 642 (1999); see also Forcella v. City of Ocean City,
70 F. Supp. 2d 512, 520 (D.N.J. 1999) (distinguishing Feinberg).
Plaintiff next argues that the identity of the proper party
was "obscured" as in Lowe,
158 N.J. at 630. There, a doctor
treating the plaintiff at a private hospital was also a professor
at a public university, UMDNJ. Id. at 612-13. We determined that
the doctor was not acting as a public employee, but the Supreme
Court reached the contrary conclusion after a lengthy analysis.
Id. at 614-24. The Court then found extraordinary circumstances
allowed the plaintiff to file a late notice of claim because
"[r]easonable people, indeed, reasonable judges, disagreed on the
employment status of UMDNJ professors practicing in private
hospitals," the doctor's "status as a public employee was obscured
by his apparent status as a private physician," and "Lowe had no
reason to suspect that her doctor was even associated with a public
entity." Id. at 629, 630. In Leidy, we distinguished the complex
areas of medical employment and malpractice and the simpler issue
of a fall on or near public property. Leidy, 398 N.J. Super. at
15 A-5231-15T2
458-60. Moreover, plaintiff knew the manhole was owned by a public
entity, but made no effort to find out which public entity.
Plaintiff attempts to analogize his case to our decision in
Blank v. City of Elizabeth,
318 N.J. Super. 106 (App. Div.), aff'd
as modified,
162 N.J. 150 (1999). Blank, "a non-English speaking,
sixty-one year old Russian immigrant," tripped over a pipe
protruding from the sidewalk abutting a home. Id. at 108. Blank
gave notice to and sued the homeowners, whose counsel ultimately
informed Blank the pipe belonged to the city. Ibid. We reversed
the order granting Blank's "deficient" motion to file a late notice
against the city. Id. at 108, 110.
Nonetheless, we remanded so Blank could try again to show
extraordinary circumstances. Id. at 115. We noted it was unclear
whether anything about the pipe suggested its ownership by a public
utility. Id. at 112. We drew a "distinction between knowing that
one has a cause of action against a public entity and not pursuing
it properly and timely for personal reasons and, on the other
hand, not timely knowing or being chargeable with timely knowledge
that a public entity may be liable for an injury." Id. at 113.
However, the Supreme Court in Blank rejected our decision to
remand, instead deciding to
affirm the Appellate Division's disposition to
the extent that it reversed the Law Division's
grant of permission to file a late notice of
16 A-5231-15T2
claim, but modify that disposition to preclude
a remand to the Law Division for a further
presentation of evidence to demonstrate
extraordinary circumstances justifying a late
notice of claim.
[Blank v. City of Elizabeth,
162 N.J. 150, 153
(1999).]
As the Court later explained, it found claims such as Blank's
"barred when the identity of the correct defendant was readily
discoverable within the ninety days[.]" D.D.,
213 N.J. at 153
(citing Blank,
162 N.J. at 152-53; Leidy,
398 N.J. Super. at 454);
see McDade,
208 N.J. at 477; Leidy,
398 N.J. Super. at 460.
Moreover, unlike in Blank, here plaintiff knew he had a cause
of action against a public entity and did not pursue it properly
because he made no effort to ascertain which public entity was
responsible. Also unlike in Blank, plaintiff here did not claim
his personal circumstances prevented him from doing so.
Additionally, plaintiff cites Ventola v. N.J. Veteran's Mem'l
Home,
164 N.J. 74, 82 (2000), which found that, because "the
dominant agency in providing veterans' benefits is the United
States Department of Veterans' Affairs," a medical malpractice
plaintiff's service of the notice of claim against that federal
agency but not the state veteran's agency gave rise to
extraordinary circumstances. Id. at 82. Plaintiff contends the
City was the dominant agency in providing roadways in Newark. This
17 A-5231-15T2
is a dubious contention, given that there are federal, state, and
county roadways in Newark. Ownership or control under the TCA
"does not simply mean any property falling within the geographical
boundaries of a municipality." Christmas v. Newark,
216 N.J.
Super. 393, 398 (App. Div. 1987).
In any event, we found Ventola distinguishable in Leidy:
Of course, as the Court itself noted in
Ventola, for purposes of applying the
"extraordinary circumstances" standard, there
is a fundamental difference between on the one
hand the "more complex areas [of] medical
malpractice or toxic tort causation" and on
the other hand, "a fall on the steps of a
courthouse or on an obstruction on a public
sidewalk," to which "[t]he notice provisions
of the Tort Claims Act are well suited[.]"
[Leidy,
398 N.J. Super. at 460 (alterations
in original) (quoting Ventola,
164 N.J. at 81-
82).]
In Leidy, we ruled Ventola's "federal-state jurisdiction"
concerns were inapplicable to the issue of what local agency was
responsible for the roadway, which was "much more akin to the
issue of the ownership of the offending utility valve on which the
plaintiff tripped in Blank." Ibid. Here, as in Leidy and Blank,
"reasonable investigation within a reasonable time following the
accident would, no doubt, have led to prompt identification of
. . . the responsible party." Ibid. Because plaintiff failed to
18 A-5231-15T2
make any investigation, the trial court did not abuse its
discretion in finding no extraordinary circumstances.
B.
In addition, the absence of "proof of due diligence in the
record precludes plaintiff from satisfying N.J.S.A. 59:8-9's other
requirement that a claimant file a late notice of tort claim within
'a reasonable time.'" Leidy,
398 N.J. Super. at 461. In Leidy,
we found the plaintiff's eight-month delay was unreasonable. Id.
at 462. As plaintiff's excuse that he "was simply not aware that
Monmouth County controlled the roadway" did "not suffice to
establish 'extraordinary circumstances,' neither does it render
reasonable the delay in filing plaintiff's motion to file a late
claim." Ibid. Similarly, plaintiff's excuse that he filed over
nine months after the accident was that he was unaware of the
ownership of the road is equally inadequate to establish reasonable
delay.
IV.
Finally, plaintiff argues the NHA is not prejudiced by the
late filing. He notes the City filed a third-party complaint
against the NHA on August 5, 2016, and asserts the litigation is
still in its infancy. However, NHA opposed plaintiff's motion to
file a late claim not by asserting prejudice, but by correctly
pointing out plaintiff failed to establish extraordinary
19 A-5231-15T2
circumstances. Thus, we need not reach the "substantial prejudice"
analysis. See, e.g., D.D.,
213 N.J. at 135, 140, 142 (holding a
trial "court is not authorized to grant leave to file a late notice
of tort claim" absent extraordinary circumstances, even though
"defendants did not advance any argument that they were prejudiced
by the untimely filing" and there was "no evidence that defendants
were prejudiced by the delay").
The trial court did not abuse its discretion in declining to
grant plaintiff permission to file a late notice of claim under
N.J.S.A. 59:8-9.
Affirmed.
20 A-5231-15T2
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