MARIA HERNANDEZ v. SNYDER HIGH SCHOOL
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1311-16T1
MARIA HERNANDEZ,
Plaintiff-Appellant,
v.
SNYDER HIGH SCHOOL and JERSEY
CITY BOARD OF EDUCATION,
Defendants-Respondents,
and
CITY OF JERSEY CITY,
Defendant.
Submitted January 9, 2018 - Decided January 24, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
2473-15.
Lipsky Portales, PA, attorneys for appellant
(Sean M. Lipsky and Elena Portales, of counsel
and on the briefs).
Nirenberg & Varano, LLP, attorneys for
respondents (Howard M. Nirenberg, of counsel;
Sandra N. Varano, on the brief).
PER CURIAM
Plaintiff Maria Hernandez appeals from the Law Division's
October 21, 2016 order granting summary judgment in favor of
defendants Snyder High School and Jersey City Board of Education
(Board) for failure to serve a timely notice of tort claim. We
affirm.
I.
Plaintiff alleges she was injured on November 20, 2014, when
she fell into an uncovered trench drain at Snyder High School, a
public school operated by the Board. The following day, plaintiff
delivered a handwritten note to the school stating:
Last night[,] my daughter and I were [at]
parents['] night at Innovation High School1
from 6:00 [p.m.] to 8:00 [p.m.]. After it was
over, we exited the building going down the
stairs to Kennedy [Boulevard] [and] made a
right to the bus stop. While we were
waiting[,] I backed up into the driveway to
cover from the wind, and as I stepped back,
my right foot stepped on the metal plate. But
my left foot and leg went right through the
hole[,] causing me to fall and hit my left
shoulder[,] elbow[,] and hand on the ground.
My leg was stuck inside the hole. Also[,] my
lower back hit the concrete floor. My
daughter assisted me to pull me out because
one of my legs [was] still in the hole. There
[were] witnesses[,] two Innovation
students[,] and a sibling of one student.
1
Innovation is a public school located in the basement of Snyder
High School.
2 A-1311-16T1
Plaintiff's note was signed, dated and contained her phone number.
It did not include her home address, the nature and extent of her
injuries, her loss or damages, or her intent to file a claim
against defendants.
Plaintiff thereafter retained counsel, and on December 12,
2014, counsel sent tort claim notices to the City of Jersey City
(City) and the Board. Both notices were sent to 280 Grove Street,
Jersey City, which is the address for City Hall. However, the
Board was never located there, but rather it maintained its
administrative office at 346 Claremont Avenue.
On June 8, 2015, plaintiff filed a complaint in the Law
Division against defendants for the personal injuries she
allegedly sustained on November 20, 2014. The summons and
complaint were served on Snyder High School, but again plaintiff
served the Board at City Hall rather than 346 Claremont Avenue.
Defendants failed to answer, and default was entered against
them on August 20, 2015. The Board contended it never received
the tort claim notice, and "had no knowledge of service of the
[c]omplaint or the [r]equest to [e]nter [d]efault until . . .
December 9, 2015." At defendants' request, plaintiff consented
to vacate the default. Defendants filed their answer on January
22, 2016, which asserted as an affirmative defense plaintiff's
3 A-1311-16T1
failure to timely provide a notice of claim under the Tort Claims
Act (TCA),
N.J.S.A. 59:1-1 to 12-3.
Following a period of discovery, defendants moved for summary
judgment, contending the lawsuit was barred because of plaintiff's
failure to serve them with the required notice of claim.
Defendants supported the motion with a certification from Luiggi
Campana, the Board Secretary/Business Administrator, averring that
a search of the Board's records failed to disclose any notice of
claim filed on behalf of plaintiff. Campana further certified
that "280 Grove Street is not, nor has it ever been, a location
of the Jersey City Board of Education. The Jersey City Board of
Education is located at 346 Claremont Avenue . . . ."
Plaintiff opposed the motion, arguing that material issues
of fact existed as to whether her notice of claim was mailed to
the proper address and whether it substantially complied with the
TCA. Specifically, plaintiff contended there was a factual issue
whether her handwritten note, delivered to Snyder High School the
day after the incident, substantially complied with the notice
requirement of the TCA. With respect to her December 12, 2014
notice of claim, plaintiff argued that "280 Grove Street is listed
as one of the three [Y]ellow [P]ages' addresses of the [B]oard of
[E]ducation [and] [d]efendants' motion for summary judgment leaves
unclear whether the listing is accurate . . . ."
4 A-1311-16T1
The trial court granted the motion on October 21, 2016. In
a comprehensive sixteen-page written opinion, Judge Daniel
D'Alessandro noted plaintiff was required by
N.J.S.A. 59:8-8 to
serve defendants with a tort claim notice within ninety days of
her accident, and that a motion for permission to file a late
notice of claim was not filed pursuant to
N.J.S.A. 59:8-9.
Citing
N.J.S.A. 18A:10-1 and Otchy v. City of Elizabeth Bd.
of Educ.,
325 N.J. Super. 98 (App. Div. 1999), the judge also
noted "[t]he [Board] and the City are separate public entities."
Judge D'Alessandro found that while the December 12, 2014 "tort
claim notice was promptly, timely and effectively served on the
City at [C]ity [H]all[,] [s]ervice on the [Board] and Snyder was
not effective at [C]ity [H]all." Rather, the judge found Campana's
certification was undisputed and "[t]he record does not present
any facts to support . . . plaintiff's contention that the [Board]
or Snyder could be properly served at [C]ity [H]all." Moreover,
"[t]he postings in the [online] Yellow [P]ages," upon which
plaintiff's counsel apparently relied, "were incorrect[,]" and
there was "no evidence" that "defendants were responsible for the
erroneous listing."
Addressing plaintiff's alternative argument, Judge
D'Alessandro acknowledged the doctrine of substantial compliance
5 A-1311-16T1
allows leniency from the strict notice requirements of the TCA,
but found it inapplicable here. The judge explained:
The "doctrine of substantial compliance" "has
been limited carefully to those situations in
which the notice, although both timely and in
writing, had technical deficiencies that did
not deprive the public entity of the effective
notice contemplated by the statute."
[citation omitted]. The doctrine requires the
moving party to show: (1) the lack of
prejudice to the defending party; (2) a series
of steps taken to comply with the statute
involved; (3) a general compliance with the
purpose of the statute; (4) a reasonable
notice of petitioner's claim; and (5) a
reasonable explanation why there was not
strict compliance with the statute. Ferreira
v. Rancocas Orthopedic Assocs.,
178 N.J. 144,
151 (2003) (citations omitted).
. . . .
The court cannot find on this record that the
[Board] and Snyder [High School] received
information satisfying "[t]he very purpose of
the [ninety]-day requirement . . . to compel
a claimant to expose his intention and
information early in the process . . . to
permit the public entity to undertake an
investigation while witnesses are available
and the facts are fresh." Lutz v. Gloucester,
153 N.J. Super. 461, 466 (App Div. 1977)
(discussing [the] purpose of
N.J.S.A. 58:8-
8).
Plaintiff's handwritten note did not express her intent to
pursue a claim but rather merely documented that the accident
occurred, and failed to include other information required by
N.J.S.A. 59:8-4, such as her address and injuries. Accordingly,
6 A-1311-16T1
the judge concluded the note was not "substantially compliant"
with the notice requirements of the TCA.
II.
On appeal, plaintiff contends defendants should be estopped
from arguing that she failed to comply with the notice requirements
of the TCA because they delayed answering the complaint until more
than one year after the incident, thereby precluding plaintiff
from seeking to file a late notice of claim as authorized by
N.J.S.A. 59:8-9. Plaintiff also argues her handwritten note,
delivered to Snyder High School the day after she fell,
substantially complies with the notice requirements of the TCA.
Finally, plaintiff contends summary judgment was improper because
the discovery period had not ended. We do not find these arguments
persuasive, and affirm substantially for the reasons set forth In
Judge D'Alessandro's thoughtful written opinion. We add the
following comments.
We review a trial court's summary judgment disposition de
novo based upon our independent review of the motion record,
applying the same standard as the trial court. Townsend v. Pierre,
221 N.J. 36, 59 (2015). The court should grant summary judgment
if the record establishes that there is "no genuine issue as to
any material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law." R. 4:46-2(c).
7 A-1311-16T1
An issue of fact is genuine if "considering the burden of
persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the
trier of fact." Ibid. "If there exists a single, unavoidable
resolution of the alleged disputed issue of fact, that issue should
be considered insufficient to constitute a 'genuine' issue of
material fact for purposes of Rule 4:46-2." Brill v. Guardian
Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995) (citing Anderson
v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986)).
As the Supreme Court continues to reaffirm, the "guiding
principle" of the TCA is "that 'immunity from tort liability is
the general rule and liability is the exception.'" D.D. v. Univ.
of Med. & Dentistry of N.J.,
213 N.J. 130, 134 (2013) (quoting
Coyne v. State Dep't of Transp.,
182 N.J. 481, 488 (2005)). "The
Legislature's waiver of sovereign immunity remains a limited one
and [this Court is] not free to expand that waiver beyond its
statutorily-established boundaries." Id. at 158.
As the Court further instructed in D.D., our courts may not
"permit sympathy for a particular plaintiff to obscure the
statutory standard [for a timely notice of claim] to the point of
obliterating it." Id. at 158. This is because "[t]he Legislature
has commanded that [such] relief be granted only in circumstances
8 A-1311-16T1
that are extraordinary." Ibid. Hence, neither "an attorney's
inattention, [n]or even an attorney's malpractice, constitutes an
extraordinary circumstance sufficient" to permit filing a notice
of claim outside of the one-year window of
N.J.S.A. 59:8-9, even
if there is a lack of prejudice to the plaintiff. Id. at 156; see
also Beauchamp v. Amedio,
164 N.J. 111, 118 (2000) (explaining the
more stringent standards for timely claim notices following the
TCA's amendment in 1994).
The Legislature has directed that "[n]o action shall be
brought against a public entity . . . under th[e] [TCA] unless the
claim upon which it is based shall have been presented in
accordance with the procedure set forth" by the Act.
N.J.S.A.
59:8-3 (emphasis added). Claimants "shall be forever barred from
recovering against a public entity" if, among other things, 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(a) (emphasis added).
We have repeatedly made clear that, after the ninety-day
deadline has passed and a plaintiff has not utilized the procedure
under
N.J.S.A. 59:8-9 to obtain an extension of that period up to
one year, courts lack jurisdiction to entertain tort claims if the
required notices were not timely filed. See, e.g., Iaconianni v.
N.J. Tpk. Auth.,
236 N.J. Super. 294, 298 (App. Div. 1989)
9 A-1311-16T1
("Because the late notice of claim was filed well beyond the one-
year outer limit, the trial court had no jurisdiction to extend
the filing period."); see also Pilonero v. Twp. of Old Bridge,
236 N.J. Super. 529, 532 (App. Div. 1989) ("After the one-year
limitation has passed, 'the court is without authority to relieve
a plaintiff from his failure to have filed a notice of claim, and
a consequent action at law must fail.'") (quoting Speer v.
Armstrong,
168 N.J. Super. 251, 255 (App. Div. 1979)). Indeed,
the filing of a late notice of claim with the public entity, in
the absence of prior court approval pursuant to
N.J.S.A. 59:8-9,
has been deemed a nullity. Rogers v. Cape May Cty.,
208 N.J. 414,
427 (2011).
With these principles in mind, we begin our analysis by noting
that plaintiff did not raise an estoppel argument in the trial
court. Consequently, we need not reach the issue. Nieder v.
Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973).
In any event, even if plaintiff had invoked the doctrine of
equitable estoppel in opposing defendants' summary judgment
motion, we conclude the doctrine is unavailing here. Rather, we
agree with defendants that, had they filed a timely answer to the
complaint asserting a notice defense under the TCA, plaintiff has
nonetheless failed to demonstrate she would have been successful
in moving to file a late notice of claim pursuant to N.J.S.A.
10 A-1311-16T1
59:8-9. Plaintiff's explanation for serving defendants with a
tort claim notice at the incorrect 280 Grove Street address is
that her attorney relied upon the addresses for the Board listed
in the online Yellow Pages. However, it is undisputed the Board
is a political entity distinct from the City, and its separate 346
Claremont Avenue address appears on its official website. Thus,
the Board's correct address was readily ascertainable, and
counsel's reliance on the Yellow Pages, a private publication, is
incompatible with a claim of extraordinary circumstances
sufficient to excuse plaintiff's failure to serve defendants with
a notice of claim within the ninety-day period prescribed by
N.J.S.A. 59:8-8.
Next, as Judge D'Alessandro correctly recognized, plaintiff's
handwritten note, delivered to Snyder High School on November 21,
2014, while timely, does not constitute substantial compliance
with the TCA's notice requirements. Specifically,
N.J.S.A. 59:8-
4, entitled "Contents of claim," requires that:
A claim shall be presented by the claimant or
by a person acting on his behalf and shall
include:
a. The name and post office address of the
claimant;
b. The post-office address to which the person
presenting the claim desires notices to be
sent;
11 A-1311-16T1
c. The date, place and other circumstances of
the occurrence or transaction which gave rise
to the claim asserted;
d. A general description of the injury, damage
or loss incurred so far as it may be known at
the time of presentation of the claim;
e. The name or names of the public entity,
employee or employees causing the injury,
damage or loss, if known; and
f. The amount claimed as of the date of
presentation of the claim, including the
estimated amount of any prospective injury,
damage, or loss, insofar as it may be known
at the time of the presentation of the claim,
together with the basis of computation of the
amount claimed.
[(Emphasis added).]
Here, plaintiff's note did not provide her address, the nature
and extent of her injuries, the damages or loss incurred, and the
amount claimed. The note also did not state plaintiff intended
to file a lawsuit against the Board. Accordingly, the note was
akin to an accident report rather than a notice of tort claim, and
the trial court correctly concluded it did not substantially comply
with
N.J.S.A. 59:8-4.
Finally, the absence of additional discovery did not inhibit
the grant of summary judgment. While summary judgment is often
inappropriate when discovery has not been completed and "critical
facts are peculiarly within the moving party's knowledge,"
Velantzas v. Colgate-Palmolive Co.,
109 N.J. 189, 193 (1988)
12 A-1311-16T1
(quoting Martin v. Educ. Testing Serv., Inc.,
179 N.J. Super. 317,
326 (Ch. Div. 1981)), plaintiff has not shown that further
discovery would have changed the relevant facts. See Wellington
v. Estate of Wellington,
359 N.J. Super. 484, 496 (App. Div. 2003);
Auster v. Kinoian,
153 N.J. Super. 52, 56 (App. Div. 1977).
Here, it is undisputed that plaintiff sent notices of claim
to both the City and the Board at 280 Grove Street, the address
for City Hall. Judge D'Alessandro correctly determined that the
notice of claim sent to the City was not sufficient to provide
notice to the Board, which is a distinct entity maintaining a
separate address. Luiggi Campana, the Board's Secretary and
Business Administrator, certified the Board never received the
notice of claim sent to the wrong address. Plaintiff has failed
to demonstrate that additional discovery would change these
operative facts, or the legal conclusions that flow from them.
Affirmed.
13 A-1311-16T1
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