CELESTINA COCCA v. NEW JERSEY TRANSIT CORP
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2883-16T3
CELESTINA COCCA,
Plaintiff-Appellant,
v.
NEW JERSEY TRANSIT CORP.
and JOSEPH VEGA,
Defendants-Respondents,
and
WENDY A. MILLER, EDWARD MILLER
and MARC COCCA,
Defendants.
___________________________________________
MARC COCCA,
Plaintiff,
v.
WENDY A. MILLER, EDWARD MILLER,
NJ TRANSIT CORP., JOSEPH VEGA,
and AMERICAN COMMERCE INSURANCE CO.,
Defendants.
____________________________________________
Submitted February 13, 2018 – Decided April 20, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-4397-
15.
Arturi, D'Argenio, Guaglardi & Meliti, LLP,
attorneys for appellant (Anthony X. Arturi,
Jr., of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondents (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; David
A. Tuason, Deputy Attorney General, on the
brief).
PER CURIAM
Plaintiff Celestina Cocca appeals from an order entered by
the Law Division on January 22, 2016, which dismissed with
prejudice all claims and cross-claims against defendants New
Jersey Transit Corporation (NJT) and Joseph Vega (Vega)
(collectively defendants). Plaintiff also appeals from an order
dated April 6, 2016, which denied her motion for reconsideration.
We affirm.
I.
This action arises from a multi-vehicle accident that took
place on July 14, 2013, at the Pleasantville Toll Plaza on the
Atlantic City Expressway (ACE) in Atlantic City, New Jersey.
According to plaintiff, she and her husband, Marc Cocca (Cocca),
were traveling eastbound on the ACE in an automobile that Cocca
2 A-2883-16T3
was operating. At that time, Wendy A. Miller (Miller) was operating
an automobile owned by her husband Edward Miller (E. Miller),
which was also traveling eastbound on the ACE.
Plaintiff claims that as Miller approached the toll plaza,
she was unsure which toll to use and decided to enter the EZ Pass
lane. Miller then crossed into an adjacent lane of travel and
struck the right rear of a NJT bus that Vega was operating. The
NJT bus collided with the Cocca automobile, which struck a concrete
median barrier and was dragged about forty feet.
The New Jersey State Police (NJSP) arrived at the scene
shortly after the accident and prepared a Crash Investigation
Report (CIR). Plaintiff was transported to Atlantic City Medical
Center, where she was treated for injuries to her head, back,
neck, knees, and legs. On the day of the accident, NJT prepared
an Operator's Occurrence Report, which Vega signed, and an Incident
Report.
Plaintiff and Cocca retained separate counsel for the
purposes of bringing lawsuits for damages arising from the
accident. Under the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to 12-
3, a person may not bring an action against a public entity or
public employee unless the person presents the public entity with
a notice of claim (NOC), in accordance with the procedures set
forth in the TCA.
N.J.S.A. 59:8-3.
3 A-2883-16T3
On October 11, 2013, Cocca submitted a NOC to NJT, which
identified plaintiff as a witness to the accident and included a
copy of the NJSP's CIR. That same day, plaintiff sent a NOC to the
New Jersey Treasury Department (NJTD).
On October 15, 2013, NJT responded to the NOC, stating that
it had investigated the accident and determined that there was no
negligence or liability on the part of NJT or any of its employees.
By letter dated January 16, 2014, the NJTD acknowledged receipt
of plaintiff's NOC but stated that it had been served on the wrong
public entity.
On June 24, 2015, plaintiff filed a complaint naming Miller,
E. Miller, NJT, Vega, and Cocca as defendants. Cocca also filed a
separate action.
On November 5, 2015, in lieu of an answer, defendants filed
a motion to dismiss the claims against them pursuant to Rule 4:6-
2(e). Defendants argued that plaintiff's claims must be dismissed
because there was no record plaintiff had filed a timely NOC with
NJT. Plaintiff opposed the motion. On December 4, 2015, the trial
court consolidated plaintiff's and Cocca's lawsuits.
On January 8, 2016, the motion judge heard oral argument on
defendants' motion. Plaintiff argued that her claims should not
be dismissed because she had substantially complied with the TCA's
NOC requirements, defendants would suffer no prejudice, and
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defendants had notice of plaintiff's potential claim from Cocca's
NOC and the NJSP's CIR. In response, defendants argued that
plaintiff's claims must be dismissed because NJT is a "sue and be
sued" entity, which is separate and apart from the departments and
agencies of the State government. They therefore argued that the
NOC that plaintiff's counsel sent to the NJTD was legally deficient
under the TCA.
The motion judge rejected plaintiff's argument that Cocca's
NOC provided defendants with notice of a potential claim by
plaintiff. The judge also determined that a potential claimant may
not rely upon the doctrine of substantial compliance when the NOC
is served on the wrong public entity. However, the judge adjourned
the motion to January 22, 2016, and directed the parties to submit
supplemental briefs on whether NJT is a "sue and be sued" entity.
At the conclusion of oral argument on January 22, 2016, the
motion judge placed her decision on the record. The judge rejected
plaintiff's argument that she had substantially complied with the
NOC requirements under the TCA and granted defendants' motion to
dismiss because plaintiff had served her NOC on the wrong public
entity. The judge found that plaintiff could not rely upon the NOC
filed with the NJTD, and that neither the NJTD nor NJT had done
anything to mislead plaintiff with regard to the filing of the
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NOC. The judge entered an order dated January 22, 2016, dismissing
plaintiff's claims against defendants with prejudice.
On January 29, 2016, plaintiff served a subpoena duces tecum
upon NJT, seeking all documents in NJT's file pertaining to the
accident. The subpoena was returnable February 16, 2016. On
February 9, 2016, plaintiff filed a motion for reconsideration of
the court's January 22, 2016 order. Plaintiff argued that the
court had not correctly applied the substantial compliance
doctrine.
On February 25, 2016, NJT produced documents in response to
plaintiff's subpoena, which included the Operator's Occurrence
Report, the Incident Report, Cocca's NOC, and the NJSP's CIR.
Plaintiff supplemented her motion for reconsideration with the
documents NJT had produced.
On April 1, 2016, the motion judge heard oral argument and
denied plaintiff's motion for reconsideration. The judge stated
that NJT was a "sue and be sued" public entity, which is an entity
that is separate and distinct from the departments and agencies
of the State's government. The judge again determined that filing
of the NOC with the NJTD was not a filing with NJT, and it was not
substantial compliance with the TCA's NOC requirements.
On October 24, 2016, plaintiff settled with the Miller
defendants, and thereafter dismissed her claims against Cocca.
6 A-2883-16T3
Cocca dismissed the claims he asserted against defendants in his
separate action. Plaintiff's appeal followed.
II.
We note initially that the record does not disclose whether
Cocca's claims against American Commerce Insurance Company
(American Commerce) remain pending in the trial court. Rule 2:2-
3(a)(1) provides that appeals from the trial divisions of the
Superior Court may only be taken from "final judgments." To be
appealable as of right under Rule 2:2-3(a)(1), the judgment or
order must be final as to all parties and all issues. Janicky v.
Point Bay Fuel, Inc.,
396 N.J. Super. 545, 549 (App. Div. 2007)
(citing S.N. Golden Estates, Inc. v. Cont'l Cas. Co.,
317 N.J.
Super. 82, 87 (App. Div. 1998)).
The rule of finality applies to all issues and all parties
in consolidated actions. Prudential Prop. Ins. v. Boylan,
307 N.J.
Super. 162, 165 n.2 (App. Div. 1998); Pressler & Verniero, Current
N.J. Court Rules, cmt. 2.2.2 on R. 2:2-3 (2017). Therefore, if
Cocca's claims against American Commerce remain pending in the
trial court, the January 22, 2016 order from which plaintiff has
appealed is not final and appealable as of right under Rule 2:2-
3(a)(1), and can only be reviewed by leave granted pursuant to
Rule 2:2-4.
7 A-2883-16T3
We have determined that in the event Cocca's claims against
American Commerce remain pending in the trial court, leave to
appeal from the trial court's order of January 22, 2016, as within
time should be granted pursuant to Rule 2:4-4(b)(2). Plaintiff's
appeal was taken within the time for appeals from final judgments,
the issues have been fully briefed, and good cause exists to
resolve the issues that plaintiff has raised at this time.
III.
On appeal, plaintiff argues: (1) the trial court erred by
granting defendants' motion to dismiss because she presented
evidence sufficient to establish substantial compliance with the
NOC requirements of the TCA; (2) the trial court should have
estopped defendants from asserting a lack of proper service of the
NOC; and (3) the court should have granted her motion for
reconsideration because its decision was palpably incorrect and
new information had been provided.
We note initially that when the court reviews an order
dismissing a complaint pursuant to Rule 4:6-2(e), we exercise de
novo review and "owe[] no deference to the trial court's
conclusions." Gonzalez v. State Apportionment Comm'n,
428 N.J.
Super. 333, 349 (App. Div. 2012) (quoting Rezem Family Assocs. LP
v. Borough of Millstone,
423 N.J. Super. 103, 114 (App. Div.
2011)). In reviewing a motion to dismiss under Rule 4:6-2(e), our
8 A-2883-16T3
review "is limited to examining the legal sufficiency of the facts
alleged on the face of the complaint." Printing Mart-Morristown
v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989) (citing Rieder v.
Dep't of Transp.,
221 N.J. Super. 547, 552 (App. Div. 1987)).
The TCA "is the statutory mechanism through which the [State]
effected a [limited] waiver of sovereign immunity." D.D. v. Univ.
of Med. & Dentistry of N.J.,
213 N.J. 130, 133 (2013). Under the
TCA, a claimant may not bring suit against a public entity or
public employee unless the claimant presents the public entity
involved with a NOC within ninety days after the cause of action
accrues.
N.J.S.A. 59:8-7;
N.J.S.A. 59:8-8. Generally, a cause of
action accrues when the alleged negligent act or omission occurred.
Beauchamp v. Amedio,
164 N.J. 111, 117 (2000) (citing Fuller v.
Rutgers, The State Univ.,
154 N.J. Super. 420, 423 (App. Div.
1977); Torres v. Jersey City Med. Ctr.,
140 N.J. Super. 323, 326
(Law Div. 1976)).
The TCA differentiates between a "public entity" and "the
State."
N.J.S.A. 59:1-3. A public entity "includes the State, and
any county, municipality, district, public authority, public
agency, and any other political subdivision or public body in the
State." Ibid. The State is defined as "the State and any office,
department, division, bureau, board, commission or agency of the
State," but does not include "any such entity which is statutorily
9 A-2883-16T3
authorized to sue and be sued." Ibid. NJT is authorized under
N.J.S.A. 27:25-5(a) to "sue and be sued." See also Muhammad v.
N.J. Transit,
176 N.J. 185, 193 (2003) (holding that NJT is a "sue
and be sued" public entity under the TCA).
In this case, there is no dispute that plaintiff's cause of
action accrued on July 14, 2013, the date of the accident.
Consequently, plaintiff had until October 11, 2013, to file a NOC
with NJT. It is undisputed that plaintiff never filed a NOC with
NJT. Rather, plaintiff filed a NOC with the NJTD, an entity that
is not the public entity involved, and is legally distinct from
NJT. By failing to file a NOC with NJT within ninety days after
the cause of action accrued, plaintiff is precluded from asserting
any claims against defendants with regard to the accident of July
14, 2013.
We note that in certain limited circumstances, a claimant may
move in the trial court for leave to file a late NOC.
N.J.S.A.
59:8-9. To succeed on such motion, the claimant must demonstrate
that the late filing was the result of "extraordinary
circumstances" and that the public entity "has not been
substantially prejudiced" by the delay. Ibid.
The statute does not define the term "extraordinary
circumstances." However, courts have held that a claimant's
failure to conduct a reasonable investigation to determine the
10 A-2883-16T3
public entity actually responsible for the claimant's injury does
not constitute an extraordinary circumstance that would permit the
filing of a NOC beyond the time prescribed by the TCA. D.D.,
213 N.J. at 153 (citing Blank v. City of Elizabeth,
162 N.J. 150, 152–
53 (1999); Leidy v. Cty. of Ocean,
398 N.J. Super. 449, 454 (App.
Div. 2008)).
As noted, the TCA requires that a claimant serve a NOC upon
the public entity allegedly involved in the matter.
N.J.S.A. 59:8-
7;
N.J.S.A. 59:8-8. A claimant's unfamiliarity with the TCA's
requirements does not, however, excuse the failure to file the NOC
with the correct public entity. S.P. v. Collier High Sch.,
319 N.J. Super. 452, 465 (App. Div. 1999). "[I]gnorance of the [TCA's
requirements] . . . 'without more, does not constitute sufficient
reason for . . . delay.'" Ibid. (quoting O'Neill v. City of Newark,
304 N.J. Super. 543, 552 (App. Div. 1997)). To obtain permission
to file a late notice of claim, the claimant must establish that
the correct entity's identity was obscured or misleading. Lowe v.
Zarghami,
158 N.J. 606, 628 (1999).
In this case, plaintiff argues that it was unreasonable for
NJT to "insist that persons wishing to file a claim against it use
its particularized [NOC] form and then not make that form readily
available via the internet." Plaintiff also argues it was
unreasonable for NJT to provide "no information on its website for
11 A-2883-16T3
how and where to file a notice of claim." These arguments are
unavailing.
As the motion judge determined, plaintiff has not shown
"anything on [NJT's] website that would mislead people into
thinking that they can file a [NOC] with the [NJTD] and not [with]
[NJT]." The NJT website does not explain the procedure to be
followed. However, there is no evidence that NJT attempted to
conceal its identity or that the NJTD misled plaintiff with regard
to the filing of the NOC. We conclude there is no extraordinary
circumstance to justify the filing of a late NOC.
IV.
Plaintiff argues that the trial court erred by dismissing her
claims against defendants because she substantially complied with
the NOC requirements of TCA. We disagree.
Substantial compliance is an equitable doctrine intended "to
avoid the harsh consequences that flow from technically inadequate
actions that nonetheless meet a statute's underlying purpose."
Cty. of Hudson v. State, Dep't of Corr.,
208 N.J. 1, 21 (2011)
(quoting Galik v. Clara Maass Med. Ctr.,
167 N.J. 341, 352 (2001)).
To warrant application of the doctrine, a party must 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 [a plaintiff's]
12 A-2883-16T3
claim; and (5) a reasonable explanation why
there was not strict compliance with the
statute.
[Ferreira v. Rancocas Orthopedic Assoc., 178
N.J. 144, 151 (2003).]
Although the substantial compliance doctrine has occasionally
been applied to matters under the TCA, the doctrine "has been
limited carefully to those situations in which the notice, although
both timely and in writing, had technical difficulties that did
not deprive the public entity of the effective notice contemplated
by the statute." D.D.,
213 N.J. at 159. In D.D., the Court found
"no basis to extend the substantial compliance theory so as to
relieve plaintiffs of their obligation to comply with the statute's
requirement that they file a notice, and that it be in writing."
Id. at 159–60.
Plaintiff maintains, however, that the NOC that Cocca filed
with NJT establishes that she substantially complied with the
TCA's NOC requirements. In support of that argument, plaintiff
cites Speer v. Armstrong,
168 N.J. Super. 251 (App. Div. 1979).
In Speer, the plaintiff was injured after falling over the root
of a tree that was owned by a public entity, but located on private
property. Id. at 254. Plaintiff filed a lawsuit against the
property owner, who in turn filed a third-party complaint against
the public entity. Ibid.
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Plaintiff then moved in the trial court to amend her complaint
to assert a claim against the public entity, and the court denied
the motion and dismissed the complaint. On appeal, we held that
plaintiff was not required to file a timely NOC to proceed directly
against the public entity. Id. at 255-56. We held that plaintiff
could rely on the NOC filed by defendants as substantial compliance
with plaintiff's own notice obligation. Ibid. We stated that the
public entity's position was "the same whether it receive[d] the
notice from plaintiff or from a third-party plaintiff." Id. at
257. In this case, however, the NOC that Cocca filed provided NJT
notice of Cocca's claim. It did not provide notice of plaintiff's
claim.
In support of her argument, plaintiff also cites Milacci v.
Mato Realty Co., Inc.,
217 N.J. Super. 297 (App. Div. 1987). In
that case, one spouse filed a NOC, but the spouse who asserted a
per quod claim did not file a NOC. Id. at 299. We determined that
the spouse asserting the per quod claim did not have to file a
separate NOC because "any investigation made by the State to
determine the merits of the wife's claim necessarily would cover
the same ground as the per quod claim of the husband." Id. at 306.
Plaintiff's reliance on Millaci is misplaced. In this case,
plaintiff is not asserting a per quod claim. She is alleging she
sustained injuries to her head, back, neck, knees, and legs, which
14 A-2883-16T3
were not identified or referenced in Cocca's NOC. Although
plaintiff was identified in Cocca's NOC as a spouse and witness,
the NOC did not provide the required information about plaintiff's
claim and did not relieve plaintiff of her statutory obligation
to file her own NOC with regard to the accident of July 14, 2013.
See Pilonero v. Twp. of Old Bridge,
236 N.J. Super. 529, 534 (App.
Div. 1989) (finding that despite one accident, there existed "two
entirely separate claims by different parties with different
injuries and damages are involved").
We therefore conclude that the motion judge correctly
determined that the doctrine of substantial compliance does not
apply in this case. Plaintiff's filing of a NOC with the NJTD and
Cocca's NOC do not constitute substantial compliance with the
TCA's NOC requirements.
V.
Next, plaintiff argues the court should have estopped
defendants from asserting that she did not properly serve her NOC.
Plaintiff argues that it is fundamentally unfair to "punish" her
with the "drastic sanction" of dismissal with prejudice since
defendants failed to show that they were prejudiced by her failure
to file the NOC with NJT within the time prescribed by the TCA.
In support of her argument, plaintiff relies upon Murray v.
Brown,
259 N.J. Super. 360 (Law Div. 1991). In Murray, the Law
15 A-2883-16T3
Division noted that even though a party fails to show substantial
compliance with the TCA's NOC requirements, a public entity
nevertheless may be estopped from asserting such failure if "the
interest of justice, morality and common fairness dictate that
course." Id. at 363–64 (citing Anske v. Borough of Palisades Park,
139 N.J. Super. 342, 350–51 (App. Div. 1976)).
The plaintiff in Murray filed a timely notice of claim,
containing all of the information required by the TCA. Id. at 362.
Defendants moved to dismiss the complaint because the plaintiff
failed to comply with
N.J.S.A. 59:8-6. Ibid. The court held:
[w]hen a governmental entity receives a claim,
however defective, it is unreasonable for it
to essentially disregard the claim because of
deficiencies. The interests of justice and
fairness require that the claimant be promptly
advised of the deficiencies and that failure
to cure will result in rejection of the claim
by the entity and a possible loss of the right
to maintain a civil action.
[Id. at 365.]
Plaintiff's reliance on Murray is misplaced. Here, plaintiff
did not submit a deficient NOC to NJT. Rather, plaintiff failed
to file any NOC with the NJT, the public entity involved in the
incident that gave rise to her claim. Thus, defendants may not be
estopped from asserting plaintiff's failure to comply with the
statutory NOC requirements.
16 A-2883-16T3
Plaintiff also contends the trial court erred by failing to
grant her motion for reconsideration. This argument is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
17 A-2883-16T3
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