HOWARD GARTENBERG v. CITY OF HACKENSACK
Annotate this CaseNOT 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-3655-19
HOWARD GARTENBERG,
Plaintiff-Appellant,
v.
CITY OF HACKENSACK,
CITY OF HACKENSACK
DEPARTMENT OF PUBLIC
WORKS SHADE TREE
ADVISORY COMMITTEE,
MARY PERRONE,
SALVATORE PERRONE,
ANGELA HENRICKS, and
BRIAN HENRICKS,
Defendants-Respondents.
_____________________________
Argued September 27, 2021 – Decided October 25, 2021
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-1915-20.
Antonio S. Grillo argued the cause for appellant
(Jacoby & Meyers, LLP, attorneys; Frances M. Bova,
on the briefs).
Bradley D. Tishman argued the cause for respondents
City of Hackensack and City of Hackensack
Department of Public Works Shade Tree Advisory
Committee (Cleary Giacobbe Alfieri Jacobs, LLC,
attorneys; Bradley D. Tishman, of counsel and on the
brief).
PER CURIAM
Plaintiff Howard Gartenberg challenges a May 8, 2020 Law Division
order denying his motion to file a late notice of claim against defendants, City
of Hackensack and Hackensack Department of Public Works Shade Tree
Advisory Committee, under the New Jersey Tort Claims Act (TCA), N.J.S.A.
59:1-1 to 12-3. We affirm.
I.
In evaluating the issues raised on appeal, we have assumed all facts
alleged by plaintiff to be true and have given him the benefit of all inferences
from the motion record. Feinberg v. N.J. Dep't of Env't Prot., 137 N.J. 126, 129
(1994).
On July 22, 2019, plaintiff fell and injured himself while walking on a
sidewalk in Hackensack. He was transported by ambulance to a hospital for
treatment after he reported "trouble lifting his left knee due to his sciatic nerve"
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and pain in his right shoulder and elbow. Upon discharge, he was admitted to
an inpatient rehabilitation facility for continued medical care.
On September 25, 2019, plaintiff filed notices of claim with the municipal
defendants alleging those entities were "negligent, wanton, reckless and careless
in allowing, causing and/or permitting the aforesaid sidewalk to be, become
and/or remain in a dilapidated condition and in a state of disrepair causing
dangerous, hazardous and unsafe conditions." The notices, along with all
included authorizations, were executed by plaintiff's then-counsel and indicated
plaintiff sustained "serious" and "permanent" injuries including a "right, upper
extremity fracture" caused by his trip and fall on a raised sidewalk adjacent to 6
Spring Valley Road.
Plaintiff also stated he sought $3 million in personal injury damages and
provided the names of certain of his health care providers. Under the notices'
medical reports and records authorization section, plaintiff specifically limited
the release of his medical records only to Bergen Risk Managers, the municipal
defendants' insurer. Plaintiff's counsel did not complete the authorization for
plaintiff's employment records.
The following day, on September 26, 2019, the City of Hackensack sent a
letter to plaintiff's counsel indicating it received plaintiff's notices but that his
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claims would not be considered filed until he returned a completed "official
form" the city adopted, which it attached. The City of Hackensack's specialized
form asked for more detailed information than that provided on September 25,
2019, such as a more precise calculation of damages, an expansive medical
release authorization, and confirmation that plaintiff had not previously sued
defendants.
Instructions accompanying the specialized form stated in bold, underlined
lettering that authorization "for release of hospital, medical, insurance and
pharmacy records must be completed," and that failure to do so would "result in
the claim being treated as not being properly filed." The form authorized the
released of medical information not only to Bergen Risk Managers, but also to
Hackensack and all of its agents.
Plaintiff failed to complete the specialized form over the ensuing six
months and instead, on March 19, 2020, moved to file a late notice of claim. In
support, plaintiff's attorney Ryan Martinez, who despite attesting at oral
argument that he did not commence employment at the law firm representing
plaintiff until January 2020, submitted a certification stating plaintiff received
"a complex fracture of the right elbow which required three . . . surgeries with
insertion of hardware." Martinez further certified that plaintiff retained his
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office on August 5, 2019, while plaintiff was still in the hospital, and that at the
time plaintiff only indicated he fell "in the vicinity of his chiropractors' office."
Martinez also indicated plaintiff informed an unidentified individual in
his office on September 6, 2019 that he would be unable to leave the
rehabilitation facility and confirm the location of his fall for another six weeks.
Martinez stated his office communicated with the Hackensack Police
Department on September 19, 2019, which reported plaintiff fell at 6 Spring
Valley Road. That address was also contained in the Department's investigation
report which plaintiff's counsel received five days later.
Plaintiff met with his counsel in late December 2019 to confirm the
location of the incident and take photographs of the sidewalk. Martinez stated
that once his office reviewed the photos, counsel "realized that the area of the
fall was in front of 20 Spring Valley Road, not 6 Spring Valley Road."
Martinez also certified that the purpose of the motion was "simply [to]
correct[]the address of the incident." Notably, plaintiff appended a copy of
amended notices with the 20 Spring Valley Road address, using the forms that
Hackensack previously indicated in their September 26, 2019 letter were
insufficient.
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It was not until May 4, 2020, that plaintiff filed notices of claim using the
specialized forms. The May 4, 2020 notices included additional information
regarding plaintiff's damages claim, provided an operative report from his
surgeon dated July 26, 2019, and a post-operative wellness report dated
September 10, 2019. Plaintiff also explained that his $3 million demand
included claims for pain and suffering, anxiety, stress, mental anguish, and past
and present medical expenses, and informed the municipal defendants, contrary
to his September 2019 notice, that certain of his medical costs were covered by
his insurance and provided the applicable policy number. He also provided
photographs of the incident site and responded that he had not previously filed
a claim against the municipal defendants.
The court denied plaintiff's motion in a May 8, 2020 order. In the judge's
corresponding oral statement of reasons, he found "nothing [was] hidden by
Hackensack" and plaintiff failed to use the correct claim form despite having a
"full month" before the ninety-day deadline to file such notice. The judge also
found no evidence that plaintiff was incapacitated because the last medical
record he submitted related to treatment on or about September 10, 2019, and
plaintiff did not provide any certification "detailing what the issues were
medically for him during that time period in question."
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The judge also noted plaintiff did not suffer a neurological injury and the
record contained no competent proofs to indicate that plaintiff could not
communicate with his attorneys while hospitalized or in rehabilitation. Nor did
plaintiff indicate why his attorneys could not meet with him at the rehabilitation
facility.
Without a competent certification from plaintiff, the judge, relying on
Wood v. County of Burlington, 302 N.J. Super. 371 (App. Div. 1997), and
Newberry v. Township of Pemberton, 319 N.J. Super. 671 (App. Div. 1999),
denied plaintiff's application and concluded plaintiff failed to establish
extraordinary circumstances warranting the filing of a late notice of claim. He
noted that even if he accepted counsel's certification, the only personal
knowledge Martinez could properly attest to would be that based on his
employment with the law firm after January 2020. The judge determined there
was "nothing [in the record] to account for the time period from early September
through January of 2020" that would explain why plaintiff could not
communicate with Martinez's office.
This appeal followed in which plaintiff asserts that the judge erred in
denying his application because he substantially complied with the TCA's notice
requirements. Alternatively, he argues that the judge committed error in
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denying him permission to file a late notice of claim because the judge
incorrectly concluded that he did not establish extraordinary circumstances and
failed to consider that defendants would not be prejudiced by a late filing.
II.
The decision to grant permission to file a late TCA notice 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. v. Univ. of Med. &
Dentistry of New Jersey, 213 N.J. 130, 147 (2013) (alteration in original)
(quoting Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)); see also
N.J.S.A. 59:8–9. An abuse of discretion "arises when a decision is made without
a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (internal quotation marks omitted).
Further, we generally examine "more carefully cases in which permission
to file a late claim has been denied than those in which it has been granted, 'to
the end that wherever possible cases may be heard on their merits.'" Feinberg,
137 N.J. at 134 (quoting S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J. 107, 122
(1977)). Therefore, "any doubts which may exist should be resolved in favor of
the application." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting
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Feinberg, 137 N.J. at 134). In determining whether to deny permission to file a
late notice, the court must consider all of the circumstances in combination.
Ibid.
III.
As noted, plaintiff initially contends that the judge erred in denying his
application because he "substantially compl[ied]" with the TCA's notice
requirements. In support, he relies on an unpublished federal case and Lebron
v. Sanchez, 407 N.J. Super. 204 (App. Div. 2009), Henderson v. Herman, 373 N.J. Super. 625 (App. Div. 2004), Murray v. Brown, 259 N.J. Super. 360 (Law
Div. 1991), Dambro v. Union County Park Commission, 130 N.J. Super. 450
(Law Div. 1974), and Ewing v. Cumberland County, 152 F. Supp. 3d 269 (D.N.J.
2015). Plaintiff also distinguishes Newberry, 319 N.J. Super. 671, and Wood,
302 N.J. Super. 371, arguing that, unlike those cases, he "provided all material
information." We have considered and disagree with all of these arguments.
Claims against a public entity for damages are governed by the TCA
which defines the extent of the Legislature's waiver of sovereign immunity and
"establishes the procedures by which claims may be brought." Beauchamp v.
Amedio, 164 N.J. 111, 116 (2000). Pursuant to the TCA, any plaintiff bringing
a tort suit against a public entity must file a pre-suit notification of the claim in
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writing within ninety days of the accrual of the action or else be forever barred
from asserting that cause of action. Guzman v. City of Perth Amboy, 214 N.J.
Super. 167, 171 (App. Div. 1986). "The rationale underlying the notice
requirement of the [TCA] is to expedite investigation with the hope of reaching
a nonjudicial settlement and to allow the public entity prompt access to
information about the claim so that it may prepare a defense." Wood, 302 N.J.
Super. at 375 (quoting Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533
(App. Div. 1989)).
The TCA "imposes strict requirements upon litigants seeking to file
claims against public entities." McDade v. Siazon, 208 N.J. 463, 468 (2011).
Among those requirements is that the claimant, prior to initiating suit, file a
notice of claim describing:
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; 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
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the time of the presentation of the claim, together with
the basis of computation of the amount claimed.
[N.J.S.A. 59:8-4.]
The statute also permits a public entity to request additional information
through a specialized claim form. See N.J.S.A. 59:8-6. "[A] plain reading of
N.J.S.A. 59:8-6 shows that the additional information which a public entity is
permitted to demand in its notice of claim form is not limited to the categories
of information listed in that section." Wood, 302 N.J. Super. at 377. The public
entity retains "authority to decide for [itself] what information must be provided
by claimants." Ibid. This interpretation is consistent with the purpose of
"assur[ing] the fair and full disclosure of information necessary to the orderly
and expedient administrative disposition of claims." Id. at 378 (alteration in
original) (quoting Comment on N.J.S.A. 59:8-6).
"Once a public entity adopts a personalized notice of claim form pursuant
to N.J.S.A. 59:8-6, which requires information that is more detailed than is
otherwise required, it is incumbent upon a claimant to provide the information
requested in the form." Ibid. (quoting Navarro v. Rodriguez, 202 N.J. Super.
520, 529 (Law Div. 1984)). "Mere compliance with N.J.S.A. 59:8-4 cannot save
a notice of claim which does not also substantially comply with N.J.S.A. 59:8- -
6." Ibid. Plaintiffs are "under a statutory duty to obtain and provide" the
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information required by the township's specialized claim form, and "failure to
do so plainly violate[s] the letter and spirit of N.J.S.A. 59:8-6." Ibid. N.J.S.A.
59:8-6 does not require a claimant to provide the supplemental information
within ninety days of the accrual of the claim; instead, this information must be
submitted within a reasonable time after receiving the form. Henderson, 373 N.J. Super. at 637.
The notice requirements, however, are "not intended as 'a trap for the
unwary.'" Lebron, 407 N.J. Super. at 215 (quoting Lowe, 158 N.J. at 629). The
Supreme Court has recognized the notice requirements are "more properly
denominated as a notice of injury or loss." Beauchamp, 164 N.J. at 121.
Therefore, "substantial rather than strict compliance with the notice
requirements of the Act may satisfactorily meet the statute's mandates." Lebron,
407 N.J. Super. at 215.
In the context of the TCA, the substantial compliance doctrine "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." D.D., 213 N.J. at 159. To
warrant application of the doctrine, the moving party must show:
(1) the lack of prejudice to the defending party; (2) a
series of steps taken to comply with the statute
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involved; (3) a general compliance with the purpose of
the statute; (4) a reasonable notice of [a plaintiff'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) (quoting Galik v. Clara Maass Med.
Ctr., 167 N.J. 341, 353 (2001)).]
Here, plaintiff's claim accrued on July 22, 2019, and he had until October
20, 2019, to comply with the TCA's ninety-day notice requirement. Even if we
accept that plaintiff's initial September 25, 2019 notice substantially complied
with N.J.S.A. 59:8-4, notwithstanding the lack of competent evidence regarding
the basis for listing an incorrect incident address,1 the notices failed to comport
with the specialized form adopted by the City of Hackensack, which it is
statutorily entitled to require plaintiff to complete under N.J.S.A. 59:8-6.
The City of Hackensack immediately notified plaintiff of the deficiency,
and plaintiff did not provide defendants the completed specialized form until
May 4, 2020, approximately seven months later. Failing to provide the specified
1
On this point, we note that plaintiff's reliance on the Department's
investigation report as supportive of his argument that counsel took "a series of
steps taken to comply with the statute" and provided "a reasonable explanation
why there was not strict compliance", Ferreira, 178 N.J. at 151, is based entirely,
like those facts supporting the extraordinary circumstances issue, see infra at pp.
16-23, on the attested statements of his counsel, who was without any personal
knowledge of the certified events related to the incorrect address, or the receipt
and reliance upon the investigation report.
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information "plainly violate[]s the letter and spirit of N.J.S.A. 59:8- -6," Wood,
302 N.J. Super. at 378. In addition, the specialized form was not submitted to
defendants within a reasonable time after plaintiff learned of the deficiency.
Henderson, 373 N.J. Super. at 637.
Without the additional information requested, such as a more precise
itemization supporting plaintiff's $3 million-dollar-damages claim, information
regarding plaintiff's insurer, a more expansive medical authorization to confirm
and assess plaintiff's claims, or a response to the simple question if plaintiff ever
filed a prior claim against Hackensack or its agents, the municipal entities were
not provided "prompt access to information about the claim so that [they could]
may prepare a defense." Wood, 302 N.J. Super. at 375. The missing information
related directly to the purposes of notice under the TCA – the early assessment
and resolution of claims.
As discussed infra, we cannot characterize plaintiff's failure to provide
pertinent requested information about his injuries or medical record
authorization as "technical deficiencies." D.D., 213 N.J. at 159. Nor did
plaintiff sufficiently detail the "series of steps" he took to comply with the
specialized form or provide a "reasonable explanation" about why he did not
strictly comply with the TCA's requirements. Ferreira, 178 N.J. at 151.
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Indeed, after Hackensack timely notified plaintiff regarding the
deficiencies in his notice, he took no action for nearly six months until he filed
an application, ostensibly to correct the mistaken incident address. His counsel's
vague assertion that his office was unable to meet with plaintiff because of his
injuries does not satisfactorily explain why plaintiff's counsel could not
complete and send the specialized notice of claim form to defendants in a timely
manner. We also note that as to the correct address of the incident, despite the
receipt of the Department's report in late September 2019, counsel learned the
correct address of plaintiff's alleged fall in December 2019, yet failed to advise
the municipal defendants of that address until filing his motion in March 2020,
three months later.
Unlike the authority upon which plaintiff relies, this is not a situation
where defendants failed to notify plaintiff about deficiencies in his notices of
claim. See e.g., Murray, 259 N.J. Super. at 362, 65. Nor is this a case like
Ewing, Lebron, or Dambro where plaintiff took multiple steps in an attempt to
strictly comply with the notice requirements. Ewing, 152 F. Supp. 3d at 297;
Lebron, 407 N.J. Super. at 210-11; Dambro, 130 N.J. at 452-53. Rather, as in
Wood, 302 N.J. Super. at 380, and Newberry, 319 N.J. Super. at 680, plaintiff
offers no competent justification for his failure to comply with N.J.S.A. 59:8-
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6's mandate within a reasonable time period. In sum, plaintiff's presumed but
minimal compliance with N.J.S.A. 59:8-4 "cannot save [his] notice of claim"
when defendants have a specialized notice of claim form. Wood, 302 N.J. Super.
at 378.
IV.
Plaintiff further contends that the judge erred in denying him permission
to file a late notice of claim because the judge incorrectly concluded that he did
not establish extraordinary circumstances and failed to consider that defendants
would not be prejudiced by a late filing. Specifically, plaintiff asserts his
extensive injuries constitute extraordinary circumstances, and in support relies
on O'Donnell v. New Jersey Turnpike Authority, 236 N.J. 335 (2019), Ventola
v. New Jersey Veteran's Memorial Home, 164 N.J. 74 (2000), Lowe, 158 N.J.
606, Eagan v. Boyarsky, 158 N.J. 632 (1999), and Mendez v. South Jersey
Transportation Authority, 416 N.J. Super. 525 (App. Div. 2010).
He also argues that the municipal defendants would not have been
substantially prejudiced if the court granted his motion and they failed to provide
any competent evidence of such prejudice, in any event. Defendants disagree
and contend they established substantial prejudice because "the condition of the
property is likely different after the significant time lapse," and they are unable
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to "investigate the condition of the sidewalk . . . in close proximity to the date
of the accident." We agree with the judge that plaintiff failed to establish the
existence of extraordinary circumstances, and therefore conclude the judge did
not abuse his discretion in denying him permission to file a late notice of claim.
When a plaintiff fails to provide timely notice of a claim, the TCA permits
a late filing under limited circumstances. In this regard, N.J.S.A. 59:8- -9
provides:
A claimant who fails to file notice of his claim within
[ninety] days as provided in [ N.J.S.A.] 59:8-8 . . . 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 . . . 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
[ N.J.S.A.] 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 . . . .
The TCA does not define what constitutes "extraordinary circumstances,"
leaving "for a case-by-case determination . . . whether the reasons given rise to
the level of extraordinary on the facts presented." Lowe, 158 N.J. at 626
(internal quotation marks omitted). "Where, of course, the late notice is merely
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the result of the ambivalence of the claimant, this would be the very
circumstance that the statute is designed to prevent, and relief should be denied."
Randazzo v. Twp. of Washington, 286 N.J. Super. 215, 219 (App. Div. 1995)
(citing Lutz v. Twp. of Gloucester, 153 N.J. Super. 461, 465-66 (App. Div.
1977)); see also Hyman Zamft & Manard, LLC v. Cornell, 309 N.J. Super. 586,
593 (App. Div. 1998) (concluding that "ignorance of the law or failure to seek
legal advice will not excuse failure to meet the [TCA] filing deadline").
As the Supreme Court explained:
The Legislature's grant of authority to trial courts to
permit a late notice in the exercise of their discretion
does not equate with a grant of authority to override the
statute's declaration of purpose or to substitute a lesser
standard of proofs . . . . Trial courts, in exercising their
statutory authority, and appellate courts, in reviewing
those decisions, must ensure that their decisions are
faithful to the overall legislative framework in order
that the statute's essential purposes be preserved and
not eroded through excessive or inappropriate
exceptions. Courts faced with applications for leave to
file a late notice of claim, therefore, must proceed with
their evaluation mindful of the Legislature's direction
that the proofs demonstrate circumstances that are not
merely sufficient, but that they instead be
extraordinary.
[D.D., 213 N.J. at 148-49.]
Medical conditions meet the extraordinary circumstances standard if they
are "severe or debilitating" and have a "consequential impact on the claimant's
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very ability to pursue redress and attend to the filing of a claim." Id. at 149-50;
See also Mendez, 416 N.J. Super. at 533 (noting that "extraordinary
circumstances can be found based on the severity of a party's injuries "). The
question for the court is whether, when viewed objectively, a severe or
debilitating injury impaired the plaintiff's ability to act during the relevant
ninety-day period. D.D., 213 N.J. at 151.
We found in Maher v. County of Mercer, that the "circumstances that led
to the delay in filing the notice and the motion were truly extraordinary." 384 N.J. Super. 182, 189 (App. Div. 2006). In that case, the plaintiff was
hospitalized after receiving a burn, which then caused septic shock, a staph
infection, pneumonia, respiratory failure, and memory loss. Id. at 184-85. The
plaintiff was placed in an induced coma during her first hospitalization, because
she was not expected to live, remained in "extremely poor health," and had
repeated admissions to the hospital within the ninety-day period. Id. at 189-90;
see also R.L. v. State-Operated Sch. Dist., 387 N.J. Super. at 334, 341 (App.
Div. 2006) (finding extraordinary circumstances when the delay in filing was
due to the plaintiff's psychological trauma, which caused him emotional distress,
periods of crying, preoccupation with death, and ultimately a hesitancy to reveal
his HIV status). But see O'Neill v. City of Newark, 304 N.J. Super. 543, 554
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(App. Div. 1997) (finding that a plaintiff preoccupied with recovery and
treatment efforts did not sufficiently demonstrate a showing of extraordinary
circumstances to justify a delay in filing a timely notice).
In addition to the extraordinary circumstances requirement, a plaintiff will
be precluded from filing a late notice of claim if the public entity will be
substantially prejudiced. However, "it is the public entity that has the burden of
coming forward and of persuasion on the question of [substantial] prejudice. "
Blank v. City of Elizabeth, 318 N.J. Super. 106, 114 (App. Div. 1999). "The
fact of delay alone does not give rise to the assumption of prejudice; the public
entity must present a factual basis for the claim of substantial prejudice. "
Mendez, 416 N.J. Super. at 535 (citing Kleinke v. Ocean City, 147 N.J. Super.
575, 581 (App. Div. 1977)).
"Substantial prejudice must be shown by 'specificity and not by general
allegation . . . .'" Id. at 536 (alteration in original) (quoting Blank, 318 N.J.
Super. at 115). A defendant's general contentions that it was "totally unaware
of the accident" and "lost a critical opportunity to engage in a timely
investigation" is insufficient to constitute the substantial prejudice requirement
under N.J.S.A. 59:8-9. Id. at 535. Substantial prejudice "[g]enerally . . . implies
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the loss of witnesses, the loss of evidence, fading memories, and the like. "
Blank, 318 N.J. Super. at 115.
Against that standard of review and substantive legal principles, we are
satisfied that the judge did not err in concluding plaintiff failed to establish
extraordinary circumstances justifying his late notice of claim. Plaintiff fell on
July 22, 2019 and filed his application for permission to file a late notice of
claim on March 19, 2020, an approximate eight-month delay.
Even accepting Martinez's certification, of which there are severe
evidentiary deficiencies, 2 the only information about how plaintiff's injury
limited him was that he was "unable" to meet with his attorneys to "confirm the
location of his fall" for at least six weeks from September 6, 2019. Even then,
plaintiff did not do so until December 2019, and waited an additional four
months before moving to file a late notice of claim.
2 N.J.S.A. 59:8-9 specifically requires affidavits "based upon personal
knowledge of the affiant." See, e.g., S.P. v. Collier High School, 319 N.J. Super. 452, 465 (App. Div. 1999) (finding a motion for late notice of claim inadequate
where the plaintiff relied on an attorney's affidavit and did not submit an
affidavit based upon personal knowledge). Here, as noted, Martinez was not
employed with the firm representing plaintiff until January 2020, approximately
six months after his fall, and would not have any personal knowledge about
plaintiff's injuries or the firm's communication with plaintiff during that time
period.
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Missing from the record is sufficient information regarding how plaintiff
was physically or psychologically unable to communicate with his attorneys
because of his injuries. Of the two medical reports plaintiff provides, the last of
which is dated September 10, 2019, neither describes how plaintiff's mobility
was limited other than difficulties with moving his elbow. Indeed, plaintiff was
able to provide information to his attorneys sufficient for the first notice s of
claim, but he fails to explain how his injury prevented him from filing the
specialized notices. As the judge noted, it is unclear why plaintiff's attorneys
could not meet with him at the rehabilitation center.
Mendez, upon which plaintiff relies, is clearly distinguishable. In that
case, the plaintiffs were unable to obtain evidence identifying the municipally -
operated tortfeasor until after the notice period had run. Here, all the
information plaintiff needed to supplement his notice consistent with the
specialized claim form was available to him and his attorneys well before his
motion was filed, and when he ultimately completed the specialized forms.
Mendez, 416 N.J. Super. at 529-34. Nor is this a situation like Lowe, Eagan, or
Ventola, where the identity and the public nature of the tortfeasors or location
of the incident were somehow disguised, Lowe, 158 N.J. at 629-30; Eagan, 158 N.J. at 642-43; Ventola, 164 N.J. at 78-82, or where Hackensack or any of its
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agents learned about material information regarding the claim from another
plaintiff such as in O'Donnell, 236 N.J. at 339. In sum, based on the motion
record, there is simply no evidence that plaintiff's condition and circumstances
were so "severe or debilitating" that they had a "consequential impact" on his
"ability to pursue redress and attend to the filing of a claim." D.D., 213 N.J. at
149-50.
In light of our conclusion that plaintiff failed to establish extraordinary
circumstances justifying his late notice, we need not reach the issue of whether
defendant established prejudice. To the extent we have not addressed any of
plaintiff's remaining arguments, it is because we have concluded they are of
insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3655-19
23
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