JAMES PRUDENCIANO v. COUNTY OF MONMOUTH

NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1452-20

JAMES PRUDENCIANO,

       Plaintiff-Appellant,

v.

COUNTY OF MONMOUTH,
MONMOUTH COUNTY
PARK SYSTEM, and THOMAS
E. FOBES,

     Defendants-Respondents.
___________________________

                Argued December 16, 2021 – Decided February 10, 2022

                Before Judges Haas and Mitterhoff.

                On appeal from the Superior Court of New Jersey, Law
                Division, Monmouth County, Docket No. L-2675-20.

                Andrew B. Smith argued the cause for appellant (Smith
                & Schwartzstein LLC, attorneys; Andrew B. Smith, on
                the briefs).

                Mario J. Delano argued the cause for respondents
                (Campbell Foley Delano & Adams LLC, attorneys;
                Mario J. Delano and Wendy Jennings, on the brief).
PER CURIAM

      Plaintiff James Prudenciano appeals from a December 29, 2020 order

denying his motion for reconsideration of the judge's October 22, 2020 order.

The October 22 order granted defendants' motion to dismiss the complaint and

denied plaintiff's cross-motion to file a late notice of claim pursuant to  N.J.S.A.

59:8-8 of the New Jersey Tort Claims Act (TCA). We affirm.

      On the evening of October 14, 2019, plaintiff was hiking with a friend on

the Rock Point Trail of Hartshorn Woods Park, which is owned and operated by

defendants. As it became dark, plaintiff and his companion fell approximately

twenty feet off a cliff into a shallow river. Plaintiff was wearing an Apple Watch

that included a fall detection feature. The watch placed a call to 9-1-1 with the

pair's location immediately after it detected the rapid decent and impact.

Emergency responders located plaintiff and transported him to Jersey Shore

University Medical Center where he was diagnosed with a concussion and

compression fractures to his T11, T12, and L3 vertebra. He was discharged on

October 17, 2019 and went directly from the hospital to his parent's home to be

cared for by his mother.

      Within days of the fall, news outlets began contacting plaintiff's mother

with requests to interview her son about his experience with the Apple Watch's


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fall detection feature. Plaintiff agreed and was interviewed by News 12 New

Jersey on October 20, 2019, and Inside Edition on October 23, 2019. News 12

New Jersey offered plaintiff $1,000 to do the interview and, at their request,

plaintiff returned to Hartshorn Woods Park on October 20, 2019 to meet the

reporter. The interview aired on October 21, 2019 and included a short clip of

plaintiff walking on a path near the parking area wearing a back brace.

      The second interview was an Inside Edition feature that aired on October

24, 2019. It included video footage of plaintiff walking with the assistance of a

boot-style ankle brace and cane. During the interview, plaintiff noted that he

had broken several bones in his back and fractured his right hand and left foot.

The segment also included a short clip of plaintiff operating his Apple Watch.

      On October 22, 2019, plaintiff went to an urgent care clinic due to pain in

his right hand and left foot. X-rays revealed that plaintiff had fractured the fifth

metacarpal bone in his right hand and an unspecified tarsal bone in his left foot.

He was advised to follow up with an orthopedist and to remain on bed rest for

eight to twelve weeks. Plaintiff was essentially bed ridden for the next three

months.

      On February 21, 2020 (130 days after the fall), plaintiff sent defendant

County of Monmouth a notice of claim letter indicating his intent to sue.


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Plaintiff filed his complaint on August 25, 2020. Defendant moved to dismiss

arguing plaintiff had failed to provide notice of his claim within ninety days of

accrual as required by  N.J.S.A. 59:8-8. Plaintiff opposed dismissal and cross-

moved for permission to file late notice of the claim. No medical records were

included with the cross-motion. He did, however, attach as exhibits the two

news articles reporting on his fall and how he was saved by his Apple Watch's

fall detection feature.     Both included video footage of plaintiff being

interviewed.

      In support of his cross-motion, plaintiff certified that after the fall: (1) he

was "essentially bed-ridden for approximately three months"; (2) during that

time he "did not have internet access"; and (3) "[g]iven [his] inability to literally

get out of bed for any extended period of time, without access to the internet,

[he] was unable to research and inquire into obtaining an attorney until over

three (3) months after the accident." Defendants argued that the news articles

clearly demonstrated that plaintiff's injuries were not severe enough to warrant

an extension of the time to file notice of a claim against a public entity.

      Plaintiff argued that courts have found extraordinary circumstances

warranting an extension of the time to file based on injuries less severe than his.

Additionally, plaintiff contended that because park rangers, police, and


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emergency responders participated in the rescue, defendants had ample time and

opportunity to investigate the cause of his fall. Therefore, defendants would not

be prejudiced if plaintiff was permitted to pursue his claim.

      On October 22, 2020, the judge granted defendant's motion to dismiss and

denied plaintiff's cross-motion for permission to file late notice of claim, finding

the news articles demonstrated that plaintiff's injuries were insufficient to meet

the extraordinary circumstances standard. The judge also found the evidence in

the record insufficient to establish that plaintiff was unable to contact an

attorney in a timely manner. Because plaintiff did not satisfy the extraordinary

circumstance prong, the judge did not reach the substantial prejudice prong.

      On November 11, 2020, plaintiff moved for reconsideration. This time,

plaintiff attached three sets of medical records pertaining to the injuries he

sustained from the fall as exhibits A-C. Exhibit A consisted of records from

Jersey Shore University Medical Center indicating that plaintiff was admitted

on October 14, 2019; that he was diagnosed and treated for compression

fractures to his T11, T12, and L3 vertebra; and that he was discharged on April

17, 2019, with instruction not to lift anything, drive, or engage in strenuous

activity for eight to twelve weeks. Exhibit B was a consultation summary, dated

October 22, 2019, diagnosing plaintiff with a fractured fifth metacarpal bone in


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his right hand and a fracture in an unspecified tarsal bone in his left foot. Exhibit

C was a doctor's note requesting that plaintiff be excused from work because he

was medically advised to stay on bed rest for eight to twelve weeks.

      On December 18, 2020, the judge issued an oral decision denying

plaintiff's motion for reconsideration. The judge entered a December 29, 2020

order reflecting the ruling. In his oral decision, the judge cited Morey v.

Wildwood Crest,  18 N.J. Tax 335 (Tax 1999), for the proposition that a party is

not entitled to reconsideration based on new evidence that was available when

the initial action was filed.     Because the plaintiff's medical records were

available when he filed his complaint, the judge found it would be improper to

consider them.

      Despite the procedural deficiency, the judge considered plaintiff's medical

records and concluded that his injuries were insufficient to meet the

extraordinary circumstance standard. He noted that the cases cited and relied

upon by plaintiff involved litigants with far greater injuries and degrees of

incapacitation than those demonstrated in this case and denied the motion.

      On appeal plaintiff presents the following arguments for our

consideration:

             POINT I


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               THE TRIAL COURT ABUSED ITS DISCRE[TION]
               IN FAILING TO FOLLOW BINDING PRECEDENT
               WHICH REQUIRED IT TO RESOLVE ANY
               DOUBTS IN FAVOR OF HEARING THIS CASE ON
               THE MERITS. (Pb1 Point II).2

               POINT II

               THE TRIAL COURT ABUSED ITS DISCRETION IN
               FAILING TO ADHERE TO THE MYRIAD OF
               PRECEDENT WHICH ALLOWED LATE FILING OF
               NOTICES OF CLAIMS UNDER LESS FAVORABLE
               CIRCUMSTANCES. (Pb Point III).

               POINT III

               THE TRIAL COURT ABUSED ITS DISCRETION IN
               FAILING TO EVEN CONSIDER THAT THERE WAS
               NO PREJUDICE TO RESPONDENTS HERE. (Pb
               Point IV).

               POINT IV

               THE TRIAL COURT ABUSED ITS DISCRE[TION]
               IN FAILING TO CONSIDER MEDICAL RECORDS
               AND OTHER EVIDENCE SUBMITTED IN
               SUPPORT     OF    THE      MOTION  FOR
               RECONSIDERATION. (Pb Point V).

     We review a trial court's denial of reconsideration for abuse of discretion.

Branch v. Cream-O-Land Dairy,  244 N.J. 567, 582 (2021) (citing Kornblueth v.



1
    Pb signifies plaintiff/appellant's brief.
2
    Plaintiff's brief Point I presented the standard of review which is not in dispute.
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Westover,  241 N.J. 289, 301 (2020)). Reconsideration is appropriate only in the

narrow corridor of cases in which "1) the [c]ourt has expressed its decision based

upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt

either did not consider, or failed to appreciate the significance of probative,

competent evidence." D'Atria v. D'Atria,  242 N.J. Super. 392, 401 (Law Div.

1990). "[I]f a litigant wishes to bring new or additional information to the

[c]ourt's attention which it could not have provided on the first application, the

[c]ourt should, in the interest of justice (and in the exercise of sound discretion),

consider the evidence." Ibid. Motion practice, however, must eventually come

to end, "and if repetitive bites at the apple are allowed, the core will swiftly sour.

Thus, [a court] must be sensitive and scrupulous in its analysis of the issues in

motion for reconsideration." Id. at 401-02.

   We also review an order denying a motion for leave to file a late notice of

claim under the TCA for abuse of discretion. D.D. v. Univ. of Med. & Dentistry

of N.J.,  213 N.J. 130, 147 (2013). The Act requires litigants to notify a public

entity of their intent to sue for damages within ninety days of the date the cause

of action accrued.  N.J.S.A. 59:8-8. If timely notice is not provided, a litigant

may pursue his claim within one year of the date of the loss if he can demonstrate

"sufficient reasons constituting extraordinary circumstances" for missing the


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filing deadline.  N.J.S.A. 59:8-9. If extraordinary circumstances justifying an

extension of the time to file are shown, the litigant must then also demonstrate

that the public entity would not be substantially prejudiced by allowing the claim

to proceed. Ibid. If both criteria are met, only then does a judge have the

discretion to grant leave to file late notice of a claim against a public entity.

Ibid. The failure to file "within ninety days under normal conditions or within

one year under extraordinary circumstances" bars a plaintiff from bringing a tort

claim against a public entity. Ben Elazar v. Macrietta Cleaners, Inc.,  230 N.J.
 123, 133 (2017); see also  N.J.S.A. 59:8-8(a).

      Medical conditions may meet the extraordinary circumstances standard if

they are "severe or debilitating" and have a "consequential impact on the

claimant's very ability to pursue redress and attend to the filing of a claim."

D.D.,  213 N.J. at 149-50. The question for the judge is whether, when viewed

objectively, a severe or debilitating injury impaired the plaintiff's ability to act

during the relevant ninety-day period. Id. at 151. The injuries must be coupled

with a "consequential impact on the claimant's very ability to pursue redress and

attend to the filing of a claim." Id. at 150.

      Plaintiff's injuries were indisputably severe. However, as the judge found,

they were only partially debilitating and did not prevent plaintiff from seeking


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redress within the statutory time frame. Cf. Mendez v. South Jersey Transp.

Authority,  416 N.J. Super. 525, 533-34 (App. Div. 2010) (plaintiffs who were

struck by a snow removal truck and suffered severe head trauma as a result,

presented    extraordinary    circumstances    because    of   their   continued

hospitalization and memory deficits); Maher v. County of Mercer,  384 N.J.

Super. 182, 189-90 (App. Div. 2006) (extraordinary circumstances shown where

plaintiff was hospitalized with a life-threatening infection that required her to

be put into an induced coma). In that regard, the judge correctly found that

plaintiff's claims are belied by the news articles showing him participating in an

interview outside his home within the week after his fall. We discern no abuse

of discretion requiring reversal.

      Because plaintiff has not proven extraordinary circumstances, the judge

correctly declined to address whether defendants were substantially prejudiced

by the untimely filing.

      Affirmed.




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