Opinion
DOCKET NO. A-0962-12T4
07-29-2013
RICHARD LAFEVER, Plaintiff-Respondent, v. NY/NJ PORT AUTHORITY, Defendant-Appellant, and CONTINENTAL AIRLINES, and ABM JANITORIAL SERVICES NORTHEAST, INC., Defendants.
Margaret Taylor Finucane, attorney for appellant (Jonathan P. Meinen, on the brief). Kamensky Cohen & Riechelson, attorneys for respondent (Jerrold Kamensky, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1943-11.
Margaret Taylor Finucane, attorney for appellant (Jonathan P. Meinen, on the brief).
Kamensky Cohen & Riechelson, attorneys for respondent (Jerrold Kamensky, on the brief). PER CURIAM
By leave granted, the Port Authority of New York and New Jersey (Port Authority) appeals from an order entered by the Law Division on June 22, 2012, denying its motion to dismiss plaintiff's complaint, and an order entered on August 24, 2012, denying its motion for reconsideration. For the reasons that follow, we reverse.
Plaintiff filed a complaint on July 26, 2011, against the Port Authority, Continental Airlines (Continental), and ABM Janitorial Services Northeast, Inc. (ABM), alleging that he sustained serious and permanent personal injuries at Newark International Airport on July 15, 2010, as a result of defendants' carelessness and negligence. Thereafter, the court dismissed the complaint, apparently because defendants had not filed their answers within the time required by the court rules and plaintiff did not apply for default. The court later reinstated the complaint but entered default against ABM.
On April 2, 2012, the Port Authority filed a motion to dismiss the claims against it pursuant to Rule 4:6-2(a), arguing that the court did not have jurisdiction to entertain the complaint because plaintiff had not complied with N.J.S.A. 32:1-163, which provides that lawsuits against the Port Authority must be commenced within one year after the accrual of the cause of action. Plaintiff opposed the motion. Plaintiff maintained that he substantially complied with the statute.
In support of this argument, plaintiff submitted a certification of his attorney, who asserted that on July 15, 2010, plaintiff slipped and fell in the men's restroom at the airport. Counsel stated that immediately following the incident, an accident report was filed with the Port Authority and forwarded to the agency's claims administrator, safety engineering supervisor, inspection and safety division, and risk supervisor.
Plaintiff's counsel indicated that a police report had been issued regarding the incident. Counsel said that a notice of claim was filed on plaintiff's behalf on September 8, 2010. According to counsel, on September 20, 2010, a representative of the Port Authority informed Continental that the claim fell within the scope of Continental's agreement with the Port Authority, and requested that Continental handle the claim.
Counsel also stated that from her review of the file:
it appears that there was some confusion as to whether to file suit against the Port Authority of New York and New Jersey due to its September 20, 2010, correspondence to Continental. Additionally, it appears that [p]laintiff's file was transferred between attorneys in [p]laintiff's firm which added to the confusion.Counsel said that, for these reasons, the complaint was not filed until July 26, 2011.
The motion judge considered the Port Authority's motion on May 14, 2012, and on June 22, 2012, rendered a written opinion in which he concluded that the doctrine of substantial compliance could be applied to the one-year filing requirement in N.J.S.A. 32:1-163. The judge found that plaintiff had substantially complied with the statute and entered an order denying the motion. The Port Authority thereafter filed a motion for reconsideration, which the judge denied by order entered on August 24, 2012. On November 1, 2012, we granted the Port Authority's motion for leave to appeal.
The Port Authority argues that the judge erred by denying its motion to dismiss. The Port Authority maintains that N.J.S.A. 32:1-163 establishes a mandatory jurisdictional condition to any lawsuit against it and precludes the maintenance of any action where the complaint has been filed more than one year after the accrual of the cause of action. The Port Authority contends that the doctrine of substantial compliance cannot be applied to extend the one-year filing deadline.
"The Port Authority was created by a bi-state compact enacted into law by the legislatures of New York and New Jersey and approved by Congress." Brown v. Port Auth. Police Superior Officers Ass'n, 283 N.J. Super. 122, 130 (App. Div. 1995) (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 35, 115 S. Ct. 394, 398, 130 L. Ed. 2d 245, 252 ( 1994)). "Prior to 1951[,] the Port Authority was immune from suit." Wood v. Dic/Underhill & Universal Builders Supply Co., 136 N.J. Super. 249, 252 (Law Div. 1975), aff'd o.b., 144 N.J. Super. 364 (App. Div. 1976), certif. denied, 73 N.J. 65 (1977).
However, by joint legislation, which took effect in June 1951, New Jersey and New York agreed to waive the Port Authority's sovereign immunity and allow lawsuits to be brought against the agency. Ibid. In the absence of that legislation, the Port Authority would have continued to enjoy sovereign immunity from such lawsuits. Port Auth. of N.Y. & N.J. v. Ingram, 232 N.J. Super. 401, 404 (App. Div. 1989).
The waiver of sovereign immunity was, however, conditioned upon compliance with certain conditions, which are codified in N.J.S.A. 32:1-163 and N.Y. Unconsol. Laws § 7107. N.J.S.A. 32:1-163 provides that
any suit, action or proceeding prosecuted or maintained under [N.J.S.A. 32:1-157 to -168] shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under [N.J.S.A. 32:1-157 to -
168] a notice of claim shall have been served upon the Port Authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced. . . .
It is undisputed that plaintiff's cause of action accrued on July 15, 2010, the date on which he fell and allegedly sustained his injuries. Plaintiff did not, however, file his complaint within one year of that date, as required by N.J.S.A. 32:1-163. As noted previously, the complaint was filed on July 26, 2011.
The Port Authority argues that the motion judge erroneously determined that plaintiff's complaint was timely filed because he substantially complied with the statute. The Port Authority contends that, in reaching this decision, the motion judge erred by relying upon Zamel v. Port of N.Y. Auth., 56 N.J. 1 (1970).
In Zamel, the plaintiff fell on an icy parking lot at Newark Airport and sustained personal injuries. Id. at 2. The plaintiff immediately reported the incident to a police officer, and several days later a representative of the Port Authority wrote, asking the plaintiff to contact him regarding his fall. Id. at 2-3. Although there was some communication between the plaintiff's attorney and the Port Authority concerning the incident, he did not submit a formal notice of claim to the agency within sixty days before filing the complaint, as required by N.J.S.A. 32:1-163. Id. at 3-4.
The trial court dismissed the complaint and the plaintiff appealed. Id. at 2. The Supreme Court noted that the relevant statutes "embody two independent time stipulations." Id. at 4. One requires that the action be commenced within one year from the accrual of the cause of action, and the other requires the filing of a notice of claim at least sixty days before the complaint is filed. Id. at 4-5. The Court held that the doctrine of substantial compliance could be applied to the notice of claim requirement. Id. at 6.
The Court found that the Port Authority had not been prejudiced by the failure to strictly comply with the statutory notice-of-claim requirement. Ibid. The Court noted that the agency had substantially all of the information that would have been included in a formal notice of claim "well in advance" of sixty days before the complaint was filed. Id. at 6-7. The Court said that the agency had sufficient time to investigate the claim, prepare a defense, and attempt the settle the claim before litigation commenced. Id. at 7. The Court concluded that the trial court erred by dismissing the complaint. Ibid.
Zamel is not directly on point because that case dealt with the notice-of-claim requirement, not the one-year filing requirement in N.J.S.A. 32:1-163. However, in Zamel, the Court stated that there is "nothing whatever in the pertinent statutory history or terminology [of N.J.S.A. 32:1-163] to indicate that our Legislature ever meant to exclude the highly just doctrine of substantial compliance which is so well designed to avoid technical defeats of valid claims." Zamel, supra, 56 N.J. at 6. We are satisfied that the Court's analysis applies to the one-year statute of limitations as well as the notice-of-claim requirement in N.J.S.A. 32:1-163.
We are nevertheless convinced that the motion judge erred by finding that plaintiff substantially complied with the statutory filing requirement. To show substantial compliance with a particular statutory requirement, a litigant must establish: (1) a lack of prejudice to the opposing party; (2) that the litigant took steps to comply with the statute involved; (3) general compliance with the statute's purpose; (4) reasonable notice of the claim to the opposing party; and (5) a reasonable explanation why it did not strictly comply with the statute. Galik v. Clara Maas Med. Ctr., 167 N.J. 341, 353 (2001) (citing Bernstein v. Bd. of Trustees of the Teachers' Pension and Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977)).
As we stated previously, plaintiff failed to file his complaint within one year of the date on which his cause of action accrued. Although plaintiff complied with the notice-of-claim requirement, he did not take any steps to file a complaint within the time prescribed by N.J.S.A. 32:1-163. See Negron v. Llarena, 156 N.J. 296, 305 (1998) (holding plaintiff substantially complied with statute of limitations for wrongful death claims by filing her complaint immediately after an identical federal action was dismissed for lack of jurisdiction); Stegmeier v. St. Elizabeth Hosp., 239 N.J. Super. 475, 481-83 (App. Div. 1990) (finding substantial compliance with time requirements for service of motion where the motion was timely filed and steps taken, within the time required, for service of the motion on opposing counsel).
Furthermore, plaintiff did not generally comply with the purpose of a statute of limitations, which "is to stimulate prompt action and to penalize negligence, while promoting repose by establishing stability in human affairs." LaFage v. Jani, 166 N.J. 412, 423 (2001) (citing Gantes v. Kason Corp., 145 N.J. 478, 486 (1996)). Plaintiff may have complied with the notice-of-claim requirement in N.J.S.A. 32:1-163, but the statute also requires timely filing of a complaint and plaintiff did not comply with that requirement.
In addition, plaintiff did not provide a reasonable explanation for his failure to comply with the statutory filing requirement. Plaintiff's attorney asserts the law firm was confused because the Port Authority had informed Continental about plaintiff's claim and asked Continental to handle the claim. Whatever confusion may have been engendered by that communication, plaintiff eventually brought suit against both the Port Authority and Continental. Plaintiff has not explained why he could not do so within the time required by N.J.S.A. 32:1-163.
Plaintiff's attorney also asserts that confusion resulted from the transfer of plaintiff's file between attorneys in the law firm. This is not, however, a justification for failing to comply with the one-year statutory filing requirement. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 152-53 (2003) (holding that substantial compliance with affidavit of merit statute (AMS), N.J.S.A. 2A:53A-29, was not established where plaintiff's attorney obtained an affidavit of merit but failed to provide the affidavit to opposing counsel within the time required by the AMS); Palanque v. Lambert-Wooley, 168 N.J. 398, 405-06 (2001) (finding that substantial compliance with the AMS statute was not established where the plaintiff's attorney misfiled the pleadings and did not provide the affidavit to opposing counsel in the time required by the statute).
We recognize that the Port Authority had notice of plaintiff's claim. It also appeared that the Port Authority would not be substantially prejudiced in its defense of plaintiff's claim. Nevertheless, the doctrine of substantial compliance requires more than notice of a particular claim and a lack of prejudice. Based on the record before us, we are convinced that the motion judge erred by finding that plaintiff substantially complied with the one-year filing requirement of N.J.S.A. 32:1-163.
Reversed and remanded to the trial court for entry of an order dismissing plaintiff's claims against the Port Authority.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION