Opinion
DOCKET NO. A-4545-10T1 DOCKET NO. A-4652-10T1
07-24-2012
CHARLES CICALA, as Proposed Administrator for the ESTATE OF BARBARA CICALA, Plaintiff-Respondent, v. CITY OF BRIGANTINE, COUNTY OF ATLANTIC, STATE OF NEW JERSEY, Defendants-Appellants.
Powell, Birchmeier & Powell, attorneys for appellant in A-4545-10 (Erin R. Thompson, on the brief). James F. Ferguson, Atlantic County Counsel, attorney for appellant in A-4652-10 (Donna M. Taylor, Assistant County Counsel, on the brief). D'Arcy Johnson Day, P.C., attorneys for respondent (Patrick T. D'Arcy, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-612-11.
Powell, Birchmeier & Powell, attorneys for appellant in A-4545-10 (Erin R. Thompson, on the brief).
James F. Ferguson, Atlantic County Counsel, attorney for appellant in A-4652-10 (Donna M. Taylor, Assistant County Counsel, on the brief).
D'Arcy Johnson Day, P.C., attorneys for respondent (Patrick T. D'Arcy, on the brief). PER CURIAM
In these consolidated appeals, defendants, the County of Atlantic and the City of Brigantine, a municipality located in Atlantic County, appeal from a trial court order of April 18, 2011 granting the motion of plaintiff, Charles Cicala, as proposed administrator of the estate of Barbara Cicala, leave to file late notices of tort claim. On appeal, defendants argue that the court erred in granting plaintiff's motion, because plaintiff failed to provide evidence of the extraordinary circumstances required to warrant such relief. We agree and reverse.
The record discloses that Barbara Cicala fell while walking on a public sidewalk in Brigantine on April 11, 2010. She had surgery on the following day and died as the result of a pulmonary blood clot on May 7, 2010. Shortly after decedent's death, on May 11, 2010, plaintiff sustained a heart attack, but was able to attend her funeral, which occurred on May 13, 2010. On May 14, 2010, plaintiff suffered a second heart attack.
Despite his heart condition, on June 7, 2010, plaintiff met with attorney Pamela Brown-Jones to discuss the possibility of instituting a medical malpractice action seeking recovery for his wife's death. However, on October 19, Brown-Jones declined representation.
Six days later, on October 25, 2010, plaintiff met with attorney Anthony Granato to discuss filing a medical malpractice suit. Granato declined representation on November 3, 2010.
In early December 2010, plaintiff met with a third attorney, his present counsel, Patrick D'Arcy, who agreed to represent plaintiff in a Tort Claims Act (TCA) action against Brigantine and Atlantic County, alleging a trip and fall by decedent on an uneven sidewalk. See N.J.S.A. 59:1-1 to 14-4. Notices of claim were filed on December 9, 2010, eight months after decedent's injury.
After a delay of almost two more months, on January 26, 2011, plaintiff filed a motion for leave to file late notices of claim pursuant to N.J.S.A. 59:8-9. The motion was granted on April 18, 2011. The motion court held that plaintiff's diligence in seeking legal counsel with respect to his wife's death was sufficient to constitute extraordinary circumstances for failing to file a timely notice of claim. We regard the court's determination as constituting a misuse of the court's discretion and reverse. See McDade v. Siazon, 208 N.J. 463, 476-77 (2011) (recognizing the applicability of an abuse of discretion standard).
A claimant may not bring an action against a public entity under the TCA unless he complies with the Act's notice requirements. N.J.S.A. 59:8-3, 59:8-4 and 59:8-8. The purpose of the notice is
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense[;] (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet.A claimant must file a notice of claim with the public entity within ninety days of the accrual of his claim. N.J.S.A. 59:8-8.
[Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal quotation marks and citations omitted).]
N.J.S.A. 59:8-9 provides limited relief from the time restrictions of N.J.S.A. 59:8-8. It provides:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, 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 or the public employee 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 forThe TCA does not define what circumstances are to be considered extraordinary. Therefore, the court is required to make a case-by-case determination of that issue. Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997).
his failure to file notice of claim within the period of time prescribed by section 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; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
In the present case, our review of plaintiff's affidavit in support of his motion for relief from the ninety-day time period of N.J.S.A. 59:8-8 fails to disclose extraordinary circumstances for plaintiff's delay in providing notice. Although plaintiff suffered two heart attacks in quick succession around the time of his wife's death, he was well enough to consult with a lawyer in an effort to obtain a monetary recovery for that death one month after the death occurred. When the first attorney whom plaintiff consulted declined to take the case, plaintiff quickly consulted a second attorney, and then a third. As a consequence, he cannot claim either ill health or lack of legal advice as a basis for his late filing. Absent these two grounds, nothing remains to support plaintiff's motion. As a consequence, it should have been denied. The court's determination to the contrary constituted a misuse of its discretion.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION