Only the parents' own Portee claim, arising out of the death of the first child, was held to be time-barred.Ibid. In our recent opinion addressing a Portee claim, Maldonado v. Leeds, 374 N.J.Super. 523, 865 A.2d 741 (App.Div. 2005), we reversed summary judgment for the defendant. Id. at 532, 865 A.2d 741.

("Every action at law for an injury to the person caused by the wrongful act . . . of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued. . . .); see also Maldonado v. Leeds, 374 N.J. Super. 523, 530 (App.Div. 2005) (N.J. Stat. Ann. 2A:14-2 requires that a personal injury claim for emotional distress be brought within two years of the accrual of the cause of action.) Thus, because it was brought after August 4, 2002 (such as this claim which was brought in January 2006), Plaintiff's claim is untimely and Count P will be dismissed.

His constitutional claims under Bivens as well as his intentional infliction of emotional distress claims against the individual federal officials were both subject to New Jersey's two-year statute of limitations for personal injury causes of action. See, e.g., N.J. Stat. Ann. § 2A:14-2; Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1088 (3d Cir. 1988); Maldonado v. Leeds, 374 N.J.Super. 523, 530, 865 A.2d 741, 745 (App.Div. 2005). The Federal Tort Claims Act ("FTCA") claims against the United States itself are barred unless Curbison presented an administrative claim "within 2 years after such claim accrues."

Under New Jersey law, tolling the statute of limitations under the "discovery rule" ". . . may be applicable when `injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another.'" Maldonado v. Leeds, 865 A.2d 741 (N.J.Super.A.D. 2005) (citing Baird v. Am. Med. Optics, 713 A.2d 1019 (N.J. 1998); see also Savage v. Old Bridge-Sayreville Medical Group, P.A., 633 A.2d 514, 518 (N.J. 1993) (stating that knowledge of fault for purposes of the discovery rule requires ". . . only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care."). "The discovery rule is essentially a rule of equity."

Plaintiff also argues that Thomas's claims were tolled under New Jersey's "discovery rule." Under New Jersey law, tolling the statute of limitations under the discovery rule "may be applicable when `injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another.'"Maldonado v. Leeds, 865 A.2d 741 (N.J.Super. App. Div. 2005);see also Baird v. Am. Med. Optics, 713 A.2d 1019 (N.J. 1998);Savage v. Old Bridge-Sayreville Medical Group, P.A., 633 A.2d 514, 518 (N.J. 1993) (holding that knowledge of fault for purposes of the discovery rule requires "only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care"). "The discovery rule is essentially a rule of equity."

Under New Jersey law, tolling the statute of limitations "may be applicable when `injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another.'" Maldonado v. Leeds, 865 A.2d 741 (N.J. Super. App. Div. 2005) (citing Baird v. Am. Med. Optics, 713 A.2d 1019 (N.J. 1998)); see also Savage v. Old Bridge-Sayreville Medical Group, P.A., 633 A.2d 514, 518 (N.J. 1993) (stating that knowledge of fault for purposes of the discovery rule requires "only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care."). The Third Circuit has pointed out that "statutes of limitations ensure that defendants are protected against the prejudice of having to defend against stale claims, as well as the notion that, at some point, claims should be laid to rest so that security and stability can be restored to human affairs."

In New Jersey, such a claim is subject to a two-year statute of limitations period. N.J.S.A. § 2A:14-2; see Maldonado v. Leeds, 374 N.J. Super. 523 (App. Div. 2005). Nevertheless, under the "discovery rule," a court may in its discretion excuse a plaintiff's failure to file suit within the two-year period.

See Freeman v. State, 788 A.2d 867, 874 (N.J. Super. Ct. App. Div. 2002). So, too, are claims alleging intentional infliction of emotional distress, see Maldonado v. Leeds, 865 A.2d 741, 745 (N.J. Super. Ct. App. Div. 2005) (citing N.J. Stat. Ann. § 2A:14-2), and claims alleging negligence such as negligent hiring or supervision, Lutzky v. Deutsche Bank Nat'l Trust Co., No. 09-cv-3886 (JAP), 2009 WL 3584330, at *4 (D.N.J. Oct. 27, 2009) (citing N.J. Stat. Ann. § 2A:14-2(a)).

See Freeman v. State, 788 A.2d 867, 874 (N.J. Super. Ct. App. Div. 2002). So, too, are claims alleging intentional infliction of emotional distress, see Maldonado v. Leeds, 865 A.2d 741, 745 (N.J. Super. Ct. App. Div. 2005) (citing N.J. Stat. Ann. § 2A:14-2), and claims alleging negligence such as negligent hiring or supervision, Lutzky v. Deutsche Bank Nat'l Trust Co., No. 09-cv-3886 (JAP), 2009 WL 3584330, at *4 (D.N.J. Oct. 27, 2009) (citing N.J. Stat. Ann. § 2A:14-2(a)).

At points, he eschewed the opportunity to make specific credibility determinations regarding plaintiff's testimony. However, "[t]o determine whether the discovery rule applies, a plenary hearing is necessary 'since credibility is usually at issue.'" Maldonado v. Leeds, 374 N.J.Super. 523, 531 (App. Div. 2005) (quoting J.L. v. J.F., 317 N.J.Super. 418, 429 (App. Div. 1999)); Lopez, 62 N.J. at 275. Nevertheless, the judge made some factual findings based on the evidence adduced at the plenary hearing, and, as to those, we defer under our standard of review. See, e.g., Nelson v. Elizabeth Bd. of Educ., 466 N.J.Super. 325, 336 (App. Div. 2021) ("[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence so as to offend the interests of justice[.]"