Opinion
DOCKET NO. A-2316-12T1
06-18-2014
DOMENICK MALINCONICO, Plaintiff-Appellant, v. NEWARK HOUSING AUTHORITY, Defendant-Respondent.
Domenick Malinconico, appellant, argued the cause pro se. Elliot D. Harris, Associate Counsel of Operations, argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Waugh.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4064-12.
Domenick Malinconico, appellant, argued the cause pro se.
Elliot D. Harris, Associate Counsel of Operations, argued the cause for respondent. PER CURIAM
Plaintiff Domenick Malinconico appeals an order entered on October 10, 2012, dismissing his civil action against the Newark Housing Authority (NHA) because of Malinconico's failure to file a notice of claim as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. He also appeals an order entered on December 21, 2012, denying his motion to file a late notice of claim. We affirm.
The underlying dispute arose in the context of a landlord-tenant case. Subsequently, Malinconico, formerly a tenant of NHA, filed a civil action alleging that an employee of the NHA obtained a warrant for his removal from the leased premises based upon false pretense. Malinconico sought damages for the eviction, emotional distress, pain and suffering.
The application for the warrant of removal is dated December 19, 2011, and it states Malinconico had not paid the amount owed by the December 6, 2011 due date under a settlement agreement in the landlord-tenant case. Malinconico alleges that those facts are false and that he sustained damages as a consequence of the misrepresentation.
Although the warrant of removal is not in the record provided on appeal, the record includes an order for orderly removal entered on February 6, 2012. That order was entered at the request of Malinconico's attorney in the landlord-tenant action, and it stays execution of the warrant of removal until after 9:00 a.m. on February 14, 2012. Thus, it is clear that Malinconico's attorney knew of the warrant of removal at least by February 6, 2012.
Although defendant filed an appeal from the landlord-tenant action, he withdrew it on October 9, 2012.
Malinconico commenced this litigation on May 25, 2012. Malinconico was aware of facts that permitted him to allege a cause of action based on false pretense by that date, because that is what he alleged in that complaint. In addition, Malinconico's appendix on this appeal includes the certification NHA filed with the court to obtain the warrant of removal on December 19, 2011.
We requested a copy of the complaint at oral argument because it was not included in the appendix on appeal. But see R. 2:6-1(a)(1)(A), (I) (providing that the appendix must include all pleadings and all parts of the record essential to a proper consideration of the issues).
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NHA moved to dismiss Malinconico's civil action for failure to file a notice of claim, and Malinconico submitted a letter brief in opposition to the motion to dismiss on October 10, 2012. On this appeal, plaintiff asserts that he first submitted a notice of claim with that motion. The judge heard argument on the motion to dismiss on October 26, 2012. Malinconico, who appeared and argued pro se, was present when the judge granted the motion to dismiss at the conclusion of the oral argument. The judge entered the order of dismissal that day.
On November 27, 2012, Malinconico filed a motion for leave to file a late notice of claim. The motion consists of a "brief in lieu of a more formal brief," and the only certification Malinconico submitted with it is a certification of service. In that brief, Malinconico asserts that NHA never served him or the attorney representing him in the landlord-tenant action with a copy of the warrant of removal. He further contends that his cause of action did not accrue until he discovered that the warrant of removal was obtained by false pretense. Malinconico did not, however, say when he made that discovery, and he made no representations explaining when or how he obtained the certification NHA submitted in support of the warrant of removal found in his appendix.
The judge denied Malinconico's motion for an extension of time to file a notice of claim by order of December 21, 2012. The reason the judge gave for that order was that the complaint had been dismissed.
Malinconico's appeal of the October 26, 2012 order is untimely. Pursuant to Rule 2:4-1(a), an appeal from a final judgment must be filed within forty-five days of entry. The court may extend the time to file upon proper motion and for good cause, but only for a period that does not exceed thirty days. R. 2:4-4(a). Thus, this court has no authority to extend the time to appeal in a civil case beyond seventy-five days. Carbrera v. Trombone, 205 N.J. Super. 268, 271 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986).
Turning to the December 21, 2012 order, Malinconico argues, for the first time on this appeal, that his claim accrued on July 17, 2012. As previously noted, he claims to have submitted a notice of claim on October 10, 2012, with his opposition to defendant's motion to dismiss. Setting aside the host of procedural issues and the propriety of plaintiff's attempt to serve the notice of claim by appending it to his opposition to NHA's motion to dismiss, we see no basis for granting relief here.
Pursuant to N.J.S.A. 59:8-8, a notice of claim must be presented "not later than the ninetieth day after accrual of the cause of action." Nonetheless, the Act gives a court discretion to permit a filing after that period upon a motion filed within one year and "reasonable time" of the due date. N.J.S.A. 59:8-9. That discretion is limited to cases in which the claimant's affidavit shows "sufficient reasons constituting extraordinary circumstances" for the delay and there is no "substantial[] prejudice[]" to the public entity or employee. Ibid.
[R.L. v. State-Operated School Dist., 387 N.J. Super. 331, 340 (App. Div. 2006).]
Malinconico has not and cannot establish that his claim accrued on July 17, 2012. The complaint he filed on May 25, 2012 alleged that a NHA employee used false pretense to obtain the warrant of removal. Accordingly, we must conclude that Malinconico discovered the false pretense no later than May 25, 2012. Giving Malinconico the benefit of every possible favorable inference, we assume that he first became aware of the false pretense on May 25, 2012, and that he submitted a notice of claim with his opposition to the motion to dismiss on October 10, 2012.
Even on those most favorable assumptions, Malinconico submitted the notice of claim, albeit not in conformity with the TCA, see N.J.S.A. 59:8-4 to -11 (specifying the filing procedure), and the notice of claim was "filed" more than 130 days after the cause of action accrued. Moreover, Malinconico failed to allege facts amounting to "extraordinary circumstances" warranting an extension of the statutory time for filing.
For all of the foregoing reasons, we affirm the dismissal and the denial of plaintiff's motion. In light of our assessment of the merits and after having considered all of the arguments plaintiff presents in light of the record viewed most favorable to plaintiff, we conclude that none has sufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION