Opinion
DOCKET NO. A-2054-14T3
01-13-2016
TYQUAN MCCALL, Plaintiff-Respondent, v. NEW JERSEY TRANSIT, Defendant-Appellant.
John J. Hoffman, Acting Attorney General, attorney for appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Marti B. Alhante and Rahat N. Babar, Deputy Attorneys General, on the brief). Anthony Carbone, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4511-14. John J. Hoffman, Acting Attorney General, attorney for appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Marti B. Alhante and Rahat N. Babar, Deputy Attorneys General, on the brief). Anthony Carbone, attorney for respondent. PER CURIAM
Defendant New Jersey Transit Corporation (NJT) appeals from a November 21, 2014, order granting plaintiff leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. We reverse and remand for reconsideration.
We glean the following facts from the record. On May 4, 2014, plaintiff was struck by a NJT light rail train and sustained a broken right leg, blood clots in his brain, a broken nose, multiple facial fractures, partial memory loss, blurred vision, and his left leg required amputation above the knee. Plaintiff was hospitalized at Jersey City Medical Center, and later treated at the Kessler Institute for Rehabilitation.
On October 3, 2014, plaintiff filed a motion seeking leave to file a notice of claim against NJT beyond the ninety-day period otherwise required under N.J.S.A. 59:8-8. Plaintiff's counsel submitted a certification in support of the motion which detailed plaintiff's injuries, explained that plaintiff was hospitalized for a "significant period of time" directly after the incident and was treated at the Kessler Institute for Rehabilitation "for several months after that," and represented that plaintiff's injuries "prevented him from taking any action" within the ninety-day period to investigate or provide notice to "any public entity of his potential claims." Attached to counsel's certification was plaintiff's certified Initial Notice Of Claim For Damages Against The State Of New Jersey in which he also listed his numerous injuries, including three injuries he indicated are permanent: "left leg amputation," "memory loss," and "blurred vision."
The court granted plaintiff's motion, finding that "extraordinary circumstances" were present and that NJT would not be substantially prejudiced by the late filing. N.J.S.A. 59:8-9. This appeal followed. R. 2:2-3(a)(3).
On appeal, NJT argues:
THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE PLAINTIFF'S MOTION TO FILE A LATE NOTICE OF CLAIM WAS PROCEDURALLY DEFICIENT.
The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, requires that a notice of claim against a public entity be filed within ninety days after the accrual of a cause of action. N.J.S.A. 59:8-8. The notice requirement is intended to "'expedite investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense.'" Escalante v. Twp. of Cinnaminson, Cinnaminson Mem'l Park, 283 N.J. Super. 244, 249 (App. Div. 1995) (quoting Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989)).
A notice of claim may be filed beyond the ninety-day time period "in the discretion of a judge of the Superior Court . . . within one year after the accrual of his claim . . . ." N.J.S.A. 59:8-9. To permit a late filing, a court must find there are "sufficient reasons constituting extraordinary circumstances" for the failure to file the notice within the prescribed ninety days, and that the public entity will not be "substantially prejudiced" by the granting of the application. N.J.S.A. 59:8-9; see also Escalante, supra, 283 N.J. Super. at 249.
Historically, the TCA fixed a "lower threshold that the court was authorized to use in granting relief." D.D. v. Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 147 (2013). That standard required a claimant to present "sufficient reasons" to file a late notice of claim. Id. at 147-48; see also L. 1972, c. 45, § 59:8-9 (amended 1994). However, in 1994 the TCA was amended to require a claimant to establish "sufficient reasons constituting extraordinary circumstances" to file a late notice of claim, N.J.S.A. 59:8-9, which created a "'more demanding'" standard for a claimant to overcome the State's immunity from tort liability. Beyer v. Sea Bright Borough, 440 N.J. Super. 424, 430 (App. Div. 2015) (quoting Beauchamp v. Amedio, 146 N.J. 111, 118 (2000)); see Rogers v. Cape May Cty. Office of Pub. Def., 208 N.J. 414, 428 (2011); Lowe v. Zarghami, 158 N.J. 606, 625 (1999); O'Neill v. City of Newark, 304 N.J. Super. 543, 553 (App. Div. 1997).
"[S]ufficient reasons constituting extraordinary circumstances for [] failure to file notice of claim within" ninety days after the accrual of the cause of action, N.J.S.A. 59:8-9, is not defined, and thus must be evaluated on a "case- by-case basis." Rogers, supra, 208 N.J. at 428. Although the standard of "sufficient reasons constituting extraordinary circumstances," is inexact, "[t]he consistent theme . . . is the severity of the medical condition and the consequential impact on the claimant's very ability to pursue redress and attend to the filing of a claim." D.D., supra, 213 N.J. at 150. "In determining whether extraordinary circumstances exist, 'a judge must consider the collective impact of the circumstances offered as reasons for the delay.'" Mendez v. South Jersey Transp. Auth., 416 N.J. Super. 525, 533 (App. Div. 2010) (quoting R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006)).
To obtain leave to file a late notice of claim, a plaintiff must establish his "circumstances as they were during the ninety-day time period, because that is the time during which the notice should have been filed." D.D., supra, 213 N.J. at 151. The claimant must present evidence that he "was prevented from acting to pursue [his] [] complaint or that [his] [] ability to do so was in any way impeded by [his] [] medical or emotional state." Ibid. The grant or denial of permission to file a late claim "is a matter left to the sound discretion of the trial court," Beyer, supra, 440 N.J. Super. at 429 (internal quotations and citation omitted), which will be "'sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (quoting Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)).
NJT argues the court abused its discretion because its finding of extraordinary circumstances was based solely upon purported inadmissible hearsay contained in plaintiff's counsel's certification. We disagree. Although plaintiff's injuries were described in counsel's certification, they were also detailed in plaintiff's Initial Notice Of Claim For Damages Against The State Of New Jersey that was attached to counsel's certification and was before the court at the time plaintiff's motion was decided. Plaintiff signed the notice and certified as to the truth of the statements contained in it. As a result, the court had before it competent evidence regarding plaintiff's injuries based upon plaintiff's personal knowledge. R. 1:6-6.
Plaintiff's certified notice detailed his injuries, including the amputation of his left leg above the knee, a broken right leg, partial memory loss, blurred vision, multiple brain blood clots, and facial fractures. We are convinced plaintiff's certified notice detailed injuries which appear sufficiently "severe and debilitating" to satisfy the extraordinary circumstances standard under N.J.S.A. 59:8-9. D.D., supra, 213 N.J. at 149.
Plaintiff's injuries are wholly dissimilar to those suffered by the plaintiff in D.D., where the Court determined the trial court erred in granting leave to file a late notice of claim. Id. at 158. The plaintiff's injuries in D.D. consisted of only "vaguely described complaints of stress and emotional strain" for which she did not seek medical treatment, which did not interfere with her ability to retain counsel during the ninety-day period, and which did not "impair[] her ability to act." Id. at 150-51. Here, plaintiff certified he sustained very serious physical injuries.
The nature and extent of plaintiff's injuries do not, however, end the inquiry. The court is also required to determine whether the injuries prevented or impaired plaintiff's ability to file a notice of claim during the ninety-day period. D.D., supra, 213 N.J. at 151. NJT argues that the court erred because the only evidence that plaintiff's injuries prevented a timely filing of the notice of claim was a statement to that effect in plaintiff's counsel's certification. NJT contends that counsel was not qualified to make the statement because it was not based upon counsel's personal knowledge, and therefore it could not properly support the court's exercise of discretion. NJT asserts that there was insufficient evidence presented upon which the trial court could properly conclude that plaintiff's injuries impaired his ability to file a timely notice of claim.
The Supreme Court has made clear that a decision to grant or deny leave to file a notice of claim should be made only after a careful analysis of the circumstances in each case. Lowe, supra, 158 N.J. at 629. The Court has held that we should review "'more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that whenever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Lowe, supra, 158 N.J. at 629 (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 [sic] (1994)).
We are convinced that the record before the trial court did not provide a sufficient factual basis for the court's finding that plaintiff had shown "extraordinary circumstances" for his failure to file a timely notice of claim. As noted, plaintiff has certified that he sustained severe and permanent injuries when struck by the NJT light rail train. However, there is insufficient evidence in the record to show that plaintiff was not able to file a timely claim, due to the severity of his injuries and the medical care he received following the accident. Moreover, it is not clear from this record that plaintiff's attorney has personal knowledge of the facts set forth in his certification.
Thus, the trial court did not have a sufficient record upon which to find that plaintiff's injuries prevented him from filing a notice of claim within the ninety-day time period. D.D., supra, 213 N.J. at 151. In order to make that finding, the court must be provided with additional information regarding the source of plaintiff's counsel's knowledge and whether plaintiff's serious injuries and medical treatment prevented him from filing a timely notice of claim. The facts set forth in the certified submissions by plaintiff and his counsel "represent an extraordinary situation, and one which require further exploration and consideration by the motion judge prior to [his] exercise of discretion under N.J.S.A. 59:8-9." Beyer, supra, 440 N.J. Super. at 432.
We therefore are constrained to reverse the trial court's order and remand the matter for reconsideration based upon an expanded record. Plaintiff's counsel shall be permitted to file a supplemental affidavit or certification establishing he had personal knowledge of the facts set forth in his original certification. Plaintiff shall be permitted to file an affidavit or certification, and relevant medical records, to support his claim that his injuries and medical treatment prevented the filing of a timely notice of claim. NJT shall be permitted to file affidavits or certifications in response to those provided on plaintiff's behalf.
The court shall then determine whether the motion can be decided on the basis of written submissions or whether those submissions raise a genuine issue of material fact which can only be resolved after a plenary hearing. Ibid.; Meyer, supra, 416 N.J. Super. at 536. A consideration of the supplemental submissions will allow the court to assess whether the case should be heard on the merits, with any doubts to be resolved in favor of granting plaintiff's application. Lowe, supra, 158 N.J. at 629.
Reversed and remanded for reconsideration in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION