Opinion
DOCKET NO. A-0978-11T4
05-31-2012
ROBERT THIBAULT, Plaintiff-Respondent, v. BOROUGH OF HIGHTSTOWN, BOROUGH OF HIGHTSTOWN POLICE DEPARTMENT, and DETECTIVE BENJAMIN MILLER, Defendants-Appellants.
Gregory J. Sullivan argued the cause for appellants (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Sullivan, of counsel and on the brief). William J. Shipers argued the cause for respondent (Shamy, Shipers & Lonski, P.C., attorneys; Mr. Shipers, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2039-11.
Gregory J. Sullivan argued the cause for appellants (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Sullivan, of counsel and on the brief).
William J. Shipers argued the cause for respondent (Shamy, Shipers & Lonski, P.C., attorneys; Mr. Shipers, on the brief). PER CURIAM
Defendants Borough of Hightstown (the Borough), Borough of Hightstown Police Department and Detective Benjamin Miller appeal from an order of the Law Division granting plaintiff Robert Thibault's motion to file a late Notice of Tort Claim, N.J.S.A. 59:8-9. In her opinion, Judge Darlene J. Pereksta determined that plaintiff made a sufficient showing of "extraordinary circumstances" to warrant the granting of the application. We agree and affirm.
These are the relevant facts adduced from the record created in support of the motion. On August 6, 2010, defendant Miller observed and stopped a vehicle driven by plaintiff. Miller issued two summonses to plaintiff: for driving with a suspended license and for failure to surrender a suspended license. At the time of the stop, plaintiff was a candidate for Mayor in the Borough and advocated for a plan that would result in the takeover of police services in the Borough by the neighboring East Windsor Township Police Department, which issue was controversial and the subject of significant discussion and publicity in the municipality.
As recorded on the audio portion of the in-car camera system utilized by the defendant police department, Miller claimed the stop was random. Although plaintiff considered the stop "politically motivated," the documentation and Miller's statements did not support that view. Plaintiff lodged a complaint with the Borough police department, the Mercer County Prosecutor's Office and other agencies. The Borough police department undertook an internal investigation on August 20, 2010. The prosecutor's office conducted a "paper review" and returned the matter to the police department, which continued its internal investigation in February 2011.
Upon completion of the various investigations, plaintiff filed a motion in the municipal court seeking a release of the internal investigation. The application was granted. The report, which was not provided to us on this appeal, led plaintiff to conclude that defendants had violated plaintiff's rights under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2; 42 U.S.C.A. 1983; Art. I, par. 1 and 5 of the New Jersey Constitution; and the First and Fourteenth Amendments of the United States Constitution.
Plaintiff learned from the report that the "random" stop was anything but random and that defendant Miller had at least one day earlier performed a computer inquiry into plaintiff's warrant and motor vehicle history. The investigation report was made available to plaintiff on June 29, 2011, and a motion dated August 4, 2011 followed, seeking leave to file a late notice.
In her decision, Judge Pereksta stated:
The defendant contends that the cause of action accrued at the time of the stop, he at that point was alleging that it was an improper stop or profiling, so to speak, because he filed complaints with the prosecutor's office as to the police officer who stopped him. And so defense says that he is subject to the 90-day filing requirements for a tort claims notice against the public entity, the Hightstown, or the Borough of Hightstown and the Police Department.
Now, [N.J.S.A.] 59:8-9 provides that a claimant who fails to file his notice of claim within 90 days as provided may in the discretion of the Superior Court Judge 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. And there needs to be a showing of sufficient reasons constituting extraordinary circumstances for failure to file within the 90-day period. Then [sic] says in no event may any suit against a public entity or public employee be filed later than two years from the time of the accrual of the claim. I should note as well the individual detective or Police Officer Miller was also served or also sued and is subject to this as well.
He is, he being the plaintiff, in filing his [sic] one[]day shy of a year from the traffic stop that's the subject of this claim, however, I do find that he does fit within the exception showing exceptional circumstances. Although he could have filed the claim without any documentation[,] I don't think his waiting to see if . . . his basis was correct in terms of waiting to get the internal investigation report, and that took him some time because it wasn't readily
handed over to him. So I don't see that he should be punished for trying to corroborate what his -- even if it was his initial instinct to think that this was an improper stop, to try to get some evidence to support that. Also, I don't think there is any showing of any prejudice to any of the public entities or to Detective Miller since early on they were noticed through the filing of the complaint with the Prosecutor's Office and they were subject to the internal investigation so they knew that there was going to be a problem, it's not a situation where memories faded before anybody could question them or they didn't know that they were beyond notice and would need to maybe get whatever documentation or corroboration to support their position. They had plenty of time to know that they should preserve that.
On appeal, defendants assert that plaintiff failed to establish a sufficient basis upon which to find extraordinary circumstances for leave to file a late notice of tort claim.
We disagree and affirm substantially for the reasons set forth in Judge Pereksta's oral opinion of October 13, 2011. We add the following comments.
Defendants argue that plaintiff was immediately aware of a possible claim, upon his being stopped by Miller. According to defendants, this is best demonstrated by plaintiff's aggressive pursuit of disciplinary actions against the officer. The difficulty with that argument is that, while plaintiff may have felt aggrieved by the motor vehicle stop, that reaction, standing alone, may not form the basis of the action plaintiff ultimately brought against defendants. For it is the information that was gleaned from the various investigations and reports that provides the factual underpinning for the various claims forming the complaint in this cause of action.
Defendants further assert that what was derived from the reports is nothing other than the facts that would emerge during the discovery process in any litigation. We disagree.
At the outset of the incident, the officer represented that the stop was random. This was not an accurate statement. Only after plaintiff pursued the matter and acquired the reports, which defendants sought to withhold, did the truth emerge. We cannot countenance or reward misstatements designed to mislead a litigant simply by assuming that the truth will be revealed through the discovery process. Had plaintiff not gained access to the various investigative reports, he might not have learned the truth about what transpired here. The government cannot participate in deception and use that conduct as a basis for denying a litigant procedural benefits that enable him or her to bring a lawsuit against that very defendant. The same principle applies with equal force to any claim of prejudice resulting from the delay in filing.
We will not prejudice a litigant who forebears from a "whimsical filing[] of [a] Tort Claims notice[] to beat the ninety-day deadline." Mendez v. South Jersey Trans. Auth., 416 N.J. Super. 525, 534 (App. Div. 2010). Here, the investigative reports provided the factual underpinning to pursue a cause of action. The facts of this case presented the "exceptional circumstances" contemplated by the rule.
"Extraordinary circumstances" must be determined on a case-by-case basis, Lowe v. Zarghami, 158 N.J. 606, 626 (1999), and the decision to grant leave to file a late notice is within the discretion of the trial court. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); Mendez, supra, 416 N.J. Super. at 532-33. We will not disturb the exercise of such discretion absent a showing of abuse. Id. at 532. Moreover, we will be more indulgent in reviewing a grant of relief than a denial, in light of the policy that "wherever possible[,] cases may be heard on their merits . . . ." Id. at 533 (citations omitted). Any doubts will be resolved in favor of the applicant. Ibid.
Judge Pereksta properly found extraordinary circumstances in granting permission to file a late notice.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION