Opinion
DOCKET NO. A-1521-13T3
09-29-2014
JEFFREY S. WILLIAMS, JR., Plaintiff-Appellant, v. TINTON FALLS POLICE DEPARTMENT, TINTON FALLS POLICE OFFICER JAMES SAPIA, TINTON FALLS CORPORAL BLAKE RUTHERFORD, MONMOUTH COUNTY PROSECUTOR'S OFFICE, MONMOUTH COUNTY PROSECUTOR'S OFFICE DETECTIVE KEITH FINKELSTEIN, and BOROUGH OF TINTON FALLS, Defendants-Respondents,
Gregory V. Sharkey argued the cause for appellant. Brett E. Halpern argued the cause for respondents Monmouth County Prosecutor's Office and Monmouth County Prosecutor's Office Detective Keith Finkelstein (Gluck Walrath, attorneys; Andrew Bayer, of counsel and on the brief; Mr. Halpern on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2682-13. Gregory V. Sharkey argued the cause for appellant. Brett E. Halpern argued the cause for respondents Monmouth County Prosecutor's Office and Monmouth County Prosecutor's Office Detective Keith Finkelstein (Gluck Walrath, attorneys; Andrew Bayer, of counsel and on the brief; Mr. Halpern on the brief). PER CURIAM
Plaintiff Jeffrey S. Williams, Jr. appeals from an August 9, 2013 Law Division order denying his motion for leave to file a late tort claim notice against defendants Monmouth County Prosecutor's Office (MCPO) and MCPO Detective Keith Finkelstein, and from an October 11, 2013 order denying reconsideration. For the reasons that follow, we reverse.
The facts are undisputed. On September 12, 2012, plaintiff was a rear-seat passenger in a motor vehicle that was stopped by Tinton Falls police. When the police allegedly spotted a gun, the driver of the vehicle drove off at a high rate of speed, with the police in pursuit. The driver of the fleeing vehicle lost control and collided with a tree, demolishing the car. The driver and a front-seat passenger were fatally injured. Plaintiff sustained severe injuries and was admitted to a local hospital.
Due to the extent of plaintiff's injuries, his family retained Gregory V. Sharkey, Esq., to represent him. By late September, Sharkey had requested a copy of the accident report from the Tinton Falls Police Department. That request was denied due to an ongoing criminal investigation into the incident by the MCPO. Sharkey then contacted the MCPO, which also denied his request for the accident investigation report due to its pending investigation. However, on October 9, 2012, the MCPO supplied Sharkey with the crashed vehicle owner's name and insurance information for coverage of plaintiff's medical expenses.
Sharkey thereafter remained in constant contact with the MCPO to obtain the accident report and investigation. Consistent with its policy, the MCPO advised Sharkey that the information would not be released until its investigation was completed. On December 10, 2012, Sharkey filed timely notices of claim with the Borough of Tinton Falls, the Tinton Falls Police Department, and John Doe police officers. At that point, the MCPO's investigation remained ongoing.
On January 4, 2013, Sharkey wrote the MCPO and offered to make plaintiff available for an interview if it would assist in the investigation. That interview, conducted by an MCPO detective, occurred on January 29, 2013. Thereafter, Sharkey continued to remain in regular communication with the MCPO.
On April 9, 2013, the MCPO supplied its extensive investigation file to Sharkey. Sharkey then received DVDs from the Tinton Falls police vehicles on April 15 and May 1, 2013. This discovery included a report from MCPO Detective Keith Finkelstein, dated September 12, 2012. Finkelstein's report indicated that he was driving an unmarked MCPO vehicle when he came upon the Tinton Falls Police Department motor vehicle stop, and subsequently became the lead vehicle in the ensuing police pursuit. According to Sharkey, this was his first notice of any involvement by the MCPO in the police chase.
On July 9, 2013, plaintiff moved for leave to file a late tort claim notice against Tinton Falls Police Officers James Sapia and Blake Rutherford, the MCPO, and Finkelstein. On August 9, 2013, the court granted this motion as to the Tinton Falls officers, finding that the timely "John Doe" filing constituted substantial compliance with the statutory notice requirements. Finding that plaintiff failed to establish extraordinary circumstances, the court denied the late filing as to the MCPO and Finkelstein. Plaintiff then moved for reconsideration, providing additional documentation regarding Sharkey's earlier unsuccessful efforts to procure information pertaining to the accident from Tinton Falls and the MCPO. The court denied the motion on October 11, 2013, finding that the standard for reconsideration had not been met, and while a "closer call," plaintiff had still not established extraordinary circumstances to excuse the late filing. This appeal ensued.
N.J.S.A. 59:8-8 requires that claims for damages against public entities must be filed within ninety days of their accrual. Beauchamp v. Amedio, 164 N.J. 111, 116 (2000) (discussing the procedural requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3). Although the period for filing is short, any harshness is alleviated by N.J.S.A. 59:8-9, which allows for the filing of late claims. Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011). Leave to file a late notice of claim may be granted within one year of the accrual of the action upon a showing of "sufficient reasons constituting extraordinary circumstances" for the plaintiff's failure to file a timely notice of claim, so long as the public entity is not "substantially prejudiced." N.J.S.A. 59:8-9.
The statutory framework governing the "extraordinary circumstances" exception to the ninety-day requirement has been extensively and definitively detailed elsewhere, and need not be repeated here. See, e.g., D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 146-49 (2013). Clearly, the decision to grant permission is one "left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532-33 (App. Div. 2010) (internal quotation marks omitted). Decisions denying an application to file a late claim are "examine[d] more carefully . . . 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 [permitting] the application." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (internal quotation marks omitted). In making that determination, all of the circumstances in combination are to be considered. See ibid.
In Mendez, supra, 416 N.J. Super. at 528, we addressed the issue of whether extraordinary circumstances existed where plaintiffs' attorneys moved for permission to file late tort claim notices after receiving and reviewing a videotape depicting events relating to the subject motor vehicle accident. Plaintiffs contended that the videotape provided the first basis for a potential claim against that public entity. Id. at 534. There, as here, plaintiffs were hospitalized as a result of their injuries, attorneys were retained on their behalf within a month of the accident, and they served initial tort claim notices within the ninety-day period. Id. at 533-34. Counsel certified to their multiple attempts, both within and after that time, to obtain the videotapes of the accident scene which, despite their reasonable diligence, were not supplied until four-and-one-half months after the ninety-day deadline had expired. Id. at 534-35. Under these facts, we found extraordinary circumstances excused the late filing.
We find the circumstances of the present case no less compelling. Plaintiff promptly retained counsel, who timely requested the accident report and filed initial tort claims otices. Plaintiff submitted to an interview to assist in the investigation. The MCPO was well aware early on that Sharkey was representing plaintiff in a potential civil action. Despite this knowledge, it failed to reveal Finkelstein's involvement until after the claims period had expired. While perhaps not deliberate, the MCPO thereby thwarted plaintiff's investigation of its own involvement in the incident. The MCPO cannot block plaintiff's access to this information, of which it was uniquely aware, and then use that conduct as a basis to deny plaintiff the procedural benefits that enable him to bring a lawsuit against it.
The MCPO argues that Sharkey could have requested more limited information within the ninety-day period, such as the identity of all those involved in the accident. However counsel for the MCPO candidly conceded at oral argument that he was unaware if such request would have been honored if it had been made. The MCPO also claimed no prejudice as a result of the late filing, nor do we find any based on the MCPO's thorough investigation of the incident.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION