Opinion
DOCKET NO. A-5978-12T4
09-18-2014
Y.W., Plaintiff-Appellant, v. NEW MILFORD PUBLIC SCHOOL, BERKLEY STREET ELEMENTARY SCHOOL, KIMBERLY ROBERTS, VERONICA ZERON, DIVISION OF CHILD PROTECTION AND PERMANANCY, DIVISION OF YOUTH AND FAMILY SERVICES, and NEW MILFORD POLICE DEPARTMENT, Defendants-Respondents.
Y.W., appellant, argued the cause pro se. Vittorio S. LaPira argued the cause for respondent New Milford Board of Education (Fogarty & Hara, attorneys; Stephen R. Fogarty, of counsel; Nicholas A. Soto, on the brief). Ian C. Doris argued the cause for respondent New Milford Police Department (Keenan & Doris, LLC, attorneys; Mr. Doris, of counsel; Bernadette M. Peslak, on the brief). Peter D. Wint, Assistant Attorney General, argued the cause for respondents Division of Child Protection and Permanency, Kimberly Roberts and Veronica Zeron (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3706-13. Y.W., appellant, argued the cause pro se. Vittorio S. LaPira argued the cause for respondent New Milford Board of Education (Fogarty & Hara, attorneys; Stephen R. Fogarty, of counsel; Nicholas A. Soto, on the brief). Ian C. Doris argued the cause for respondent New Milford Police Department (Keenan & Doris, LLC, attorneys; Mr. Doris, of counsel; Bernadette M. Peslak, on the brief). Peter D. Wint, Assistant Attorney General, argued the cause for respondents Division of Child Protection and Permanency, Kimberly Roberts and Veronica Zeron (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief). PER CURIAM
In reviewing the denial of Y.W.'s motion for leave to file a late notice of claim, we affirm because the claim accrued more than ninety days prior to the motion and because the trial judge correctly concluded that Y.W. failed to present sufficient reasons constituting extraordinary circumstances.
The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, mandates that a plaintiff file a notice of claim within ninety days of the cause of action's accrual. N.J.S.A. 59:8-8. If the claim notice is not filed, the action is "forever barred." Ibid. Trial courts are empowered to permit the filing of a late notice only upon a claimant's showing of "sufficient reasons constituting extraordinary circumstances" for the failure to file a timely notice of claim. N.J.S.A. 59:8-9. The authority to permit a late notice lies in the trial court's "sound discretion," which we will not disturb absent a showing of abuse. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); see also D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013) .
The complaint Y.W. would file, if permitted, would allege defamation. We need not repeat the alleged defamatory statement, particularly due to its sensitive nature. For the same reason, we have identified the claimant only by his initials. It suffices for our present purposes to set forth the following undisputed facts. On February 1, 2013, Y.W.'s child made a statement concerning Y.W. to school officials. On the same day, these school officials reported the statement to the Department of Children and Families (Department) and law enforcement officials, who also advised Y.W. of the child's allegations on February 1, 2013. The Department conducted an investigation. On March 21, 2013, the investigation was closed and no criminal charges were brought.
On May 14, 2013 - 103 days after February 1, 2013 - Y.W. moved for leave to file a late claim notice. In seeking relief, Y.W. asserted that he failed to sooner file a notice because: (1) he was given legal advice that service of a notice prior to the completion of the Department's investigation would be viewed as hindering the investigation and label him "uncooperative" in the eyes of the Department; (2) he was busy with college courses; (3) all the elements of the cause of action "could not be proven . . . until the conclusion of a medical evaluation"; and (4) English is not Y.W.'s native language.
By way of a thorough oral decision, Judge Robert L. Polifroni found either there was no substance to Y.W.'s assertions or that they did not constitute "extraordinary circumstances" that would warrant the exercise of his discretion in Y.W.'s favor. We find insufficient merit in Y.W.'s many arguments in this appeal to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
As the judge observed, even if counsel did advise Y.W. about the timing of the notice of claim, that event did not prevent him from filing and, in fact, evinced a conscious decision to refrain from filing a notice of claim. Judge Polifroni also noted that Y.W. was only a part-time college student and was quite conversant in the English language even if it was not his native language. And Y.W.'s alleged concern about serving the claim notice during the course of the Department's investigation does not constitute an extraordinary circumstance that would authorize a late filing. See Bayer v. Twp. of Union, 414 N.J. Super. 238, 259-60 (App. Div. 2010).
The judge said, among other things, that Y.W.'s pro se papers were "beautifully written" and revealed his "full grasp of the English language." Y.W. also represented himself in this court, and our impressions of his written and oral submissions are consistent with the trial judge's observations.
We also reject Y.W.'s argument that the cause of action did not accrue until the Department concluded its investigation. The cause of action that Y.W. would present — if permitted by the outcome of this appeal — sounds in defamation, which requires proof of "(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher." DeAnqelis v. Hill, 180 N.J. 1, 13 (2004); see also G.D. v. Kenny, 205 N.J. 275, 292-93 (2011); Leanq v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009). The cause of action is complete for purposes of the statute of limitations — and, by analogy, for purposes of the ninety-time claim notice statute — upon publication. See Lawrence v. Bauer Publ'q & Printing Ltd., 78 N.J. 371, 371-72 (1979) (reversing substantially for the reasons set forth in Judge Ard's dissenting opinion at 154 N.J. Super. 271, 276 (App. Div. 1977)). Because there is no dispute that the allegedly defamatory statement was published on February 1, 2013 — a fact Y.W. learned the same day — the argument that the cause of action accrued at some later date is without merit.
Consequently, the discovery rule does not assist Y.W. Even were it otherwise, we remain bound by Lawrence's holding that the discovery rule has no application in defamation actions. See NuWave Inv. Corp. v. Hvman Beck & Co., Inc., 432 N.J. Super. 539, 569 (App. Div. 2013), certif. granted, 217 N.J. 303 (2014).
Y.W. argues that Epstein v. State, 311 N.J. Super. 350 (App. Piv.), certif. denied, 155 N.J. 589 (1998), suggests otherwise. We disagree. There, we were mainly concerned with fixing the date of the accrual of a malicious prosecution, which is not applicable here, observing that the termination of the prosecution constituted the date the time to file a notice of claim would commence. Id. at 354. The panel did not hold that the termination of an investigation such as that undertaken by the Pepartment here would commence the time to file a claim notice in a defamation case. The footnote to which Y.W. alludes merely states that the appellant there had not even filed a notice of claim within ninety days of the investigation's termination. Id. at 355 n.3.
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To summarize, the cause of action Y.W. seeks to assert accrued on February 1, 2013, and he did not file a claim notice within ninety days of that date. Y.W. is thus barred from commencing the action absent leave to file a late notice of claim. N.J.S.A. 59:8-8 (deeming a claimant "forever barred" if a notice of claim is not timely filed). Even though Y.W. moved for leave to file the claim notice less than two weeks after the ninety-day period expired, and even though no party would be prejudiced by a late filing, Y.W. is not entitled to relief. The Legislature has directed that late claim notices are only permitted when extraordinary circumstances for the delay are presented, and the reasons asserted by Y.W. do not meet the "exacting standard" imposed by N.J.S. A. 59:8-9. See D.D., supra, 213 N.J. at 147-49.
Affirmed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION