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N.J.S.A. 59:1-1 to 12-3 (the TCA). We have considered the arguments of the parties in light of the record below and applicable legal standards. We affirm. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) The status of this decision is unpublished

Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1790-07T31790-07T3 ESTATE OF NICHOLAS VALENTE by his Adminstrators ad Prosequendum JOSEPH VALENTE, JR. and CHRISTINE VALENTE, and JOSEPH VALENTE, JR. and CHRISTINE VALENTE, individually, Plaintiffs-Respondents, v. TOMS RIVER BOARD OF EDUCATION, Defendant-Appellant. _____________________________________________________________

Argued September 17, 2008 - Decided Before Judges Parrillo and Messano. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3267-07. Michael J. Gilmore argued the cause for appellant (Gilmore & Monahan, P.C., attorneys; Mr. Gilmore, on the brief). Louis N. Christos argued the cause for respondents (Harrison & Christos, attorneys; Mr.
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Christos, on the brief). PER CURIAM Defendant Toms River Board of Education (the Board) appeals from the November 2, 2007 order that permitted plaintiffs, the Estate of Nicholas Valente, Nicholas' parents, Joseph Valente, Jr., and Christine Valente (collectively, plaintiffs), to file a late notice of claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA). We have considered the arguments of the parties in light of the record below and applicable legal standards. We affirm. On September 26, 2007, pursuant to N.J.S.A. 59:8-9, plaintiffs moved for leave to file out of time the notice of claim required by N.J.S.A. 59:8-4. We recite the facts, largely undisputed, as gleaned from the various certifications filed in support of, and in opposition to, plaintiffs' motion. On December 19, 2006, Nicholas, a sixth grader at the Toms River Intermediate East School, collapsed during basketball practice at the Hooper Avenue Elementary School gymnasium. Medical efforts to save Nicholas were unsuccessful and he subsequently died at Jersey Shore Medical Center. After Nicholas' death, Joseph learned that the Hooper Avenue Elementary School was equipped with a defibrillator, but that the device was never used during his son's collapse because the coach of the basketball team, the only adult in attendance at the practice, did not know how to use it. In late March or early April 2007, Joseph obtained the report of the autopsy performed on Nicholas. According to that report, Nicholas "probably died as a result of a cardiac arrhythmia." Nicholas had experienced two prior episodes, one in May 2003, the second on December 4, 2006, during which he passed out. Nicholas' treating physician was made aware of both incidents. Tragically, Nicholas was not the first child that Joseph and Christine had lost to an early death. In July 2002, their daughter, Danielle Marie, drowned in the family's backyard pool, thus, even more understandably Joseph and Christine were "distraught" after Nicholas' death. The couple "became obsessed with protecting [their] remaining child, Daniel," and had "been trying [their] best to deal with [their] own depression . . . ." After Nicholas' death, the Board's superintendent of schools, the principal of Nicholas' school, and his basketball coach visited the family home to offer their sympathies. In the ensuing months, the Board's representatives held some fund-raising events to help ease plaintiffs' financial burdens. Joseph claimed that in March 2007, Debra McKenna, the Board's assistant superintendent, offered the family $2000 toward payment of Nicholas' final medical bills, but would only do so if Joseph signed "a general release." Joseph refused, advising McKenna that he wished to see the autopsy report before signing anything. After receiving the autopsy, Joseph told McKenna that "$2000 was not fair compensation for the loss of [his] child." Rather, he told McKenna that he "thought $20,000-30,000 seemed

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fair . . . but . . . that [he] wanted to check with [his] wife." McKenna told Joseph that the Board would have to take action on such a request at their next meeting. She directed Joseph to the Board's attorney, Thomas Monahan. Joseph spoke to Monahan who would only discuss the details of any payment with Joseph's attorney. Joseph told Monahan that he had "never signed any papers with any lawyer but [had] only consulted with one." After "five weeks passed," Joseph called McKenna who told him the request had not been on the agenda as planned, but that it would be on the next agenda. Joseph was asked to send a letter to the Board making a formal request for the money, which he did. However at the end of June, Joseph spoke to Monahan again and was told that the Board had denied his request because 1) his settlement demand continued to rise; and 2) the Board felt it was not legally responsible for Nicholas' death. During this time, Joseph "believed [he] was engaged in a good faith negotiation with the Board . . . to compensate [him] and [his] family over the loss of [his] son." The Board never advised him of the TCA's notice requirements, and Joseph believed the Board "took advantage of [his] altered state of mind caused by the loss of [his] son." McKenna filed a certification in opposition to plaintiffs' motion. She claimed that she went to the family home after Nicholas' demise, and that Joseph told her "that he had no problem with the school regarding the present circumstances." She also noted that Joseph told her he was suing Bally's Casino and Hotel where Nicholas had passed out earlier in December 2006. McKenna claimed that Joseph told her of the financial difficulties his family was experiencing, including the unpaid medical bills related to Nicholas death. McKenna detailed a total of six conversations she had with Joseph during the months of February, March and April 2007 during which he requested the Board to pay for his son's medical bills. In May, Joseph contacted her and told her his son's life was worth a lot more than $2000[], that he had the reporters in his pocket, that he would go to the newspapers if the school did not give him money, that the school did not need all that negative publicity, that he wanted $20,000[] and that he had a good lawyer. McKenna told Joseph that she would need to speak to Monahan about the request. Subsequently, McKenna told Joseph that he would need "to proceed formally through court," as Monahan had suggested, and that she would pass on the request to the Board, which she did. In his certification in opposition to plaintiffs' motion, Monahan claimed that he had several discussions with McKenna between March and June 2007. Monahan told McKenna that Joseph needed to retain an attorney, that a complaint needed to be filed on behalf of Nicholas' estate, and that any settlement had to be approved by the

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court. Monahan confirmed that McKenna told Joseph of these requirements. Joseph called Monahan's office on June 12, 2007 very irate and claiming that he "did not want to involve lawyers." Monahan agreed to submit Joseph's request to the Board, which he did, and the Board refused the settlement demand. Joseph filed a reply certification in which he reiterated that no representative of the Board ever told him of the ninety-day notice requirement of the TCA. See N.J.S.A. 59:8-8 (requiring every claim for "death or for injury or damage to person or to property shall be presented . . . not later than the ninetieth day after accrual of the cause of action"). It was only after he "consulted with [his] present attorney" that he became aware of the statute's requirements, and his motion was made "shortly after hiring [his] attorney." Joseph claimed he "did not realize that [he] might have a claim until after [he] received the autopsy report, police report, and a report from [Nicholas' doctor]," all of which he received more than ninety days after Nicholas' death. Joseph claimed neither he nor Christine were "able to think clearly or rationally" during this time. Both were "heavily medicated and obsessed with protecting [their] remaining child." His thinking and behavior were "irrational" during the time he was consulting McKenna and Monahan. Judge Edward M. Oles heard oral argument on plaintiffs' motion on November 2, 2007, and afterwards delivered his opinion from the bench. He noted that the motion needed to be analyzed utilizing the "three-part analysis" set forth in Beauchamp v. Amedio, 164 N.J. 111 (2000). Judge Oles decided that "the accrual [of plaintiffs' claim] really d[idn]'t take place until the autopsy [was] rendered," "sometime in late March or [early] April." It was undisputed that plaintiffs did not file a notice of claim within ninety days of that date. The judge then concluded that looking at all the circumstances plaintiffs faced during the time period immediately following Nicholas' death, "collectively . . . there [were] substantial and extraordinary reasons for granting the filing of the late notice[.]" He entered the order now under review. It is well-settled that after expiration of the ninety-day period set forth in N.J.S.A. 59:8-8, a plaintiff may seek leave of court to file a late notice of claim, but must do so within one year of the accrual of the claim. N.J.S.A. 59:8-9. Such a request may be granted only if a plaintiff demonstrates "sufficient reasons constituting extraordinary circumstances for his failure to file [a timely] notice of claim . . . or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter[.]" Ibid. As Judge Oles recognized, in considering whether a plaintiff meets the TCA's notice requirements, "a sequential analysis must be undertaken." Beauchamp, supra, 164 N.J. at 118.

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The first task is always to determine when the claim accrued. The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual. Once the date of accrual is ascertained, the next task is to determine whether a notice of claim was filed within ninety days. If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice. [Id. at 118-19.] "Once a claim accrues and the ninety day period has elapsed, the only exception to the notice requirement is where extraordinary circumstances exist that justify late filing." Id. at 123. We need not consider whether plaintiffs' claim in this case accrued "sometime in late March or [early] April" when Joseph received the autopsy report, which is what Judge Oles determined. The Board, in its brief, limits the issues it raises before us to two: 1) whether "[p]laintiff[s] can show . . . extraordinary circumstances which prevented [them] from filing a timely notice of tort claim; and 2) whether plaintiffs "filed [their] motion seeking leave to file a late notice of tort claim within a reasonable time thereafter." Thus, we assume for purposes of our review that plaintiffs had until early July 2006 to file their notice of claim with the Board. It is undisputed that they failed to do so, instead moving in late September for leave to file a late notice of claim. The Board argues Judge Oles mistakenly exercised his discretion in this case because "grief and mental anguish" "exist in all cases involving death or serious injury," and that such emotions felt by Joseph and Christine following Nicholas' death do not demonstrate "extraordinary circumstances." The Board further notes that it advised Joseph in June 2007 that "he needed to consult an attorney," even if he wished to settle the case. Instead, Joseph insisted on forwarding his settlement request to the Board, and, upon learning it had been rejected in July, he waited nearly three months to file his motion. Thus, the Board argues, even if extraordinary circumstances existed, the delay in bringing the motion was unreasonable. We recently noted that "the decision to grant a plaintiff permission to file late notice of a tort claim is a matter left to the sound discretion of the trial court, [though] this 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." Leidy v. County of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008)(quotations omitted). "Generally, we examine '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 wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Feinberg v. Dep't of Envtl. Prot., 137 N.J. 126, 134 (1994)(quoting S.E.W. Friel Co. v. New Jersey Tpk. Auth., 73 N.J. 107, 122 (1977)). The TCA does not define what constitutes "extraordinary circumstances," leaving "for a case-by-case determination .

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. . whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999)(citing Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997)). The judge may consider a "combination of factors" in determining whether plaintiff has demonstrated "extraordinary circumstances." Lowe, supra, 158 N.J. at 629. As we recently noted, even if the reasons suggested for a plaintiff's delay "when offered individually, were inadequate, a judge must consider the collective impact of the circumstances offered[.]" R.L. v. State-Operated School Dist., 387 N.J. Super. 331, 341 (App. Div. 2006). In this case, we cannot conclude that Judge Oles mistakenly exercised his discretion by concluding that the reasons advanced by the plaintiffs for their delay, when viewed collectively, demonstrated "extraordinary circumstances." Plaintiffs lost two young children to sudden, accidental deaths within four years. They faced financial uncertainties, were in deep depression and "heavily medicated" during the entire time, and had engaged in an ongoing process of pro se negotiations with the Board for some four months before receiving Nicholas' autopsy report. We concede that what occurred from receipt of the report in April, to the expiration of the ninety-day statutory period in July, can be capable of two interpretations. The Board has urged that Joseph continued to negotiate a settlement on behalf of his son and resisted its well-intentioned efforts to have him consult a lawyer. Plaintiffs counter by noting that despite their obvious grief-stricken state, the Board continued to entertain financial overtures they made and never once told them that any claim would be barred if they did not file the required notice of claim. Plaintiffs contend that their resistance to hiring an attorney demonstrates how "irrational" they were during this period. We need not resolve this dispute as to possible motives, and we attach no venality whatsoever to the Board's conduct. We are convinced that when all the factors are considered collectively, however, plaintiffs' failure to file a notice of claim within ninety days of the accrual of their cause of action was excused by "extraordinary circumstances." We also conclude that plaintiffs' delay in moving for leave to file a late claim was not unreasonable. The record does not support the conclusion that any of the circumstances we have described above were suddenly eliminated after July when the Board advised plaintiffs it would not pay them any amount of money. It is also undisputed that plaintiffs filed their motion shortly after consulting with their present attorney, and well within the one year provided by N.J.S.A. 59:8-9. The circumstances here are sufficiently distinguishable from those presented in Wood v. County of Burlington, 302 N.J. Super. 371, 378 (App. Div. 1997)(where plaintiff's unexplained delay of nine months was unreasonable), and Leidy, supra, 398 N.J. Super. at 462 (where plaintiff's explanation for eight-month delay in filing the motion was inadequate, rendering the delay unreasonable).
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Affirmed. In order to avoid confusion, we will refer to the plaintiffs by their first names throughout the balance of this opinion. We intend no disrespect by this informality. The Board has not asserted that it was substantially prejudiced by plaintiffs' delay in filing a notice of claim. (continued) (continued) 13 A-1790-07T3 October 23, 2008 0x01 graphic

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