SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2905-97T1
LYUDMILA BLANK,
Plaintiff-Respondent,
v.
CITY OF ELIZABETH and CITY OF
ELIZABETH WATER & SEWER UTILITY,
Defendants-Appellants,
and
MICHAEL and BETSY FABRICANT,
Defendants.
_________________________________________________________________
Submitted December 8, 1998 - Decided January 29, 1999
Before Judges Pressler, Kleiner and Steinberg.
On appeal from the Superior Court of New Jersey,
Law Division, Union County.
La Corte, Bundy & Varady, attorneys for appellants
(Christopher J. Kinsella, on the brief).
Frank P. Beninato, Jr., attorney for respondent.
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
This is a tort claims case. Defendants City of Elizabeth and
City of Elizabeth Water & Sewer Utility (collectively Elizabeth)
appeal from an order of the Law Division entered pursuant to
N.J.S.A. 59:8-9 permitting plaintiff Lyudmila Blank to file a late
notice of claim against them. We reverse and remand for further
proceedings.
According to this meager record, plaintiff, a non-English
speaking, sixty-one year old Russian immigrant, sustained serious
injuries on February 27, 1997, when she tripped over a pipe
protruding from the sidewalk abutting residential premises owned by
defendant Michael and Betsy Fabricant. She retained counsel on
April 1, 1997, after an office visit with an attorney conducted
with the assistance of an interpreter. Counsel sent a notice of
claim to the Fabricants, who turned it over to their homeowner's
insurance carrier, Allstate Insurance Company. Apparently, a
complaint was also filed against the Fabricants although we are not
favored with a copy in this woefully inadequate record on appeal.
In any event, according to counsel's certification filed in support
of this motion, he was advised by Allstate on November 17, 1997,
that the offending pipe belonged to Elizabeth. This motion for
leave to file a late claim pursuant to N.J.S.A. 59:8-9 was filed
less than a month later.
In his certification in support of the late-notice motion,
counsel asserted that it had been his understanding that the pipe
"was a pipe that was sticking through a sidewalk on the premises
and had nothing to do with a public entity. This was partly
because ... of the plaintiff's inability to speak English and the
use of a translator." He went on to recite that his first notice
of public-entity involvement was his receipt from Allstate in
November of "a copy of their investigation" indicating that the
pipe was a "City water pipe and not a pipe that was furnished or
installed by Michael and Betsy Fabricant." Counsel then asserted
that "none of the information referred to in this investigation
could have been concluded within the time provided by the
requirements for 90 day notice under the Tort Claim Act."
Plaintiff's motion is more notable for the information omitted
than the information provided. Allstate's investigation report was
not included. No photograph of the site was furnished. No
description of the pipe was provided describing either its physical
characteristics or its location. No information was forthcoming as
to counsel's own investigatory actions, if any. Nothing in the
motion record provided a basis on which a court could conclude that
the appearance or location of the pipe actually did or should have
placed plaintiff on notice that it was a public utility pipe.
Nothing in the record permitted a court to discern the nature or
complexity of the investigation required to ascertain the pipe's
purpose, function or ownership, and whether the question of
ownership was reasonably discernable during the ninety-day period.
And nothing in the answering brief filed by Elizabeth provides any
further clues to these essential matters.
Despite the paucity of the record before him, the trial judge
granted plaintiff's motion. Noting that the decision on the motion
was a matter within his discretion, the judge concluded that "there
is good explanation as to why the plaintiff was late primarily
because of a language difficulty with the Russian plaintiff and a
problem with the translation." Elizabeth appeals, contending that
the statutory standard of "extraordinary circumstances" justifying
the late notice was not met.
The Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, requires
notice of the claim to be presented to the public entity within
ninety days following the accrual of the cause of action "except as
otherwise provided in section 59:8-9...." N.J.S.A. 59:8-8. As
originally adopted as part of the Tort Claims Act, N.J.S.A. 59:8-9
accorded the court the discretion to permit a late notice of claim
after the ninety-day period but within a year following accrual on
a showing of "sufficient reasons" for the failure of timely filing
provided that the public entity would not be "substantially
prejudiced" thereby. As tort-claim jurisprudence developed, the
"sufficient reasons" threshold came to be liberally construed and
the special-reasons standard was indulgently applied. See, e.g.,
Lamb v. Global Landfill Reclaiming,
111 N.J. 134, 147 (1988);
S.E.W. Friel Co. v. N.J. Turnpike Authority,
73 N.J. 107, 122
(1977). N.J.S.A. 59:8-9 was, however, amended by L. 1994, c. 49,
§ 5, to raise the sufficient-reason threshold. The amendment no
longer only requires a showing merely of sufficient reasons but
rather "sufficient reasons constituting extraordinary circum-stances." And the evident legislative purpose of this amendment
was the abrogation of the liberal judicial construction of
"sufficient reasons" standing alone. See, e.g., Ohlweiler v.
Township of Chatham,
290 N.J. Super. 399, 404 (App. Div. 1996);
Zois v. New Jersey Sports & Expo. Auth.,
286 N.J. Super. 670, 674-675 (App. Div. 1996). The amendment, however, fails to define
"extraordinary circumstances," leaving to case-by-case deter-mination the issue of whether that standard has been met. See,
e.g., O'Neill v. City of Newark,
304 N.J. Super. 543, 553 (App.
Div. 1997).
We agree with Elizabeth that plaintiff's showing and the
court's rationale were deficient. That is to say, there is no
basis we can discern in this record supporting the conclusion that
plaintiff's unfamiliarity with the English language was the cause
of her failure to give timely notice, and no other reason was
relied on by the trial judge. But we do not believe that is the
end of the matter. It is evident from this record that this late-notice application was perfunctorily treated by both plaintiff's
counsel and the court. Both were apparently aware that the 1994
amendment of N.J.S.A. 59:8-9 imposed a strict requirement upon the
plaintiff to show, and the court to find, extraordinary
circumstances justifying a late notice rather than merely a
"sufficient reason." It appears, however, that both were
nevertheless relying on the broad scope of judicial discretion that
preceded the amendment and on the liberal exercise of that
discretion then appropriate. Accordingly, not much searching
argument or analysis was made by either.
Nevertheless, as perfunctory as this application was, it
suggested on its face the existence of extraordinary circumstances
which, inexplicably, neither counsel nor the court considered or
pursued. The potential extraordinary circumstance that we perceive
is raised by counsel's unartful and unsupported assertion in his
certification, quoted above, that the information disclosed in
Allstate's investigation report could not have been discovered
within the ninety-day period. Our concern is that that contention
may well be so. The difficulty, of course, is that although the
issue was raised, albeit obliquely, the motion papers were too
perfunctory and uninformative to permit an adequately based
judicial finding of extraordinary circumstances, and the judge did
not pursue this assertion. As we have said, we know nothing about
the pipe. It was not described in the motion papers. There is no
photograph of it. It is impossible to say, therefore, whether
there was anything about its appearance that should reasonably have
put plaintiff on notice that it did not belong to or had not been
installed or placed in the sidewalk by the property owner. We are,
however, satisfied that the mere fact of the presence of a pipe, of
whose description, character and location we are completely
ignorant, cannot, without more, be deemed to have put anyone on
notice that it might belong to a water utility company. Perhaps
the pipe had a cap on it identifying the owner. Perhaps it
appeared to be a venting pipe or piece of pipe left by a plumber.
And unless the pipe itself bore some sort of identifying mark, what
was required, by way of investigation and by whom, to determine
whose pipe it was? Defendant's carrier advised plaintiff's counsel
in November 1997 that the pipe belonged to either Elizabeth or the
Elizabeth Water & Sewer Utility. How long did it take the carrier,
at whose disposal there are virtually unlimited investigative
resources, to discover that fact and how did it do so? Was it
correct in its assertion? What did plaintiff's attorney do in
investigating the accident? We do not know that either. Did he
act reasonably? Would a reasonable investigation have disclosed
ownership of the pipe within the ninety-day period from the date of
the accident? The point is that if there was nothing intrinsic in
the appearance of the pipe to suggest its ownership by a public
utility and if a reasonable investigation by an attorney would not
have disclosed the fact of that ownership within ninety days
following the accident, an extraordinary circumstance might have
been demonstrated, shifting to the proposed public-entity defendant
the burden of showing, with specificity and not by general
allegation, how the delay in being noticed unduly prejudiced its
ability to defend itself on the merits.
None of the late-notice cases decided since the 1994 amendment
involves a situation in which the public entity's ownership of the
allegedly defective property or the other basis of its involvement
in the matter was not known by the plaintiff from the time of the
accident. Rather, other circumstances entirely personal to the
would-be plaintiff were relied on as meeting the "extraordinary"
threshold. See, e.g., Epstein v. State,
311 N.J. Super. 350, 359-360 (App. Div.), certif. denied,
155 N.J. 589 (1998) (the falling
of the ninetieth day on Yom Kippur held not an extraordinary
circumstance despite the fact that the proposed plaintiff was an
orthodox Jew); O'Neill v. City of Newark, supra, 304 N.J. Super. at
553 (plaintiff's awareness "of the circumstances surrounding and
the severity of his injury" precluded extraordinary circumstances
based on alleged psychological trauma resulting from the injury);
Wood v. County of Burlington,
302 N.J. Super. 371, 378-380 (App.
Div. 1997) (plaintiff's ignorance of municipal forms for making
claim and untoward delay in responding after being properly advised
held not to constitute extraordinary circumstances); Ohlweiler,
supra, 290 N.J. Super. at 405-406 (substantial, unusual and
unanticipated change in plaintiff's physical condition constituted
extraordinary circumstances); Zois, supra, 286 N.J. Super. at 674-675 (negligence of plaintiff's attorney's secretary in misplacing
file does not constitute extraordinary circumstances); Randazzo v.
Township of Washington,
286 N.J. Super. 215, 221 (App. Div. 1995)
(prompt oral notice to municipality excused failure of timely
written notice and constituted an extraordinary circumstance).
There is an obvious distinction between knowing that one has
a cause of action against a public entity and not pursuing it
properly and timely for personal reasons and, on the other hand,
not timely knowing or being chargeable with timely knowledge that
a public entity may be liable for an injury. We are persuaded that
the extraordinary-circumstances requirement is met where a
plaintiff, within the ninety-day period, neither knows nor is
chargeable with knowing of the existence of a cause of action
against a public entity. This conclusion is nothing more than a
specific application of the now familiar discovery rule of deferred
accrual of a cause of action. Indeed, the discovery rule may well
apply to the one-year limitation late-notice motion still provided
for by the statute. See, e.g., Russo Farms v. Bd. of Educ., 144
N.J. 84, 106-108 (1996). We see no reason why it should not also
apply to the ninety-day period prescribed by the Legislature in
typical accrual terms.
We thus view plaintiff's inadequate showing on the late-notice
application as strongly suggestive of a discovery-rule extra-ordinary circumstance even though her motion was not definitively
so framed. In the interest of substantial justice on the merits,
the polestar of our system of the administration of civil justice,
she should be accorded the opportunity to demonstrate now that she
should not be reasonably chargeable with having discovered, during
the ninety-day period following her injury, that the offending pipe
belonged to a public entity. As the Supreme Court noted in S.E.W.
Friel Co., supra, 73 N.J. at 122, the late-notice application
should be considered in light of "`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'" (quoting Viles v.
California,
56 Cal. Rptr. 666, 669 (Sup. Ct. 1967)). We do not
believe that the 1994 amendment of N.J.S.A. 59:8-9 diminishes the
vitality of that principle. The amendment prescribes a substantive
standard for decision that binds the court....namely, extraordinary
circumstances. However, the issue before us is not substantive
but, rather, procedural only. We do not regard it as a deviation
from the legislative intention that motivated the amendment for us
to continue to apply to the prescribed substantive standard the
guiding procedural principle of according litigants their day in
court.
We make this further observation regarding the counsel's
oblique reference to the discovery rule but his total failure to
pursue it. The question ultimately is whether counsel's failure
should be dispositive or whether, in the interest of justice to
this plaintiff, she should be given an opportunity to develop what
appears to be the extraordinary circumstance implied by the motion.
We opt for the latter. We regard a legal malpractice remedy as a
poor substitute for prosecuting a claim against the responsible
tortfeasor, and we are not at all sure that there is any net gain
either for the community in general or for the court system in
shifting the ultimate responsibility from a liability carrier to a
malpractice carrier. We are also satisfied that had the motion
judge more fully appreciated his obligation to find extraordinary
circumstances, his response to the application would not have been
its perfunctory approval but rather an insistence that plaintiff
flesh out her claim. To that extent, at least, the court is also
at fault for the risk of loss of plaintiff's potentially valuable
cause of action.
Finally, a word about substantial prejudice. The 1994
amendment makes no substantial change in the original requirement
of N.J.S.A. 59:8-9 that late-notice relief be accorded by the court
only if the public entity will not be substantially prejudiced
thereby. We think it plain that it is the public entity that has
the burden of coming forward and of persuasion on the question of
prejudice. Elizabeth did so here in general terms. We deem that,
however, insufficient. Substantial prejudice in this context means
substantial prejudice in maintaining one's defense. Generally that
implies the loss of witnesses, the loss of evidence, fading
memories, and the like. In the event, on remand, that the court
finds that plaintiff has demonstrated the requisite extraordinary
circumstances based on a discovery-rule type of showing, the court
will then have to address the substantial prejudice question, and
Elizabeth shall be required to show, with specificity and not by
general allegation, the manner in which prejudice in maintaining
its defense is likely to ensue from this late notice.
We reverse and remand for further proceedings consistent with
this opinion.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2905-97T1
LYUDMILA BLANK,
Plaintiff-Respondent,
v.
CITY OF ELIZABETH and CITY OF
ELIZABETH WATER & SEWER UTILITY,
Defendants-Appellants,
and
MICHAEL and BETSY FABRICANT,
Defendants.
KLEINER, J.A.D., dissenting.
Because N.J.S.A. 59:8-9, as amended effective June 23, 1994,
requires filing of a notice of claim against a public entity
under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, within
ninety days of its accrual, which may be waived on "application
to the court," upon a showing of "extraordinary circumstances," I
conclude that my colleagues have, under the circumstances of this
case, misconstrued the "strict standard" imposed by the
Legislature, see Zois v. New Jersey Sports & Exp.,
286 N.J.
Super. 670, 673-74 (App. Div. 1996), and have established new
precedent returning the late notice requirement to a "rule of
liberality." Id. at 675 (citing Harry A. Margolis and Robert
Novack, Claims Against Public Entities, p. 148 (1995), which the
Legislature undoubtedly sought to circumvent by its statutory
amendment). Because my colleagues' liberal interpretation
completely undermines the Legislature's intent, I am constrained
to dissent.
Defendants City of Elizabeth and City of Elizabeth Water & Sewer Utility (collectively "Elizabeth") appeal from an order permitting plaintiff Lyudmila Blank to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:8-9 ("the Act"). Under the facts presented, I conclude the motion judge abused his discretion and thus erred when he determined that plaintiff had presented "reasons constituting extraordinary circumstances for [her] failure to file [a] notice of claim within the period of time prescribed by [N.J.S.A.] 59:8-8 . . . or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter." N.J.S.A. 59:8-9.
On February 27, 1997, plaintiff, a sixty-one-year-old Russian emigree conversant only in Russian, tripped on a pipe protruding from a sidewalk in front of a home owned by co-defendants Michael and Betsy Fabricant ("Fabricant") in the City of Elizabeth. On April 1, 1997, plaintiff retained the services of counsel. According to plaintiff's counsel's certification filed in support of plaintiff's motion, when plaintiff first visited her counsel's office she utilized the services of a Russian language interpreter. She also executed a retainer agreement. Thereafter, her counsel notified Fabricant of his representation of plaintiff and her intent to pursue a claim for compensatory damages. Plaintiff's counsel did not notify Elizabeth, nor did he serve a Notice of Intention to Make a Claim, N.J.S.A. 58:8-8, upon Elizabeth.
According to plaintiff's counsel's certification, on November 17, 1997, he was advised by Allstate Insurance Company, Fabricant's homeowner's insurer, that the pipe upon which plaintiff allegedly tripped was the property of Elizabeth.See footnote 1 On December 11, 1997, plaintiff filed a motion pursuant to N.J.S.A. 59:8-9 for leave to file a late notice of claim upon Elizabeth. Only four paragraphs of counsel's certification are pertinent:
4. At this time [April 1, 1997], it was our understanding that the pipe was a pipe that was sticking through a sidewalk on the premises and had nothing to do with a public entity. This was partly because . . . of the plaintiff's inability to speak English and the use of a translator.
5. However, the Allstate Insurance
Company performed an independent
investigation and on or about November 17,
1997 mailed a copy of their investigation to
my office which indicated that apparently the
residence owned by Michael and Betsy
Fabricant is located along the middle of the
block of Lincoln Avenue in the City of
Elizabeth.
6. This investigation revealed that the
so called pipe is apparently a water service
pipe for the property and in any event the
investigation concluded that it is a City
water pipe and not a pipe that was furnished
or installed by Michael and Betsy Fabricant.
The report also states the pipe is Municipal
property.
7. In any event, none of the
information referred to in this investigation
could have been concluded within the time
provided by the requirement for 90 day notice
under the Tort Claim Act.
In response, Elizabeth filed a brief contending, in part,
the following argument:
The defendant, City Of Elizabeth, is
severely prejudiced by the extended delay.
Due to the failure to exercise due diligence
and file within a reasonable period of time
after the expiration of the 90 day limitation
period, there is a gap of almost one year
from the time of the happening of the motion.
The allegation of entity involvement alone is
too prejudicial to the City of Elizabeth
without any factual support, to allow for the
relief requested. As set forth in the
Statement of Facts, the City of Elizabeth
cannot be implicated in this manner by virtue
of an investigation that is referred to in
the certification of plaintiff's attorney.
Plaintiff did not file a response to defendant's brief. It
seems quite clear that not only did plaintiff fail to provide the
motion judge with a copy of the Allstate investigative report,
she also failed to provide Elizabeth with the same report.See footnote 2
The motion judge granted plaintiff's motion concluding:
"there is a good explanation as to why plaintiff was late because
of a language difficulty with the [R]ussian plaintiff and problem
with the translation." Although Elizabeth responded to
plaintiff's motion contending that plaintiff failed to assert
that Elizabeth would be prejudiced by the untimely filing of
plaintiff's late notice, the motion judge did not address that
contention nor did plaintiff file a reply certification
addressing the question of Elizabeth's alleged prejudice.
On appeal, Elizabeth contends plaintiff failed to
demonstrate "extraordinary circumstance" required by N.J.S.A.
59:8-9 to justify her failure to comply with the ninety-day
notice requirement delineated in N.J.S.A. 59:8-8a, and failed to
demonstrate that Elizabeth would not be substantially prejudiced
by the late filing of a claim notice. Elizabeth contends that
the motion judge abused his discretion in permitting the service
upon it of a late notice.See footnote 3
An action may not be brought against a public entity under
the Act unless the claim is presented in accordance with the
procedural and substantive requirements of the Act. N.J.S.A.
59:8-3; see Epstein v. State,
311 N.J. Super. 350, 355 (App.
Div.), certif. denied,
155 N.J. 589 (1998).
Filing a motion to file a late notice of claim under the Act
requires a claimant to articulate, within one year of the accrual
of a claim, "extraordinary circumstances" for failure to file a
notice of claim within the ninety-day period following the
accrual of a cause of action. N.J.S.A. 59:8-9.
The Act does not define the words "extraordinary
circumstances." In Allen v. Krause,
306 N.J. Super. 448, 455
(App. Div. 1997), we concluded "extraordinary circumstances" must
be determined on a case-by-case basis. Ibid. (citing O'Neill v.
City of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997)). The
need to demonstrate "extraordinary circumstances," as well as the
legislative history pre-dating the amendment to N.J.S.A. 59:8-9
adopting the term "extraordinary circumstances," has been fully
explored in both Wood v. County of Burlington,
302 N.J. Super. 371, 378-79 (App. Div. 1997), and Zois v. New Jersey Sports &
Exposition Auth., supra, 286 N.J. Super. at 674-75.
Here, plaintiff, despite her injury and despite her language
barrier, was able to arrange an appointment with counsel.
Plaintiff either arranged to be accompanied by an interpreter or
communicated her need for an interpreter, as an interpreter was
present during her meeting with her counsel. Through the use of
an interpreter, plaintiff was obviously able to explain the
circumstances surrounding her fall with sufficient clarity to
cause her counsel to thereafter notify Fabricant, the adjacent
property owner.
Although I acknowledge that plaintiff probably would not
know who owned the pipe on which she tripped, it was clearly
incumbent upon her counsel to investigate. My colleagues, ante
at 6, devote one entire page speculating assorted possible
conclusions which may have been discovered by a proper
investigation by plaintiff's counsel and indicate that "the judge
did not pursue this obliquely raised assertion." Ibid. I simply
do not agree that it was the judge's obligation to pursue an
independent colloquy to determine whether plaintiff's counsel
could have discovered within the time limitations of the Tort
Claims Act those facts which would have supported his client's
claim against a public entity.
As I construe the facts presented by plaintiff's motion, it
seems entirely clear that plaintiff's counsel's certification
fails to reveal any effort by him or someone in his employ to
investigate the cause of plaintiff's fall. I do not conceive
that plaintiff's alleged language barrier would have precluded
her counsel from investigating the actual cause of plaintiff's
fall. Moreover, neither plaintiff's language barrier nor
counsel's failure to investigate comprise "extraordinary
circumstances" under N.J.S.A. 59:8-9. Nor can I conclude that
filing a motion to file a late claim on December 11, 1997, was
within a "reasonable period" of May 27, 1997, the ninetieth day
following the accrual of plaintiff's cause of action. N.J.S.A.
59:8-9 specifically permits "a motion seeking leave to file a
late notice of claim within a reasonable time thereafter . . . ."
(emphasis added). Here, plaintiff's motion was filed over six
months after the statutory ninety-day period.
In Allen v. Krause, supra, 306 N.J. Super. at 455, another
panel of this court concluded that N.J.S.A. 59:8-9See footnote 4 established
a two-prong condition precedent to the grant of a motion to file
a late notice of claim: (1) "extraordinary circumstances" for
the failure to file a notice of claim within the ninety-day
period following the accrual of a cause of action; and (2) proof
that "the public entity . . . has not been substantially
prejudiced" by the late proposed notice of claim. Ibid. I do
not agree with that precise interpretation. As I read N.J.S.A.
59:8-9, where a claimant seeks judicial relief from the timely
notice requirement, despite "extraordinary circumstances," the
public entity may respond and demonstrate that the late notice,
if permitted, will "substantially prejudice" the public entity in
its defense of the late claim. Based on my interpretation, once
the public entity responds to plaintiff's motion to file a late
claim, the motion judge must consider both plaintiff's claim of
"extraordinary circumstances" balanced against the public
entity's demonstration of "substantial prejudice."
Here, although Elizabeth responded in very general terms
contending that it would be "substantially prejudiced" were
plaintiff's motion granted, the motion judge failed to consider
the efficacy of Elizabeth's contention. Although I would agree
with Allen that a plaintiff seeking to file a late tort claims
notice must meet a two-pronged test, the second prong of that
test is not a component of plaintiff's proof until the public
entity demonstrates a claim of "substantial prejudice." It is
obvious that, based on this analysis of the statute, a plaintiff
is entitled to respond to a demonstration of "substantial
prejudice" by showing that the purported "substantial prejudice"
is non-existent or is exaggerated.
Here, Elizabeth responded to plaintiff's motion
demonstrating "substantial prejudice." However, plaintiff
offered no response. Additionally, the motion judge failed to
even consider Elizabeth's allegation. Once Elizabeth responded,
it was incumbent upon the motion judge to address both
plaintiff's claim of "extraordinary circumstances" and
Elizabeth's demonstration of "substantial prejudice." Only then
was the judge permitted to exercise his discretion in granting
plaintiff's motion. The failure to properly construe the
statutory prerequisites to filing of a late notice under the Act
constituted an abuse of discretion.
My colleagues, by returning to a "rule of liberality," Zois,
supra, 286 N.J. Super. at 675, seek to justify their disregard of
the legislative intent to create a "strict standard," id. at 673,
before a late notice is permitted, by drawing an analogy to the
"discovery rule." Ante, at 8 (citing Russo Farms v. Bd. of
Educ.,
144 N.J. 84, 106-108 (1996)). I do not construe Russo
Farms as interpreting N.J.S.A. 59:8-9 utilizing a "discovery
rule" premise. Russo applies to an injury caused by a
"continuous tort" and concludes that a single notice of claim,
N.J.S.A. 59:8-8, "preserves a claim for damages for each separate
injury occurring between 90 days prior to the filing of the
Notice of Claim and the filing of suit, subject to the
limitations of N.J.S.A. 59:8-8(b)." Harry A. Margolis and Robert
Novack, Claims Against Public Entities, p. 147 (1997). In any
case, the "discovery rule" is totally inapplicable here.
Plaintiff's counsel simply did not investigate the cause of his
client's fall. His bare assertion - that had he done so, he
would not have discovered the cause of the fall within the time
constraints of N.J.S.A. 59:8-9 - is unfounded and sheer
speculation. As noted, plaintiff's counsel never presented a
copy of Allstate's investigatory report to the motion judge and
thus its absence from the record on appeal does not permit a
conclusion that plaintiff's counsel's assertion in paragraph 7 of
his certification is correct.
My colleagues, citing S.E.W. Friel Co. v. N.J. Turnpike
Authority,
73 N.J. 107, 122 (1977), warn that "the late-notice
application should be considered in light of `"the end that
wherever possible cases should be resolved in favor of the
application."'" Ante at 9 (quoting Viles v. California,
56 Cal.
Rept. 666, 669 (Sup. Ct. 1967)). I certainly do not disagree. I
part company with the majority in their attempt to superimpose
this lofty principle on the disposition of a routine motion filed
by Elizabeth to dismiss plaintiff's motion for failure to adhere
to the strict statutory requirement for a late notice embodied
within N.J.S.A. 59:8-9. The majority would require that every
facially insufficient application to file a late notice be probed
by the motion judge to discern whether, if given another
opportunity, counsel can articulate reasons for the requested
relief within the ambit of the statute. The majority would ask
that the motion judge reject any appropriate response from a
public entity resisting a plaintiff's late notice application
simply to permit a plaintiff to have a "second bite at the
apple." Were that the intent of the Legislature, it is doubtful
that N.J.S.A. 59:8-9 would have been amended. The "liberal"
interpretation given to the predecessor statute which permitted a
late notice upon a showing of "sufficient reasons" would have
sufficed, and a statutory amendment requiring "sufficient reasons
constituting extraordinary circumstances," id., would not have
been necessary.
Additionally, I cannot subscribe to my colleagues' concern
that "a legal malpractice remedy [is] a poor substitute for
prosecuting a claim against the responsible tortfeasor." Ante at
10. I do not espouse formulating an interpretation of a
statutory mandate in a manner designed to absolve an attorney
from a possible claim of legal malpractice. Moreover, there is
absolutely no evidence in the record that Elizabeth is a
potential tortfeasor. The mere fact that plaintiff's counsel
asserts that Allstate's investigatory report accurately
identifies Elizabeth as a tortfeasor should have no bearing upon
a conclusion that plaintiff's motion should be reconsidered.
For the reason's stated, I dissent. I would reverse the
decision of the motion judge based on the inadequacy of
plaintiff's motion, his failure to properly consider the
statutory mandate, and his failure to consider the claim of
prejudice asserted by Elizabeth in response to plaintiff's
motion. In this instance, the motion judge abused his discretion
in granting plaintiff's motion.
Footnote: 1 Counsel's certification did not attach a copy of
correspondence received from the Allstate Insurance Company.
The record on appeal also omits a copy of Allstate's investigatory
report. The absence of this report does not permit our review of
the nature of Allstate's conclusion that the pipe was either owned
or maintained by Elizabeth.
Footnote: 2 Because the Allstate investigation was not provided to the
motion judge, it obviously was omitted from the record on appeal.
In the absence of the Allstate investigative report, we cannot
discern if paragraph 7 of plaintiff's counsel's certification to
the motion judge is a correct conclusion.
My colleagues' conclude:
The potential extraordinary circumstance that
we perceive is raised by counsel's unartful
and unsupported assertion in his
certification, quoted above, that the
information disclosed in Allstate's
investigation report could not have been
discovered within the ninety-day period. Our
concern is that contention may well be so.
The difficulty, of course, is that the motion
papers were too perfunctory and uninformative
to permit a judicial finding to that effect,
and the judge did not pursue this obliquely
raised assertion.
[emphasis added.]
This conclusion of "potential extraordinary circumstance," ante at
5-6, is sheer speculation.
Footnote: 3 N.J.S.A. 59:8-9 provides, in part:
A claimant who fails to file a notice of
his claim within 90 days as provided in
section 59:8-8 of this act, may, in the
discretion of a judge of the Superior Court,
be permitted to file such notice at any time
within one year after the accrual of his claim
provided that the public entity . . . has not
been substantially prejudiced thereby.
Application to the court for permission to
file a late notice of claim shall be made upon
motion supported by affidavits based upon
personal knowledge of the affiant showing
sufficient reasons constituting extraordinary
circumstances for this failure to file a
notice of claim within the period of time
prescribed by section 59:8-8 of this act or to
file a motion seeking leave to file a late
notice of claim within a reasonable time
thereafter. . . .
[emphasis added.] Footnote: 4 See n.3, ante.