Preview:

a0781-10.opn.html
N.J.S.A. 59:8-1 to -11 (TCA). We affirm. "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE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-0781-10T3
MARY DiNARDO, individually, MARY
DINARDO as Guardian ad litem for,
GWENDOLYN DiNARDO, a minor child,
MARC ANTHONY DiNARDO, II, a minor
child, and ELLA DINARDO, a minor
child, and MARY DINARDO as
Administratrix of the ESTATE OF
MARC ANTHONY DiNARDO,
Plaintiff-Appellant,
v.
THE CITY OF JERSEY CITY,
Defendant-Respondent.
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]




a0781-10.opn.html
August 10, 2011
Argued May 31, 2011 - Decided
Before Judges C.L. Miniman and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County,
Docket No. L-3406-10.
D. Gayle Loftis argued the cause for appellant.
Michael  Dougherty,  Assistant  Corporation  Counsel,  argued  the  cause  for
respondent  (William Matsikoudis, Corporation Counsel, attorney; Mr.   Dougherty,
on the brief).
PER CURIAM
Plaintiff is the widow and administratrix of the estate of Jersey City Police Detective Marc Anthony DiNardo,
who was fatally wounded in the line of duty. She appeals from the August 30, 2010 order of the trial court
denying her motion to file a late notice of tort claim against defendant pursuant to the Tort Claims Act,
N.J.S.A. 59:8-1 to -11 (TCA). We affirm.
On July  16,  2009, Detective DiNardo was shot while attempting to apprehend a suspect in an apartment
building in Jersey City. On July  21,  2009, he was declared brain dead and removed from life support. In
addition to plaintiff, he is survived by three young children.1
On June 23,  2010, plaintiff moved for leave to file a late notice of    tort claim pursuant to N.J.S.A.  59:8-9.
She  certified that  following  her  husband's death she was in a state of shock  and  "an extreme state   of
grief[,]" and was "in a fog and subject to constant unwanted media attention while trying to keep  [her]
children and [her]self from falling completely apart." Plaintiff documented the frequent therapy sessions she
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]




a0781-10.opn.html
and the children attended, as well as the various emotional and medical problems the children developed as
a result of their father's death.
Plaintiff further certified that starting in "late August or early September 2009," she attempted to obtain a
copy of the investigative report of her husband's death from various members of the police department; her
efforts, however, were unsuccessful. "As time passed[,]" plaintiff "began to have questions as to whether or
not  [her]  husband  had  been  properly  trained,"  and  whether  proper  procedures  had  been  followed  and
proper equipment issued to the responding officers; she also "began to question   the    decision    to enter    the
apartment in such an aggressive way."
Plaintiff was unaware that, should she have a tort claim based on any of these concerns, she had to meet a
time limit "to give notice of such claim." As of the filing of her motion, plaintiff had still not received    the
investigative  report  she  sought.  She  asserted  that  her  requests  for  that  investigative  report  should  be
considered as substantial compliance with the TCA's notice requirements.
Defendant certified in opposition that in the months following plaintiff's husband's death, she attended and
participated in a number  of public  events  including: "participation  in a blood drive" in September   2009;
"participation in the Jersey City Heritage Parade, which honored [her husband] in August"; and attendance
at  charity  events  in  October  and  December                                                                         2009.  Based  on  these  activities,  defendant  asserted  that
"despite the significant emotional effect of the loss of her husband, . . . plaintiff    was not   incapacitated or
otherwise  prevented by her  loss, from presenting  a written  [n]otice of  [c]laim, if she had   that    intention
within the statutory period."
Judge Maurice J. Gallipoli heard oral argument on August 27, 2010, and issued a written decision and order
denying plaintiff's motion on August 30, 2010. First, the judge found that plaintiff's requests for the police
department's investigative report did not constitute substantial compliance with the requirements of N.J.S.A.
59:8-4, which sets forth the required contents of a tort claims notice, including:
a. The name and post office address of the claimant;
b.  The  post-office  address  to  which  the  person  presenting  the  claim desires
notices to be sent;
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]




a0781-10.opn.html
c.  The  date,  place  and  other  circumstances  of  the  occurrence  or  transaction
which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so far as it may
be known at the time of presentation of the claim;
e. The name or names of the public entity, employee    or employees causing  the
injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the    claim including    the
estimated amount of any prospective injury, damage, or loss, insofar as it may
be known at the time of the presentation of the claim, together with the basis of
computation of the amount claimed.
[N.J.S.A. 59:8-4.]
The judge stated that the notice requirement of the TCA
serves  four  goals:                                                                                                  (1)  to  allow  the  public  entity  at  least  six  months  for
administrative review  with the opportunity to  settle  meritorious claims prior to
the bringing of suit; (2) to provide the public entity with prompt notification of a
claim in order to adequately investigate the facts and prepare a defense; (3) to
afford  the  public  entity  a  chance  to  correct  the  conditions or  practices  which
gave rise to the claim; and (4) to inform the [public entity] in advance as to the
indebtedness or liability that it may be expected to meet.
The  judge  concluded  that  to  accept  plaintiff's  position  that  her  requests  for  the  investigative report
constituted substantial compliance with the TCA "would be to pay lip-service to the notice requirement . . .
and the goals which such requirement was intended to achieve." Not only were her requests oral, made in
telephone conversations with members of the police department, but they also "f[e]ll far short of imparting
the requisite information to [defendant] vis-à-vis a potential claim . . .                                            ."
The judge distinguished the cases upon which plaintiff relied to support her claim of substantial compliance,
noting that all of those cases "discusse[d] substantial    compliance    only after some form of a written notice
had been given to the public entity." In sum, the judge concluded that "it cannot    reasonably be said that
[p]laintiff's oral communication to and with the [p]olice [d]epartment alerted the [c]ity that . . . [she] was
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]




a0781-10.opn.html
contemplating filing a claim against it and members of the [d]epartment."
The judge then turned to plaintiff's claim that "extraordinary circumstances" warranted the late filing of her
claim notice under N.J.S.A. 59:8-9, which provides in pertinent part:
A claimant who fails to file a notice of h[er] 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
h[er]  claim  provided  that  the  public  entity                                                                       .  has  not  been substantially
prejudiced  thereby.  Application  to  the  court                                                                       .  shall  be made  upon  motion
supported by affidavits based upon personal knowledge of the affiant  showing
sufficient reasons constituting extraordinary circumstances for h[er] failure to file
[a timely] notice of claim . . .
The judge noted that plaintiff's claim of extraordinary circumstances was
based  [(1)]  on  her  lack  of  knowledge  as  a  layperson,  before  consulting her
attorney, of the ninety[-]day notice requirement of the TCA,  [(2)] on her grief
following her husband's tragic death, and  [(3)] upon the alleged "stonewalling"
by the  [p]olice  [d]epartment  in its  refusal to  furnish her  with  the   investigative
report of the events of July 16, 2009.
The judge concluded that to recognize the first claim as an extraordinary circumstance "would be to render
the ninety[-]day  notice requirement of the TCA meaningless and  a virtual nullity." He  rejected    plaintiff's
second claim noting that "[t]o hold otherwise would be to create an exception which would swallow the
ninety[-]day  notice requirement in virtually  all TCA claims involving  serious injury to    the   claimant   and/or
death to a family member."
Acknowledging that plaintiff "suffered emotional distress as a result of her husband's death   and the    tragic
circumstances  with which she was unexpectedly  confronted,"  the judge nonetheless  concluded  that the
record did not support "a finding that [p]laintiff's emotional distress was so severe and so prolonged that it
totally  incapacitated  her  from taking  such action as was required to  preserve the claim which she now
seeks  permission  to  prosecute."  The  judge  referred  to  defendant's  opposition  papers  documenting  the
various  public  events  plaintiff  attended  in  the  months  following  her  husband's  death;  this  included  a
newspaper article of October  5,  2009, recounting plaintiff's attendance at an event where she received a
$10,000 college scholarship fund for her children, and at which plaintiff commented that she had not   yet
received her first pension check since her husband's death two months earlier and that she thought that
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]




a0781-10.opn.html
first check "should have been expedited." The judge noted that "[s]uch a statement simply fortifie[d    his]
determination that  [p]laintiff was not prevented by emotional distress from the timely filing of a notice of
claim."
Regarding plaintiff's  "stonewalling" claim, the judge noted  that  she had submitted a   proposed   "Notice   of
Claim" with her motion, which had been "prepared without the benefit of the investigative report[,]" leading
him to conclude that "presumably the same Notice of Claim could have been    prepared long before it was
and without the benefit of the investigative report, the absence of which is claimed to be a predicate for the
grant of a filing extension based on extraordinary circumstances."
The judge, therefore, concluded  that  plaintiff had  failed  to  demonstrate either substantial compliance  or
extraordinary circumstances warranting the relief sought. Based on those determinations, the judge found it
unnecessary to address the issue of whether defendant had been "substantially prejudiced." N.J.S.A. 59:8-
9.
On  appeal,  plaintiff  contends  that  the  judge  abused  his  discretion  in  minimizing  the  evidence  of her
emotional  distress  and  the  "stonewalling  tactics"  of  the  police  department.  Having  reviewed  these
contentions in light of the record and the controlling legal principles, we conclude they lack sufficient merit
to warrant discussion in a written opinion. R.  2:11-3(e)(1)(E). We affirm substantially for the reasons set
forth in Judge Gallipoli's written decision of August 30,  2010; we are satisfied    those reasons are based    on
"findings  of  fact                                                                                                  .  adequately  supported  by   [the]  evidence."R.   2:11-3(e)(1)(A).  We  add  only the
following brief comments.
Pursuant to N.J.S.A. 59:8-9, the decision whether to grant a motion to file a late notice of claim rests within
the sound "discretion of a judge of the Superior Court." Such a decision "will be sustained on appeal in the
absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988).
Here,  "[u]nder  the  totality  of  the[]  circumstances,  we  cannot  conclude  that  the                           [j]udge  abused  h[is]
discretion." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341  (App. Div.  2006). The judge duly
"consider[ed] the collective impact of the circumstances offered as reasons for the delay" in this case, ibid.,
and  properly concluded  that  plaintiff failed  to  demonstrate either substantial compliance  or   extraordinary
circumstances to warrant relaxation of the TCA's notice requirements.2
Affirmed.
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]




a0781-10.opn.html
1 We summarize the pertinent factual background from the motion papers.
2 While plaintiff's motion was pending, the judge requested the parties to address the issue of whether the
Workers' Compensation  bar  in N.J.S.A.  34:15-8 precluded  plaintiff's  tort  claim. The judge noted that  he
would consider this issue as "incidental to the pending motion." In his decision, the    judge concluded that
"even if the late filing of a notice of claim was allowed, ultimately the claim  . . . would be dismissed as
being barred  by the Workers' Compensation  Act." As we  have concluded  that  the   judge   properly  denied
plaintiff's motion on the basis of the TCA, we need not address this issue.
This archive is a service of Rutgers School of Law - Camden.
This archive is a service of Rutgers School of Law - Camden.
file:///C|/Users/Peter/Desktop/Opinions/a0781-10.opn.html[4/20/2013 2:08:34 PM]

Download a0781-10.opn.pdf

New Jersey Law