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Superior Court of New Jersey, Appellate Division.

SHARON HARDY and ST. JOSEPH HARDY, Plaintiffs–Appellants, v. THERESA WRIGHT–JOHNSON, Defendant–Respondent.

DOCKET NO. A–2797–12T3

    Decided: April 9, 2014

Before Judges Grall and Accurso. Gold, Albanese & Barletti, attorneys for appellants (David M. Pelesko, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Peter D. Wint, Assistant Attorney General, on the brief).

In this Title 59 matter, plaintiff Sharon Hardy (plaintiff) and her husband St. Joseph (collectively, plaintiffs) appeal from the entry of summary judgment in favor of defendant Theresa Wright–Johnson and the denial of their motion for reconsideration.   Because we agree that summary judgment was properly granted to defendant on the undisputed facts and that Judge Perfilio did not abuse his discretion in denying reconsideration, we affirm.

This action arises out of a car accident in Elizabeth.   Plaintiff was driving to work when she was rear-ended by defendant, who was driving a car provided by her employer, the State Parole Board.   Although the police report clearly indicated the owner of the car as “Treasury Dept. [ ] Fleet Mgt.,” plaintiffs did not file a timely tort claim notice, or a motion for leave to file a notice of late claim pursuant to N.J.S.A. 59:8–9 within the year following the accident.   Instead, shortly before the expiration of the two-year statute of limitations, plaintiffs simply filed a complaint against defendant in Superior Court.

The Attorney General filed an answer on defendant's behalf, asserting as affirmative defenses that plaintiffs' complaint was barred by the Tort Claims Act, N.J.S.A. 59:1–1 to 12–3, and specifically by their failure to file a notice of claim in accordance with N.J.S.A. 59:8–3.   After discovery, mandatory non-binding arbitration, and an adjourned trial date, defendant moved for summary judgment on the basis of the time bar.   The judge granted the motion.   Finding that the case was almost two years old when plaintiffs filed their complaint and “that there was no effort at all to file a notice of claim;  [and] that there was no effort to even make a motion to file a notice of late claim,” the judge dismissed plaintiffs' complaint.

Plaintiffs moved for reconsideration claiming that defendant had waived the right to invoke the Tort Claims Act in defense of plaintiffs' complaint or should be estopped from doing so.1  The judge denied the motion.   In a decision delivered from the bench, Judge Perfilio found that “defendant did not waive explicitly or equitably her tort claims defenses.”   The judge noted that defendant pled plaintiffs' failure to comply with the Tort Claims Act as affirmative defenses in her answer, providing plaintiffs clear notice of her intent to rely on the Act's protections.

The judge distinguished the case on which plaintiffs relied, Hill v. Bd. of Educ. of the Twp. of Middletown, 183 N.J.Super.   36 (App.Div.), certif. denied, 91 N.J. 233 (1982), because defendant's affirmative defenses were specific enough to put plaintiffs on notice of the basis of her Tort Claims Act defense.   Moreover, plaintiffs' complaint, unlike that in Hill, was filed well after the one-year period for filing a late claim notice had expired.   Because plaintiffs' were already out of time to remedy their failure to file the notice of claim, they could not have detrimentally relied on defendant's delay in moving for summary judgment.

The judge rejected plaintiffs' claim that defendant was not prejudiced by their failure to file a notice of claim because prejudice to the defendant is only relevant in a late claims analysis.   See Blank v. City of Elizabeth, 318 N.J.Super. 106, 114–15 (App.Div.), aff'd as modified, 162 N.J. 150 (1999).   While observing that “defendant could have and probably should have filed a motion for summary judgment immediately, rather than wait until all of the discovery was over,” the judge determined that there was no authority to support an estoppel under the circumstances.   This appeal followed.

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, 116–18 (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).   That statute provides in pertinent part:

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 his failure to file 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 ․

[N.J.S.A. 59:8–9.]

The statutory scheme does not permit tort claims plaintiffs to avoid a showing of extraordinary circumstances for a late filing by simply filing a complaint without a motion for leave to file a late claim.  McDade v. Siazon, 208 N.J. 463, 479–80 (2011).

On appeal, plaintiffs do not dispute that they failed to file a tort claims notice.   Instead, they renew their arguments that by delaying her summary judgment motion, defendant waived her right to assert the defense of the statute.   Following a review of the record, we are satisfied that there is no basis on which to draw such a conclusion.   Because plaintiffs' claim was severely out of time, and they cannot assert that their delay in filing was occasioned by any act of defendant, the judge correctly dismissed the complaint.   See D.D. supra, 213 N.J. at 158 (2013) (“The Legislature's waiver of sovereign immunity remains a limited one and we are not free to expand that waiver beyond its statutorily-established boundaries.”).   We affirm the entry of summary judgment substantially for the reasons expressed by Judge Perfilio in his January 11, 2013 decision on reconsideration.



1.  FN1. Plaintiffs also argued that they substantially complied with the notice requirement because the police report of the accident included a report of plaintiff's injuries.   The judge rejected their argument and plaintiffs do not argue substantial compliance on appeal.   We agree with the trial judge that plaintiffs did not demonstrate substantial compliance with N.J.S.A. 59:8–3.   See D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 159 (2013) (noting the doctrine of substantial compliance “has been limited carefully to those situations in which the notice, although both timely and in writing, had technical deficiencies that did not deprive the public entity of the effective notice contemplated by the statute”).


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