D.N. and J.N., Plaintiffs–Appellants, v. NEW JERSEY DIVISION OF YOUTH FAMILY SERVICES (2011)

Plaintiffs D.N. and J.N. appeal from the denial of their motion to file a late notice of claim against the Division of Youth and Family Services (DYFS).  We affirm.

DYFS initiated an investigation in March 2009 that resulted in the direction that J.N. be involuntarily committed to the Carrier Clinic Psychiatric Facility (Carrier), where she remained from March 17 to March 25, 2009.   After her release, she was required to attend the Somerset County Medical Center Intensive Partial Hospitalization Program at Richard Hall five days a week until June 29, 2009.   The plaintiffs' four-month old son remained in D.N.'s custody throughout.

The investigation was initiated after J.N. brought the plaintiffs' son to the emergency department at Overlook Hospital for treatment of a fever on March 17, 2009, and returned the same date with complaints of her own gastro-intestinal symptoms.   J.N. alleged that during the course of taking her medical history, the Overlook staff learned she was previously involuntarily committed for bipolar disorder and contacted DYFS. She alleges that DYFS employees came to the plaintiffs' apartment and conducted a search;  that she was heavily medicated on Reglan and Risperdal while at Carrier, and that she was mistreated by the doctors and staff at Carrier and the program at Richard Hall, including threats that her baby would be taken away.

The Tort Claims Act (TCA) requires that claims against a public entity be brought within ninety days after the accrual of an action.  N.J.S.A. 59:8–8(a).   In the notices of claim plaintiffs sought to file, the dates of the underlying occurrence were identified as March 17, 2009, to June 29, 2009.   No notice of claim was filed within ninety days of those dates.   As a result, plaintiffs' application was governed by N.J.S.A. 59:8–9, which provides in pertinent part:

A claimant who fails to file 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 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․

[ (Emphasis added.) ]

Plaintiffs submitted certifications in support of their motions in which they asserted that extraordinary circumstances existed based upon the following assertions:

J.N. stated her delay was due to the fact that she is of Vietnamese heritage and neither she nor her husband speak fluent English.   She had been in the United States for more than ten years but was not familiar with the American judicial system.   She was unable to drive a car and dependent upon her husband for transportation.   J.N. said she was physically and mentally overwhelmed by the events and “loaded up on psychiatric medications which made [her] unfocused and very sleepy.”

D.N. also referenced his lack of fluency in English.   He stated he was unable to file a timely notice of claim because he had the full-time responsibility to care for his wife and four-month old child.   In addition, he said he did not understand the requirements of the TCA and was unable to seek an attorney to help until the motion to file a late notice of claim was filed in February 2010.

The motion judge found the State's claim of prejudice arising from the delay lacked any factual basis but denied plaintiffs' motion because he concluded that their stated reasons for the delay failed to constitute extraordinary circumstances.

On appeal, plaintiffs argue they did present extraordinary circumstances that warranted the relief requested.   In addition, they argue for the first time on appeal that the motion judge erred in his interpretation of the statute.   Specifically, plaintiffs argue that if circumstances existing during the initial ninety-day period prevented them from filing the claim, the court had discretion to extend the time limit for filing for up to one year and that the court failed to make an initial finding of the date upon which their cause of action accrued.   After carefully reviewing the record and briefs, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11–3(e)(1)(E), and affirm substantially for the reasons set forth by the motion judge.   We add only the following comments.

This court does not entertain exceptions raised for the first time on appeal.  State v. Robinson, 200 N.J. 1, 20 (2009);  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973);  see also State v. Summers, 176 N.J. 306, 316 (2003).   The issues plaintiffs present to us that were not presented to the motion judge lack sufficient merit for us to depart from that principle and will be only briefly discussed.

In Beauchamp v. Amedio, 164 N.J. 111 (2000), the Supreme Court identified three steps to be taken in determining whether a claim has been timely filed, i.e., the determination of when the claim accrued;  whether a notice of claim was filed within ninety days;  and if not, whether extraordinary circumstances exist to justify permitting a late notice.  Id. at 118–19.   The Court reviewed the principles applicable to the determination of when a cause of action accrues:

Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs․  Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place

․  The only exception to that well established notion of accrual is the case where the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible.

[Id. at 116–17 (internal citations omitted).]

Here, the criteria for accrual of an action were satisfied when J.N. was involuntarily committed on March 17, 2009.   Although the motion judge did not specifically identify the date when plaintiffs' cause of action accrued, the first step of the analysis identified in Beauchamp, his analysis afforded them the advantage of applying the time constraints of the statute to the dates they claimed as the dates of injury.   If this can be construed as error, it was not “clearly capable of producing an unjust result.”   R. 2:10–2.

The second argument raised as plain error is that, if “exceptional circumstances” existed within the first ninety days, that alone would justify a one-year extension of the time limits without regard to the circumstances that existed after the initial ninety days, provided there was no substantial prejudice to the State.   We disagree with plaintiffs' thesis.

Having failed to file their claim within ninety days of the accrual of the claim, plaintiffs were required to show

extraordinary circumstances for their failures to file a notice of claim within the ninety-day period or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter.   Consideration of plaintiffs' circumstances following the ninety-day period was therefore appropriate to a determination as to the reasonableness of their delay in filing the motion for leave to file a late notice of claim.

The plaintiff in O'Neill v. City of Newark, 304 N.J.Super.   543 (App.Div.1997), waited more than five months after his accident before consulting an attorney and presented assertions similar to those here in arguing that extraordinary circumstances justified his delay.   He stated he was unaware of the notice requirements of the TCA and that the circumstances of his injury had a serious psychological effect on him which prevented him from contacting an attorney.   We rejected his argument, noting that ignorance of the law does not constitute sufficient reason for delay;  that neither he nor the psychological report provided sufficient proof that he lacked the mental capacity to contact an attorney;  and that while he was “justifiably preoccupied” with his treatment “rather than with filing a lawsuit[,]” these facts were insufficient to support a finding of extraordinary circumstances.   Id. at 552–54.

Neither certification submitted here contends that either plaintiff was physically incapacitated, unable to communicate or lacked knowledge that DYFS was responsible for the actions that they claim resulted in tortious injury to them.   Even if the conditions of J.N.'s hospitalization are considered adequate grounds to excuse her failure to file a notice of claim from March 17, 2009, to June 29, 2009, we agree with the motion judge that the eight-month delay in filing any application is essentially unexplained.   The judge's conclusion that plaintiffs failed to present exceptional circumstances warranting the relief requested was, therefore, not an abuse of discretion.   See Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988) (“The granting or denial of permission to file a late claim within the one year period is a matter left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof.”);   see also Bayer v. Twp. of Union, 414 N.J.Super. 238, 258 (App.Div.2010)

Affirmed.

PER CURIAM