CYNTHIA FRAZIER VS. NEW JERSEY TRANSIT CORPORATION (L-6065-17, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1554-17T3

CYNTHIA FRAZIER,

Plaintiff-Respondent,

v.

NEW JERSEY TRANSIT
CORPORATION, DEPARTMENT
OF TREASURY, DIVISION OF
RISK MANAGEMENT,

Defendants-Appellants.
________________________________

Submitted November 15, 2018 – Decided December 31, 2018

Before Judges Nugent and Reisner.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-6065-17.

Gurbir S. Grewal, Attorney General, attorney for
appellant (Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Marti B. Morris and Daniel M.
Vannella, Deputy Attorneys General, on the brief).

Ahmed M. Screven, attorney for respondent.

PER CURIAM
 This personal injury action is subject to the New Jersey Tort Claims Act

(TCA), N.J.S.A. 59:1-1 to 12-3. Defendant, New Jersey Transit Corporation,

appeals from a Law Division order that granted plaintiff Cynthia Frazier leave

to file a late notice of claim pursuant to N.J.S.A. 59:8-9. The facts submitted

on the motion record are undisputed. We conclude as a matter of law the trial

court did not abuse its discretion in granting plaintiff leave to file a late notice

of claim.

These are the undisputed facts on the motion record. Plaintiff was a

passenger on a New Jersey Transit Bus that collided with another vehicle. The

accident occurred on April 26, 2017. Because New Jersey Transit is a public

entity, the TCA required plaintiff to serve New Jersey Transit with a notice of

claim for her injuries "not later than the 90th day after the accrual of the cause

of action." N.J.S.A. 59:8-8. The parties do not dispute plaintiff's cause of action

accrued on the day of the accident. She thus had ninety days from that date, or

until July 25, 2017, to file her claim.

On July 10, 2017, with fifteen days left in the ninety-day period for

serving a claim, plaintiff served a notice of claim on the Department of Treasury,

Division of Risk Management. Five days later — with ten days left in the initial

ninety-day period — plaintiff's attorney received a telephone call from a

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principal clerk in the Department of Treasury, Division of Risk Management,

who said she wanted to know more about the New Jersey Transit bus accident

involving plaintiff. Two days later, on July 17, during a telephone conversation,

the clerk requested a copy of the police report of the accident. According to

plaintiff's counsel, the clerk "stated to me that plaintiff's claim was filed against

New Jersey Transit Corporation." On July 28 — three days after the initial

ninety-day period had expired — the clerk emailed plaintiff's attorney, thanked

him for providing the police report, informed him of the claim number that had

been assigned to plaintiff's claim, and said a claims investigator would receive

the claim by Monday, July 31.

Plaintiff next heard from the State on August 10, 2017, when she received

from the assigned investigator a letter written two days earlier. The letter was

not sent to her attorney. In the letter, the investigator rejected plaintiff's notice

of claim. The investigator explained that New Jersey Transit Corporation was

not a State department or agency, but rather a separate and distinct public entity

that could sue and be sued. The letter continued: "In our opinion, Notice to the

State of New Jersey or any State department is not notice to New Jersey Transit

Corporation or any of its agencies or subdivisions and should not be construed

to waive any of their rights under the New Jersey Tort Claims Act." The letter

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stated plaintiff should direct future inquiries to New Jersey Transit Corporation

and provided that entity's address.

Plaintiff gave the letter to her attorney, who responded to the investigator

and also filed a notice of claim with New Jersey Transit. On August 23, 2017,

plaintiff filed a motion for leave of court to serve New Jersey Transit with a late

notice of claim. The court granted plaintiff's motion and thereafter denied New

Jersey Transit's motion for reconsideration.

On the order granting the motion, the court handwrote: "N.J.S.A. 59:8-9

allows for late filing of notice of claim." The appellate record includes neither

a written decision nor a transcript of an oral decision. In an oral opinion denying

New Jersey Transit's motion for reconsideration, the court distinguished a n

unpublished opinion cited by New Jersey Transit, and then explained:

[The] plaintiff was served the notification from — from
the Department of Treasury after — after
approximately 80 — I think there were six days left
before — before the 90 days ran. So for 84 days the
Department of Treasury sat on their hands and provided
[plaintiff's attorney] with no information as to whether
or not they were the right party to receive the notice of
claim.

Once (indiscernible) party and the correspondence was
ex-parte, which is usually not acceptable, but that's not
before this [c]ourt, they served upon his client a letter
saying that the claim was not valid. And within six days
of that letter he served the notice of claim.

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 Your motion for reconsideration is denied.

On appeal, New Jersey Transit argues the trial court abused its discretion

in finding that extraordinary circumstances warranted the grant of leave to

plaintiff to file a late notice of claim. The argument is twofold: first, an

attorney's ignorance or incompetence does not constitute an extraordinary

circumstance that excuses the failure to file within the initial ninety-day period;

second, plaintiff failed to demonstrate New Jersey Transit was not substantially

prejudiced by plaintiff's delay in filing the notice of claim. We disagree.

Plaintiffs must comply with the TCA to pursue a personal injury action

against a public entity. "A claim relating to a cause of action for death or for

injury or damage to person or to property shall be presented . . . not later than

the 90th day after accrual of the cause of action." N.J.S.A. 59:8-8. "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."

Beauchamp v. Amedio, 164 N.J. 111, 117 (2000).

The TCA's purpose in requiring that a notice be filed within ninety days

"is to 'compel a claimant to expose his intention and information early in the

process in order to permit the public entity to undertake an investigation while

witnesses are available and the facts are fresh.'" D.D. v. Univ. of Med. &

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Dentistry of N.J., 213 N.J. 130, 146 (2013) (quoting Lutz v. Twp. of Gloucester,

153 N.J. Super. 461, 466 (App. Div. 1977)).

A claimant who does not file a notice of claim within the ninety-day period

specified in N.J.S.A. 59:8-8 may, within one year after accrual of a claim, seek

judicial permission to file a late notice of claim, provided the public entity "has

not been substantially prejudiced." N.J.S.A. 59:8-9.

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 [the] failure to file [a]
notice of claim within the period of time prescribed by
section 59:8-8 . . . or to file a motion seeking leave to
file a late notice of claim within a reasonable time
thereafter[.]

[Ibid.]

The Supreme Court has noted that "[b]y its terms, the statute commits the

authority to grant a plaintiff's motion for leave to file late notice 'to the sound

discretion of the trial court, and [its decision] will be sustained on appeal in the

absence of a showing of an abuse thereof.'" D.D., 213 N.J. at 147 (second

alteration in original) (quoting Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134,

146 (1988)). We generally defer to a trial court's factual determinations, but

review a trial court's legal conclusions de novo. See ibid.

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 Here, the trial court made no findings of fact or conclusions of law when

it initially decided plaintiff's motion. A trial court is required "by an opinion or

memorandum decision, either written or oral, [to] find the facts and state its

conclusions of law thereon . . . on every motion decided by a written order that

is appealable as of right." R. 1:7-4(a). "Final judgments of a court, for appeal

purposes, shall . . . include . . . [a]n order granting or denying a motion to extend

the time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9." R. 2:2-

3(a)(3). In addition, the trial court inaccurately noted the amount of time the

Department of Treasury, Division of Risk Management delayed before its

investigator informed plaintiff the notice was misfiled. However, the trial

court's miscalculation does not change the result here. We conclude the trial

court did not abuse its discretion in granting plaintiff's motion.

The Supreme Court "in a variety of contexts [has] insisted that

governmental officials act solely in the public interest. In dealing with the

public, government must 'turn square corners.'" F.M.C. Stores Co. v. Borough

of Morris Plains, 100 N.J. 418, 426 (1985) (quoting Gruber v. Mayor & Twp.

Comm. of Raritan Twp., 73 N.J. Super. 120 (App. Div. 1962)). The facts of this

case are inconsistent with that precept. Here, within the initial ninety-day time

period for filing a claim, the Department of Treasury, Division of Risk

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Management informed plaintiff's attorney the claim had been properly filed

against New Jersey Transit. That misinformation was not corrected before the

expiration of the ninety-day period for filing a claim. Under those

circumstances, we conclude as a matter of law plaintiff demonstrated sufficient

reasons constituting extraordinary circumstances for failure to file the notice of

claim within the initial ninety-day period.

New Jersey Transit emphasizes that ignorance of its statutory status as a

sue-and-be-sued entity does not constitute extraordinary circumstances. New

Jersey Transit also emphasizes it was under no obligation to inform plaintiff s he

filed the claim against the wrong public entity.

There are conceptual problems with New Jersey Transit's arguments.

First, as previously noted, the purpose of the claim notification is to provide a

public entity with prompt notice so it can adequately investigate a claim and

then administratively review it with the opportunity to settle meritorious claims.

We fail to discern why one public entity, knowing a claimant has filed a notice

against the wrong party, would not want to correct that misapprehension so the

proper public entity could be notified and promptly investigate, administratively

review, and have the opportunity to settle meritorious claims. Nonetheless, we

need not address that issue.

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 Here, one public entity, albeit likely inadvertently, misled a claimant into

believing the claim had been properly filed. The public entity took no action to

disabuse claimant of the misapprehension in time to serve the proper public

entity. We hold only that under these narrow circumstances, extraordinary

circumstances supported claimant's motion to file a late notice of claim.

New Jersey Transit's argument that plaintiff did not demonstrate the

absence of substantial prejudice is without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E). We add only that the motion record

referenced the police report of the investigation into the accident. The accident

having been investigated, and New Jersey Transit having failed to explain why

such investigation was somehow inadequate, we find no merit in this argument.

Affirmed.

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