KELLY A. FELTYNOWSKI VS. ANDREW G. KAUFMAN (L-0508-15, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-2134-16T4

KELLY A. FELTYNOWSKI,

Plaintiff-Appellant,

v.

ANDREW G. KAUFMAN,

Defendant-Respondent,

and

JOSHUA WEINER,

Defendant.
___________________________________

Argued May 21, 2018 – Decided June 27, 2018

Before Judges Ostrer, Rose and Firko.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-0508-15.

Lewis Stein argued the cause for appellant
(Nusbaum, Stein, Goldstein, Bronstein & Kron,
PA, attorneys; Lewis Stein, on the brief).

Michael J. Lunga argued the cause for
respondent.

PER CURIAM
 Plaintiff Kelly A. Feltynowski appeals from a December 16,

2016 Law Division order granting defendant Andrew G. Kaufman,

M.D.'s motion for summary judgment and dismissing her complaint

with prejudice for her failure to serve a Notice of Claim pursuant

to the New Jersey Tort Claims Act (TCA) as required under N.J.S.A.

59:8-8, and denial of her application to file a late notice based

upon extraordinary circumstances. For the reasons that follow,

we affirm.

I.

We derive the salient facts and procedural history from the

motion record. On February 26, 2015, plaintiff filed a medical

malpractice action against defendant, a pain management

specialist, alleging that she sustained a pneumothorax as a result

of a trigger point injection he administered to her on March 6,

2013.1 The procedure took place at defendant's Overlook Hospital

office. The initial office consultation took place at the Overlook

Medical Arts Building adjacent to Overlook. On March 30, 2015,

defendant filed an answer setting forth that he was "an employee

of Rutgers the State University," and asserting an affirmative

defense pursuant to the TCA.

1
A voluntary stipulation of dismissal without prejudice as to
defendant Joshua Weiner, M.D. only was filed on August 6, 2015.

2 A-2134-16T4
 During discovery, defendant provided evidence of his public

employment. On April 14, 2015, defendant provided insurance

information confirming that he was covered by UMDNJ's Professional

and General Liability Self-Insurance Fund governed by N.J.S.A.

59:1-1. In his answers to interrogatories, defendant certified

that he was a public employee. The sign on the door at his

Overlook office read: "UMD New Jersey Medical School - University

Orthopedic Specialists." Patient intake forms, completed by

plaintiff, were on letterhead stating, "University Hospital

Comprehensive Pain Center University of Medicine and Dentistry of

New Jersey." The bottom of the form indicated that the website

for defendant's practice was "www.umdnj.edu." During his

evaluation and treatment of plaintiff, defendant wore a white lab

coat issued by UMDNJ, with a badge setting forth his name and the

inscription, "UMDNJ Department of Anesthesiology." His business

card was provided to plaintiff and set forth contact information

which read: "University Hospital Comprehensive Pain Center,

Associate Professor of Anesthesiology, New Jersey Medical School."

Defendant's clinical work was performed as a full-time

faculty member of UMDNJ, now known as Rutgers University.2 Billing

2
On July 1, 2013, under the New Jersey Medical and Health Sciences
Education Restructuring Act, L. 2012 c. 45, the departments and
units that comprised UMDNJ were transferred to either Rutgers
University, University Hospital, or Rowan University.

3 A-2134-16T4
was done through University Physician Associates, which handled

faculty billing for UMDNJ. Defendant had hospital privileges at

Overlook and was the co-medical director of its pain center, but

he was not an Overlook employee. A May 13, 2015 letter sent to

plaintiff's counsel stated that at all relevant times, defendant

was "an agent of the State of New Jersey and therefore, N.J.S.A.

59:1-1 [to -7] defines the parameters and applicable immunities

governing any recovery for tortious conduct, or injury, which may

be had against public entities and public employees." Defendant's

answers to supplemental interrogatories included a copy of his

business card which he gave to plaintiff, copies of the sign on

his office door, his contract with UMDNJ, his W-2 forms from UMDNJ,

and first page of his federal tax returns. He admittedly never

told plaintiff he was a UMDNJ employee.

After the close of discovery, defendant moved to dismiss the

complaint for failure to file a Notice of Tort claim. The judge

denied the motion without prejudice and entered an order providing

for additional discovery to be conducted as to the TCA issue and

plaintiff's assertion that defendant may not have been treating

her in his capacity as a public employee. Defendant renewed his

motion to dismiss on July 19, 2016. Before hearing the motion on

its merits, the judge issued an order on September 15, 2016

compelling the deposition of defendant which was conducted on

4 A-2134-16T4
October 5, 2016, because plaintiff sought further clarification

as to the nature of his employment relationship with Overlook.

In an order entered on December 16, 2016, the judge granted

defendant's motion for summary judgment. The court held that

plaintiff should have filed a TCA notice after receiving

defendant's answer because any doubt she had about his status as

a State employee was clarified in his pleading.

The judge aptly found that plaintiff "should have been" on

notice of defendant's status as a public employee "because of the

initial form, sign on the office door, defendant's business card

and lab coat." The judge rejected plaintiff's argument that she

did not have to comply with the TCA because she was not satisfied

defendant was acting in his capacity as a State employee when he

treated her. The court reasoned that, the TCA is a "highly

technical statute," and requires notice. Furthermore, the court

stated that, "the complaint is not notice," and "discovery [does

not] equate to that." This appeal followed.

On appeal, plaintiff does not dispute that defendant was a

State employee. Rather, she contends he failed to inform her

orally and in writing that he was a State employee at the time he

treated her, thereby dispensing with the need for her to file a

TCA notice. Alternatively, she seeks leave to file a late notice

5 A-2134-16T4
alleging "exceptional circumstances."3 Post-argument submissions

by both counsel confirm that plaintiff briefed this issue before

the motion judge and this court, but never filed a formal notice

of motion seeking leave to file a late Notice of Claim. She also

challenges the judge's reliance upon an unpublished Appellate

Division decision. Defendant urges us to affirm the court's order.

II.

This court reviews a ruling on summary judgment de novo,

applying the same legal standard as the trial court. Conley v.

Guerrero, 228 N.J. 339, 346 (2017); Templo Fuente De Vida Corp.

v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016); see also

Globe Motor Co. v. Igdalev, 225 N.J. 469, 479-81 (2016). Thus,

this court considers, as the trial judge did, "whether the evidence

presents a sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail as a

matter of law," Liberty Surplus Ins. Corp. v. Nowell Amoroso,

P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must

be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

3
Plaintiff uses the phrase "exceptional circumstances" throughout
her brief. The statutory language found at N.J.S.A. 59:8-9 is
"extraordinary circumstances."

6 A-2134-16T4
affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to

a judgment or order as a matter of law." Templo Fuente, 224 N.J.

at 179 (quoting R. 4:46-2(c)).

As our Supreme Court has instructed: a determination whether

there exists a "genuine issue" of material fact that preludes

summary judgment requires the motion judge to consider whether the

competent evidential materials presented, when viewed in the light

most favorable to the non-moving party, are sufficient to permit

a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party. [Brill, at 142 N.J. at 540.] "To

defeat a motion for summary judgment, the opponent must 'come

forward with evidence that creates a genuine issue of material

fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div.

2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State,

425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-

serving assertions by one of the parties are insufficient to

overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41

(2005) (citations omitted).

If there is no genuine issue of material fact, this court

must then "decide whether the trial court correctly interpreted

the law." DepoLink Court Reporting & Litig. Support Servs. v.

Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation

7 A-2134-16T4
omitted). "When no issue of fact exists, and only a question of

law remains, [this court] affords no special deference to the

legal determinations of the trial court." Templo Fuente, 224 N.J.

at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)).

Plaintiff argues on appeal that the judge should have denied

defendant's summary judgment motion because she established that

her obligation to file a TCA notice was vitiated because she was

not advised by him orally and in written form that he was a State

employee when he evaluated and treated her. Regardless, plaintiff

asserts that she was excused from filing a TCA notice because she

filed a complaint. Alternatively, she requests leave to file a

late TCA notice pursuant to N.J.S.A. 59:8-9 even though she never

filed a motion pursuant to R. 1:6-2 seeking such relief. We

conclude that upon being served with defendant's answer,

plaintiff's cause of action accrued and she was required to file

a TCA notice within ninety days thereof. We further hold that her

filing of the complaint does not constitute compliance with the

strict requirements of the TCA. Her request to file a late TCA

notice fails because a timely motion was never made and this court

cannot permit same.

N.J.S.A. 58:8-3 provides that "[n]o action shall be brought

against a public entity under this act unless the claim upon which

8 A-2134-16T4
it is based shall have been presented in accordance with the

procedure set forth in this chapter." N.J.S.A. 59:8-8 prohibits

suits against a public entity or public employee unless a claimant

has furnished that entity or employee with a notice of tort claim.

The notice shall include the "date, place and other circumstances

of the occurrence or transaction which gave rise to the claim

asserted," 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," including the "estimated amount of any prospective

injury, damage, or loss, insofar as it may be known . . . ,

together with the basis of the computation of the amount claimed."

N.J.S.A. 59:8-4.

In recognition of the potentially harsh consequences of the

ninety-day notice requirement, the TCA provides that a plaintiff

may file a notice of claim up to a year after the claim accrues,

but only if "extraordinary circumstances" excuse the delay and the

public entity or employee would not be "substantially prejudiced."

Lowe v. Zarghami, 158 N.J. 606, 624-25 (1999). The statute

provides:

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 or the public employee

9 A-2134-16T4
 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;
provided that in no event may any suit against
a public entity or a public employee arising
under this act be filed later than two years
from the time of the accrual of the claim.

[N.J.S.A. 59:8-9.]

"The phrase 'extraordinary circumstances' was added to the

statute in 1994" to "raise the bar for the filing of late notice

from a 'fairly permissive standard' to a 'more demanding' one."

Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe 158

N.J. at 625). "'[T]he amendment may have signaled the end to a

rule of liberality' in filing." Ibid. (alteration in original).

The TCA, however, does not define "extraordinary" circumstances,

and courts must determine, on a case-by-case basis whether such

"extraordinary" circumstances exist based on the facts and context

presented. Lowe, 158 N.J. at 626 (finding extraordinary

circumstances where the plaintiff "had no reason to suspect that

her doctor was even associated with a public entity").

Courts employ a sequential three-step process to ascertain

if a plaintiff timely filed a notice of claim. Beauchamp, 164 N.J.

10 A-2134-16T4
at 118-19. "The first task is always to determine when the claim

accrued. The discovery rule is part and parcel of such an inquiry

because it can toll the date of accrual. Once the date of accrual

is ascertained, the next task is to determine whether a notice of

claim was filed within ninety days. If not, the third task is to

decide whether extraordinary circumstances exist justifying a late

notice." Beauchamp, 164 N.J. at 119. With respect to the

discovery rule, the standard is an objective one, inquiring into

not only what the plaintiff knew, but also what he or she should

have reasonably have known, exercising ordinary

diligence. Caravaggio v. D'Agostini, 166 N.J. 237, 246

(2001). Accrual occurs when the victim knew or reasonably should

have known he or she was injured, and due to the fault of

another. Ibid. Moreover, "[t]he discovery rule should be applied

with reasonableness as to whether a diligent plaintiff would have

or should have realized that a public entity was involved at

all." Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 140

(2017).

In support of her argument, plaintiff relies on a triumvirate

of cases decided by the Supreme Court: Lowe, 158 N.J. at 606;

Eagan v. Boyarsky, 158 N.J. 632 (1999); Ventola v. N.J. Veteran's

Mem'l Home, 164 N.J. 74 (2000). In Lowe, 158 N.J. at 625, and

Eagan, 158 N.J. at 638, decided on the same day, the Court

11 A-2134-16T4
specified that physicians on the faculty at UMDNJ were public

employees entitled to notice under the TCA. In both cases, the

Court granted leave to plaintiffs to file late notices because it

was unclear if the doctors were public employees. Lowe, 158 N.J.

at 629; Eagan, 158 N.J. at 642.

In Lowe, the Court found that "extraordinary circumstances"

justified the late filing of a notice because although employed

by UMDNJ, the doctor treated the plaintiff at a private hospital.

Lowe, 158 N.J. at 611-12. The Court explained that the doctor's

"status as a public employee was obscured by his apparent status

as a private physician[,]" because the doctor was "performing

tasks associated generally with private practice and not public

service." Id. at 629. The Lowe plaintiff "had no reason to

suspect that her doctor was even associated with a public entity."

Id. at 630. Specifically, the Court found extraordinary

circumstances justifying the late filing of notice of claim because

"[t]he notice provisions of the [TCA] were not intended as a 'trap

for the unwary.'" Id. at 629 (quoting Murray v. Brown, 259 N.J.

Super. 360, 365 (Law Div. 1991)). See also Jones v. Morey's Pier,

Inc., 230 N.J. 142, 170 (2017) (explaining "any party - plaintiff

or defendant - intending to pursue a claim against a public entity

or employee subject to the [TCA] must act expeditiously to preserve

that claim").

12 A-2134-16T4
 Similarly, in Eagan, 158 N.J. at 642, the plaintiff "had no

reason to believe" that the physicians were public employees, and

there was "no evidence supporting the conclusion that the plaintiff

knew defendants were UMDNJ employees." The Court held that

plaintiff "should be entitled to file a notice of late claim"

because of the "unique circumstances" presented as contemplated

by N.J.S.A. 59:8-9. Id. at 642-43.

In order to avoid this recurring circumstance in the future,

Lowe and Eagan promulgated the following directive:

UMDNJ must require clinical professors
employed by them to advise their patients,
both orally and in writing, that they are
employees of UMDNJ. Such notice should be
given to a patient as soon as practicable. It
also would be helpful if clinical professors
wore badges identifying themselves as UMDNJ
employees. Those steps, if taken, together
with this holding that clinical professors are
UMDNJ employees, should make patients more
aware that their physicians are public
employees entitled to notice under the TCA.

[Lowe, 158 N.J. at 631; Eagan, 158 N.J. at
643.]

In Ventola, 164 N.J. at 78, the Court reiterated this theory

and observed that the "understandable confusion concerning the

status of the veteran's home . . . should not bar the presentation

of [the plaintiffs'] claim." Id. at 82. Furthermore, the Court

concluded that "this should be the last such occasion" it should

have to deal with the issue because, "[p]resumably, if State

13 A-2134-16T4
health-care providers wish to rely on the notice provisions of the

TCA, they will have made their status clear to patients." Id. at

83.

Defendant failed to comply with the Lowe and Eagan mandate

because he did not verbally inform plaintiff that he was a State

employee, even though he duly complied with the written and other

criteria. Therefore, plaintiff's service of a TCA notice was

tolled until defendant joined issue and he unequivocally disclosed

that he was a State employee subject to TCA immunity and defenses.

The time for accrual commenced as of the filing of defendant's

answer, and plaintiff was obligated to file a TCA notice within

ninety days thereafter, which she failed to do. Even after

conceding defendant's public employee status, she still refused

to file a TCA notice. Moreover, despite having ample opportunity

to do so, plaintiff never filed a motion for leave to file and

serve a late TCA notice. Accepting plaintiff's premise that the

complaint served as notice would undermine the legislative intent

behind the TCA: (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

14 A-2134-16T4
practices which gave use to the claim; (4) to inform the State in

advance as to the indebtedness or liability that it may be expected

to meet. N.J.S.A. 59:8-8. Authorizing plaintiff to file a TCA

notice at this late juncture would result in defendant being

"substantially prejudiced thereby." N.J.S.A. 59:8-9. Therefore,

we give no credence to her argument as to this issue.

Here, plaintiff's claim accrued when she knew or should have

known, that "she was injured and that a public entity was

responsible." Beauchamp, 164 N.J. at 119. Despite being afforded

ample opportunity to conduct discovery, plaintiff never filed a

TCA notice. The judge correctly concluded that the "entire

question of [w]hether [defendant] was a State employee was

ultimately resolved" and that "the complaint is not notice under

the holding in Guzman [v.] Perth Amboy, 214 N.J. Super. 167, 172

(App. Div. 1986)." The judge further concluded that "I don't

think discovery responses are notice for [the] same reason."

The judge appropriately applied these principles here after

a thorough examination of the record. Plaintiff does not dispute

that she failed to serve a TCA notice within the ninety-day period

mandated by N.J.S.A. 59:8-8. Nor did plaintiff move within the

maximum one-year period to extend the time to serve a TCA notice

on the basis of extraordinary circumstances. N.J.S.A. 59:8-9.

See also Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 298

15 A-2134-16T4
(App. Div. 1989) (holding that "the trial court had no jurisdiction

to extend the filing period beyond the one-year outer limit"). The

lack of required notice bars plaintiff's recovery as a matter of

law. N.J.S.A. 59:8-8(a).

In sum, after our de novo review of the record, we conclude

that the motion judge's factual findings are fully supported, and

his legal conclusions are sound. We therefore affirm the order

granting defendant's motion for summary judgment dismissing the

complaint with prejudice and denial of plaintiff's request to file

a late TCA notice.

Plaintiff's remaining arguments, including that the motion

judge improperly relied upon an unpublished Appellate Division

decision, are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirm.

16 A-2134-16T4