NOT FOR PUBLICATION WITHOUT THE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