LORRAINE KING, AS PROPOSED ADMINISTRATRIX OF ESTATE OF UMAR KING VS. CITY OF JERSEY CITY (L-0309-19, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-4051-18T1

LORRAINE KING, as Proposed
Administratrix of Estate of
UMAR KING,

Plaintiff-Respondent,

v.

CITY OF JERSEY CITY,
JERSEY CITY POLICE
DEPARTMENT,

Defendants-Respondents,

COUNTY OF HUDSON,
HUDSON COUNTY SHERIFF'S
DEPARTMENT,

Defendants-Appellants.

Argued telephonically August 25, 2020 –
Decided September 11, 2020

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0309-19.
 Cindy Nan Vogelman argued the cause for appellants
(Chasan, Lamparello, Mallon & Cappuzzo, PC,
attorneys; Cindy Nan Vogelman, of counsel and on the
briefs; Qing H. Guo, on the briefs).

Joshua Annenberg argued the cause for respondent
Lorraine King (Joshua Annenberg and DeSimone &
Associates, attorneys; Joshua Annenberg, of counsel
and on the brief; Ralph DeSimone, on the brief).

Respondents City of Jersey City and Jersey City Police
Department, have not filed a brief.

PER CURIAM

Defendants County of Hudson (the County) and Hudson County Sheriff's

Department (HCSD) appeal from a February 15, 2019 Law Division order

granting plaintiff Lorraine King, as proposed Administratrix of the Estate of

Umar King (the Estate), leave to file a late notice of claim under the Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to 12-3. The decision was rendered in the absence

of oral argument or written statement of reasons. Below the signature line on

the order, the following is noted: "Opposition was filed late and not considered

according to Rule 1:6-3."1 The appeal notice also includes the judge's April 26,

2019 denial of reconsideration. Following that signature line, the order state s

1
As we discuss later in this opinion, the trial judge may have overlooked timely
opposition filed by defendants in a parallel proceeding bearing a different docket
number.
A-4051-18T1
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the motion is "[d]enied pursuant to N.J.S.A. [59:8-9]. Plaintiff's motion of

February 15, 2019 was granted in accordance with N.J.S.A. [59:8-9].

Extraordinary circumstances were shown as to why the notice of claim was not

filed within the period of time prescribed by section 59:8-8."

We vacate the orders because the court failed to "find the facts and state

its conclusions of law" as required by Rule 1:7-4(a). Furthermore, given the

confused state of the record, we remand so the parties may participate in a

Lopez2 hearing.

We note that plaintiff's motion "to file a late notice of claim . . . [and] to

compel production of documents pursuant to the Open Public Records Act," was

submitted on an "affirmation" of counsel. The submission blended together

legal arguments and factual representations more properly made by those with

personal knowledge and legal arguments. No such filing is authorized by the

rules. In fact, Rule 1:6-6 provides when "a motion is based on facts not

appearing of record . . . the court may hear it on affidavits made on personal

knowledge, setting forth only facts which are admissible in evidence to which

the affiant is competent to testify . . . ."

2
Lopez v. Swyer, 62 N.J. 267 (1973).
A-4051-18T1
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 Decedent's administratrix submitted an affidavit, referred to in the body

of the text as an affirmation, stating that her son was tragically killed on January

23, 2018, while standing at a Jersey City bus stop. Apparently, the bus stop was

struck by a car that had been hit by a fleeing suspect. In her affidavit, the

administratrix explained she was told by the Jersey City Police Department

(JCPD) that police officers engaged in the high-speed chase. She claimed the

investigative report "did not mention the police car or the officers in the

description of the accident." On an unspecified date, she retained counsel, who

on April 20, 2018, filed a notice of tort claim against JCPD.

The report noted that the Hudson County Prosecutor's Office was

investigating. Thereafter, on June 20 and June 25, 2018, plaintiff's counsel made

New Jersey Open Public Records Act (OPRA) requests, N.J.S.A. 47:1A-1 to 13,

to Jersey City and, mistakenly, to the Hudson County Improvement Authority.

Jersey City responded that the request would be:

forwarded to the relevant City department(s) to locate
the information you seek and to determine the volume
and any costs associated with satisfying your request
. . . . PLEASE NOTE: The State Public Information
Act does not require a governmental body to create new
information, to do legal research, or to answer
questions.

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The Hudson County Improvement Authority OPRA request form included in the

appendix from the Jersey City OPRA Center indicates: "Your request is denied

as overly broad . . . ." The response suggested that the inquirer "contact the

Office of the Hudson County Prosecutor's for the requested records. The

following link will route you to OPRA page for said office . . . ."

County Counsel certified in support of the motion for reconsideration that

a copy of the order was not received from the court or plaintiff's attorney.

Counsel accessed the order in the court e-filing system on March 15.

Although not entirely clear, it seems that plaintiff filed two separate

motions under two separate docket numbers. Defendants' opposition to the

application for late filing was made under the docket number of the matter that

plaintiff subsequently dismissed. The judge who decided the motion never

received a copy, and inaccurately marked the motion as "unopposed."

In her affidavit, the Administratrix further stated:

I understand that in late June 2018, my counsel served
OPRA requests . . . .

More recently, however, I read an old newspaper article
that the police officers involved in the chase were
Hudson County Sheriff's Department officers.

Consequently, based upon the conflicting information I
now have — what I was originally told by the JCPD,
the acknowledgment of my notice of claim by [Claims

A-4051-18T1
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 Resolution Corporation], the complete lack of response
by the City and County to my counsel's OPRA requests,
and the new information I have contained in the
newspaper article I recently read -- I respectfully
request that my motion to compel the City and County
to respond to my counsel's OPRA requests, and if
necessary, permission to file late notice of claim against
the County and HCSD be granted.

On appeal, defendants raise the following points of error:

POINT I
THE COMPLAINT MUST BE DISMISSED
BECAUSE THE TRIAL COURT ABUSED ITS
DISCRETION IN FINDING EXTRAORDINARY
CIRCUMSTANCES TO PERMIT PLAINTIFF TO
FILE A LATE NOTICE OF TORT CLAIM.

A. Standard of Review for Late Tort Claims Notice.

B. New Jersey Tort Claims Act.

C. Serving an OPRA Request almost Five Months
After the Accident on an Entity Other Than the
County Defendants and Review of an Undated
"Old" Newspaper Article Are Not Extraordinary
Circumstances under the Tort Claims Act.

POINT II
THIS COURT SHOULD EXERCISE ORIGINAL
JURISDICTION AND DECIDE THE ISSUE
INSTEAD OF A REMAND. (Not raised below.) 3

3
In plaintiff's responding brief, plaintiff argues three points, including the
request we exercise original jurisdiction over the matter because of alleged
"obscuring" of the real perpetrator by other governmental entities. No notice of
cross-appeal was filed.
A-4051-18T1
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 I.

This court reviews "a trial court's application of the extraordinary

circumstances exception [to the TCA] for abuse of discretion." O'Donnell v.

N.J. Tpk. Auth., 236 N.J. 335, 344 (2019). We examine denials of leave to file

a late claim more carefully than grants. Ibid. "'[A]ny doubts as to whether

extraordinary circumstances exist 'should be resolved in favor of the

application.'" Ibid. (quoting Lowe v. Zarghami, 158 N.J. 606, 629 (1999)). In

this case, however, we cannot determine if the judge applied the necessary fact-

sensitive analysis.

Because no statement of reasons was placed on the record, or otherwise

memorialized, we cannot even discern which date the judge used as the date of

accrual. See Beauchamp v. Amedio, 164 N.J. 111, 117-18 (2000). The accrual

date can be tolled where an injured party is unaware of the identity of the alleged

tortfeasor, however, the question requires evaluation of whether it is reasonable

to impose upon the injured party the obligation to have learned of the identi ty

earlier. Id. at 117; Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135

(2017).

It is well-established that "[t]he Legislature imposed two standards for the

grant of permission to file a late notice of claim: first, that there be a showing

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of 'sufficient reasons constituting extraordinary circumstances' for the claimant's

failure to timely file, and second, that the public entity not be 'substantially

prejudiced' thereby." McDade v. Siazon, 208 N.J. 463, 477 (2011) (quoting

N.J.S.A. 59:8-9). Neither issue was mentioned in the judge's decision.

In deciding if extraordinary circumstances exist, a judge must assess

whether the discovery rule applies—and its application depends on "whether the

facts presented would alert a reasonable person, exercising ordinary diligence,

that he or she was injured due to the fault of another." Ben Elazar, 230 N.J. at

134 (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)). Thus, the

date of accrual can be the date of the injury or arrived at through application of

the discovery rule. See McDade, 208 N.J. at 475. We cannot discern the judge's

reasoning; therefore, a remand is warranted for him to clarify his selection of an

accrual date, the reasons constituting extraordinary circumstances, and the

absence of prejudice.

II.

The Administratrix's affidavit described that on some unspecified date for

reasons not explained she "read an old newspaper article" about the accident that

brought the HCSD's possible involvement to her attention. The paucity of detail

prevents the Law Division judge from fairly ruling on the papers. Ordinarily, a

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cause of action with a disputed accrual date will, particularly in those cases

requiring credibility determinations, call for an evidential hearing. See Lopez,

62 N.J. at 272. This is such a case. The reasonableness of the belated discovery,

under well-established precedent, requires close scrutiny. A Lopez hearing is

required.

III.

In light of our conclusions regarding the voids in the record, we cannot

exercise original jurisdiction. See R. 2:10-5; Henebama v. Raddi, 452 N.J.

Super. 438, 452 (App. Div. 2017) ("We must exercise our original fact -finding

authority sparingly and only in clear cases that are free of doubt.")

Reversed and remanded. We do not retain jurisdiction.

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