Breshevez McKenzie Moore, Etc. v. the Center for Lifelong Learning

NOT FOR PUBLICATION WITHOUT THE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-3420-21

BRESHEVEZ MCKENZIE
MOORE, as Mother and Natural
Guardian of Infant, JOSHUA
MOORE,

Plaintiff-Appellant,

v.

THE CENTER FOR LIFELONG
LEARNING and MIDDLESEX
REGIONAL EDUCATIONAL
SERVICES COMMISSION,

Defendants-Respondents,

and

(LILY) BAKUL BHABLA and
DARMII MOSQUERA,

Defendants.
____________________________

Submitted November 8, 2023 – Decided December 19, 2023

Before Judges Whipple and Mayer.
 On appeal from the Superior Court of New Jersey,
Law Division, Somerset County, Docket No.
L-0977-21.

James A. Kay, Jr., attorney for appellants.

Biancamano & DiStefano PC, attorneys for
respondents (James G. Serritella and Robert Arce, on
the brief).

PER CURIAM

Plaintiff Breshevez McKenzie Moore appeals from an order dismissing a

complaint filed on behalf of her son, plaintiff Joshua Moore 1 for failure to file

a notice of tort claim. We affirm.

Joshua was ten years old in March 2014, and living with cerebral palsy,

when he fell exiting a school bus while under the care and supervision of

defendant Center for Lifelong Learning overseen by defendant Middlesex

Regional Educational Services Commission (defendants) and an employee of

the Center. Joshua suffered numerous injuries as a result of the fall.

Defendants' employee prepared an accident report on March 27, 2014,

which recounts:

I came off the bus with the help of bus aide, down the
steps of bus. I held [Joshua] by the arm and had his
bag in the other hand. [Joshua] stumbled on the wheel

1
Because plaintiffs share the same last name, we refer to the younger by his
first name for clarity's sake; no disrespect is intended.
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 space dip. I try to save him from hitting his head but
was too late. [Joshua] hurt himself on the chin and
was bleeding then. I took him to the nurse for care. I
informed what happened.

About a week later, plaintiff complained to the school principal in a

telephone conversation. On April 9, 2014, plaintiff sent an email to Joshua's

school case manager requesting new protective equipment for Joshua and

monitoring of Joshua's safety on and off the bus; the email was acknowledged

as received the same day.

Plaintiff's counsel asserted he prepared, and plaintiff signed, a notice of

tort claim on December 30, 2014, and sent it to defendants via certified mail

that day. Defendants claimed they never received it. Plaintiff's counsel

searched his file but was unable to find the certified receipt for the mailing.

Joshua turned eighteen on August 6, 2021, and plaintiff was appointed

guardian of Joshua's person and property on October 22, 2021.

On July 22, 2021, plaintiff, on Joshua's behalf, filed a complaint

asserting claims against defendants and other parties alleging negligence that

led to his injuries, and defendants filed their answer on September 29, 2021.

The following day, plaintiff's counsel faxed to defendants what he purported

was the notice of tort claim referenced in the complaint as Exhibit A.

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3
However, the document was plaintiff's certification in lieu of affidavit to file

late notice of tort claim on behalf of Joshua.

Defendants asked plaintiff's counsel to provide a copy of the notice of

claim that was filed, together with proof of service. After plaintiff failed to

provide a copy of the requested notice, defendants moved to compel plaintiff

to produce the notice of tort claim and proof of its service. The trial court

issued an order compelling production. Because defendants never received a

copy of the notice of tort claim, defendants moved to dismiss the complaint.

Plaintiff cross-moved, opposing the motion and seeking leave to file a late

notice of tort claim. The trial court granted defendant's motion and denied

plaintiff's motion. Plaintiff moved for reconsideration which the trial court

denied. This appeal timely followed.

We review a trial court's decision denying reconsideration of its refusal

to allow the filing of a late notice of claim for abuse of discretion. See

McDade v. Siazon, 208 N.J. 463, 476-77 (2011). Similarly, a trial court's

analysis of the New Jersey Tort Claims Act "extraordinary circumstances"

exception is also reviewed for abuse of discretion. O'Donnell v. N.J. Tpk.

Auth., 236 N.J. 335, 344 (2019); accord N.J.S.A. 59:8-9 (stating that it is "in

the discretion of a judge of the Superior Court" whether to grant or deny

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permission to file a late notice). "[W]hen analyzing pure questions of law

raised in a dismissal motion, such as the application of a statute of limitations,

[though,] we undertake a de novo review." Smith v. Datla, 451 N.J. Super. 82,

88 (App. Div. 2017) (citing Royster v. N.J. State Police, 227 N.J. 482, 493

(2017)). A "trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference."

Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995)).

The New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to :12-3,

modifies liability for public entities and public employees, permitting

aggrieved parties to bring tort actions against such entities only within strictly

defined parameters. See O'Donnell, 236 N.J. at 344–45. "The Act's 'guiding

principle' is 'that immunity from tort liability is the general rule and liability is

the exception.'" Id. at 345 (quoting D.D. v. Univ. of Med. and Dentistry of N.

J., 213 N.J. 130, 134 (2013)). As such, the Act mandates a "claimant shall be

forever barred from recovering against a public entity or public employee if,"

among other things, the claimant failed to serve a notice of tort claim on "the

public entity within [ninety] days of accrual of the claim except as otherwise

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

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 "In determining when a cause of action accrues for purposes of [the

Act's] notice requirement, common law principles governing accrual of a tort

claim apply." Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 127

(2017). A claim accrues at the time the claimant knows of, or should know of,

the allegedly tortious activity giving rise to their claimed injury. See ibid.; see

also Bayer v. Twp. of Union, 414 N.J. Super. 238, 258 (App. Div. 2010) ("In

the case of tortious conduct, the date of accrual is the date of the incident on

which the tortious conduct took place.") (citing Beauchamp v. Amedio, 164

N.J. 111, 117 (2000)).

Relevant to this appeal, however, the Act specifically provides

"[n]othing in [the section requiring a notice of tort claim] shall prohibit a

minor or a person who is mentally incapacitated from commencing an action

under this act within the time limitations contained herein, after reaching

majority or returning to mental capacity." N.J.S.A. 59:8-8. Thus, a claim by

"a minor or a person who is mentally incapacitated" accrues when the

individual in question "reach[es] majority or return[s] to mental capacity."

Also relevant to this appeal, this statute was amended in 2005, and now

includes a provision stating "a guardian of the person of a ward shall . . . [i]f

necessary, institute an action that could be maintained by the ward including[,]

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but not limited to, actions alleging fraud, abuse, undue influence and

exploitation." N.J.S.A. 3B:12-57(f)(10) (amended by L. 2005, c. 304, § 39,

eff. Jan. 11, 2006). This amendment would appear to create a duty in a duly -

appointed guardian to bring suit to protect "the rights and best interest of the

ward's personal needs." Ibid. There have been no precedential decisions

published that address this amended statute as it relates to the tolling of the

ninety-day window to serve a notice of tort claim under the Act.

Plaintiff argues the trial court abused its discretion in denying her leave

to file a late notice of tort claim and denying her motion to reinstate her

complaint. See N.J.S.A. 59:8-9. She addresses these two issues together and

relies on the same arguments in support and in the alternative: her March 9,

2022 cross-motion for leave to file a notice of claim and April 14, 2022 motion

for reconsideration were both filed within the one year after the claim's

accrual; there were extraordinary circumstances for failure to file notice of

claim within the ninety-day deadline; and the delay in serving a notice of tort

claim would not have substantially prejudiced defendants as they were well

aware of the potential claim. We reject these arguments.

In arguing that the one-year deadline for requesting leave to file a late

notice of tort claim had not elapsed, plaintiff asserts Joshua's claim has not yet

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accrued due to his continued mental incapacity, or—in the alternative—that

the claim accrued with her appointment as Joshua's guardian on October 22,

2021. In the former situation, the window to serve a notice of tort claim on

defendants remains open. In the latter situation, the initial window to serve a

notice of tort claim on defendants closed on January 20, 2022—ninety days

after plaintiff's appointment as Joshua's guardian—and her window to seek

leave to serve a late notice of tort claim expired on October 22, 2022.

The trial court attempted to parse through the accrual dates, first

assigning the date on which Joshua achieved the age of majority—August 6,

2021—as the accrual date and then deciding that plaintiff's claim accrued on

October 22, 2021, the guardianship date. We conclude the court reached the

correct results but for different reasons.

Prior to the amendments of N.J.S.A. 59:8-8, we looked to the statutory

intent as to the effect of a guardian's appointment on the tolling of the

statutorily-defined limitation period. In Unkert by Unkert v. Gen. Motors

Corp., we held the tolling of the limitations period mandated by N.J.S.A.

2A:14-21 was not altered by the appointment of guardians for the incapacitated

party, as such an abridgement "would be contrary to [the statutory] language,

and would ignore the fact that so long as the injured party remains

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incompetent, [they are] unable to assist in the preparation and presentation of

[their] case." 301 N.J. Super. 583, 592 (App. Div. 1997) (cited with approval

in Est. of Nicolas v. Ocean Plaza Condo. Ass'n, Inc., 388 N.J. Super. 571, 584

(App. Div. 2006)).

In Kisselbach v. Cnty. of Camden, we said "[t]he statute does not

condition tolling on the absence of others who may be legally authorized to act

for the [mentally incapacitated] person." 271 N.J. Super. 558, 565 (App. Div.

1994). Discussing a power of attorney, Kisselbach suggested that an agent

"expressly empowered" to bring suit on behalf of a mentally incapacitated

individual, who was "reasonably aware of the alleged authority" could have a

duty to timely bring suit on behalf of the individual that may cause the

limitations period to run. Ibid. ("[T]he grant of such authority [to bring suit

on behalf of an incapacitated individual] would not, in our view, create a duty

to do so where the agent was not expressly empowered to do so and was not

reasonably aware of the alleged authority.")

Notably, before it was amended in 2005, N.J.S.A. 3B:12-57 did not

compel a guardian to file a lawsuit for personal injuries on behalf of a ward or

obligate the guardian to file any notice of tort claim.

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 N.J.S.A. 3B:12-57(f) (amended by L. 2005, c. 304, § 39, eff. Jan. 11,

2006), triggers the Act's notification period to begin running with the

appointment of a guardian for an incapacitated person. Thus, plaintiff's initial

ninety-day notification period expired on January 20, 2022, and the one-year

window in which to seek leave to serve a late notice of claim expired on

October 22, 2022, as the trial judge stated.

We also reject plaintiff's assertions of extraordinary circumstances,

prejudice, and adequacy of notice. Plaintiff argues she demonstrated

sufficiently extraordinary circumstances to justify her late service and the trial

court abused its discretion in denying her leave to serve a late notice of tort

claim. First, she argues she believed a notice of tort claim had been provide d

to defendants in December 2014. Next, she identified the following

exceptional circumstances: at that time, her attention had been absorbed with

dealing with Joshua's ailments, and limitations, then COVID-19 significantly

and adversely impacted her life as she then lost her job; she had been

unemployed in a full-time capacity since 2019; she lost two brothers, who died

as a result of contracting the virus, "all of which . . . took a toll on her both

physically and emotionally."

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 The trial court sympathized with plaintiff's recent hardships but

determined the issues she was experiencing did not prevent the filing and

serving of a proper notice of claim. The trial court determined plaintiff "was

available to sign and/or approve a Notice of Claim, on December 30, 2014"

and "was available to sign or approve a . . . notice of claim on July 19 of

2021." The trial court found plaintiff and her counsel did not comply with the

notice requirement of the statute and "the reason that the timely notice was not

sent was an error of counsel's office." The trial court held "this does not

constitute extraordinary circumstances." Having reviewed the record, the trial

court was well within its discretion to find that plaintiff's purported

extraordinary circumstances were insufficient to support leave to file a late

notice of tort claim.

Separate from the question of timeliness, plaintiff argues her obligations

were satisfied by both "the accident report prepared by defendants'

employee/representative dated March 27, 2014," and by the "12-30-14 . . .

written claim . . . incorporated by reference" in her initial complaint filed on

July 22, 2021. She argues these "notices" alone are sufficient to satisfy the

Act's notice requirement. However, plaintiff's attempt to label the "12-30-14

. . . written claim . . . incorporated by reference" into the July 22, 2021

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complaint as a notice of tort claim is expressly rejected by our case law. See

Guzman v. City of Perth Amboy, 214 N.J. Super. 167, 172 (App. Div. 1986).

The accident report advanced as a potential substitute for the notice of

tort claim falls short of providing the information required in a notice of tort

claim. The accident report only recounts the details of the accident and does

not include the other information necessary to satisfy the Act's notice

requirements. See N.J.S.A. 59:8-4(a)-(b), (d)-(f). As our Supreme Court made

clear in H.C. Equities, notice of tort claim must be made in a single document

and that "the public entity [cannot be] required to analyze multiple

communications and determine whether, viewed in the aggregate, they reveal

an intent to sue." 247 N.J. 366, 387 (2021). The March 27, 2014 accident

report, the July 22, 2021 complaint, and the "12-30-14 . . . written claim . . .

incorporated by reference" may not be read together to suggest plaintiff's

substantial compliance with the Act's notice requirement.

Any remaining arguments raised by the plaintiff are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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