NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Robert Camidge appeals from the October 1, 2010 order, which granted summary judgment to defendants as a result of plaintiff's failure to file a timely notice of tort claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act). The following facts are derived from evidence submitted by the parties in support of, and in opposition to, plaintiff's summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

During the 2007-2008 school year, plaintiff was a student at Manasquan High School and a member of the wrestling team. According to plaintiff, during practice at sometime in December 2007, he was forced by his coach to wrestle against a much larger opponent and, as a result, hurt his knee. At the coach's insistence, plaintiff continued to practice and wrestle in other matches.

On January 12, 2008, while engaged in a wrestling match, plaintiff stated that he twisted his left knee and rolled his right ankle. On January 14, 2008, an accident report was prepared by a teacher, which memorialized plaintiff's version of the injuries. The only witness mentioned in the accident report was coach Ken Pevovar. The accident report did not describe how the injury occurred. Plaintiff thereafter sought medical treatment and the injury was diagnosed as a left knee anterior cruciate ligament tear and a medial synodial plica, which required surgical intervention and repair. On April 3, 2008, an insurance claim form was completed by the school athletic director which stated that "athlete twisted left knee [and] rolled [right] ankle" at a wrestling match.

Plaintiff and his parents subsequently were involved in legal proceedings with the Manasquan and Belmar Boards of Education in a case unrelated to the personal injury at issue in this case. Plaintiff and his parents were represented by counsel and, at a hearing held before an Administrative Law Judge (ALJ) on September 17, 2009, the ALJ questioned the parties concerning a proposed settlement agreement in that matter. The parties executed a settlement agreement on October 3, 2009. The settlement agreement released all claims against the Boards "with the exception of [plaintiff's] knee injury which he received while [in] his last year of attendance within the Manasquan/Belmar school district." Plaintiff turned eighteen on October 9, 2009.

On February 15, 2010, plaintiff met with his attorney in this matter (who was not plaintiff's counsel in the unrelated case). On the same day, counsel for plaintiff sent a letter to the defendants stating that he represented plaintiff, and that in December 2007 and January 2008, plaintiff sustained injuries to his left knee as evidenced by doctors reports and the school accident report that were attached to the letter. The letter did not describe the accident in any detail, provide the names and addresses of witnesses, or state the negligence or wrongful acts that caused the damage. On March 25, 2010, plaintiff sent a completed notice of claim form to defendants. The notice of claim described an incident where plaintiff was forced to wrestle with a teammate who was approximately 100 pounds heavier, and as a result plaintiff injured his knee. The notice of claim form did not give a date when this incident occurred.

On April 12, 2010, plaintiff filed suit against defendants. On June 11, 2010, the complaint against the Borough of Manasquan was dismissed with prejudice. On July 9, 2010, the complaint against the Borough of Belmar was dismissed with prejudice. On October 1, 2010, Judge John T. Mullaney, Jr. denied plaintiff's request for leave to file a late tort claims notice and dismissed plaintiff's complaint with prejudice as to the remaining defendants.

In his memorandum order, the judge found no substantial compliance with the notice of claim requirements of the Act. The motion judge then proceeded to determine whether there existed extraordinary circumstances warranting the late filing of the notice of claim. The judge found that "there were no circumstances whatsoever that are pled to support the untimely filing of the notice of claim." The notice of motion was not supported by an affidavit of plaintiff showing any circumstances, let alone extraordinary circumstances, for the failure to timely file his notice of claim. This appeal followed.

Plaintiff contends that the accident report and insurance claims form, coupled with the reservation of rights in the settlement agreement, substantially complied with the timely filing of a notice of claim. Plaintiff asserts, in the alternative, that the judge should have permitted a late filing of the notice of claim.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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." R. 4:46-2(c); see also Brill, supra, 142 N.J. at 523. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

In 1972, the Legislature passed the Act, which created a statutory scheme for claims to be brought against public entities. No such action may be brought unless it is in accord with the procedures established under the Act. N.J.S.A. 59:8-3.

The Act prohibits a plaintiff from filing a claim for personal injuries against a public entity "unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3. The Act prohibits a suit against a public entity unless the entity is given notice of the claim "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8; see also N.J.S.A. 59:8-1 (defining "accrual"). Here, the matter was tolled until the cause of action accrued on plaintiff's eighteenth birthday, October 9, 2009. See N.J.S.A. 59:8-8; Rost v. Bd. of Educ., 137 N.J.Super. 76, 78 (App. Div. 1975); Vedutis v. Tesi, 135 N.J.Super. 337, 340-341 (Law Div.1975), aff'd o.b., 142 N.J.Super. 492 (App. Div. 1976).

The purpose of limiting the time in which a claimant may file a notice of claim 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." Lutz v. Twp. of Gloucester, 153 N.J.Super. 461, 466 (App. Div. 1977). The notice of claim also provides the public entity the opportunity to correct conditions or practices that led to the filing of the claim. Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000).

We now address whether the accident report and the insurance claim form substantially complied with the notice of claim requirement.

A plaintiff may not bring suit against a public entity or public employee unless the plaintiff presented the public entity or public employee with a pre-suit notification of the claim, N.J.S.A. 59:8-3, which must be in writing, Velez v. City of Jersey City, 358 N.J.Super. 224, 238 (App. Div. 2003), aff'd, 180 N.J. 284 (2004).

The Act governs tort claims brought against public entities. The Act provides that "[n]o action shall be brought against a public entity or public employee under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3 (footnote omitted). The comment on N.J.S.A. 59:8-3 reads, in part:

"The rationale underlying the notice requirement of the Act is to expedite investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense." Pilonero v. Twp. of Old Bridge, 236 N.J.Super. 529, 533 (App. Div. 1989). See also Navarro v. Rodriguez, 202 N.J.Super. 520, 525 (Law. Div. 1984).

The contents of a notice of claim against a public entity are governed by N.J.S.A. 59:8-4 and N.J.S.A. 59:8-6. N.J.S.A. 59:8-4 provides:

Significantly, the accident report and the insurance claim forms were not a "claim" presented by the claimant, as required by N.J.S.A. 59:8-4, but internal school forms completed by school personnel documenting an accident, assumedly based on oral statements by the plaintiff. Plaintiff, in effect, asserts that his oral notification to school personnel should be deemed to be in substantial compliance with the statutory notice of claim requirement. N.J.S.A. 59:8-3, 4 and 5.

At the minimum a notice of claim under the Act must be in writing. Anske v. Borough of Palisades Park, 139 N.J.Super. 342, 348 (App. Div. 1976). Oral notice, even where it contains the elements required by N.J.S.A. 59:8-4, does not constitute substantial compliance. Ibid. We have held that notice given during an oral conversation constituted substantial compliance, to be "without merit." In re Roy, 142 N.J.Super. 594, 601 (App. Div. 1976), certif. denied, 71 N.J. 504 (1976). We reject any suggestion that plaintiff's oral statements suffice under the Act.

As to the forms, we note that they did not include the date of the December 2007 occurrence, the name of the public entity or employee causing the injury, or the amount claimed as required by N.J.S.A. 59:8-4(c), (e) and (f). The forms did not put defendants reasonably on notice in order to expedite investigation with the hope of reaching a nonjudicial settlement or allowing the public entities prompt access to information about the claim so that they may prepare a defense.

We agree with Judge Mullaney that the forms and the circumstances surrounding the settlement agreement did not substantially comply with the notice of claim requirements of the Act. Therefore, no notice of claim was filed at any time prior to the expiration of the ninety-day statutory period following plaintiff attaining the age of eighteen on October 9, 2010.

Failure to satisfy the ninety-day requirement constitutes a bar to recovery against the public entity. If a claimant fails to file a notice of claim within ninety days of accrual, he or she may file a motion for leave to file a late notice of claim within one year of accrual on a showing of "sufficient reasons constituting extraordinary circumstances" for not filing the notice of claim within the first ninety days of accrual. N.J.S.A. 59:8-9. Originally, the Act provided a plaintiff had to show "sufficient reasons" for failure to file within the ninety-day period to be granted permission to file a late notice of claim. However, this section was amended in 1994, to require permission of the court to file a late notice "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 the Act. N.J.S.A. 59:8-9. To file a late notice, the claimant must demonstrate extraordinary circumstances and that the public entity is not substantially prejudiced. Ibid.

Despite the 1994 amendments, the abuse of discretion standard of review remains the same. Ohlweiler v. Township of Chatham, 290 N.J.Super. 399, 403 (App. Div. 1996). On review, we carefully scrutinize those cases in which permission to file a late claim has been denied. Feinberg v. State, D.E.P., 137 N.J. 126, 134 (1994) (quoting S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122 (1977)). While deference will ordinarily be given to discretionary decisions, such decisions will be overturned if they were made under a misconception of the applicable law. Alk Assoc., Inc. v. Multimodal Applied Sys., Inc., 276 N.J.Super. 310, 314 (App. Div. 1994).

Our Supreme Court has viewed the extraordinary circumstances language as part of an effort "to raise the bar for the filing of late notice from a `fairly permissive standard' to a `more demanding' one." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)). What constitutes extraordinary circumstances is not statutorily defined and is determined after consideration of the facts. Lowe, supra, 158 N.J. at 626. In determining whether extraordinary circumstances exist, "a judge must consider the collective impact of the circumstances offered as reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J.Super. 331, 341 (App. Div. 2006).

Plaintiff filed his motion on May 26, 2010, approximately four months beyond the ninety-day period for filing claim notices prescribed by N.J.S.A. 59:8-8. Plaintiff sought to avail himself of the late claim provision of N.J.S.A. 59:8-9, which authorizes courts to permit a claim notice to be filed within one year of accrual of the cause of action if the public entity or employee will not be substantially prejudiced. The Act also requires that a motion to allow late filing must be supported by affidavits based on personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the ninety-day statutory period. N.J.S.A. 59:8-9.

The notice of motion was not supported by an affidavit of plaintiff or any other affiant, but by a certification of plaintiff's counsel, which argued that the school accident report and the insurance claim form complied in all respects with the requirements of a notice of claim and referenced counsel's letter notice of claim dated February 15, 2010. However, no sufficient reasons constituting extraordinary circumstances for failure to file the notice of claim within the statutory period, based on the personal knowledge of the affiant, accompanied the motion.

Where no reasons are advanced for substantial noncompliance with the Act's notice requirements, we have affirmed the denial of leave to file a late claim even though the motion, with a fully compliant notice of claim, was filed only six months after the accident. Newberry v. Twp. of Pemberton, 319 N.J.Super. 671, 674-75 (App. Div. 1999). Where a delay in filing the motion is unexplained, the motion may be denied. Leidy v. County of Ocean, 398 N.J.Super. 449, 461 (App. Div. 2008) (eight-month delay); Epstein v. State, 311 N.J.Super. 350, 353 (App. Div. 1998) (three-and-a-half-month delay in filing motion after the notice of claim was filed one day late); Wood v. County of Burlington, 302 N.J.Super. 371, 380 (App. Div. 1997) (reversing order granting leave to file late claim where nine-month delay was unexplained and concluding that allowing the claim to proceed would render meaningless the requirement that extraordinary circumstances be shown to justify delay in filing motion).

The motion judge, in his written memorandum of decision, stated that he reviewed the transcript before the ALJ in the unrelated matter, the original motion papers, as well as additional briefs submitted after the transcript was obtained by the court. Judge Mullaney found that "[i]t is clear from the review of these sources that not only are there no extraordinary circumstances, there were no circumstances whatsoever that are pled to support the untimely filing of the Notice of Claim."

We agree with the motion judge that no extraordinary circumstances were shown justifying delay in filing the notice of claim. Therefore, we are not persuaded that the judge abused his discretion in concluding that plaintiff failed to demonstrate sufficient reasons constituting "extraordinary circumstances" for plaintiff's failure to file a timely notice of claim.

Affirmed.