Filed: Jul. 18, 2012
Latest Update: Jul. 18, 2012
Summary: NOT FOR PUBLICATION PER CURIAM. Defendant City of Elizabeth (City) appeals from an August 8, 2011 order that granted plaintiff Diane Metzner leave to file a late notice of claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10. For the reasons that follow, we affirm. On January 27, 2011, plaintiff slipped and fell on an ice-covered landing while exiting Michelino's Restaurant. The building is owned by the City. As a result of her injuries, which included multiple fractur
Summary: NOT FOR PUBLICATION PER CURIAM. Defendant City of Elizabeth (City) appeals from an August 8, 2011 order that granted plaintiff Diane Metzner leave to file a late notice of claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10. For the reasons that follow, we affirm. On January 27, 2011, plaintiff slipped and fell on an ice-covered landing while exiting Michelino's Restaurant. The building is owned by the City. As a result of her injuries, which included multiple fracture..
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NOT FOR PUBLICATION
PER CURIAM.
Defendant City of Elizabeth (City) appeals from an August 8, 2011 order that granted plaintiff Diane Metzner leave to file a late notice of claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10. For the reasons that follow, we affirm.
On January 27, 2011, plaintiff slipped and fell on an ice-covered landing while exiting Michelino's Restaurant. The building is owned by the City. As a result of her injuries, which included multiple fractures to her left leg, plaintiff was admitted to Trinitas Regional Medical Center that same day. Five days later, on January 31, 2011, plaintiff was discharged from the hospital and transferred directly to Elmora Hills Healthcare and Rehabilitation Center (Elmora Hills) where she remained until April 28, 2011.
According to the Elmora Hills Admission Assessment, plaintiff was sixty-four years old at the time of the accident, and she is "one of two children born to Adelaide Southwick and Joseph Metzner. Both of her parents are deceased. Her older brother is also deceased. She never married nor does she have any children." The Admission Assessment also states:
Diane... was born and raised in New Jersey. On January 27, 2011, she was admitted to Trinitas Hospital after presenting in the ER with complaints of severe pain after sustaining a fall. She was found to have fractured her left distal tibia and spiral fracture of the left distal tibia and left fibular comminuted fracture. A review of her hospital records reveals a past medical history significant for COPD, hypertension, polio, and high cholesterol. She also had a left Achilles surgery secondary to polio in the past. After a five day stay, it was discussed that Diane was able to be transferred to a sub-acute facility where she would receive therapy to increase her functional mobility as well as some more medical monitoring assisting in her eventual return home.
....
With regard to discharge plans, once cleared to leave Diane will be returning to her apartment in Elizabeth where she lives alone. Though she previously had no home health services, she does anticipate needing some when she leaves here. She is aware that Social Services will set up post discharge support services via the V.N.A. or a home health care agency of her choice.
During her stay at Elmora Hills, plaintiff received various rehabilitative services, and she was provided with a walker "for household ambulation" and a wheelchair "for longer distances" when she was discharged on April 28, 2011. Plaintiff certified she was "in a wheelchair for a few days" after she returned home and then she "had to utilize a walker through Memorial Day." Plaintiff also certified she was able to retain counsel after she "became mobile."
On June 17, 2011, plaintiff's attorney filed a notice of motion in the Law Division for leave to file a late notice of claim against the City of Elizabeth, County of Union and the State of New Jersey. The motion was opposed by the City. In a letter decision dated August 8, 2011, the trial court found that due to the severity of plaintiff's injuries and her confinement at Elmora Hills, plaintiff demonstrated exceptional circumstances for failing to file a notice of claim within ninety days of the accident. Accordingly, the court granted plaintiff's motion for leave to file a late notice of claim.1
The City argues on appeal, as it did in the Law Division, that plaintiff's motion should have been denied because plaintiff did not establish extraordinary circumstances for failing to file a timely notice of claim.2 We do not agree.
Under the TCA, a claimant may not pursue a cause of action against a public entity or public employee unless a notice of tort claim is served upon the public entity no "later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8. "Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Beauchamp v. Amedio, 164 N.J. 111, 117 (2000). However, the TCA permits a judge of the Superior Court to extend the ninety-day time limit for filing a notice of claim in appropriate cases:
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 has not be 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.]
When a motion to file a late claim is made, "the grant or denial of remedial relief is `left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof.'" McDade v. Siazon, 208 N.J. 463, 476-77 (2011) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). Therefore, "the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly." Alves v. Rosenberg, 400 N.J.Super. 553, 562-63 (App. Div. 2008) (internal quotations and citation omitted). We examine cases in which permission to file a late claim has been denied more closely than those in which relief has been granted, "`to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994)); Mendez v. S. Jersey Transp., 416 N.J.Super. 525, 533 (App. Div. 2010).
Given the circumstances present in this case, including the nature of plaintiff's injuries, which severely restricted her mobility; her confinement for hospital treatment and inpatient rehabilitative services from January 27, 2011 through April 28, 2011;3 her lack of family support; and her diligent efforts to retain counsel following her discharge from Elmora Hills; we conclude the trial court did not mistakenly exercise its discretion in granting plaintiff's motion to file a late notice of claim. See Maher v. Cnty. of Mercer, 384 N.J.Super. 182, 189-90 (App. Div. 2006) (finding that plaintiff's poor health, which required several hospitalizations, constituted extraordinary circumstances for filing a tort claim notice after the ninety-day deadline expired).
Affirmed.
