Discovery Rule Not Apply to Permit Late Filing of Tort Claims Act Notice Two Years Later Against Newark Police Department

By Betsy G. Ramos, Esq.

In Ramey v. DeMaio, 2015 N.J. Super. Unpub. LEXIS 2039 (App. Div. Aug. 25, 2015), the plaintiff filed a complaint against Samuel DeMaio, the acting police director of Newark, for allegedly providing false information regarding her daughter’s homicide, which was published in the Star Ledger. Her daughter was murdered on July 5, 2011 but she did not file suit until June 27, 2013. The defendant DeMaio filed a motion for summary judgment based upon the plaintiff’s failure to file a notice of claim within 90 days of the accrual of the claim as required by N.J.S.A. 59:8-8.

In response, the plaintiff filed a motion asking the court to permit the late filing of notice of claim. The trial court granted DeMaio’s motion and denied plaintiff’s motion. Plaintiff appealed these rulings to the Appellate Division.

The plaintiff argued that the trial court erred in denying her request to file a late notice of claim and dismissing her complaint. She claimed that the 90 day notice period should be tolled by the application of the discovery rue. She contended that it took her nearly 2 years to obtain documents from the Prosecutoar’s Office that revealed incorrect information regarding their daughter’s murder had been supplied to the Star Ledger. She argued that these facts warrant the application of the discovery rule and support a finding that extraordinary circumstances existed to warranted granting her motion to file a late notice of claim.

The Appellate Division found that the discovery rule did not apply here. Although the plaintiff did not receive the requested reports until late, the information contained therein fails to prove a factual basis of plaintiff’s claims. Although she found certain reported facts to be inaccurate, the court found that the materials lacked cognizable legal consequence. Hence, it was not a basis to toll the timely filing of a late notice of claim and the appeals court upheld the dismissal of the complaint.