The plaintiff Lyndsey Patton was walking in or near the intersection of Union Avenue and West Side Avenue in Jersey City when she was struck by a vehicle owned by defendant Jersey City Municipal Utilities Authority (“JCMUA”). The accident occurred on June 30, 2019. On or about September 10, 2019, the plaintiff’s attorney sent a notice of tort claim addressed to JCMUA, but sent it to City Hall on Grove Street instead of JCMUA’s place of business on Route 440 in Jersey City. Plaintiff later successfully obtained leave from the trial court to file a late notice of claim on JMCUA, which determination was appealed. The issue on appeal in Patton v. Wiley, 2021 N.J. Super. Unpub. LEXIS 1400 (App. Div. July 7, 2021) was whether the plaintiff had demonstrated the “extraordinary circumstances” under the Tort Claims Act to allow a late filing of a notice of claim.
Pursuant to N.J.S.A. 59:8-8, a party pursuing a cause of action against a public entity under the Tort Claims Act must file a notice of claim within ninety days of accrual of the claim or else be forever barred from recovering from the public entity. However, a court may exercise the discretion permitted by N.J.S.A. 59:8-9 to allow a late filing “provided that the public entity or a public employee has not been substantially prejudiced” by the delay and also provided that the plaintiff presents “sufficient reasons constituting extraordinary circumstances” for the failure to comply with this statutory requirement.
The question faced by the Appellate Division was whether the plaintiff had met the extraordinary circumstances standard to justify the late filing of the notice of tort claim. There was no question that plaintiff failed to file a notice of tort claim on JCMUA within the ninety days. The plaintiff delivered a notice of claim within the required time but to the wrong address.
The Appellate Division noted that there was no mystery as early as the date of the accident that the vehicle was owned by JCMUA and driven by one of its employees and also there was no mystery about the location of JCMUA’s place of business which was included in the police report and was also otherwise readily available through a simple internet search. The Court held that the plaintiff’s failure to serve the notice of claim on JCMUA at the right location “was a product of attorney neglect or inadvertence” which did not meet the extraordinary circumstances threshold as required by the statute to allow the filing of a late notice of tort claim.
The plaintiff argued that there was little doubt that JCMUA was aware of the event because, in early September 2019, within ninety days of the action’s accrual, plaintiff’s counsel communicated with Qual-Lynx, the administrator who adjusts claims made against JCMUA. The plaintiff’s counsel also advised and served Qual-Lynx with a claim for no fault benefits because plaintiff did not own an automobile and was not otherwise covered by auto insurance.
The Court noted that this submission to Qual-Lynx, however, made no mention of a personal injury claim to be asserted against JCMUA or its employee, and “it cannot seriously be argued that a notice or communications with a public entity’s adjuster or insurer about a related claim constitutes the notice required by N.J.S.A. 59:8-8.” (emphasis added). Moreover, the Appellate Division noted that the Qual-Lynx representative certified in the opposition to plaintiff’s motion for leave to file a late notice of claim “that he told plaintiff’s attorney during their September 6, 2019 telephone call that plaintiff needed to serve a notice of tort claim directly on JCMUA.” As of that date, there was still time left to serve a notice of tort claim on JCUMA within the ninety day time period.
While plaintiff thereafter did forward a notice of tort claim, it was sent to City Hall, not JCMUA’s place of business on Route 440. The Appellate Division noted that this was not a situation where the claimant or her representatives might have been confused about the identity of the public entity that caused the injury. She knew at the scene of the accident that the driver worked for the JCMUA and, further, in corresponding with Qual-Lynx within the ninety day time period, the plaintiff’s then attorney referred to Qual-Lynx’s insured as “Jersey City MUA.”
The Appellate Division noted that JCMUA was “aware of and had already conducted an investigation into the accident but, in light of the absence of a timely notice of claim, JCMUA had no reason to know plaintiff intended to make a personal injury claim against it.” Based upon these facts and circumstances, the Court found that the plaintiff’s failure to serve the notice of tort claim was the product of attorney inadvertence. Counsel was or should have been aware of the identity of the public entity that was involved in the accident, as well as the correct address for the JCMUA.
Finally, the Appellate Division found that “[w]hile it may be viewed as a displeasing result because it seems JCMUA was aware of the accident and aware Qual-Lynx had been in communication with plaintiff about her no fault benefits claim, there is no question the Legislature intended – when it amended N.J.S.A. 59:8-9 – to require a showing of ‘extraordinary circumstances’ to set a high bar for relief.”
The Appellate Division noted that the Supreme Court had clearly established that attorney negligence or inadvertence did not constitute “extraordinary” within the meaning of N.J.S.A. 59:8-9. Hence, the Court found that it was “constrained” to conclude the judge mistakenly exercised his discretion in allowing plaintiff to file a late notice of tort claim. Accordingly, the Appellate Division reversed the trial court’s ruling in permitting the late notice of tort claim to be filed against the JCMUA. Thus, the end result was that the claim against the JCMUA for this accident was barred.
Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.