NAQEEBULLAH HABIBI VS. SCO DOUGHERTY (L-0095-17, CUMBERLAND COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3495-16T2
NAQEEBULLAH HABIBI,
Plaintiff-Appellant,
v.
SCO DOUGHERTY, SCO CORNEJO,
SCO PORTLAND, SCO LLOYD,
SCO GERMANIO, SCO MARINER,
SCO TONGO, SCO YOLMING,
SCO GREEN, SCO DIBENEDETTO,
SGT. MEYERS, LT. CLEMENT,
ADMIN. JOHN POWELL, BAYSIDE
SID OFFICERS, and COMMISSIONER
LANIGAN,
Defendants-Respondents.
________________________________
Submitted June 19, 2018 – Decided July 13, 2018
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
L-0095-17.
Naqeebullah Habibi, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Department of
Corrections (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Daniel
M. Vannella and Daveon M. Gilchrist, Deputy
Attorneys General, on the brief).
PER CURIAM
Plaintiff Naqeebullah Habibi appeals from the March 17, 2017
Law Division order, which denied his motion to file a late notice
of tort claim. In his affidavit submitted in support of the
motion, he claimed an incident occurred on July 17, 2015 and
identified the individuals allegedly involved, but did not
describe the incident or specify the individuals' involvement.1
He also claimed that:
[Special Investigations Division (SID)]
officers visited [him] surrounding tort
allegations and informed [him] that [they]
were conducting an investigation and upon the
completion of that investigation [he] would
be informed and would then be able . . . to
pursue [his] tort claim and/or lawsuit. [He]
waited for this communication past the
[ninety] day time limit to file the notice of
tort claim but was never contacted again
regarding this matter. [He] then filed a
notice of tort claim with the [Department] of
the Treasury, Division of Risk Management, on
or around July 21, 2016, and [has] not
received any response to date from that
office.
The motion judge denied the motion, finding it was not filed
within one year of accrual of the claim, as required by the New
1
We decline to consider additional facts in plaintiff's merits
brief that are not supported by an affidavit. See N.J.S.A. 59:8-
9.
2 A-3495-16T2
Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-9. Addressing the
merits, the judge found plaintiff failed to show exceptional
circumstances and there was no compelling justification or out of
the ordinary circumstances that would permit granting the motion.
On appeal, defendant argues there were extraordinary
circumstances justifying the delay in filing the motion for leave
to file a late notice of claim based on the conduct of the SID
officers and lack of substantial prejudice to defendants by the
later filing. We disagree.
Under the TCA, a claimant must file a notice of claim against
a public entity no later than ninety days after accrual of the
cause of action. N.J.S.A. 59:8-8(a). The court may permit the
late filing of a notice of claim "at any time within one year
after the accrual of his claim provided that the public entity or
the public employee has not been substantially prejudiced
thereby." N.J.S.A. 59:8-9. "After the one-year limitation has
passed, 'the court is without authority to relieve a plaintiff
from his failure to have filed a notice of claim, and a consequent
action at law must fail.'" Pilonero v. Twp. of Old Bridge, 236
N.J. Super. 529, 532 (App. Div. 1989) (quoting Speer v. Armstrong,
168 N.J. Super. 251, 255-56 (App. Div. 1979)).
A party seeking to file a late notice of claim within the
one-year limitation period must file a "motion supported by
3 A-3495-16T2
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 [N.J.S.A.] 59:8-8[.]" N.J.S.A. 59:8-9. "[T]he
filing of 'a late notice of claim with an entity without leave of
court is a nullity and does not constitute substantial compliance
with the terms of [N.J.S.A. 59:8-9].'" Rogers v. Cape May Cty.
Office of Pub. Defender, 208 N.J. 414, 427 (2011) (second
alteration in original) (quoting Margolis & Novack, Claims Against
Public Entities, cmt. on N.J.S.A. 59:8-9 (2011)).
The decision to grant permission to file a late notice of
claim within the one-year limitation period "is a matter 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." Mendez
v. So. Jersey Transp. Auth., 416 N.J. Super. 525, 532 (App. Div.
2010) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134,
146 (1988)). Nevertheless, this "discretion is limited" because
the late claimant must show "'sufficient reasons constituting
extraordinary circumstances' for the delay and [that] there is no
'substantial[] prejudice[]' to the public entity or employee."
R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App.
Div. 2006) (second and third alterations in original) (citation
omitted).
4 A-3495-16T2
Here, plaintiff's alleged cause of action accrued on July 17,
2015. Thus, he had ninety days, or until October 13, 2015, to
file his notice of tort claim, N.J.S.A. 59:8-8(a), and one year,
or until July 18, 2016,2 to file a motion for leave to file a late
notice of claim. N.J.S.A. 59:8-9. He did not file the motion
until January 27, 2017. Thus, the judge was without the authority
to grant him permission to file a late notice of claim. Pilonero,
236 N.J. Super. at 532.
Even if plaintiff had filed his motion within the one-year
limitation period, he did not show extraordinary circumstances or
compelling justification for the delay. The conduct of the SID
officers did not prevent plaintiff from timely filing a notice of
claim, as he eventually filed one with the Department of the
Treasury without having received any communications from them.
Accordingly, the judge properly denied plaintiff's motion for
leave to file a late notice of claim.
Affirmed.
2
July 17, 2016 was a Sunday, making July 18, 2016 that last day
to file the motion. R. 1:3-1.
5 A-3495-16T2