ESTATE OF ELIJAH RODRIGUEZ VS. KIWANIS AMBULANCE SERVICE OF BOONTON, INC. (L-2243-19, MORRIS COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3669-19
Estate of ELIJAH RODRIGUEZ,
by and through his administratrix
ad prosequendum, ESMERALDA
CANARTE, and ESMERALDA
CANARTE, individually,
Plaintiffs-Respondents,
v.
KIWANIS AMBULANCE
SERVICE OF BOONTON, INC,
BOONTON POLICE
DEPARTMENT, SAINT CLARE'S
HOSPITAL-DENVILLE, and
LYNN MCCOY, D.O.,
Defendants,
and
TOWN OF BOONTON,
Defendant-Appellant.
______________________________
Submitted March 15, 2021 – Decided July 19, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-2243-19.
Dorsey & Semrau, LLC, attorneys for appellant (Fred
C. Semrau, of counsel; Edward R. Pasternak, on the
briefs).
Pellettieri Rabstein & Altman, attorneys for
respondents (Thomas R. Smith, of counsel and on the
brief).
PER CURIAM
Defendant Town of Boonton (Boonton) appeals denial of its motion for
reconsideration of a November 8, 2019 order granting plaintiff's motion to deem
her late tort claim notice timely filed.
Boonton argues the court erred by finding the notice of motion was
properly served. Although not properly raised below, Boonton also argues
plaintiff did not provide sufficient reasons to prove extraordinary circumstances.
See N.J.S.A. 59:8-9 (permitting claimant to file a late notice of claim upon
demonstrating extraordinary circumstance for the failure to file within time).
For the reasons set forth below, we affirm.
I.
Elijah Rodriguez, a minor, suffered a choking incident while in his home
in Boonton on May 9, 2019. Emergency medical services were summoned, and
A-3669-19
2
Rodriguez was transported via ambulance to the hospital emergency room , but
he unfortunately died. He was fifteen years old.
Plaintiff Esmeralda Canarte, Elijah's mother, contacted a law firm on July
29, 2019, eighty-one days after the incident. A representative of the firm met
with plaintiff the very next day. Without being retained, the firm ordered the
police report to ascertain whether there were any public entities or public
employees involved. The firm received the police report on Friday, August 16,
2019. Plaintiff then retained the firm.
Boonton is a municipal entity with offices located at 100 Washington
Avenue. On August 19, 2019, one-hundred and two days after Elijah's death,
plaintiff's counsel sent a tort claims notice to Boonton administrator Neil Henry
(Henry) at the municipal office via certified mail, return receipt requested.
Boonton acknowledged receipt of the tort claims notice by signing the certified
mail receipt. The municipal clerk, Cynthia Oravits (Oravits), then forwarded
the tort claims notice to the Morris County Joint Insurance Fund (JIF).
On August 26, 2019, the JIF wrote plaintiff’s counsel advising it was
Boonton's third-party claims administrator; it also requested plaintiff's HIPAA
release in order to investigate the matter. On September 9, 2019, the JIF wrote
plaintiff's counsel stating that due to the "lateness of reporting the claim"
A-3669-19
3
pursuant to the Tort Claims Act, N.J.S.A. 59:8-9, plaintiff was "required to file
a motion . . . seeking approval to file a late Notice of Tort Claim." The letter
further requested that "upon receiving this approval, please advise our office and
we will then proceed with the handling of your claim." The JIF sent a copy of
the letter to its insured, Boonton, via email.
On October 17, 2019, plaintiff's counsel filed their motion seeking leave
to file a late notice of tort claim, and served a copy by regular mail on Boonton's
town administrator, Henry, at the municipal address. The judge granted the
motion unopposed on November 8, 2019. Inexplicably, plaintiff's counsel did
not forward a copy of the executed order to the JIF or to Boonton until February
26, 2020. The JIF did not forward the order to its insured, Boonton, until March
16, 2020. On March 30, 2020, Boonton moved for reconsideration of the order
granting plaintiff permission to file a late notice of claim.
At the reconsideration hearing, Boonton argued it never received the
plaintiff's notice of motion and sought leave to file opposition on the issue of
extraordinary circumstances. The motion record shows Boonton made no
substantive argument at that time. The judge reviewed the parties' competing
certifications on the issue of service, heard argument of counsel, and found that
Boonton was served with plaintiff's October 17, 2019 notice of motion. While
A-3669-19
4
the judge articulated detailed findings as to why she concluded Boonton had
notice of the plaintiff's motion, at reconsideration she placed no findings on the
record regarding extraordinary circumstances that justified the late notice of
claim. On appeal, Boonton argues that the motion judge should have reviewed
the "probative and competent" evidence and found that Boonton was not served
with the plaintiff's notice of motion. Boonton also argues, without raising the
issue during reconsideration, that plaintiff failed to establish extraordinary
circumstances to warrant the filing of a late notice of claim under N.J.S.A. 59:8-
9.
II.
We will not disturb denial of a motion for reconsideration absent a
clear abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,
440 N.J. Super. 378, 382 (App. Div. 2015). We examine
discretionary determinations, supported by the record, to discern whether an
abuse of reasoned discretion has occurred. Gac v. Gac, 186 N.J. 535, 547
(2006).
While the "'abuse of discretion' standard defies precise definition," Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted), "we do
not overturn those determinations unless the court abused its discretion, failed
A-3669-19
5
to consider controlling legal principles or made findings inconsistent with or
unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464,
479 (App. Div. 2004) (citations omitted).
When issues are not properly raised before us, "[a]ppellate review
is not limitless. The jurisdiction of appellate courts . . . is bound by the proofs
and objections critically explored on the record before the trial court by the
parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). We
do not "consider questions or issues not properly presented to the trial court
when an opportunity for such a presentation [was] available unless the questions
so raised on appeal go to the jurisdiction of the trial court or concern matters of
great public interest." Selective Ins. Co. v. Rothman, 208 N.J. 580, 586
(2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977)).
Boonton argues it did not receive plaintiff's notice of motion and therefore
the motion judge should have granted reconsideration of her November 8 order.
Boonton asserts the factual disputes between the parties regarding service of the
motion should have been resolved in its favor. Rule 1:6-3(c) governs service of
motions. Service of motion papers is complete upon receipt at the office of
adverse counsel or the address of a pro se party. Ibid. Notably, the rule also
A-3669-19
6
presumes effective service by the third business day after mailing when motions
are sent by ordinary mail. Ibid.In deciding the reconsideration motion, the court had before it, among
other submissions, plaintiff's proof of service by regular mail of the October 17
motion, as well as the certifications of Henry and Oravits alleging they never
received the motion. After considering the submissions and hearing argument
of counsel, the court made findings and concluded Boonton had been served
with plaintiff's October 17 motion.
"The general rule is that findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence. Deference is
especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150,
169 (2011).
Boonton failed to make the argument before the motion judge that it
presents to us now, specifically, that plaintiff did not demonstrate extraordinary
circumstances pursuant to N.J.S.A. 59:8-9. At the reconsideration hearing,
Boonton merely sought permission to file opposition on the question. The
motion judge found plaintiff served Boonton with the October 17 notice of
motion, hence the opportunity to file opposition had passed. We see no reason
A-3669-19
7
to disturb the findings or conclusions of the judge concerning the notice of
motion, Storey, 373 N.J. Super at 479, and we are reluctant to review issues on
appeal not properly raised below. Selective Ins. Co., 208 N.J. at 586.
Affirmed.
A-3669-19
8