In the Matter of Mary Fiorentino ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0703-23
IN THE MATTER OF
MARY FIORENTINO.
_______________________
Submitted October 15, 2024 – Decided October 21, 2024
Before Judges Sabatino and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-5294-23.
Hill Wallack, LLP, attorneys for appellants/cross-
respondents Sayreville Board of Education and Selover
School (Cherylee O. Melcher and Jeffrey L.
Shanaberger, on the briefs).
The Grossman Law Firm, LLC, attorneys for
respondent Mary Fiorentino (Jennifer Harwood Ruhl,
of counsel and on the brief).
Dvorak & Associates, LLC, attorneys for
respondent/cross-appellant Middlesex County
(Danielle Abouzeid, of counsel and on the briefs).
Hoagland Longo Moran Dunst & Doukas, LLP,
attorneys for respondent Borough of Sayreville (Jack
M. Middough, of counsel and on the brief).
PER CURIAM
In this personal injury case brought against several public entities under
the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3, defendants appeal the
trial court's November 3, 2023 order granting plaintiff's motion for leave to file
late tort claims notices with them. The motion was filed more than eleven weeks
after the ninety-day deadline prescribed by N.J.S.A. 59:8-8 had expired.
Plaintiff attributed her delay in obtaining counsel and filing the motion to the
elbow injury she sustained in the accident. For the reasons that follow, we
reverse the trial court's order.
The pertinent chronology of events is essentially undisputed. On April 4,
2023, plaintiff Mary Fiorentino tripped and fell when she was walking on a
sidewalk near the Jesse Selover School in Sayreville. Plaintiff landed on her
right arm. She went that day to a local hospital and was diagnosed with a
fractured right elbow. She was discharged the following day.
Plaintiff followed up with an orthopedic surgeon, who diagnosed her with
a right displaced olecranon fracture. 1 The doctor performed surgery on April 7,
2023, three days after the accident. He fitted plaintiff with a splint that left her
temporarily unable to use her right arm. The operative report noted that, besides
1
An olecranon fracture is a broken elbow bone. Stedman's Medical Dictionary
1361 (28th ed. 2013).
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the fracture, plaintiff was "healthy and otherwise active."
The sutures from plaintiff's surgery were removed on April 23, 2023. She
began occupational therapy two days later. Plaintiff attended occupational
therapy two times a week, beginning April 25, 2023. Her spouse drove her to
those appointments.
The surgeon examined plaintiff on May 25, 2023, and wrote a note stating
she was unable to work for six weeks. From June 2023 through the end of
August 2023, plaintiff wore a new splint eight hours a day. She claimed the
splint "made it almost impossible to use [her dominant] right arm." According
to plaintiff, her elbow injury caused her to suffer "pain, stiffness, and limited
mobility," making it "almost impossible to use [her] right arm" during the five
to six months following the accident.
On September 1, 2023, plaintiff underwent a second surgery in which her
doctor removed hardware and tried to improve movement in her arm. On her
surgeon's recommendation, plaintiff increased the frequency of her occupational
therapy to three days per week. She returned to work in November 2023.
On July 3, 2023, the TCA's ninety-day deadline for plaintiff to serve a
notice of tort claim upon any public entity expired. N.J.S.A. 59:8-8. Plaintiff
did not retain counsel until August 16, 2023, over six weeks beyond the ninety -
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day period.
On September 20, 2023, plaintiff's counsel filed a motion pursuant to
N.J.S.A. 59:8-9, seeking leave to serve late tort claim notices upon various
public entities that plaintiff believed could have been responsible for the
sidewalk's allegedly unsafe condition. She named as proposed defendants: the
Sayreville Board of Education and Jesse Selover School; the Borough of
Sayreville; and the County of Middlesex County. Plaintiff supported the motion
with her certification and copies of her medical records.
Each of the defendants submitted opposition, contending plaintiff failed
to demonstrate the "extraordinary circumstances" required under N.J.S.A. 59:8-
9 to extend the ninety-day notice period. Although defendants requested oral
argument on the motion, the trial court elected to dispose of it on the papers.
On November 3, 2023, the trial court issued an order granting plaintiff the
requested leave to file the late notices. In pertinent part the order stated:
Based on the submission by Plaintiff and due to the
nature of the injury and the impact the injury had and
based on the fact that Plaintiff's counsel acted as
efficiently as possible once retained, this Court finds
that there are exceptional circumstances to allow
Plaintiff to file a Notice of Tort Claim out of time.
The public entities now appeal. They argue the motion judge erred in his
application of N.J.S.A. 59:8-9 and the associated governing case law.
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The applicable law is well established. The ninety-day notice period of
N.J.S.A. 59:8-8 is designed to afford public entities with a prompt opportunity
to investigate accident claims while evidence of the event is still fresh. The
purpose of imposing this notice obligation upon a claimant is to give the public
entity a fair opportunity to investigate the claim, and potentially resolve it before
the entity is put to the burden of having to defend a lawsuit at public expense.
See Beauchamp v. Amedio, 164 N.J. 111, 121–22 (2000).
The trial court has a limited degree of discretion under N.J.S.A. 59:8 -9 to
permit a plaintiff to file a late notice of tort claim. However, a plaintiff must
demonstrate "extraordinary circumstances" to excuse a failure to file the notice
of tort claim within the prescribed ninety days. N.J.S.A. 59:8-9. Additionally,
the filing of the late notice must not "substantially prejudice" the defendant
public entity. Ibid.The phrase "extraordinary circumstances" was inserted into Section 59:8-
9 in 1994. "Its purpose was to raise the bar for the filing of late notice from a
'fairly permissive standard' to a 'more demanding' one." Beauchamp, 164 N.J.
at 118 (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)).
Given that legislative purpose, our courts have generally applied the
exception in a stringent manner. See, e.g., D.D. Univ. of Med. & Dentistry of
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New Jersey, 213 N.J. 130, 156–57 (2013) (noting that "an attorney's inattention
to a [client's] file, or even ignorance of the law," does not equate with
"extraordinary circumstances" to justify a late filing); O'Neill v. City of Newark,
304 N.J. Super. 543, 552–54 (App. Div. 1997) (finding no extraordinary
circumstances when plaintiff failed to file a notice within ninety days after being
hospitalized due to a gunshot injury to his leg).
N.J.S.A. 59:8-9 does not define the term "extraordinary circumstances,"
and so "[i]t is for the courts to determine on a case-by-case basis what
circumstances will constitute 'extraordinary circumstances.'" O'Neill, 304 N.J.
Super. at 551. As the Supreme Court has instructed, "[t]he Legislature's grant
of authority to trial courts to permit a late notice in the exercise of their
discretion does not equate with a grant of authority to override the statute's
declaration of purpose or to substitute a lesser standard of proofs for the
extraordinary circumstances demanded by the 1994 amendment to the statute
itself." D.D., 213 N.J. at 148. Although deference will ordinarily be given to
the factual findings that support the trial court's decision, the court's conclusions
will be overturned if they were reached under a misconception of the law. Id.
at 147 (citing McDade v. Siazon, 208 N.J. 463, 473–74 (2011)).
The extension motion at issue here rests upon plaintiff's assertion of a
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medical condition that allegedly prevented her from filing a timely notice.
Medical conditions can only satisfy the extraordinary circumstances standard if
they are "severe or debilitating" and have a "consequential impact on the
claimant's very ability to pursue redress and attend to the filing of a claim." Id.at 149–50; see also Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533
(App. Div. 2010) (noting that "extraordinary circumstances can be found based
on the severity of a party's injuries" including hospitalization for weeks and
memory loss); Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 189–90 (App.
Div. 2006) (finding that the medical condition of a cook who contracted a staph
infection that was so severe she had to be treated by induced coma and did not
expect to survive created an extraordinary circumstance).
We agree with defendants that plaintiff's elbow injury—even if we choose
to regard it in a light most generous to her—did not rise to a level of severity
that satisfies the stringent test of extraordinary circumstances. 2 Although we do
not question plaintiff's assertion that the injury was painful, and recognize it
required a second orthopedic surgery, plaintiff has not demonstrated why it took
her six weeks beyond the ninety-day deadline to consult an attorney. She was
2
We do not hinge our reasoning on the order's mistaken reference to
"exceptional circumstances" in lieu of the statutory phrase "extraordinary
circumstances." We presume the court intended to say the latter.
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not hospitalized overnight except for the day of the accident. Her spouse drove
her several times a week to therapy appointments. She does not contend she
was unable to speak to an attorney on the phone or via some other means, or to
be driven to a lawyer's office, or to otherwise communicate with an attorney.
Neither does plaintiff claim she was comatose or mentally incapacitated during
that time frame.
The motion judge's order observed that plaintiff's counsel "acted as
efficiently as possible once retained." Even so, that sidesteps the question of
why plaintiff did not retain an attorney until more than four months after the
accident, when the notice deadline had already expired.
Because the trial court misapplied the legal standards, we reverse its
decision. Plaintiff's case is dismissed with prejudice.
Reversed.
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