J.D. VS. D.R., HIGHTSTOWN HIGH SCHOOLÂ (L-0796-16, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0035-16T4
J.D.,
Plaintiff-Appellant,
v.
D.R., HIGHTSTOWN HIGH
SCHOOL, EAST WINDSOR REGIONAL
SCHOOL BOARD and EAST WINDSOR
REGIONAL SCHOOL DISTRICT,
Defendants-Respondents.
_______________________________
Submitted September 26, 2017 – Decided October 6, 2017
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
0796-16.
Fuggi Law Firm, PC, attorneys for appellant
(Robert R. Fuggi, Jr., of counsel; Carrie Ayn
Smith, on the brief).
Mellk O'Neill, attorneys for respondent D.R.
(Arnold M. Mellk, of counsel; Edward A.
Cridge, on the brief).
Campbell Campbell Edwards & Conroy, PC,
attorneys for respondents Hightstown High
School, East Windsor Regional School Board,
and East Windsor Regional School District
(Bryan D. McElvaine and Meaghann C. Porth, of
counsel and on the brief).
PER CURIAM
Plaintiff appeals from a May 20, 2016 order denying his motion
to file a late notice of tort claim against D.R. (High School
Teacher), Hightstown High School, East Windsor Regional School
Board, and East Windsor Regional School District (collectively
defendants); and a July 22, 2016 order denying reconsideration.
Plaintiff failed to demonstrate extraordinary circumstances
justifying the late filing. We therefore affirm the orders under
review.
Plaintiff alleges that his High School Teacher sexually
abused him between 1983 and 1987. In June 2013, plaintiff
experienced panic attacks, which led to his hospitalization. In
July 2013, plaintiff's counselor diagnosed him with depression and
panic disorder. In August 2013, plaintiff's psychiatrist
diagnosed him with panic disorder, and assessed the differential
diagnoses between a major depressive disorder and bipolar
disorder. His condition improved, but in June 2014, plaintiff's
panic symptoms returned. That summer, the doctors entertained
ADHD as a possible additional diagnosis. Plaintiff continued
treatment for his medical condition.
2 A-0035-16T4
Plaintiff began psychotherapy in October 2014. On May 14,
2015, his psychotherapist noted "[plaintiff] reports breakthrough
this week[,] including learning of the [High School Teacher's]
responsibility and feeling the anger for the first time[.]" In
July and August 2015, plaintiff's psychotherapy sessions focused
on his relationship with the High School Teacher. On September
11, 2015, a nurse practitioner reported that plaintiff "started
talking to [his] family about [his] anxiety and [his] affair with
[the High School Teacher]." The nurse practitioner added post-
traumatic stress disorder to plaintiff's condition, and on
December 14, 2015, she recorded in her notes that plaintiff
understands that his relationship with the High School Teacher
"impaired and interfered with [his] relationships in life."
On April 13, 2016, plaintiff filed his motion for leave to
file a late notice of claim pursuant to N.J.S.A. 59:8-9, which
states:
A claimant who fails to file notice of his
claim within [ninety] days as provided in
[N.J.S.A.] 59:8-8 . . . , may, in the
discretion of a judge of the Superior Court,
be permitted to file such notice 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. Application to the court for
permission to file a late notice of claim
shall be made upon motion supported by
affidavits based upon personal knowledge of
the affiant showing sufficient reasons
3 A-0035-16T4
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 . . . or to file a motion seeking leave to
file a late notice of claim within a
reasonable time thereafter; provided that in
no event may any suit against a public entity
or a public employee arising under this act
be filed later than two years from the time
of the accrual of the claim.
To excuse his failure to file a notice of claim within ninety days
of the action's accrual, plaintiff was required to demonstrate
"sufficient reasons constituting extraordinary circumstances."
Ibid. The judge found that plaintiff failed to do so.
On appeal, plaintiff argues that he demonstrated
extraordinary circumstances; his psychological impairments
constituted sufficient reasons to excuse the late filing; the
judge erred in considering his failure to submit an affidavit to
support his motion to file a late notice of claim; and the judge
failed to conduct a Lopez1 hearing.
Our standard of review of an order granting or denying a
motion for leave to file a late notice of claim under the Tort
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, is abuse of discretion.
McDade v. Siazon, 208 N.J. 463, 476-77 (2011) (citing Lamb v.
Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)). We see no
abuse here. After reviewing the record and the briefs, we conclude
1
Lopez v. Swyer, 62 N.J. 267 (1973).
4 A-0035-16T4
that plaintiff's arguments are without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm
substantially for the reasons expressed by Judge William
Anklowitz. We add the following brief remarks.
The record reflects that plaintiff knew about the alleged
connection between his medical condition and the affair by December
14, 2015. Plaintiff's expert stated that "with the introduction
of psychotherapy . . . [plaintiff] was . . . able to make the
connection between his abusive sexual and emotional relationship
with [the High School Teacher], and his psychiatric symptomology."
The expert's report acknowledged plaintiff's progress and his
ability to discuss the matter with his family. The expert further
noted that plaintiff recognized the connection in May 2015, when
his psychotherapist recorded that recognition. Plaintiff had
ninety days from May 14, 2015, or the latest, from December 14,
2015, to file the notice of tort claim, but filed the notice in
April 2016, well beyond the ninety-day deadline.
When, in 1994, the Legislature added the "extraordinary
circumstances" language to N.J.S.A. 59:8-9, its intent was to
replace a "fairly permissive standard" with a "more demanding"
one. Lowe v. Zarghami, 158 N.J. 606, 625-26 (1999); see also
Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). Plaintiff's reasons
for not timely filing a notice of claim are insufficient to
5 A-0035-16T4
overcome this demanding standard. The judge correctly denied the
motion.
We reject plaintiff's contention that the judge erred in
failing to conduct a Lopez hearing. "A Lopez hearing is only
required when the facts concerning the date of the discovery are
in dispute." Henry v. Dep't of Human Servs., 204 N.J. 320, 336
n.6 (2010) (citation omitted). Here, the cause of action's accrual
date was not in dispute as plaintiff repeatedly held it to be May
14, 2015.
Affirmed.
6 A-0035-16T4