A.L. VS. SHARON RYAN MONTGOMERY, PSY.D. (L-3195-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1603-15T2
RYAN RANKIN,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY, BOROUGH
OF METUCHEN, THE PORT AUTHORITY
OF NEW YORK AND NEW JERSEY, and
ROOM RENOVATORS, INC.,
Defendants,
and
METUCHEN PARKING AUTHORITY
and NEW JERSEY TRANSIT
CORPORATION,
Defendants-Appellants.
______________________________________
Argued December 13, 2016 – Decided February 15, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
5231-14.
Nicole M. Grzeskowiak argued the cause for
appellants (Hoagland, Longo, Moran, Dunst &
Doukas, LLP, attorneys; Jennifer Passannante,
on the briefs).
Norman Kline argued the cause for respondent.
PER CURIAM
In this slip-and-fall case, defendants, Metuchen Parking
Authority (MPA) and New Jersey Transit (NJT), appeal from the Law
Division's November 20, 2015 order permitting plaintiff, Ryan
Rankin, to serve MPA with a late notice of tort claim (Notice),
N.J.S.A. 59:8-9.1 The motion judge permitted the late service
after concluding that the discovery rule applied and tolled the
accrual date of plaintiff's claim.2 NJT and MPA argue that the
judge erred because under the Tort Claims Act (TCA), N.J.S.A.
59:1-1 to 13-10, the trial court lacked jurisdiction to consider
plaintiff's application. In addition, they contend the discovery
rule did not apply because plaintiff failed to comply with the
TCA's notice requirements and failed to diligently pursue his
claim. We disagree and affirm.
The facts derived from the motion record can be summarized
as follows. Plaintiff slipped on ice on December 13, 2013, and
sustained injuries while in a parking lot at the NJT Metuchen
train station. There are eleven parking lots at the station that
1
Although the order under appeal is interlocutory, it is "deemed
a final judgment for appeal purposes." R. 2:2-3(a)(3).
2
The discovery rule tolls the commencement of a statutory notice
period until an injured party reasonably becomes aware of the
injury or the identity the party that caused the injury. See
McDade v. Siazon, 208 N.J. 463, 474 (2011); see also, infra.
2 A-1603-15T2
are owned by either NJT or defendant Borough of Metuchen
(Metuchen).
On February 21, 2014, plaintiff served Notices on NJT,
Metuchen, and defendants the State of New Jersey and The Port
Authority of New York and New Jersey. Plaintiff's Notice described
the location of his fall as "the parking lot of Metuchen (NJ
Transit) Station."
On August 27, 2014, plaintiff filed a complaint against the
same defendants it served with Notices and also against defendant
Room Renovators, Inc. The complaint described the location where
defendant fell as "a parking lot adjacent to the Metuchen train
station . . . ." By the beginning of December 2014, all defendants
named in the complaint had filed their answers.
After defendants filed their answers, the parties pursued
discovery. NJT and the State served answers to plaintiff's
interrogatories in February 2015. The answers revealed that MPA
was responsible for the maintenance of the parking lot where
plaintiff fell pursuant to a lease dated February 18, 1959, between
NJT's predecessor, Pennsylvania Railroad Company, and the Parking
Authority of the Borough of Metuchen.3 After learning about MPA's
involvement, plaintiff immediately served MPA with a Notice on
3
The Parking Authority of the Borough of Metuchen is also known
as the Metuchen Parking Authority.
3 A-1603-15T2
February 24, 2015. The Notice, however, did not identify MPA as
an entity that plaintiff claimed caused his injuries and was served
without leave of court. Plaintiff later filed a motion for leave
to file an amended complaint to name MPA as an additional
defendant, which the court granted on May 29, 2015. Plaintiff
served MPA with the amended complaint, and on August 18, 2015, MPA
filed its answer.4
MPA filed a motion for summary judgment in September 2015,
based upon plaintiff's failure to serve a timely Notice with prior
leave of court. The court granted that motion on October 29,
2015, without prejudice, finding that the Notice plaintiff served
was defective for not identifying MPA "as a state agency . . .
that caused the alleged damage in the Notice" and because plaintiff
did not first seek leave of court to serve a late Notice.
Immediately after the court granted MPA's motion, plaintiff
sought leave on November 3, 2015, to serve a late Notice on MPA.
The court considered oral argument on November 20, 2015 and granted
plaintiff's application. According to the motion judge, the
discovery rule applied because plaintiff only learned of MPA's
4
Prior to MPA filing its answer, it and Metuchen filed motions
for summary judgment, seeking dismissal of the complaint with
prejudice. The court granted that motion on August 21, 2015, as
to Metuchen only, dismissing the complaint against it with
prejudice.
4 A-1603-15T2
involvement through the February 2015 discovery responses, and the
delay in learning about MPA's role was not due to plaintiff's
"lack of diligence" as MPA's lease "would not have been easily
discoverable except by doing discovery" in this case. The judge
further stated that he found any delay in serving MPA did not
"cause any hardship . . . or unfairness" to MPA, as "the litigation
is still" ongoing and "discovery [is] ongoing so that discovery
that has already been obtained will be available to" MPA.
According to the judge, because plaintiff could not have discovered
the relationship earlier between MPA and the property where
plaintiff fell, "the accrual date . . . [of plaintiff's cause of
action] occur[ed] at the time that . . . [he] learn[ed] of that
lease agreement."
Plaintiff served MPA with the late Notice and then sought and
obtained permission from the court to file a new amended complaint,
naming MPA as an additional defendant. This appeal followed.
We begin our review by acknowledging the "strict"
requirements for the timely service of a Notice upon a governmental
entity that are set forth in the TCA. See McDade, supra, 208 N.J.
at 468. Pursuant to the TCA, "[n]o action shall be brought against
a public entity or public employee under this act unless the claim
upon which it is based shall have been presented" to the
appropriate public entity in a written Notice. N.J.S.A. 59:8-3;
5 A-1603-15T2
see N.J.S.A. 59:8-4 to -7. "A claim relating to a cause of action
for death or for injury or damage to person or to property shall
be presented as provided in this chapter not later than the 90th
day after accrual of the cause of action." N.J.S.A. 59:8-8.
N.J.S.A. 59:8-1 provides the date of accrual for a cause of
action "shall mean the date on which the claim accrued and shall
not be affected by the notice provisions contained herein."
N.J.S.A. 59:8-8 provides, in relevant part, that a "claimant shall
be forever barred from recovering against a public entity . . .
if . . . [he or she] failed to file the claim with the public
entity within 90 days of the accrual of the claim except as
otherwise provided in N.J.S.A. 59:8-9 . . . ."
In enacting N.J.S.A. 59:8-9, "the Legislature recognized that
discretionary judicial relief from the ninety-day [TCA]
requirement may be necessary to ameliorate the consequence of a
late filing in appropriate cases." McDade, supra, 208 N.J. at
476. Because "the notice provisions of the [TCA] were not intended
as a 'trap for the unwary,'" Lowe v. Zarghami, 158 N.J. 606, 629
(1999) (citation omitted), the TCA permits a claimant who does not
serve a Notice within the ninety-day period to seek permission to
file a late Notice. Permission may be granted in the discretion
of a judge, "within one year after the accrual of . . . [a] claim,
provided that the public entity or the public employee has not
6 A-1603-15T2
been substantially prejudiced thereby." N.J.S.A. 59:8-9. The
statute also states:
Application to the court for permission to
file a late notice of claim shall be made upon
motion . . . showing sufficient reasons
constituting extraordinary circumstances for
his failure to file notice of claim within the
period of time prescribed by section 59:8-8
of this act 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.
[N.J.S.A. 59:8-9.]
If a claimant seeks to present a late Notice pursuant to the
TCA, "the grant or denial of remedial relief is '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.'" McDade, supra,
208 N.J. at 476-77 (citation omitted). "Although the ordinary
'abuse of discretion' standard defies precise definition, it
arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis,'" Moraes v. Wesler, 439 N.J. Super. 375, 378
(App. Div. 2015) (quoting Flagg v. Essex Co. Prosecutor, 171 N.J.
561, 571 (2002)), or when "the discretionary act was not premised
upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts
7 A-1603-15T2
to a clear error in judgment." Id. (quoting Masone v. Levine, 382
N.J. Super. 181, 193 (App. Div. 2005)).
On appeal, MPA and NJT assert the trial court abused its
discretion by granting plaintiff's motion because the TCA bars a
claimant from serving a late Notice after one year from the date
of the accident, as stated in N.J.S.A. 59:8-9. They disagree with
the motion judge that the discovery rule tolled the accrual of
plaintiff's claim against MPA, arguing instead that date remained
the day he fell in December 2013. They also contend the court
lacked jurisdiction to permit plaintiff to file a late Notice
because plaintiff initially mailed MPA a late Notice without first
seeking leave of court and only sought leave after the court
granted MPA summary judgment in its favor.
As to the discovery rule, MPA and NJT contend that plaintiff
failed to take reasonable steps to ascertain the party responsible
for maintenance of the parking lot because he did not show proof
that he had searched the public record, filed an Open Public
Records Act5 request, or conducted pre-litigation discovery.
According to MPA and NJT, the information regarding the owner of
the parking lot where plaintiff fell was readily available online
on NJT's website. Furthermore, they claim that even if the
5
N.J.S.A. 47:1A-1 to -13.
8 A-1603-15T2
discovery rule was applicable, the trial court did not find that
extraordinary circumstances existed that would justify allowing
plaintiff to file a late Notice.
In response, plaintiff argues that it was not reasonably
possible for him to discover that MPA was a potential defendant
until receipt of NJT's responses to discovery, which included
MPA's lease. He asserts that searching records of owners or
looking at NJT's website would not have revealed MPA's involvement
because NJT remained the record owner and its website merely
identified MPA as a "contact." Plaintiff contends that his serving
Notices upon the other public defendants, within the requisite
ninety-day period, and his filing for leave to serve MPA with a
late Notice within one year after discovery of the lease supports
a finding of extraordinary circumstances. Therefore, the motion
judge properly granted plaintiff's motion, especially since MPA
did not suffer any undue hardship or prejudice. Plaintiff contends
that based on these facts, the motion judge did not abuse his
discretion.
We have considered the parties' arguments in light of the
record and the applicable legal principles. We conclude from our
review that the motion judge did not abuse his discretion because
the judge correctly concluded that the discovery rule applied to
9 A-1603-15T2
plaintiff's claim and he timely sought leave to file the late
Notice.
"The Legislature enacted the [TCA] to afford circumscribed
relief from the doctrine of sovereign immunity." McDade, supra,
208 N.J. at 474. In light of the public policy that "public
entities shall only be liable for their negligence within the
limitations of [the TCA]," N.J.S.A. 59:1-2, "[g]enerally, immunity
for public entities is the rule and liability is the exception."
McDade, supra, 208 N.J. at 474 (alteration in original) (quoting
Fleur v. City of Cape May, 159 N.J. 532, 539 (1999)).
The "notice requirements are an important component of the
statutory scheme." Ibid. (citing N.J.S.A. 59:8-8 and -9).
Although notice requirements, such as the one stated in N.J.S.A.
59:8-9, are typically strictly construed, "in certain
circumstances . . . they are subject to equitable constraints."
Fox v. Millman, 210 N.J. 401, 415 (2012).
The discovery rule is an example of an "equitable restraint"
applicable to the TCA's bar for failure to serve a timely Notice.
That rule "may affect the timeliness of a notice of claim in
appropriate cases, by tolling the date of accrual for purposes of
computing the ninety-day period set forth in N.J.S.A. 59:8-8(a)."
McDade, supra, 208 N.J. at 474 (citing Lamb v. Glob. Landfill
Reclaiming, 111 N.J. 134, 145 (1988)). "The discovery rule tolls
10 A-1603-15T2
the commencement of the ninety-day notice period only '[u]ntil the
existence of an injury (or, knowledge of the fact that a third
party has caused it) is ascertained.'" Id. at 475 (alteration in
original) (quoting Beauchamp v. Amedio, 164 N.J. 111, 122 (2000)).
When applying the discovery rule, the trial court must determine
"whether the facts presented would alert a reasonable person,
exercising ordinary diligence, that he or she was injured due to
the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237,
246 (2001).
When a claimant has filed a motion for leave to file a late
Notice, a court must apply a two-step process in determining
whether to grant the motion. Beauchamp, supra, 164 N.J. at 118-
19.
The first task is always to determine when the
claim accrued. The discovery rule is part and
parcel of such an inquiry because it can toll
the date of accrual. Once the date of accrual
is ascertained, the next task is to determine
whether a notice of claim was filed within
ninety days. If not, the third task is to
decide whether extraordinary circumstances
exist justifying a late notice. Although
occasionally the facts of a case may cut
across those issues, they are entirely
distinct.
[Ibid.]
In addition, there must "be a showing of 'sufficient reasons
constituting extraordinary circumstances' for the claimant's
11 A-1603-15T2
failure to timely file, and second, that the public entity not be
'substantially prejudiced' thereby." McDade, supra, 208 N.J. at
477 (quoting N.J.S.A. 59:8-9).
Applying these guiding principles, we discern no abuse of
discretion in the motion judge's decision. The motion judge's
findings were supported by sufficient facts and consistent with
the TCA. The judge properly determined the accrual date of
plaintiff's claim, recognizing his accident occurred in December
2013, but that plaintiff could not reasonably determine MPA's role
before February 2015, despite plaintiff taking reasonable steps
to ascertain the party responsible for the property where he fell.
The judge then determined that plaintiff took all reasonable action
to serve a Notice on MPA and, although he initially dismissed the
claim without prejudice for failing to seek leave of court, he
properly held that permission to serve the late Notice within one
year of the claim's accrual date should be granted. The judge
relied upon plaintiff's diligent actions, the extraordinary
circumstances6 that prevented plaintiff from identifying MPA, and
the lack of prejudice to MPA.
6
Although the motion judge did not use the words "extraordinary
circumstances," we can infer from his decision he made that
finding, see Giannakopoulos v. Mid State Mall, 438 N.J. Super.
595, 607 n.5 (App. Div. 2014) (inferring a judge's finding of
"exceptional circumstances" under Rule 1:13-7 from the judge's
"quoted language"), certif. denied, 221 N.J. 492 (2015).
12 A-1603-15T2
MPA's reliance on McDade does not compel a different result.
In that case, the Supreme Court affirmed our decision to bar a
plaintiff's claim because the discovery rule was inapplicable.
The Court observed:
There . . . [was] no evidence that plaintiffs
searched the public record, inquired about the
ownership of the pipe . . . [that caused
plaintiff to fall], or took any affirmative
steps to determine the identity of the pipe's
owner. Given plaintiffs' awareness of the
injury, and their knowledge that the entity
responsible for the pipe was a potential
tortfeasor, the discovery rule does not toll
the date of accrual of plaintiffs' cause of
action.
[McDade, supra, 208 N.J. at 479 (citations
omitted).]
Moreover, in McDade, the plaintiffs never filed a motion for
leave to file a late Notice. Ibid. In this case, the evidence
established plaintiff searched for and found the owner of the
property where he fell and filed for leave of court to serve a
late Notice when he learned of MPA's involvement. These
significant distinctions make MPA's reliance on McDade inapposite.
Under these circumstances and affording the judge's decision
the deference to which it is entitled, see id. at 476-77, we have
no reason to disturb the result in this case.
Affirmed.
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