ANNABELLA MONTANANO v. COUNTY OF HUDSON (L-0894-21, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2667-20
ANNABELLA MONTANANO,
on behalf of the Estate of
EDWIN R. MONTANANO, as
executrix of the Estate of EDWIN
R. MONTANANO, and
ANNABELLA MONTANANO,
individually,
Plaintiffs-Respondents,
v.
COUNTY OF HUDSON,
HUDSON COUNTY
CORRECTIONAL CENTER,
RONALD P. EDWARDS,
JONATHAN CASTANEDA,
and THOMAS A. DEGISE,
Defendants-Appellants.
Argued June 7, 2022 – Decided July 21, 2022
Before Judges Currier, DeAlmeida, and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0894-21.
James F. Dronzek argued the cause for appellants
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; James F. Dronzek, of counsel and on the
briefs; Kirstin Bohn, on the briefs).
Daniel B. Devinney argued the cause for respondents
(Snyder Sarno D'Aniello Maceri & da Costa, LLC,
attorneys; Paul M. da Costa, Sherry L. Foley, and
Timothy J. Foley, of counsel and on the brief).
PER CURIAM
Decedent Edwin Montanano worked for a private health care company
that provided services to the Hudson County Correctional Facility. Edwin began
working as a nurse at the correctional facility in January 2019.
Edwin was diagnosed with COVID-19 on March 23, 2020; he died on
April 5, 2020. Plaintiffs filed a notice of tort claim required under N.J.S.A.
59:8-8 in November 2020 and moved for leave to file a late notice in March
2021. The trial court granted the motion. Because we conclude plaintiffs did
not present extraordinary circumstances to warrant the late filing of a tort claim
notice, we reverse.
In support of the motion for leave to file a late claim, Edwin's wife,
Annabella, provided a certification. She stated that after her husband died, she
too was sick with COVID-19 and "remained extremely ill until approximately
June 16, 2020."
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Annabella further certified that she received a letter from the United States
Department of Labor informing her that the Occupational Safety and Health
Administration (OSHA) was investigating the circumstances of her husband's
death.1 Around the same time, Annabella spoke with one of Edwin's colleagues
who advised her that conditions at the correctional facility might have
contributed to Edwin's death. Annabella retained counsel two months later—in
mid-November 2020, who subsequently filed a tort claim notice.
In a written decision granting plaintiffs leave to file a late claim, the trial
court stated: "The [c]ourt accepts [Annabella's] certification, together with the
ongoing public health crisis, to find that [plaintiffs] ha[ve] shown sufficient
reasons for [their] failure to timely file the notice of tort claim." The court
declined defendants' request to hold a Lopez2 hearing, stating it was unnecessary
as "[t]he determinative factors" in finding "sufficient reasons for the late fi ling"
were "the ongoing health crisis, the death of [Edwin], and [Annabella's] illness."
1
Although the letter was sent to Annabella and referenced Edwin, the inspection
number referenced in the letter pertains to an electrician who died of COVID -
19, contracted during his employment at Newark Beth Israel Medical Center.
2
Lopez v. Swyer, 62 N.J. 267, 273-76 (1973).
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On appeal, defendants assert the court abused its discretion in finding
extraordinary circumstances existed to permit plaintiffs to file a late notice of
tort claim.
We are mindful that a grant of permission to file a late tort claim notice is
left to the sound discretion of the trial court and will be sustained on appeal
absent the showing of an abuse thereof. McDade v. Siazon, 208 N.J. 463, 476-
77 (2011) (citing Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)).
"Although deference will ordinarily be given to the factual findings that
undergird the trial court's decision, the court's conclusions will be overturned if
they were reached under a misconception of the law." D.D. v. Univ. of Med. &
Dentistry of N.J., 213 N.J. 130, 147 (2013) (citing McDade, 208 N.J. at 473-74).
N.J.S.A. 59:8-8 requires a plaintiff to file a notice of claim upon a public
entity "not later than the ninetieth day after accrual of the cause of action."
McDade, 208 N.J. at 468 (quoting N.J.S.A. 59:8-8). The failure to serve a notice
of claim within the statutory ninety-day period results in a bar against the claim
and recovery. Id. at 476; N.J.S.A. 59:8-8. Plaintiffs' cause of action accrued on
April 5, 2020—the date of Edwin's death. See Iaconianni v. N.J. Tpk. Auth.,
236 N.J. Super. 294, 298 (App. Div. 1989). Plaintiffs do not dispute the accrual
date or that the tort claims notice was filed well after the ninety-day period.
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In limited circumstances, relief can be afforded under N.J.S.A. 59:8-9,
which allows a plaintiff to move for leave to file a late notice "within one year
after the accrual of [their] claim." McDade, 208 N.J. at 476. The trial court
may grant the motion if there are "'sufficient reasons constituting extraordinary
circumstances' for the claimant's failure to timely file" a notice of claim within
the statutory ninety-day period, and if "the public entity [is not] 'substantially
prejudiced' thereby." Id. at 477 (quoting N.J.S.A. 59:8-9). Determining
"extraordinary circumstances" and substantial prejudice requires a "trial court
to conduct a fact-sensitive analysis of the specific case." Id. at 478.
The Legislature intended the "extraordinary circumstances" required for a
late filing of claim notice to be a demanding standard. See D.D., 213 N.J. at
147-48 (citing Lowe v. Zarghami, 158 N.J. 606, 625-26 (1999)). A court looks
to the "severity of the medical condition and the consequential impact" on the
claimant's ability to seek redress and pursue a claim. Id. at 150. When analyzing
the facts, a court must determine how the evidence relates to the claimant's
circumstances during the ninety-day time period. Id. at 151. See, e.g., Jeffrey
v. State, 468 N.J. Super. 52, 55 (App. Div. 2021) (finding extraordinary
circumstances where the plaintiff was rendered a quadriplegic after an accident
and remained completely disabled and unable to perform even rudimentary
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movements); Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533-35
(App. Div. 2010) (determining the plaintiff’s injuries and memory loss sustained
in a motor vehicle accident that required weeks of hospitalization qualified as
an extraordinary circumstance); Maher v. Cnty. of Mercer, 384 N.J. Super. 182,
189-90 (App. Div. 2006) (finding extraordinary circumstances where the
medical condition of a plaintiff, who contracted staph infection, was so severe
that she was treated by an induced coma and not expected to survive).
In contrast to the above-demonstrated extraordinary circumstances,
plaintiffs have not presented any facts to demonstrate a situation so "severe,
debilitating, or uncommon" to prevent Annabella from contacting an attorney
and pursuing a claim. D.D., 213 N.J. at 150. She has not asserted she was
incapacitated, confined to a hospital, or under a mental impairment as seen in
other instances. And although she stated, without further detail, that she also
contracted COVID-19, she advised she had recovered by June. Five more
months passed before she filed a tort claims notice.
Annabella was aware that Edwin was exposed to COVID-19 while
working in the county facility and that he died of complications from the disease.
Although Annabella states she was unaware defendants had any legal liability
for Edwin's death, our Supreme Court has rejected knowledge of fault as an
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excuse for a late tort claim notice filing. See Savage v. Old Bridge-Sayreville
Med. Grp., P.A., 134 N.J. 241, 248 (1993). Moreover, even after Annabella
learned that OSHA was investigating her husband's death and a colleague
informed her that conditions at the correctional facility might have contributed
to Edwin's death, she still waited another two months before contacting an
attorney. She presented no reason for the additional delay.
Although we are sympathetic to Annabella's loss and the unprecedented
impact of COVID-19, the circumstances here do not meet the required high
threshold to bring a claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-
1 to -12-3. Annabella presented no evidence to constitute extraordinary
circumstances preventing her from filing a timely tort claims notice or
contacting an attorney in the ninety days following Edwin's death. See O'Neill
v. City of Newark, 304 N.J. Super. 543, 553-54 (App. Div. 1997).
The trial court misapprehended the applicable law by finding there were
sufficient reasons to warrant the late filing. The statute and applicable caselaw
requires sufficient reasons constituting extraordinary circumstances. Because
plaintiffs cannot demonstrate extraordinary circumstances existed for the
untimely filing of the tort claims notice—222 days after Edwin's death, we are
constrained to reverse the April 27, 2021 order.
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Reversed.
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