TAYLOR v. TOWN OF MORRISTOWN

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2725-22
NAILAH TAYLOR,
Plaintiff-Respondent,
v.
TOWN OF MORRISTOWN,
THE RESIDENT CENTER
WITH MANAHAN VILLAGE,
and MORRISTOWN HOUSING
AUTHORITY,
Defendants-Appellants.
____________________________
Submitted September 18, 2023 – Decided October 4, 2023
Before Judges Natali and Puglisi.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Morris County,
Docket No. L-1533-22.
DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys
for appellants (Amy E. Shotmeyer, of counsel; William
E. Antonides, III, on the briefs).
Advokat & Rosenberg, attorneys for respondent
(Jeffrey M. Advokat, on the brief).
NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM
On leave granted, defendant Morristown Housing Authority (MHA)
appeals a February 17, 2023 Law Division order denying its motion to dismiss
plaintiff Nailah Taylor's negligence complaint and a March 31, 2023, order
denying reconsideration. Because plaintiff failed to file a timely notice of claim
under the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to -12-3, or
seek leave of court to file a late notice, we reverse both orders with direction to
the court to dismiss plaintiff's complaint as to MHA.
I.
On August 31, 2022, plaintiff filed a complaint alleging she was injured
on September 11, 2020 when she slipped and fell on a "curb adjacent to 23 Clyde
Potts Drive, in Manahan Village, Town of Morristown." She further alleged the
curb was "owned, operated, or maintained by" defendant Town of Morristown
and John Does A-Z. Plaintiff amended her complaint to join MHA as a
defendant on September 22, 2022.
MHA moved to dismiss under Rule 4:6-2(e) based on the TCA. It
specifically claimed plaintiff failed to "(1) [provide] any notice of claim
pursuant to N.J.S.A. 59:8-3 and -8(a);" or "(2) . . . seek leave to file a late notice
of claim pursuant to N.J.S.A. 59:8-9." MHA also argued plaintiff failed to file
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her complaint within the two-year statute of limitations pursuant to N.J.S.A.
59:8-8(b) and -9. In its application, MHA noted the court's authority to convert
the motion to one for summary judgment, applying the standard set forth in Rule
4:46-2(c). It also provided an undisputed statement of material facts, within
which it asserted plaintiff never filed a notice of claim as required by the TCA.
In support of its argument plaintiff failed to comply with the TCA's notice
requirements, MHA contended plaintiff was aware no later than May 2021 that
MHA was potentially a responsible party. On this point, it highlighted a May
24, 2021 letter from Morristown's insurer, Garden State Municipal Joint
Insurance Fund, to plaintiff's counsel which advised the property at issue was
"owned by the Morristown Housing Authority."
Plaintiff conceded she did not provide any notice of her claim to MHA
until she filed her amended complaint on September 22, 2022, more than one
year after the May 2021 letter, and more than two years after the September
2020 incident. Plaintiff explained her lack of diligence by claiming the May
2021 letter was not reliable because it was uncertified and contained factual
errors, such as referring to Howell Township at one point instead of Morristown.
Instead, plaintiff argues, she immediately amended her complaint to join MHA
once she received the certification of Morristown's tax assessor from
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Morristown's counsel. The certification indicated that MHA, not Morristown,
owned the property at issue.
Morristown separately moved to dismiss under Rule 4:6-2(e) on a separate
basis. It argued it did not own or control the property on which plaintiff alleged
she was injured, and therefore, could not be liable for any injury occurring on
that property. In support of its application, Morristown provided its tax
assessor's certification.
The parties agreed to waive oral argument, and the court denied MHA's
and Morristown's motions on February 17, 2023, and supported its reasoning in
an oral decision in which it explained the applicable standard for a motion to
dismiss under Rule 4:6-2(e) required the court to limit its inquiry to an
"examination of the 'legal sufficiency of the facts alleged on the face of the
complaint.'" Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989). It also acknowledged the court was required to accept the facts alleged
in the complaint as true and "construe all reasonable inferences of fact in favor
of the plaintiff." Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 625-26
(1995).
After noting Rule 4:6-2 permits courts to consider "allegations in the
complaint, attached exhibits, matters of public record, and documents that form
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the basis of the claim," Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183
(2005), the court noted both defendants had presented and relied upon materials
outside the pleadings. In this regard, it stated Morristown "relie[d] on the
certification of its tax assessor" and MHA relied on unspecified "materials and
information beyond the facts alleged in the complaint" which the court
characterized as "self-serving conclusions." The record before us further
reflects MHA included in support of its application the certification of its deputy
director, the certification of its counsel, and the May 2021 letter. Additionally,
plaintiff presented the certification of her counsel, the certification of
Morristown's tax assessor, and the May 2021 letter.
The court determined Morristown's denial of ownership, the TCA's notice
requirements, and the statute of limitations constituted defenses which did not
"justify a dismissal of plaintiff's claims on the pleadings under Rule 4:6-2(e)."
In support, it relied upon Buteas v. Raritan Lodge No. 61 F. & A.M., 248 N.J.
Super. 351, 363 (App. Div. 1991), which distinguished motions to dismiss for
failure to state a claim under Rule 4:6-2(e) and motions to dismiss based on
affirmative defenses. The court explained that "[d]efenses insulating defendants
from liability do not go to the legal sufficiency of the complaint." Id. at 364.
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"Viewing the allegations set forth in the complaint in the light most
favorable to plaintiff," the court found the complaint "set forth a fundament of
a cognizable cause of action for negligence." It further reasoned even though
"defendants may have affirmative defenses that would insulate them from
liability for the claims," that did not establish "a basis to dismiss plaintiff's
complaint for failure to set forth a cause of action pursuant to Rule 4:6-2(e)."
MHA moved for reconsideration and in support argued the court erred by
holding that "failure to file a notice of claim and the filing of a complaint outside
the two-year statute of limitations had no bearing on the issue of whether the
[plaintiff] set forth a cognizable claim against a public entity." The court denied
MHA's reconsideration motion and explained MHA had failed to identify "any
matters or controlling decisions that the court overlooked" or to "demonstrate[]
the court erred." MHA moved for leave to appeal the orders denying its motions
to dismiss and to reconsider, which we granted under Rule 2:2-3.1
1 We denied Morristown's motion for leave to appeal the court's February 17,
2023 order. As noted, the court's denial of Morristown's motion was not
grounded in plaintiff's non-compliance with the TCA.
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II.
We review an order denying a motion to dismiss for failure to state a claim
"de novo, applying the same standard under Rule 4:6-2(e) that governed the
motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 124 (App.
Div. 2014). That standard is whether the pleadings even "suggest[]" a basis for
the requested relief. Printing Mart-Morristown, 116 N.J. at 746. A reviewing
court assesses only the "legal sufficiency" of the claim based on "the facts
alleged on the face of the complaint." Green v. Morgan Props., 215 N.J. 431,
451 (2013) (quoting Printing Mart-Morristown, 116 N.J. at 746).
The court must "search[] the complaint in depth and with liberality to
ascertain whether the fundament of a cause of action may be gleaned even from
an obscure statement of claim, opportunity being given to amend if necessary."
Printing-Mart Morristown, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel
Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
Consequently, "[a]t this preliminary stage of the litigation the [c]ourt is not
concerned with the ability of plaintiffs to prove the allegation contained in the
complaint," ibid., rather the facts as pled are considered "true" and accorded "all
legitimate inferences," Banco Popular, 184 N.J. at 166, 183.
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When "matters outside the pleading are presented to and not excluded by
the court [in considering a motion under Rule 4:6-2(e)], the motion shall be
treated as one for summary judgment and disposed of as provided by Rule 4:46."
R. 4:6-2. In reviewing summary judgment, we apply the same Rule 4:46-2(c)
standard governing the trial court. H.C. Equities, LP v. Cnty. of Union, 247 N.J.
366, 380 (2021). "We construe the evidence in the light most favorable to the
non-moving party and affirm the entry of summary judgment 'if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law.'" Ibid. (quoting R. 4:46-2(c) and citing Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 528-29 (1995)). In that inquiry, the "court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Id. at 381 (quoting McDade v.
Siazon, 208 N.J. 463, 473 (2011)).
The court applies an abuse of discretion standard when reviewing an order
denying reconsideration. Granata v. Broderick, 446 N.J. Super. 449, 468 (App.
Div. 2016); Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996) (stating reconsideration is "a matter within the sound discretion of the
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[c]ourt") (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
A trial court abuses its discretion "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (citation omitted). "When examining a trial court's exercise of
discretionary authority, [a reviewing court] reverse[s] only when the exercise of
discretion was 'manifestly unjust' under the circumstances." Newark Morning
Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 174 (App.
Div. 2011) (quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J.
Super. 141, 149 (App. Div. 2007)).
III.
Before us, both parties reprise their arguments presented to the trial court.
MHA asserts plaintiff's failure to file a timely TCA notice or a request to file a
late notice unequivocally bars her claim. Additionally, it argues, the TCA's two-
year statute of limitations expired before plaintiff filed her amended complaint.
Plaintiff responds that the discovery rule tolled the TCA notice period and
statute of limitations until she became aware MHA was potentially liable for her
injuries. She further avers when she became aware, she promptly amended her
complaint. Plaintiff notes her initial complaint was filed within the two-year
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limitations period and properly included fictitious defendants, "John Does A-
Z." She also claims it was improper to dismiss her complaint at such an "early
point in the case" and when "no formal discovery" has been conducted.
The guiding principle of the TCA "is 'that immunity from tort liability is
the general rule and liability is the exception.'" H.C. Equities, 247 N.J. at 381
(quoting D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133-34
(2013)). The TCA requires any party seeking to bring a tort claim against a
public entity to file a tort claims notice informing the entity about the potential
claim. N.J.S.A. 59:8-3; H.C. Equities, 247 N.J. at 370. The notice requirement
serves the following objectives:
(1) "to allow the public entity at least six months for
administrative review with the opportunity to settle
meritorious claims prior to the bringing of suit"; (2) "to
provide the public entity with prompt notification of a
claim in order to adequately investigate the facts and
prepare a defense"; (3) "to afford the public entity a
chance to correct the conditions or practices which gave
rise to the claim"; and (4) to inform the State "in
advance as to the indebtedness or liability that it may
be expected to meet."
[H.C. Equities, 247 N.J. at 383-84 (quoting Beauchamp
v. Amedio, 164 N.J. 111, 121-22 (2000)).]
A TCA notice must be filed within ninety days of the accrual of the
claimant's cause of action. N.J.S.A. 59:8-8; H.C. Equities, 247 N.J. at 370. A
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claimant may also seek leave to file a late notice of claim within one year of the
claim's accrual. N.J.S.A. 59:8-9; H.C. Equities, 247 N.J. at 370. The claimant
must provide the court a "motion supported by affidavits based upon personal
knowledge of the affiant 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." N.J.S.A. 59:8-9. A failure to investigate "when
the identity of the correct defendant was readily discoverable within the ninety
days that the statute allows" does not constitute extraordinary circumstances.
D.D., 213 N.J. at 153. Additionally, "the claimant must show that the public
entity . . . has not been substantially prejudiced by the delay." H.C. Equities,
247 N.J. at 370; N.J.S.A. 59:8-9.
"After the expiration of that one-year period to file a late notice of claim,
however, 'the court is without authority to relieve a plaintiff from his failure to
have filed a notice of claim, and a consequent action at law must fail.'" H.C.
Equities, 247 N.J. at 383 (quoting Rogers v. Cape May Cnty. Off. of Pub. Def.,
208 N.J. 414, 427 (2011)). The TCA further provides that "in no event may any
suit against a public entity . . . 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.
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The TCA defines accrual "in accordance with existing law in the private
sector." H.C. Equities, 247 N.J. at 382 (quoting Beauchamp, 164 N.J. at 116).
Generally, "a claim accrues on the date on which the underlying tortious act
occurred." Ibid. (quoting Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123,
134 (2017)). Under the discovery rule, however, the accrual date for TCA
purposes may be tolled "when the victim is unaware of his injury or does not
know that a third party is liable for the injury." Ibid. (quoting Ben Elazar, 230
N.J. at 134). Additionally, accrual may be tolled "when plaintiffs, knowing that
one third party is liable, do not know that their injury is also the responsibility
of an additional party." Ben Elazar, 230 N.J. at 127.
To determine whether the discovery rule applies, the "court must assess
'whether the facts presented would alert a reasonable person exercising ordinary
diligence that he or she was injured due to the fault of another.'" J.P. v. Smith,
444 N.J. Super. 507, 525-26 (App. Div. 2016) (quoting Martinez v. Cooper
Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000)). Factors the court may consider
include "(1) 'the nature of the alleged injury,' (2) 'the availability of witnesses
and [] evidence,' (3) 'the length of time that has elapsed,' (4) the 'deliberate or
intentional' nature of the delay, and (5) whether the delay 'peculiarly or
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unusually prejudiced the defendant.'" J.P., 444 N.J. Super. at 526 (quoting
Lopez v. Swyer, 62 N.J. 267, 276 (1973)) (alteration in original).
We conclude the court erred in denying MHA's motion to dismiss.
Consistent with MHA's moving papers and Rule 4:6-2, the court should have
considered the application under the summary judgment standard set forth in
Rule 4:46-2(c), particularly where, as here, both parties relied on and the court
considered materials outside the pleadings. However, we find this error
inconsequential because, after conducting a de novo review and considering the
evidence in the light most favorable to plaintiff, we are satisfied the pleadings,
certifications, and uncontested evidence in the motion record establish the lack
of a genuine issue as to any material fact regarding plaintiff's lack of compliance
with the TCA. Simply put, plaintiff failed to file a timely TCA notice or move
for leave to file a late notice of claim.
We also reject plaintiff's argument that the discovery rule should apply to
toll the accrual date for her claim. The record, both below and before us,
demonstrates no attempt by plaintiff to "exercise ordinary diligence" in pursuing
her claim such that the discovery rule should toll accrual.2 The facts here are
2 To the extent plaintiff argues that she requires additional discovery to respond
to MHA's motion, we are not persuaded. Plaintiff has not identified the specific
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not analogous to Ben Elazar, on which plaintiff relies. That case involved a
complex toxic tort claim, for which the public entity's responsibility was
obscured. Ben Elazar, 230 N.J. at 139. Further, the plaintiffs in Ben Elazar
promptly undertook to determine the identity of all responsible parties and
comply with the TCA: they retained counsel soon after discovering their injuries
were potentially linked to environmental contamination, filed an Open Public
Records Act ("OPRA") request with the New Jersey Department of
Environmental Protection, and filed a notice of claim within ninety days after
the OPRA records revealed the township was potentially responsible. Id. at 130-
31.
In contrast, here the record is devoid of any steps taken by plaintiff to
pursue her claim from the day she was injured to filing her initial complaint
nearly two years later. Plaintiff has not shown that she was unaware of her
injury or that a third party may be liable for that injury. She has pointed to no
and necessary discovery she sought to obtain. Further, information relevant to
the central issue—i.e., plaintiff's efforts to determine the responsible parties—
is exclusively in plaintiff's and her counsel's control, not MHA's. See Friedman
v. Martinez, 242 N.J. 449, 472 (2020) (holding summary judgment inappropriate
when discovery incomplete only if critical facts are in moving party's control
and non-moving party can demonstrate "with some degree of particularity the
likelihood that further discovery will supply the missing elements of the cause
of action," but appropriate even if discovery incomplete where non-moving
party is in control of information sought.)
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reasonable, diligent efforts made to determine who may be responsible for her
injuries nor anything preventing her from doing so. Even after receiving the
May 2021 letter, which would put a reasonable person on notice that Morristown
may not own the property where she fell, plaintiff failed to investigate ownership
or whether any other parties were potentially liable for over a year. Therefore,
we find that the discovery rule does not apply, and plaintiff's claim accrued on
the day she slipped and fell, September 11, 2020.
Next, it is undisputed that plaintiff did not file a timely TCA notice with
MHA or seek leave to file a late notice. Plaintiff does not allege in her complaint
that she filed a notice within ninety days of September 11, 2020, as required by
N.J.S.A. 59:8-8, nor does she dispute the statement of facts in MHA's
application, which provides "an investigation of [MHA]'s records has revealed
that no claim was ever filed by plaintiff."
Finally, the record before us does not establish plaintiff ever sought leave
to file a late notice of claim within one year of September 11, 2020, as required
by N.J.S.A. 59:8-9. Indeed, she did not file her initial complaint in this matter
until August 31, 2022—nearly two years later. Plaintiff did not file notice or
seek leave to file a late notice after joining MHA either. Even if plaintiff had
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made such a motion, she has set forth nothing that would constitute
extraordinary circumstances to excuse her failure to file a timely notice.
N.J.S.A. 59:8-8 provides that a "claimant shall be forever barred from
recovering against a public entity . . . if: . . . [t]he claimant failed to file the claim
with the public entity within [ninety] days of accrual of the claim except as
otherwise provided in N.J.S.A 59:8-9." The Supreme Court has unequivocally
stated that, upon expiration of the one-year late notice period, "the court is
without authority to relieve a plaintiff from his failure to have filed a notice of
claim, and a consequent action at law must fail." H.C. Equities, 247 N.J. at 383
(quoting Rogers, 208 N.J. at 427). As noted, plaintiff did not file a notice within
ninety days or seek leave to file a late notice within one year. Therefore , her
action fails as a matter of law and it was error for the court to deny MHA's
motion to dismiss and its reconsideration application. In light of our
determination, we need not address MHA's argument that the court should have
dismissed plaintiff's complaint because it was filed outside the two-year statute
of limitations for such actions.
Finally, we find the court's reliance on Buteas to be misplaced. Although
the Buteas court did distinguish for Rule 4:6-2 purposes between a "fact
resulting in the failure of the complaint to state a claim . . . or merely a fact
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giving rise to an affirmative defense pursuant to [Rule] 4:5-4," that case
involved neither a public entity defendant nor the application of the TCA. In
contrast to a claim against a non-public entity like in Buteas, plaintiff's action
against MHA required compliance with the TCA as a condition of asserting a
claim. See Ben Elazar, 230 N.J. at 133 (notice of claim is "a prerequisite to
proceeding with a tort claim against a public entity"); J.P., 444 N.J. Super. at
529 (failure to comply with time requirement "constitutes an absolute bar to
recovery"); Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 532 (App. Div.
1989) ("Under [the TCA], a claimant's right to institute an action against a public
entity is conditioned upon the claimant having filed with the public entity a
notice of claim within [ninety] days"). By relying on Buteas to deny MHA's
motion, the court effectively thwarted the principles of the TCA.
Reversed and remanded with direction to the court to dismiss plaintiff's
complaint as to MHA.