NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4061-13T4
BRIAN BEYER, APPROVED FOR PUBLICATION Plaintiff-Appellant, May 19, 2015 v. APPELLATE DIVISION
SEA BRIGHT BOROUGH and SEA BRIGHT POLICE DEPARTMENT,
Defendants-Respondents.
____________________________________
Argued April 22, 2015 – Decided May 19, 2015
Before Judges Alvarez, Waugh, and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-135-14.
Michael T. Warshaw argued the cause for appellant (Zager Fuchs, P.C., attorneys; Mr. Warshaw, of counsel and on the briefs).
Andrew T. Walsh argued the cause for respondents (Chamlin, Rosen, Uliano & Witherington, attorneys; Charles J. Uliano, of counsel; Mr. Walsh, on the brief).
Eric G. Kahn argued the cause for amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Kahn, of counsel and on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D. Defendant Brian Beyer appeals the Law Division's denial of
his motion for leave to file a late notice of claim under the
New Jersey Tort Claims Act (Act), N.J.S.A. 59:8-1 to -11, as
well as the denial of his motion for reconsideration. We
reverse and remand for further proceedings consistent with this
opinion.
I.
We discern the following facts and procedural history from
the record on appeal.
On August 10, 2013, members of the Sea Bright Police
Department arrested Beyer following an altercation at a cabana
club. During the arrest, according to the police, Beyer
resisted and was placed in a compliance hold by two police
officers. Upon arrival at police headquarters, Beyer "continued
to act extremely belligerent[ly], kicking the cell door and
screaming profanities." The police report stated that he
appeared to be intoxicated. According to Beyer, he was
physically abused by the police at the time of his arrest, as
well as during his transportation to and incarceration at police
headquarters. He was treated by emergency medical technicians
at police headquarters.
After two nights in the Monmouth County Correctional
Institution, Beyer was released. He was subsequently charged
2 A-4061-13T4 with disorderly conduct, N.J.S.A. 2C:33-2(a)(1), resisting
arrest, N.J.S.A. 2C:29-2(a)(1), and criminal mischief, N.J.S.A.
2C:17-3(a)(1). The record is silent as to the disposition of
those charges.
On August 13, Beyer voluntarily enrolled in Palm Partners
Recovery Center, a chemical-dependency rehabilitation program in
Delray Beach, Florida. He was diagnosed with "generalized
anxiety disorder with tendency for self-medication and substance
abuse." Beyer alleges that injuries sustained as a result of
his arrest, including an abdominal hematoma, began to manifest
themselves while he was at Palm Partners.
After he returned to New Jersey on September 16, Beyer
retained Clifford N. Kuhn, Jr., an attorney who had represented
him several times in the past. Kuhn requested discovery from
Sea Bright regarding the arrest.1 Sea Bright subsequently
informed Kuhn that the police had lost the videos taken while he
was in his jail cell on the night of August 10 to 11. On
November 8, the Monmouth County Prosecutor faxed documents
related to Beyer's arrest to Kuhn.
In October, Kuhn was diagnosed with a relapse of lung
cancer and underwent emergency surgery at Memorial Sloan
1 The record does not reflect when Kuhn made the request to Sea Bright.
3 A-4061-13T4 Kettering Hospital in New York City. In December, Kuhn informed
Beyer that he could no longer handle his case. Kuhn died in
early 2014.
Beyer retained new counsel on December 30. On January 8,
2014, Beyer filed a notice of claim against Sea Bright Borough
and its Police Department, as well as other unknown defendants.
The notice of claim alleged that Beyer had been assaulted during
his arrest, resulting in "cuts, bruises, abrasions[,] and an
abdominal hematoma."
Because the notice of claim was untimely under N.J.S.A.
59:8-8(a), Beyer simultaneously filed a motion for leave to file
a late notice of claim. The motion papers included a
certification from Beyer's new attorney, attesting to the fact
that Kuhn had been diagnosed with cancer in October and Beyer
had retained new counsel in December.
On March 14, following oral argument, the motion judge
denied Beyer's motion. In her oral decision, the judge relied
heavily on the Supreme Court's then-recent decision in D.D. v.
University of Medicine & Dentistry of New Jersey, 213 N.J. 130
(2013). She concluded that
[t]aking into consideration . . . what the Court tells us in D.D., I'm denying the motion. And I do so with all due respect for the tragic circumstances of Attorney Kuhn, and I do so without in any way
4 A-4061-13T4 suggesting that he engaged in any kind of malpractice.
The cases talking about medical conditions apply to the claimants as far as I can see. From D.D., I take that an attorney['s failure to act] through inattentiveness does not constitute extraordinary circumstances.
The reason for the inattentiveness may be tragic, as they are in this circumstance, but given the legislative intent with respect to sovereign immunity, and given the Supreme Court's mandate in the D.D. case, I find that Plaintiff here has not demonstrated how his attorney's illness prevented him from pursuing his claim and has failed to demonstrate the existence of extraordinary circumstances that justify the late filing.
Beyer moved for reconsideration in March. Beyer's motion
papers included his own certification to the effect that Kuhn
had not directed him to retain new counsel until December. On
April 28, following oral argument, the judge denied Beyer's
motion for reconsideration. This appeal followed.
II.
Beyer's basic argument on appeal is that, because the facts
of his case satisfy the "extraordinary circumstances"
requirements of N.J.S.A. 59:8-9, the motion judge erred in
denying his motions and precluding him from filing a late notice
of claim.
5 A-4061-13T4 The Act provides that a party has ninety days from the
accrual of his claim to file notice of a claim against a public
entity. N.J.S.A. 59:8-8(a). This notice requirement was
created
(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.
[Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).]
N.J.S.A. 59:8-9 allows late filing for the notice of claim
under certain circumstances.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4061-13T4
BRIAN BEYER, APPROVED FOR PUBLICATION Plaintiff-Appellant, May 19, 2015 v. APPELLATE DIVISION
SEA BRIGHT BOROUGH and SEA BRIGHT POLICE DEPARTMENT,
Defendants-Respondents.
____________________________________
Argued April 22, 2015 – Decided May 19, 2015
Before Judges Alvarez, Waugh, and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-135-14.
Michael T. Warshaw argued the cause for appellant (Zager Fuchs, P.C., attorneys; Mr. Warshaw, of counsel and on the briefs).
Andrew T. Walsh argued the cause for respondents (Chamlin, Rosen, Uliano & Witherington, attorneys; Charles J. Uliano, of counsel; Mr. Walsh, on the brief).
Eric G. Kahn argued the cause for amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Kahn, of counsel and on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D. Defendant Brian Beyer appeals the Law Division's denial of
his motion for leave to file a late notice of claim under the
New Jersey Tort Claims Act (Act), N.J.S.A. 59:8-1 to -11, as
well as the denial of his motion for reconsideration. We
reverse and remand for further proceedings consistent with this
opinion.
I.
We discern the following facts and procedural history from
the record on appeal.
On August 10, 2013, members of the Sea Bright Police
Department arrested Beyer following an altercation at a cabana
club. During the arrest, according to the police, Beyer
resisted and was placed in a compliance hold by two police
officers. Upon arrival at police headquarters, Beyer "continued
to act extremely belligerent[ly], kicking the cell door and
screaming profanities." The police report stated that he
appeared to be intoxicated. According to Beyer, he was
physically abused by the police at the time of his arrest, as
well as during his transportation to and incarceration at police
headquarters. He was treated by emergency medical technicians
at police headquarters.
After two nights in the Monmouth County Correctional
Institution, Beyer was released. He was subsequently charged
2 A-4061-13T4 with disorderly conduct, N.J.S.A. 2C:33-2(a)(1), resisting
arrest, N.J.S.A. 2C:29-2(a)(1), and criminal mischief, N.J.S.A.
2C:17-3(a)(1). The record is silent as to the disposition of
those charges.
On August 13, Beyer voluntarily enrolled in Palm Partners
Recovery Center, a chemical-dependency rehabilitation program in
Delray Beach, Florida. He was diagnosed with "generalized
anxiety disorder with tendency for self-medication and substance
abuse." Beyer alleges that injuries sustained as a result of
his arrest, including an abdominal hematoma, began to manifest
themselves while he was at Palm Partners.
After he returned to New Jersey on September 16, Beyer
retained Clifford N. Kuhn, Jr., an attorney who had represented
him several times in the past. Kuhn requested discovery from
Sea Bright regarding the arrest.1 Sea Bright subsequently
informed Kuhn that the police had lost the videos taken while he
was in his jail cell on the night of August 10 to 11. On
November 8, the Monmouth County Prosecutor faxed documents
related to Beyer's arrest to Kuhn.
In October, Kuhn was diagnosed with a relapse of lung
cancer and underwent emergency surgery at Memorial Sloan
1 The record does not reflect when Kuhn made the request to Sea Bright.
3 A-4061-13T4 Kettering Hospital in New York City. In December, Kuhn informed
Beyer that he could no longer handle his case. Kuhn died in
early 2014.
Beyer retained new counsel on December 30. On January 8,
2014, Beyer filed a notice of claim against Sea Bright Borough
and its Police Department, as well as other unknown defendants.
The notice of claim alleged that Beyer had been assaulted during
his arrest, resulting in "cuts, bruises, abrasions[,] and an
abdominal hematoma."
Because the notice of claim was untimely under N.J.S.A.
59:8-8(a), Beyer simultaneously filed a motion for leave to file
a late notice of claim. The motion papers included a
certification from Beyer's new attorney, attesting to the fact
that Kuhn had been diagnosed with cancer in October and Beyer
had retained new counsel in December.
On March 14, following oral argument, the motion judge
denied Beyer's motion. In her oral decision, the judge relied
heavily on the Supreme Court's then-recent decision in D.D. v.
University of Medicine & Dentistry of New Jersey, 213 N.J. 130
(2013). She concluded that
[t]aking into consideration . . . what the Court tells us in D.D., I'm denying the motion. And I do so with all due respect for the tragic circumstances of Attorney Kuhn, and I do so without in any way
4 A-4061-13T4 suggesting that he engaged in any kind of malpractice.
The cases talking about medical conditions apply to the claimants as far as I can see. From D.D., I take that an attorney['s failure to act] through inattentiveness does not constitute extraordinary circumstances.
The reason for the inattentiveness may be tragic, as they are in this circumstance, but given the legislative intent with respect to sovereign immunity, and given the Supreme Court's mandate in the D.D. case, I find that Plaintiff here has not demonstrated how his attorney's illness prevented him from pursuing his claim and has failed to demonstrate the existence of extraordinary circumstances that justify the late filing.
Beyer moved for reconsideration in March. Beyer's motion
papers included his own certification to the effect that Kuhn
had not directed him to retain new counsel until December. On
April 28, following oral argument, the judge denied Beyer's
motion for reconsideration. This appeal followed.
II.
Beyer's basic argument on appeal is that, because the facts
of his case satisfy the "extraordinary circumstances"
requirements of N.J.S.A. 59:8-9, the motion judge erred in
denying his motions and precluding him from filing a late notice
of claim.
5 A-4061-13T4 The Act provides that a party has ninety days from the
accrual of his claim to file notice of a claim against a public
entity. N.J.S.A. 59:8-8(a). This notice requirement was
created
(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.
[Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).]
N.J.S.A. 59:8-9 allows late filing for the notice of claim
under certain circumstances.
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, 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 constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section
6 A-4061-13T4 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.
[Ibid. (emphasis added).2]
The decision to grant a plaintiff permission to file a late
notice of claim "'is a matter left to the sound discretion of
the trial court.'" R.L. v. State-Operated Sch. Dist., 387 N.J.
Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of
Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on
other grounds by Beauchamp, supra, 164 N.J. at 120).
Nevertheless, this "discretion is limited" because the late
claimant must show "'sufficient reasons constituting
extraordinary circumstances' for the delay and [that] there is
no 'substantial prejudice' to the public entity or employee."
Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403).
Findings about "the lack of 'substantial prejudice' and the
presence of 'extraordinary circumstances' . . . must be
expressly made in order to comply with the legislative mandate
and to justify the entry of an order permitting the filing of a
2 We note that Sea Bright does not contend that the filing of a late claim would be prejudicial to it.
7 A-4061-13T4 late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause,
306 N.J. Super. 448, 455-56 (App. Div. 1997).
The "extraordinary circumstances" requirement was not part
of the original Act, which merely required "sufficient reasons"
to warrant relief from the statutory time bar. Lowe v.
Zarghami, 158 N.J. 606, 625 (1999). The "extraordinary
circumstances" language was added by amendment in 1994, L. 1994,
c. 49, § 5, in order to "raise the bar for the filing of late
notice from a 'fairly permissive standard' to a 'more demanding'
one." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe, supra,
158 N.J. at 625). "'[T]he amendment may have signaled the end to
a rule of liberality' in filing." Ibid. (alteration in original)
(quoting Lowe, supra, 158 N.J. at 626). Notably, the 1994
amendment "'does not define what circumstances are to be
considered "extraordinary" and necessarily leaves it for a case-
by-case determination as to whether the reasons given rise to
the level of "extraordinary" on the facts presented.'" Lowe,
supra, 158 N.J. at 626 (quoting Allen, supra, 306 N.J. Super. at
455; Ohlweiler, supra, 290 N.J. Super. at 404; O'Neill v. City
of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997); Margolis
and Novack, Claims Against Public Entities, comment on N.J.S.A.
59:8-9 (1999)).
8 A-4061-13T4 In D.D., supra, 213 N.J. at 156, the Supreme Court rejected
the plaintiff's argument that "an attorney's inattention to a
file, or even ignorance of the law, equates with extraordinary
circumstances for tort claims purposes." The plaintiff, D.D.,
had argued that she repeatedly attempted to contact her attorney
regarding the status of her case, and that he had assured her he
would diligently represent her. Id. at 136-37. A closely
divided Supreme Court determined that, as a matter of
legislative intent, the attorney's failure to act in a timely
manner could not be considered an "extraordinary circumstance."3
The majority was unwilling to conclude that
inattention or even malpractice of an attorney can serve to vault the statutory threshold for relief [based on extraordinary circumstances, because to do so] would be replacing circumstances that rendered a plaintiff incapable of complying with the time frame with a standard more in the nature of inadvertence, negligence, inattentiveness or ignorance.
[Id. at 157-58.]
3 We note Beyer's suggestion that we look to Tischler v. Watts, 177 N.J. 243 (2003), for further guidance on the issue of what constitutes extraordinary circumstances. That case, however, involved extraordinary circumstances with regard to a delay in filing an affidavit of merit. Id. at 245-46. Inasmuch as the decision in D.D. was based on the Supreme Court majority's interpretation of the Legislature's intention with respect to the 1994 amendment to the Act, we decline to consider whether a different or more expansive interpretation of its use in the Act can be gleaned from the use of "extraordinary circumstances" in a different statute.
9 A-4061-13T4 The Court found that a malpractice action against D.D.'s
attorney was her only "avenue to secure a just result." Id. at
158.
The motion judge interpreted D.D. as precluding
consideration of an attorney's serious or fatal illness as "an
extraordinary circumstance," categorizing it as a form of
inattention. We are not bound by the motion judge's
interpretation of the law, Estate of Hanges v. Metropolitan
Property & Casualty Insurance Co., 202 N.J. 369, 385 (2010), and
do not agree with her reading of D.D.
An attorney's failure to act due to his or her serious
incapacity or death are not routine matters, and should not be
equated with mere inattention. In addition, we note that,
although the D.D. majority determined that a malpractice action
against the claimant's unresponsive attorney was D.D.'s only
means to "secure a just result," D.D., supra, 213 N.J. at 158,
the motion judge suggested that Kuhn was not guilty of
malpractice, as a consequence of which that remedy might not be
available to Beyer.
On the present record, we cannot conclude that Beyer's
failure to file a timely notice of claim was simply something in
"the nature of inadvertence, negligence, inattentiveness or
ignorance." On its face, Kuhn's illness and related incapacity
10 A-4061-13T4 appear to represent an extraordinary situation, and one which
requires further exploration and consideration by the motion
judge prior to her exercise of discretion under N.J.S.A. 59:8-9.
Consequently, we reverse the orders on appeal and remand to the
Law Division for a plenary hearing to determine the facts
surrounding Beyer's failure to file a timely notice of claim and
the extent to which it was the result of Kuhn's grave illness,
as opposed to the type of "inadvertence, negligence,
inattentiveness or ignorance" that was of concern to the Supreme
Court majority in D.D.
Reversed and remanded.
11 A-4061-13T4