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

• Court: New Jersey Superior Court Appellate Division
• Decided: October 6, 2017
• Docket: A-0035-16T4
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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