NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1996-24
RAMON A. PENN JIMENEZ, as Administratrix ad Prosequendum for the ESTATE OF MATILDE JIMENEZ PENN,
Plaintiff-Respondent,
v.
ROBERT WOOD JOHNSON BARNABAS HEALTH, JERSEY CITY MEDICAL CENTER, JERSEY CITY MEDICAL CENTER VASCULAR CENTER, PA, SIMA SUHAS PENDHARKAR, M.D., and MARIA J. GLODEK SOLLECITO, R.N.,
Defendants,
and
JOE T. HUANG, M.D., EVAN KESSLER, M.D., and ELIZABETH GORMAN, M.D.,
Defendants-Appellants. Submitted January 8, 2026 – Decided February 2, 2026
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1548-24.
Buckley Theroux Kline & Cooley, LLC, attorneys for appellants (Tess J. Kline and Charles C. Loughery, on the briefs).
Christopher T. Howell, attorney for respondent.
PER CURIAM
Defendants Joe T. Huang, M.D., Evan Kessler, M.D., and Elizabeth
Gorman, M.D. (defendant physicians) appeal from the trial court's January 17,
2025 order denying their motion to dismiss plaintiff Ramon A. Penn Jimenez's1
complaint for failure to serve a timely notice of claim as required under the New
Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. We reverse.
I.
On April 27, 2022, decedent underwent surgery, performed by defendant
physicians, at Jersey City Medical Center (JCMC). During the procedure, a fire
broke out near the operating table igniting the drapes covering decedent,
1 Plaintiff is named as the administratrix ad prosequendum for the estate of Matilde Jimenez Penn (decedent). A-1996-24 2 resulting in her sustaining burn injuries. Decedent subsequently died in May
2023, which plaintiff alleges was caused by defendant physicians' negligence.
On May 10, 2022, plaintiff's counsel served a notice of claim, pursuant to
N.J.S.A. 59:8-7, on JCMC.2 Plaintiff was not in possession of decedent's
medical records from JCMC when he served the notice of claim. JCMC
provided decedent's medical records to plaintiff on May 31, 2022.
Over the next two years, plaintiff's counsel communicated with JCMC and
its third-party administrator, VCM, LLC, which did not disclose defendant
physicians were employed by Rutgers. Counsel's efforts to obtain Dr. Huang's
insurance information were also unsuccessful.
Plaintiff filed a complaint on April 23, 2024, alleging several causes of
action, including medical malpractice. Dr. Kessler filed an answer on July 2,
2024, and Drs. Huang and Gorman answered on August 15, 2024. Dr. Kessler
asserted the following affirmative defenses:
[] Defendant was an employee of the State of New Jersey during the time period in question—specifically, [d]efendant was employed by Rutgers, The State University of New Jersey on April 27, 2022.
[] Plaintiff has failed to comply with the notice requirements of the [TCA] (N.J.S.A. 59:1-1 to [:]12-3).
2 No notice was served on Rutgers or defendant physicians. A-1996-24 3 [] Plaintiff's claims are barred by the [TCA,] N.J.S.A. 59:1-1 to [:]12-3.
Drs. Huang and Gorman advanced the same defenses in their answer.
Moreover, on August 15, defense counsel forwarded correspondence to
the court—and copied plaintiff's counsel—advising, "[d]efendants are insured
through a program of self-insurance governed by the State of New Jersey
[TCA]." The correspondence included a certification from the assistant director
of healthcare risk and claims management at Rutgers "to clarify [d]efendants'
employment status at the time of the negligence alleged" in this case. The
assistant director certified, "[a]t the time of the negligence asserted in the
[c]omplaint," defendant physicians were employed by "Rutgers New Jersey
Medical School." The certification further noted Dr. Huang was an associate
professor of surgery, and Drs. Kessler and Gorman were surgery fellows.
Defense counsel certified that on August 22, 2024, and again on
September 10 and September 12, plaintiff's counsel spoke with defense counsel
on the phone. The certifications assert plaintiff's counsel reached out because
he saw defendants' answers indicating defendants were employed by Rutgers.
Defense counsel further noted plaintiff's counsel was advised of defendants'
employment with Rutgers. Plaintiff's counsel was also advised decedent's
A-1996-24 4 medical records reflected Dr. Huang was affiliated with Rutgers, and defendants
would not waive the TCA's notice requirements.
On November 14, 2024, defendant physicians moved to dismiss plaintiff's
complaint for "failure to serve a [n]otice of [t]ort [c]laim pursuant to N.J.S.A.
59:8-8(a)." Plaintiff opposed the motion, arguing he "substantially complied"
with the TCA's notice requirement. In the alternative, plaintiff asserted
decedent's medical records did not clearly indicate defendant physicians were
employees of Rutgers. He further contended defendants' answers were
insufficient to put him on notice they were employed by Rutgers while operating
on decedent in April 2022. Plaintiff also argued the court should grant
permission to file a late tort claims notice. He maintained it was not until
November 13, 2024, when Dr. Huang answered interrogatories, that it was
clarified the capacity in which defendant physicians were employed while
operating on decedent. Plaintiff did not serve a notice of claim on defense
counsel until the day of oral argument—January 17, 2025.
On January 17, 2025, the motion judge issued an order denying defendant
physicians' motion to dismiss, stating:
Pursuant to Galik v. Clara Maass Medical Center, 167 N.J. 341, 353 (2001), the [c]ourt finds that [p]laintiff substantially complied with the New Jersey [TCA] notice [requirement] pursuant to N.J.S.A. 59:8-8.
A-1996-24 5 Plaintiff served a [t]ort [c]laims [n]otice o[n] [JCMC] on May 13, 2022[,] at which point the doctors were on notice of the suit. A reasonable, timely[,] and statutorily compliant notice was sent to JCMC where [defendant] doctors Huang, Kessler, and Gorman were working as agents of the hospital but, unknown to plaintiff at the time, were employed through Rutgers. Plaintiff had no reason to suspect that her doctors were even associated with a public entity while treating at a private hospital. Plaintiff followed the procedures necessary to claim medical malpractice against [a] physician at JCMC in ordinary circumstances. At no time within the one-year notice of late claim statutory period did JCMC advise plaintiff of the [defendant] doctors['] correct employment status, despite their duty to do so.
[(Citation reformatted).]
II.
Defendant physicians argue on appeal the trial court erred in finding
plaintiff substantially complied with the TCA's notice requirement. They assert
the accrual date of plaintiff's claim was April 27, 2022, or alternatively, July 2
and August 14, 2024, when defendants' answers were filed, and plaintiff's failure
to file a timely notice of claim warranted dismissal of the complaint with
prejudice.
We review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). For
mixed questions of law and fact, we give deference to the court's supported
A-1996-24 6 factual findings, but review de novo the court's application of any legal rules to
such factual findings. State v. Pierre, 223 N.J. 560, 577 (2015). "[Q]uestions
of fact as to when a cause of action is deemed to accrue for purposes of applying
a statute of limitations are ordinarily resolved by a judge . . . ." Berlen v. Consol.
Rail Corp., 291 N.J. Super. 542, 555 (App. Div. 1996) (citing Lopez v. Swyer,
62 N.J. 267, 272 (1973)). As we have explained, "[w]hether a cause of action
is barred by a statute of limitations is a question of law, also reviewed de novo."
Catena v. Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016) (citing Est. of
Hainthaler v. Zurich Com. Ins., 387 N.J. Super. 318, 325 (App. Div. 2006)); see
also Save Camden Pub. Schs. v. Camden City Bd. of Educ., 454 N.J. Super. 478,
487-88 (App. Div. 2018). Moreover, "we review de novo . . . whether the
doctrine of substantial compliance applies to preserve [a plaintiff's] claim[]."
H.C. Equities, LP v. Cnty. of Union, 247 N.J. 366, 381 (2021).
Defendant physicians assert the trial court erred in finding plaintiff
substantially complied with the requirements of the TCA because plaintiff had
"actual knowledge of [defendants'] status as . . . public . . . employees" prior to
or on August 15, 2024. They also contend plaintiff had the ability "to determine
[defendants'] public employee status through a bare modicum of diligence when
[decedent's] medical records were received [by plaintiff] on May 31, 2022."
A-1996-24 7 Furthermore, defendants insist "the trial court ignored every event that occurred
after the [c]omplaint was filed, any of which, individually, would have been
sufficient to unequivocally place [p]laintiff on notice of the need to serve a
[TCA] notice." They maintain "[t]he mere filing of a [c]omplaint does not
constitute substantial compliance with Title 59 notice requirements," and
"failure by a plaintiff to serve a [n]otice of [c]laim within ninety days of accrual
ordinarily results in that plaintiff being 'forever barred' from bringing a
particular action against a public entity." See Guzman v. City of Perth Amboy,
214 N.J. Super. 167, 171-72 (App. Div. 1986).
Defendant physicians maintain any alleged wrongful act took place on
April 27, 2022, the date of the fire in the operating room, and thus, "[t]he ninety -
day period for [p]laintiff's [n]otice of [c]laim ran [out] on July 26, 2022."
Additionally, they assert, "[e]ven assuming that [p]laintiff would be afforded
permission to file a [l]ate [n]otice based on a sufficient showing of good cause
and extraordinary circumstances, [p]laintiff would still be required to file a [l]ate
[n]otice within one year of the accrual date," which would have been April 27,
2023.
Alternatively, defendant physicians contend that even if the court finds
plaintiff was not on notice of defendants' status as public employees until July
A-1996-24 8 2, 2024, when Dr. Kessler answered the complaint, or August 15, 2024, when
Drs. Huang and Gorman served their answers, plaintiff was still required to
provide a notice of claim to defendants by September 30, 2024 and November
13, 2024, respectively. However, plaintiff's notice of claim was not filed until
January 17, 2025.
Defendant physicians acknowledge, under traditional equitable principles,
"the ninety-day period within which the injured party must file a notice of claim
against a public entity is . . . delayed until the injured party learns of the injury
or of the third party's responsibility for that injury." Ben Elazar v. Macrietta
Cleaners, Inc., 230 N.J. 123, 135 (2017); see also McDade v. Siazon, 208 N.J.
463, 475 (2011). They also concede when a claimant is injured by a third party
and does not know or has no reason to know a public entity is responsible for
that injury, "the discovery rule applies to toll the accrual date for triggering the
notice-of-claim requirement." Ben Elazar, 230 N.J. at 140.
Defendant physicians assert plaintiff had "actual notice" of their
employment status as public employees "from the very outset of this case," as
their employment with Rutgers was "clearly set forth in the medical records at
issue." At the latest, plaintiff had notice when defendants' answers to plaintiff's
complaint were served in July and August 2024. Moreover, they contend
A-1996-24 9 plaintiff failed to seek leave to file a late notice of claim as permitted by N.J.S.A.
59:8-9.
"The New Jersey [TCA], N.J.S.A. 59:1-1 to :12-3, is the statutory
mechanism through which our Legislature effected a waiver of sovereign
immunity." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013).
"The guiding principle of the [TCA] is that 'immunity from tort liability is the
general rule and liability is the exception . . . .'" Coyne v. State, Dep't of Transp.,
182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J.
282, 286 (1998)). "Among the most important limitations that the Act imposes
on would-be claimants are . . . the statutory provisions that govern a claimant's
obligation to file a notice of tort claim as a prerequisite to initiating litigation."
D.D., 213 N.J. at 134.
Under N.J.S.A. 59:8-8,
[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 [ninetie]th day after accrual of the cause of action. . . . The claimant shall be forever barred from recovering against a public entity or public employee if:
a. The 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 . . . .
A-1996-24 10 N.J.S.A. 59:8-9, in pertinent part, provides:
A claimant who fails to file [a] notice of [their] claim within [ninety] days . . . 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 [their] 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 [their] failure to file notice of claim within the period of time prescribed by section 59:8-8 . . . .
"Ascertaining the timeliness of a [TCA] notice requires a . . . three-step
sequential analysis . . . ." McNellis-Wallace v. Hoffman, 464 N.J. Super. 409,
416 (App. Div. 2020) (citing Beauchamp v. Amedio, 164 N.J. 111, 118 (2000)).
"The first step is to determine when the cause of action accrued in accordance
with N.J.S.A. 59:8-1." Ibid. "Once the date of accrual is ascertained, one can
proceed to the second step, which 'is to determine whether a notice of claim was
filed within ninety days' as required by N.J.S.A. 59:8-8." Ibid. (quoting
Beauchamp, 164 N.J. at 118). "'If not, the third task is to decide whether
extraordinary circumstances exist justifying a late notice' under N.J.S.A. 59:8-
9." Ibid. (quoting Beauchamp, 164 N.J. at 118-19). In addition to extraordinary
circumstances, there must also be a showing that the public entity is not
A-1996-24 11 "substantially prejudiced" by the late notice. McDade, 208 N.J. at 477 (quoting
N.J.S.A. 59:8-9).
Our focus here relates to the first step—when the cause of action accrued
in accordance with N.J.S.A. 59:8-1. "The discovery rule is part and parcel of
such an inquiry because it can toll the date of accrual." McNellis-Wallace, 464
N.J. Super. at 416. In general, the discovery rule tolls the accrual of a cause of
action if the plaintiff "reasonably is unaware either that [they] ha[ve] been
injured, or that the injury is due to the fault or neglect of an identifiable
individual or entity." Caravaggio v. D'Agostini, 166 N.J. 237, 245 (2001)
(quoting Abboud v. Viscomi, 111 N.J. 56, 62 (1988)). Our Supreme Court has
also determined a sub-category of "knowledge of fault" cases exist "in which a
plaintiff knows [they] ha[ve] been injured and knows the injury was the fault of
another, but does not know that an additional party was also responsible for
[their] plight." Ben Elazar, 230 N.J. at 139. In other words, "[w]hen a plaintiff
is injured by a third party and has no reason to believe that another party,
specifically a public entity, is responsible for the injury, then the discovery rule
applies to toll the accrual date for triggering the notice-of-claim requirement."
Id. at 140.
A-1996-24 12 Plaintiff relies on Eagan v. Boyarsky, 158 N.J. 632 (1999), and Lowe v.
Zarghami, 158 N.J. 606 (1999), for the proposition that defendant physicians are
barred from invoking the protection of the TCA because decedent was not
properly advised of their employment status during her treatment. To avoid
confusion concerning physicians' status as public employees, the Court issued
the following directive in both Lowe and Eagan:
[Public medical schools] must require clinical professors employed by them to advise their patients, both orally and in writing, that they are employees of [public medical schools]. Such notice should be given to a patient as soon as practicable. It also would be helpful if clinical professors wore badges identifying themselves as [public medical school] employees. Those steps, if taken together with this holding that clinical professors are [public medical school] employees, should make patients aware that their physicians are public employees entitled to notice under the TCA.
[Eagan, 158 N.J. at 643; see also Lowe, 158 N.J. at 631.]
Although there is a notation in the records Dr. Huang was a professor of
medicine at Rutgers, there is no indication he advised decedent "both orally and
in writing" of his employment status. Similarly, there is insufficient evidence
in the record to have put decedent on notice of the employment status of Drs.
Kessler and Gorman. Dr. Huang's consultation note references "NJMS Vascular
A-1996-24 13 Surgery Consultation" but nothing more. These notations in the medical records
were insufficient to have placed decedent on notice of defendant physicians'
employment status. Moreover, after JCMC was served with a notice of claim,
it did not advise plaintiff's counsel defendant physicians were employed by
Rutgers.
Accordingly, plaintiff did not know defendants' public employment status
prior to filing his complaint and therefore, was not required at that juncture to
serve Rutgers or defendant physicians with a notice of claim. However, that
does not end our inquiry. We must next address whether plaintiff was
subsequently placed on notice regarding defendant physicians' employment
status after plaintiff filed his complaint and whether the trial court properly
determined plaintiff substantially complied with the notice provisions of the
TCA.
To prevent technical defects from barring legitimate claims, courts have
applied the equitable doctrine of "substantial compliance." See D.D., 213 N.J.
at 159-60; Lebron v. Sanchez, 407 N.J. Super. 204, 214-15 (App. Div. 2009).
"[S]ubstantial compliance means that the notice has been given in a way, which
though technically defective, substantially satisfies the purposes for which
notices of claims are required." Lebron, 407 N.J. Super. at 216 (quoting Lameiro
A-1996-24 14 v. W. N.Y. Bd. of Educ., 136 N.J. Super. 585, 588 (Law Div. 1975)). Substantial
compliance is an equitable doctrine used "to avoid the harsh consequences that
flow from technically inadequate actions that nonetheless meet a statute's
underlying purpose." Galik, 167 N.J. at 352. Parties seeking to apply the
substantial-compliance doctrine must demonstrate they took "a series of steps
. . . to comply with the statute involved," id. at 353 (quoting Bernstein v. Bd. of
Trs. of the Tchrs.' Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (App.
Div. 1977)), and "those steps achieved the statute's purpose, as for example,
providing notice," Cnty. of Hudson v. State, Dep't of Corr., 208 N.J. 1, 22
(2011). Substantial compliance applies only if the other party is not prejudiced
and there is "a reasonable explanation why there was not a strict compliance
with the statute." Galik, 167 N.J. at 353; see also Bernstein, 151 N.J. Super. at
77.
Application of the substantial-compliance doctrine in the tort-claims
context "has been limited carefully to those situations in which the notice,
although both timely and in writing, had technical deficiencies that did not
deprive the public entity of the effective notice contemplated by the statute."
D.D., 213 N.J. at 159; see, e.g., Lebron, 407 N.J. Super. at 217-19 (holding
notice that did not expressly assert a negligent-supervision theory of liability
A-1996-24 15 nevertheless substantially complied with the notice requirement of the TCA
given that it identified the plaintiff and her attorney, described and identified the
date of the incident, listed the injuries of the plaintiff, and demanded damages);
Henderson v. Herman, 373 N.J. Super. 625, 633 (App. Div. 2004) (finding notice
of claim against police dispatch and emergency transport personnel substantially
complied even though the plaintiff failed to include names of specific
dispatchers).
Here, plaintiff's claims arise from the alleged negligence of defendant
physicians who were employed by Rutgers, which was never served with a
notice of claim. Although plaintiff could be excused for not initially filing a
notice of claim on Rutgers because he was not on notice of defendant physicians'
employment status, plaintiff was put on notice after defendant physicians
answered his complaint, thereby triggering the statutory ninety-day notice
period. However, plaintiff failed to file a notice of claim during this period and
did not move to file a late notice. Despite being on notice since, at the latest,
August 2024, plaintiff took no steps to ensure the correct entity, Rutgers, was
served with a notice of claim, even though at that point, he knew of defendant
physicians' affiliation with Rutgers. Plaintiff also failed to remedy the improper
service upon JCMC, which is not a public agency.
A-1996-24 16 Even accepting the identity of defendant physicians' employer was unclear
from the medical records, that issue was clarified upon the filing of defendants'
answers, coupled with the certification from Rutgers' assistant director of
healthcare risk and claims management. Nevertheless, plaintiff failed to take
appropriate action at that juncture to serve a notice of claim on Rutgers. Plaintiff
also provides no reasonable explanation as to why he did not move to file a late
notice of claim upon learning of defendant physicians' employment status.
Relying on Lowe, plaintiff contends because defendant physicians did not
initially advise decedent about their employment status, they are now precluded
from relying on the TCA's notice defense. Lowe involved the applicability of
the TCA and its notice requirement for a doctor employed by the University of
Medicine and Dentistry of New Jersey (UMDNJ), a public entity, who treated
the plaintiff at a private hospital. 158 N.J. at 610. In reviewing the record, the
Court found "no evidence supporting the conclusion that [the plaintiff] knew
[the defendant doctor] was a UMDNJ employee." Id. at 629-30. The
"unanticipated revelation" that the doctor was a public employee was sufficient
to support a finding of extraordinary circumstances. Id. at 630.
However, in Lowe, the doctor's motion to dismiss provided the plaintiff
with her first knowledge of the doctor's employment status. See id. at 613. Here,
A-1996-24 17 however, notice was provided in defendants' answers and the certification of
Rutgers' assistant director of claims management. We deem this distinction
important because, as one commentator has observed:
The 1994 amendment of [N.J.S.A. 59:8-9] established the requirement that a late notice of claim be filed within a reasonable time. This makes clear that having sufficient reasons for not filing within the [ninety]-day period of [N.J.S.A.] 59:8-8 does not create an absolute right to wait until the end of the one[-]year period to seek leave to file a late notice. Rather, leave to file must be sought within a reasonable time after the abatement of whatever conditions created sufficient reasons for late filing in the first place. See, e.g., Wood v. Cnty. of Burlington, 302 N.J. Super. 371, 380 (App. Div. 1997) (unexplained nine-month delay in filing motion for leave to file late notice contributed to denial of motion, brought at the end of the one-year period, for leave to file a late notice).
[Margolis & Novack, Title 59: Claims Against Public Entities, cmt. on N.J.S.A. 59:8-9, at 277 (2025) (citations reformatted).]
Because plaintiff had actual knowledge of defendant physicians'
employment status upon the filing of their answers, he was obligated at that time
to move to file a late notice. However, he took no action until he responded to
defendants' motion to dismiss. Plaintiff failed to offer any explanation for the
delay other than to contend at oral argument that serving a notice of claim earlier
would "undermine" his substantial compliance argument. We are unpersuaded
A-1996-24 18 by this argument. Unlike in Lowe, the interim period here, before defendants
sought dismissal, afforded plaintiff an opportunity to remedy the prior defective
notice served on JCMC.
Defendant physicians asserted in their answers plaintiff failed to comply
with the TCA's notice provisions. Once plaintiff was provided with defendants'
answers, or the certification of the assistant director of healthcare risk and claims
management, he was vested with notice of defendants' employment status. At
that juncture, he could not idly sit by and rely on the original notice of claim
that was served on a private hospital. Plaintiff originally recognized the need to
file a notice of claim but never took steps to serve the proper entity, even after
being provided with sufficient information regarding defendants' employment
status. Therefore, plaintiff failed to demonstrate he generally complied with the
purpose of the statute or that he took a series of steps to comply with the TCA
when he was clearly advised of defendants' employment status. Accordingly,
we conclude the trial court erred in finding plaintiff substantially complied with
the TCA.
For these reasons, we reverse and remand with the direction the trial court
enter an order dismissing defendant physicians with prejudice. We do not retain
jurisdiction.
A-1996-24 19