SEIBY UGAZ v. COUNTY OF HUDSON (L-0895-21, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 21, 2022
• Docket: A-2671-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2671-20

SEIBY UGAZ,

Plaintiff-Respondent,

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-0895-21.

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 respondent (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

Plaintiff was employed as a corrections officer at the Hudson County

Correctional Facility when he was diagnosed with COVID-19 on March 25,

2020. He was hospitalized for ten days and released on April 4, 2020. He

advised hospital staff he had been indirectly exposed at work to a person who

later tested positive for COVID-19.

Plaintiff filed a notice of tort claim required under N.J.S.A. 59:8-8 on

December 31, 2020 and moved for leave to file a late notice in March 2021. The

trial court granted the motion. Because we conclude plaintiff did not present

extraordinary circumstances to warrant the late filing of a tort claim notice, we

reverse.

In plaintiff's certification accompanying the motion for leave to file a late

claim notice, he stated he retained counsel in May 2020 to pursue workers'

compensation benefits. He further advised he continued to have "after-effects"

of the illness, "including lung damage and diminished oxygen levels." Plaintiff

stated he learned in December 2020 that the family of another corrections officer

was pursuing litigation against the county related to his death from COVID-19

A-2671-20 2 and it was then that he "had any basis to reasonably believe that [his] illness was

potentially due to the fault of another." 1

In a written decision granting plaintiff leave to file a late claim, the trial

court stated: "The [c]ourt accepts [p]laintiff's certification, together with the

ongoing public health crisis, to find that [the] statutory threshold for permittance

of late notice of claim here is met." The court granted plaintiff's motion on April

27, 2021.

On appeal, defendants assert the court abused its discretion in finding

extraordinary circumstances existed to permit plaintiff 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

1 Plaintiff is referring to Bernard Waddell. Plaintiff's attorney instituted identical suits on behalf of Ugaz, Waddell, a corrections officer, and Edwin Montanano, a nurse employed by a private company at the facility. This court issued opinions in each of those cases on this date. See Waddell v. Cnty. of Hudson, No. A-2661-20; Montanano v. Cnty. of Hudson, No. A-2667-20. A-2671-20 3 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.

Although it is not clear, the trial court seemed to find plaintiff's cause of

action accrued on March 25, 2020—the date he was diagnosed with COVID-19.

See Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 298 (App. Div. 1989)

(stating the accrual of a cause of action is the date of injury). Plaintiff did not

appeal from the court's finding and does not dispute before this court the accrual

date or that the tort claims notice was filed well after the ninety-day period.

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

A-2671-20 4 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

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

A-2671-20 5 medical condition of a plaintiff, who contracted a 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,

plaintiff has not presented any facts to demonstrate a situation so "severe,

debilitating, or uncommon" to prevent him from contacting an attorney and

pursuing a claim. D.D., 213 N.J. at 150. To the contrary, because plaintiff was

aware he contracted COVID-19 while working, he retained counsel in May 2020

to procure workers' compensation benefits.

As plaintiff informed hospital staff, he knew he was exposed to COVID-

19 while working for the County. Although he states he was initially unaware

defendants had any legal liability for his illness, our Supreme Court has rejected

knowledge of fault as an excuse for a late tort claim notice filing. See Savage

v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J. 241, 248 (1993).

Although we recognize 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. Plaintiff's

conduct in the ninety days following his COVID-19 diagnosis confirms he could

have contacted an attorney, as he did when pursuing workers' compensation

A-2671-20 6 benefits. 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

plaintiff cannot demonstrate extraordinary circumstances existed for the

untimely filing of the tort claims notice—281 days after his COVID-19

diagnosis, we are constrained to reverse the April 27, 2021 order.

Reversed.

A-2671-20 7