Brian Beyer v. Sea Bright Borough and Sea Bright Police Department , 440 N.J. Super. 424 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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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.
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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.
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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.
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