Feltvnowski v. Kaufman,2018 N.J. Super. Unpub. LEXIS 1538

By Michael Zerres

Plaintiff Feltynowski appealed from a Law Division Order granting defendant Kaufman M.D.’s motion for Summary Judgment and dismissing her Complaint with prejudice for her failure to timely serve a Notice of Claim pursuant to the New Jersey Tort Claims Act (TCA), and, a denial of her application to file a late notice based upon extraordinary circumstances. On appeal plaintiff argued that the Trial Judge should have denied defendant’s Summary Judgment motion because she established that her obligation to file a TCA notice was vitiated as she was not advised by him orally and in written form that he was a State employee when he evaluated and treated her. The Appellate Division concluded that upon being served with defendant’s answer, plaintiffs cause of action accrued and she was required to file a TCA notice within ninety days. Despite being afforded ample opportunity to conduct discovery, plaintiff never filed a TCA notice.

The Appellate Division held that filing a Complaint alone is not sufficient. Therefore, the Appellate Division held that the Judge conectly concluded that the “entire question of [w]hether fdefendant] was a State employee was ultimately resolved” and that “the oomplaint is nol no[iue under the holding in Guzman v. Perth Amboy, 214 N.J. Super. 167 (App. Div. 1986).” Furthennore, the plaintiff did not move within the maximum one-year period to extend the time to serve a TCA notice on the basis of extraordinary circumstances. N.J.S.A. 59:8-9. See a/so laconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294 (App. Div. 1989) (holding that “the trial court had no iurisdiction to extend the filing period beyond the one-year outer limit”). Her request to file alate TCA notice failed because a timely motion was never made and the Court simply cannot perrnit sarne. Therefore, the Appellate Division affirmed the Order granting defendant’s motion for Summary Judgment dismissing the Complaint with prejudice, and, the denial of plaintiffs request to file alate TCA notice.