                                NOT FOR PUBLICATION WITHOUT THE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-1945-18T4

HICCSON GOMEZ,

          Plaintiff-Respondent,

v.

TIMOTHY J. KENNEDY, M.D.,
RUTGERS, THE STATE
UNIVERSITY OF N.J., RUTGERS,
and THE CANCER INSTITUTE
OF N.J.,

          Defendants-Appellants,

and

RWJ-MG, THE CANCER
INSTITUTE OF N.J.,

     Defendant.
________________________________

                    Argued September 18, 2019 – Decided October 8, 2019

                    Before Judges Fuentes, Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-5837-17.
            Russell J. Malta argued the cause for appellants
            (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak,
            attorneys; Paul F. Schaaff, of counsel; Russell J. Malta,
            on the brief).

            Kendall S. Murphy argued the cause for respondent.

PER CURIAM

      In this medical malpractice cause of action, defendants Timothy J.

Kennedy, M.D.; Rutgers, The State University of N.J.; Rutgers, and The Cancer

Institute of N.J. appeal from the order of the Law Division that denies their

motion to dismiss plaintiff Hiccson Gomez's complaint for his failure to file the

notice of claim required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to

59:13-10, in a timely fashion. Defendants also appeal from the order that grants

plaintiff's cross-motion to file the required notice of claim more than one year

after he filed his complaint in the action. We reverse. We derive the following

facts from the certifications submitted by the parties in support of their

respective motions.

      Plaintiff was diagnosed with colon cancer in 2009. He initially had

laparoscopic surgery and was declared in remission for a period of five years.

When the cancer returned in 2014, he consulted with other physicians who

suggested he receive interventional radiation and a surgically placed "colostomy

bag . . . on the left side of [his] body." Plaintiff consulted with Dr. Timothy

                                                                         A-1945-18T4
                                       2
Kennedy, a staff physician and Associate Professor of Surgery in the

Gastrointestinal Oncology Program at Rutgers, the Cancer Institute, a

Department of Rutgers – The State University of New Jersey. On October 5,

2015, Dr. Kennedy surgically removed plaintiff's colostomy bag. Plaintiff's

surgery and post-operative visits with Dr. Kennedy all took place in the Cancer

Institute that was connected by a bridge to the University Hospital complex.1

All of Dr. Kennedy's post-operative appointments with plaintiff occurred in the

Rutgers Cancer Institute building.

        Plaintiff alleges that three months after the surgery, he noticed "a rush of

air, like flatulence, whenever [he] attempted to urinate." When this problem

persisted, he consulted his oncologist, whom, in turn, referred him to other

physicians. According to plaintiff, these physicians told him he had a fistula,

which was caused by the "technical mistake" of his colon being stapled to his

bladder. Plaintiff does not identify the exact date these doctors revealed to him

this astonishing medical error. However, he made the following admission in

his certification in support of his motion to file an untimely TCA notice in this

case:


1
  As part of his appendix, plaintiff included a photograph that depicts the bridge
of the medical complex with the name: "Robert Johnson University Hospital and
Rutgers Cancer Institute of New Jersey."
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                                          3
            I did not have a desire to commence a lawsuit, and was
            willing to deal with the noise when urinating to avoid
            any additional struggles. It wasn’t until mid-to-late
            2016 that I even realized that Dr. Kennedy made a
            mistake.

      Plaintiff retained the attorney who represents him in this case on May 5,

2017. Counsel filed the complaint alleging medical malpractice five months

later, on October 3, 2017. The complaint named as defendants Dr. Kennedy,

Rutgers, the State University of New Jersey, Rutgers, the Cancer Institute of

New Jersey, and RWJ-MG, the Cancer Institute of New Jersey. He filed an

amended complaint two days later on October 5, 2017.        Plaintiff's complaint

laid dormant until April 20, 2018, when the Middlesex Vicinage Civil Division

Manager administratively dismissed the complaint without prejudice for lack of

prosecution pursuant to Rule 1:13-7.

      Plaintiff's counsel finally served defendants with process on July 19, 2018,

and the trial court restored the complaint to the active trial calendar on August

3, 2018. On September 19, 2018, defendants moved to dismiss the complaint

based on plaintiff's failure to serve a timely TCA notice of claim, as required

under N.J.S.A. 59:8-8, which provides, in relevant part:

            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
            90th day after accrual of the cause of action. After the

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                                        4
            expiration of six months from the date notice of claim
            is received, the claimant may file suit in an appropriate
            court of law. 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 90 days of accrual of the claim except as
            otherwise provided in [N.J.S.A.] 59:8-9; or

            b. Two years have elapsed since the accrual of the
            claim; or

            c. The claimant or the claimant’s authorized
            representative entered into a settlement agreement with
            respect to the claim.

            [(Ibid. (emphasis added)).]

       On October 18, 2018, plaintiff filed a cross-motion seeking leave of court

to serve defendants with an untimely TCA tort claims notice. Plaintiff's motion

was predicated on the relief available under N.J.S.A. 59:8-9, which provides:

            A claimant who fails to file notice of his claim within
            90 days as provided in [N.J.S.A.] 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 59:8-8

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                                          5
              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)).]

      As a threshold issue, the motion judge mistakenly analyzed defendants'

motion to dismiss under the standard codified by Rule 4:6-2(e). This erroneous

approach caused the judge to disregard the public policy underpinning the TCA.

The Legislature adopted the TCA to "reestablish the immunity of public entities

while coherently ameliorating the harsh results of the doctrine." Beauchamp v.

Amedio, 164 N.J. 111, 115 (2000). Thus, "[n]o action shall be brought against

a public entity or public employee under this act unless the claim upon which it

is based shall have been presented in accordance with the procedure set forth in

this chapter." N.J.S.A. 59:8-3. Stated differently, "in balancing the liability and

immunity provisions of the TCA, 'immunity is the rule and liability is the

exception.'" Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2003)

(quoting Posey ex rel. Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 181-

82 (2002)).     The immunity provisions of the TCA also extend to public

employees. Lowe v. Zarghami, 158 NJ 606, 615 (1999).



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                                            6
      The trial court must apply "a sequential analysis" in determining whether

a late notice of claim is appropriate. Beauchamp, 164 N.J. at 118. "The first

task is always to determine when the claim accrued." Id. The accrual date occurs

when plaintiff knows he is injured and that a public entity caused the injury. Id.

at 119. For example in Lowe, 158 N.J. at 611, although plaintiff's surgery took

place on September 26, 1994, she did not become aware of any medical

malpractice until August 1995 after a follow-up appointment with another

doctor. The Court determined that the August 1995 date was the date of accrual

even though plaintiff was not aware that defendant was a public employee at the

time. Id. at 625; but see Beauchamp, 164 N.J. at 119 (holding that the date of

accrual was the date of the car accident between the plaintiff and an NJ transit

bus because plaintiff was immediately aware of her injuries and that a public

employee was responsible.).

      The date of accrual is a critical and often dispositive factor in this analysis

because:

            [A] judge is powerless under the statute to exercise any
            discretion or to act after a period of one year has
            elapsed from the date on which the cause of action
            accrued, where the application to the court by motion
            for permission to file a late notice of claim has not been
            made within the year.



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                                         7
            [(Fuller v. Rutgers, State University, 154 N.J. Super.
            420, 423 (App. Div. 1977)).]

      Here, plaintiff averred in his certification that he was aware of his right to

sue in "mid-to-late 2016." In order to permit the court to determine the accrual

date, plaintiff must use more precise language to identify the date when he

learned the cause of his medical condition. His medical records would easily

and reliably provide more precise information about the date he was informed

that his colon and bladder had been stapled together as a consequence of a

"technical mistake." Given plaintiff's ambiguous phraseology, a reasonable

reading or interpretation of "mid-to-late 2016" allows this court to conclude

plaintiff's cause of action accrued between June 2016 and December 2016.

      Assuming plaintiff's accrual date is December 31, 2016, pursuant to

N.J.S.A. 59:8-8, plaintiff was required to serve defendants with a proper TCA

notice of claim by March 30, 2017. Plaintiff did not file his complaint with the

court until October 3, 2017, and did not serve defendants with process until July

19, 2018. Finally, plaintiff did not file his cross-motion for leave to serve

defendants with a late notice of claim until October 18, 2018. As the Supreme

Court made clear in D.D. v. Univ. of Med. & Dentistry of N.J., "neither

inattention nor incompetence of counsel meets the extraordinary circumstances

test devised by the Legislature." 213 N.J. 130, 135 (2013). The uncontested

                                                                            A-1945-18T4
                                         8
chronology of events we have described here does not give plaintiff any grounds

to support a finding of "extraordinary circumstances." There is no legal or

factual basis that entitles plaintiff to any relief under N.J.S.A. 59:8-9.

      Reversed.




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