                 NOT FOR PUBLICATION WITHOUT THE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




                                                  2                                       A-4061-13T4
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




                                        4                            A-4061-13T4
              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.




                                         5                              A-4061-13T4
    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.



                                           7                                         A-4061-13T4
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.



                                   9                              A-4061-13T4
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.




                                      11                               A-4061-13T4
