SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Edan Ben Elazar v. Macrietta Cleaners, Inc. (078079)(A-11-16)

Argued April 24, 2017 – Decided July 26, 2017

LaVECCHIA, J., writing for the Court. 

In this appeal involving the notice provision of the Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, the 

Court considers whether accrual of plaintiffs’ claim against the public-entity defendant should have been tolled in 

accordance the discovery rule. Specifically, the Court considers how discovery-rule principles apply to establish the 

accrual date of a claim, where circumstances did not appear to implicate a third-party public-entity defendant.

Swan Custom Cleaners was a dry cleaning establishment in the Township of Cranford (Township). In 

February 1946, the Township’s inspector of buildings authorized the dry cleaner to install three underground fuel oil 

and solvent storage tanks on the Township-owned property behind the cleaners. In 1985, Macrietta Realty

purchased Swan and, with related parties (collectively, Macrietta), operated the business for more than twenty years. 

In 1988, plaintiffs Edan and Edna Ben Elazar opened an electronics repair business next door to the dry 

cleaner. Plaintiffs noticed that a chemical odor emanated from the dry cleaning business but did not question it. 

Since the 1990s, both plaintiffs have experienced medical problems.

In 1998, Macrietta’s underground storage tanks were removed, and soil tests revealed contamination. 

Macrietta notified the New Jersey Department of Environmental Protection (NJDEP), which notified the Township 

of the contamination. Since then, environmental remediation at the site has been an ongoing effort. On January 14, 

2011, Macrietta’s environmental consultant sent a letter to the Township’s health department, advising that there 

was an immediate environmental concern at plaintiffs’ property. Plaintiffs received a copy of this letter. 

On March 11, 2011, the consultant wrote a letter to plaintiffs, explaining that high levels of contaminants 

discovered on plaintiffs’ property created a health risk, and detailing some of the remedial efforts that Macrietta had 

undertaken since discovering the contamination. Attached to the letter was a map, which indicated the parameters of 

property that would need to be excavated to remediate environmental damage from the contamination. The 

excavated property included Macrietta’s property and part of the Township’s property. The map did not indicate the 

original location of the removed tanks, but rather depicted the extent of the affected soil to be removed.

On January 12, 2012, Edan Ben Elazar’s treating pulmonologist concluded that his illness may be a result 

of exposure to environmental contaminants. Plaintiffs retained counsel in March 2012, and counsel promptly 

requested documents from the NJDEP under the Open Public Records Act. The documents that the NJDEP 

provided on July 3, 2012 showed that the tanks had been located on the Township’s property. Plaintiffs’ counsel 

filed a notice of claim with the Township on September 11, 2012.

Plaintiffs commenced this action on September 18, 2012, and amended the complaint in September 2013 to 

add the Township as a defendant. The trial court granted the Township’s motion for summary judgment. The court 

found that plaintiffs’ cause of action accrued, at the latest, by March 11, 2011, and that plaintiffs’ notice of claim 

was untimely under the TCA because it was served beyond the ninety-day period prescribed by N.J.S.A. 59:8-8. 

The Appellate Division affirmed, and the Court granted plaintiffs’ motion for leave to appeal. 228 N.J. 88 (2016).

HELD: When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a 

public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim 

requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on 

the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim 

against the public entity was diligently pursued and notice of claim was timely filed.
2

1. Under the TCA, a plaintiff must file a notice of claim with the public entity within ninety days of the accrual of 

the cause of action. Failure to do so bars the tort claim against the public entity, absent extraordinary circumstances. 

Before determining whether a claimant has timely filed within the ninety-day period, a court must determine the 

date on which the claim accrued. (pp. 11-12) 

2. In general, a claim accrues on the date on which the underlying tortious act occurred. Whether the discovery rule 

applies depends on whether the facts presented would alert a reasonable person, exercising ordinary diligence, that 

he or she was injured due to the fault of another. When a plaintiff knows he has suffered an injury but does not 

know that it is attributable to the fault of another, the discovery rule tolls the date of accrual as to that unknown 

responsible party. And, when a plaintiff knows her injury is the fault of another, but is reasonably unaware that a 

third party may also be responsible, the accrual clock does not begin ticking against the third party until the plaintiff 

has evidence that reveals his or her possible complicity. In the setting of the Tort Claims Act, the discovery rule 

applies to the notice requirement as well: when the discovery rule tolls the accrual date, the ninety-day period 

within which the injured party must file a notice of claim against a public entity is likewise delayed until the injured 

party learns of the injury or of the third party’s responsibility for that injury. (pp. 12-14)

3. In this case, the trial and appellate courts relied on the two letters the environmental consultant sent in early 2011

to conclude that plaintiffs should have been on notice to seek other responsible parties, and should have found the 

Township’s involvement in time to file a notice of claim. The Court disagrees that the record compels that 

conclusion. Nothing about those communications would have alerted an objectively reasonable person to believe 

that the contaminants were coming from any source other than Macrietta’s establishment. The map that 

accompanied the March letter and that showed the planned remediation does not reveal where the underground tanks 

were stored. An objectively reasonable person could believe that the Township was simply another victim of the 

leaking contaminants. It was Macrietta that notified plaintiffs and others—including the Township and the 

NJDEP—of the leak, and Macrietta that took steps to address its responsibility for the contaminated soil and other 

properties affected by the vapors of the leaked materials. The evidence demonstrating that the Township authorized 

the dry cleaner to place tanks on public property came later through discovery when the Township located and 

turned over the 1946 memorandum to file stating same. Before the NJDEP released documents in July 2012, this 

record contained nothing to suggest that a public actor was responsible. (pp. 15-17)

4. Although two decisions of the Court previously dealt with the discovery rule in the context of the accrual of a 

claim against a public entity, neither addressed circumstances in which plaintiffs learned that they had been injured 

by another—a private party that had taken steps to assume responsibility for the problem caused by its negligence—

but nothing indicated involvement of a public entity. Other cases stand for the proposition that when a plaintiff 

knows of an injury, and that it is the fault of another, but is reasonably unaware that a third party may also be 

responsible, the time period for accrual of a claim against the third party is tolled until the plaintiff has evidence that 

reveals his or her possible complicity. That is the case here. The notice-of-tort-claim requirement does not 

eliminate normal application of the discovery rule. (pp. 17-22)

5. Plaintiffs have presented facts demonstrating that Edan did not connect his health issues to Macrietta’s 

environmental contaminants until his doctor made that connection for him. That assertion is accepted as true for 

purposes of summary judgment. Further, plaintiffs’ counsel set out communications with the NJDEP, which show 

diligent pursuit of evidence that finally revealed that the tanks were on Township property. The notice of claim was 

timely filed after that point in time, and the amendment to the complaint was timely. (pp. 22-24). 

6. In the absence of a hearing under Lopez v. Swyer, 62 N.J. 267 (1973), the Court declines to make findings on the 

issues presented and remands for a hearing. The significance formerly placed on the letters from defendants’ 

environmental consultant should be re-examined based on the information that these documents conveyed. (p. 24) 

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court 

for further proceedings consistent with the Court’s opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, and SOLOMON, join in 

JUSTICE LaVECCHIA’s opinion. JUSTICES PATTERSON and SOLOMON did not participate. 
1

SUPREME COURT OF NEW JERSEY

A-11 September Term 2016

078079

EDAN BEN ELAZAR and

EDNA BEN ELAZAR,

Plaintiffs-Appellants,

v.

MACRIETTA CLEANERS, INC.,

d/b/a SWAN CUSTOM CLEANERS 

and d/b/a COIT SERVICES, 

MACRIETTA REALTY, CO., COIT 

SERVICES OF CENTRAL NEW 

JERSEY INC., ESTATE OF MAX 

STAUBER, HENRIETTA STAUBER, 

ALAN W. STAUBER, NORMAN A. 

SOBIN, STEVEN D. LASKER, 

ESTATE OF WILLIAM B. ROCKER, 

LYNN SCHONBRAUN and CAROL 

RUBIN as personal 

representatives of the ESTATE 

OF JOAN ROCKER NEWMAN, SWAN 

CLEANERS AND DYERS, INC., 

CAROLYNN LAUNDRY, INC., 

TOWNSHIP OF CRANFORD, a New 

Jersey municipal corporation,

and John and Jane Does 1-100.

Defendants-Respondents.

Argued April 24, 2017 – Decided July 26, 2017

On appeal from the Superior Court, Appellate 

Division.

Stuart J. Lieberman argued the cause for 

appellants (Lieberman & Blecher, attorneys;

Stuart J. Lieberman of counsel and on the 

brief, and Michael G. Sinkevich, on the 

brief).
2

Elizabeth A. Kenny argued the cause for 

respondent Township of Cranford (McElroy 

Deutsch Mulvaney & Carpenter, attorneys; 

Robert P. Donovan, of counsel and on the 

brief, and Elizabeth A. Kenny on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This case involves a tort claim against a municipality that 

was dismissed for failure to comply with the Tort Claims Act 

requirement that a public-entity defendant be served with a

notice of claim “not later than the 90th day after accrual of 

the cause of action.” N.J.S.A. 59:8-8. At issue is whether 

accrual of plaintiffs’ claim against the public-entity defendant 

should have been tolled in accordance with the discovery rule. 

In determining when a cause of action accrues for purposes 

of that notice requirement, common law principles governing 

accrual of a tort claim apply. Under traditional equitable 

principles of our discovery rule, the date of the accrual of a 

claim -- ordinarily, the date of the injury -- may be tolled 

when plaintiffs lack knowledge of fault of a third party. The 

accrual date of a claim may also be tolled when plaintiffs, 

knowing that one third party is liable, do not know that their 

injury is also the responsibility of an additional party. In 

this instance, we consider how discovery-rule principles apply 

to establish the accrual date of a claim, where circumstances 
3

did not appear to implicate a third-party public-entity 

defendant.

Plaintiffs maintain that this matter was prematurely 

dismissed without proper accounting for the fact that a private 

party had taken responsibility for the tort and without proper 

consideration of how, in these circumstances, that action 

affects the accrual of plaintiffs’ claims against the public 

entity. We agree with plaintiffs that it was error for summary 

judgment to have been granted to the public-entity defendant 

based on the record presented, because plaintiffs put forward a

reasonable basis to support a determination that the claim 

against the public entity was diligently pursued and notice of 

claim was timely filed. However, because a Lopez1 hearing was

never held, we decline to make findings and instead remand to 

permit the trial court to conduct a Lopez proceeding as directed 

in this opinion.

I.

A.

On September 18, 2012, plaintiffs Edan and Edna Ben Elazar

commenced an action in tort for personal injuries as well as 

property damages. The action was filed against private parties. 

The bodily injury claims filed by both husband and wife were

 

1 Lopez v. Swyer, 62 N.J. 267 (1973).
4

premised on a theory that they were exposed to airborne

contamination while working indoors at their electronics repair 

business on property adjacent to a dry cleaner. 

Importantly, for purposes of this appeal, on September 11, 

2012, plaintiffs’ counsel served the Township of Cranford 

(Township) with a notice of claim under the Tort Claims Act, 

dated September 4, 2012; and, one year later, on September 4,

2013, plaintiffs amended their complaint to add the Township as 

a defendant on their claims for personal injuries. 

The Township filed a motion for summary judgment to dismiss 

on the basis of failure to submit a timely notice of claim under 

N.J.S.A. 59:8-8. We glean the following facts from the summary 

judgment record, which includes depositions and documentary 

evidence produced in discovery conducted thus far. The facts 

are presented in the light most favorable to plaintiffs, who 

opposed entry of summary judgment.

B.

The events that give rise to plaintiffs’ claims relate to 

activities associated with the dry cleaner that operated next 

door to plaintiffs’ business.

Swan Custom Cleaners was a dry cleaning establishment 

located in the Township. The dry cleaner fronts on a street,

and there is Township-owned property behind it. In February 

1946, the Township’s inspector of buildings authorized the dry 
5

cleaner to install three underground fuel oil and solvent 

storage tanks on the Township’s property. The authorization is 

not a recorded document. A copy of the inspector’s memorandum 

to file was produced in discovery. Importantly, the underground 

tanks stored tetrachloroethylene (also known as 

percholoroethylene or PCE), a chemical used in the dry cleaning 

process. In 1985, Macrietta Realty (Macrietta)2 purchased Swan 

Custom Cleaners and operated the dry cleaning business for more 

than twenty years. 

In 1988, plaintiffs opened their electronics repair 

business on property next door to the dry cleaner. Plaintiffs 

noticed that a chemical odor emanated from the dry cleaning 

business but did not question it. Since the 1990s, both 

plaintiffs have experienced medical problems: Edan and Edna 

have chronic asthma and bronchitis, and Edna has a chronic blood 

disorder.

In 1998, Macrietta’s underground storage tanks were 

removed, and soil tests at the time revealed contamination in 

the area surrounding the tanks. Macrietta notified the New 

Jersey Department of Environmental Protection (NJDEP), and the 

NJDEP notified the Township of the contamination. Since then, 

 

2 We will refer to Macrietta Realty and its related defendants, 

both individual and corporate, collectively as Macrietta.
6

environmental remediation at the site has been an ongoing 

effort. The dry cleaner ceased operations in 2008.

In 2010, as part of the environmental-remediation process, 

Macrietta retained Viridian Environmental Consultants 

(Viridian). Viridian sampled the air quality in properties 

surrounding the dry cleaner, including plaintiffs’ electronics 

store. When the samples revealed high levels of 

tetrachloroethene, air sampling continued into 2011. 

On January 13, 2011, Viridian installed at the electronics 

store an ultraviolet unit designed to eliminate contaminants. 

The next day, January 14, Viridian sent a letter to the 

Township’s health department, advising the Township that there 

was an immediate environmental concern at plaintiffs’ property 

because of the detected levels of contaminants. Plaintiffs 

received a copy of this letter. 

On March 11, 2011, Viridian wrote a letter addressed to 

plaintiffs, explaining that high levels of contaminants 

discovered on plaintiffs’ property created a health risk. The 

letter also detailed some of the remedial efforts that Macrietta 

had undertaken since discovering the contamination. Attached to 

the letter was a map, which indicated the parameters of property 

that would need to be excavated to remediate environmental 

damage from the contamination. The excavated property included 

Macrietta’s property and part of the Township’s property. The 
7

map did not indicate the original location of the removed tanks,

but rather depicted the extent of the affected soil to be 

removed. Plaintiffs, who are immigrants from Iran and Israel, 

do not read English; their son, who is proficient in English, 

read the letters to them. 

On January 12, 2012, Edan visited his pulmonologist 

complaining of a worsening cough. He told his doctor that 

chemical odors had permeated his shop for years. And, he 

explained that Viridian had recently conducted tests that 

reported high levels of air contamination inside his business’s 

building. The doctor told Edan that he believed there was a

connection between Edan’s asthma and the contaminants that 

Viridian reported. When deposed, Edan stated that, before his 

consultation with his doctor, he did not know that the chemical 

odors he smelled were connected to his health problems. Edan 

sought a second opinion and, after that doctor agreed that a 

connection could exist between the chemical contamination and 

plaintiffs’ medical conditions, in March 2012, plaintiffs 

retained counsel. 

Plaintiffs’ lawyer promptly filed a request under the Open 

Public Records Act, N.J.S.A. 47:1A-1 to -13, with the NJDEP 

seeking “[a]ny and all documents relating to the PCE 

contamination at the [Swan Cleaner’s] site,” including 

information about “testing, notices of violation, remediation, 
8

[cleanup], third party impact, correspondence between 

governmental entities and property owners, correspondence 

between governmental entities and third parties regarding said 

cleanup, and any other reports detailing the cleanup of this 

site.” On July 3, 2012, the NJDEP responded to the request by 

releasing documents that revealed that the dry cleaner’s leaking

underground storage tanks containing PCE had been located on the 

Township’s property. Contaminated soil was identified on both 

the Township’s and the dry cleaner’s property.

As noted, on September 4, 2012, plaintiffs executed a 

notice of claim that was served on the Township on September 11, 

2012.

On September 18, 2012, plaintiffs filed their complaint 

against Macrietta, alleging, among other claims, personal 

injuries as a result of exposure to airborne environmental 

contamination from chemicals used by the dry cleaner that

entered plaintiffs’ business quarters. Plaintiffs alleged that 

Macrietta was negligent; that the dry cleaner was a private 

nuisance; and that the chemical contamination constituted 

trespass. They sought damages for their bodily injuries and 

property damages. Within a year of filing their notice of tort 

claim, on September 4, 2013, plaintiffs amended the complaint to 

add the Township as a defendant.
9

C.

In seeking dismissal of the claim on the ground that the 

notice of claim was untimely, the Township asserted that 

plaintiffs should have been aware by January 14, 2011 -- when 

they received the first Viridian letter -- that they had a 

potential claim against the Township. Alternatively, the 

Township argued, plaintiffs knew by the second Viridian letter, 

dated March 11, 2011, that they had a potential claim against 

the Township. Because plaintiffs failed to file a notice of 

claim within ninety days of March 11, 2011, the Township 

asserted that plaintiffs’ claim against it was time-barred by 

the Tort Claims Act’s ninety-day notice requirement contained in 

N.J.S.A. 59:8-8. 

In opposition to the motion, plaintiffs argued that their 

notice of claim was timely because it was filed within ninety 

days of July 3, 2012 -- when the NJDEP released documents to 

plaintiffs that revealed that the dry cleaner’s tanks were

located on Township property. Plaintiffs argued that no 

reasonable person would expect the dry cleaner’s storage tanks 

to be housed on government property, and that plaintiffs 

therefore could not reasonably have known that the Tort Claims 

Act’s notice requirement would apply until they learned that the 

Township bore some responsibility for the contamination that 

injured plaintiffs.
10

The trial court determined that plaintiffs’ claim accrued, 

at the latest, in January 2011 when plaintiffs received the 

first Viridian letter. The court emphasized that, even if a 

layman would not have expected that the tanks were located on 

government property, the law imposes a duty to investigate the 

matter. The court identified January 2011 as the time when 

plaintiffs should have known that there was a contamination 

problem on their property; at that point, the court continued, 

plaintiffs were responsible for investigating the matter to 

determine the source of the contamination and the responsible 

parties. The court concluded that, “[h]aving failed to do that 

in a timely manner and to file their tort claims notice even 

within that year, their claim is dismissed as it relates to [the 

Township].”

Plaintiffs appealed, and the Appellate Division affirmed in 

an unpublished opinion. The panel stated that the record 

contained “no genuine issue that upon receiving Viridian’s March 

2011 letter -- if not upon receiving the January 2011 letter --

plaintiffs were aware that the indoor air pollution from the

cleaners posed a health risk to them.” The panel continued, 

stating that once plaintiffs received the letters reporting 

contamination, “it was reasonable for them to conclude not only 

that they had suffered an injury, but that a third party was at 

fault.” The court noted that “accrual does not depend on 
11

identifying the third party at fault,” and so plaintiffs’ lack 

of knowledge that the Township might be liable had no impact on 

the accrual date. Because plaintiffs failed to file within 

ninety days of the March 2011 Viridian letter, the panel held 

that their claim against the Township was barred by the Tort 

Claims Act. 

Plaintiffs filed a motion for leave to appeal with this 

Court, which we granted. 228 N.J. 88 (2016).

Before this Court, plaintiffs’ and the Township’s arguments 

are embellishments on their positions before the trial and 

appellate courts. 

II.

The Tort Claims Act, N.J.S.A. 59:8-1 to -11, establishes 

that public entities are generally immune from tort liability, 

except in certain limited circumstances. Beauchamp v. Amedio, 

164 N.J. 111, 115 (2000) (“The overall purpose of the Act was to 

reestablish the immunity of public entities while coherently 

ameliorating the harsh results of the doctrine.”). As a 

prerequisite to proceeding with a tort claim against a public 

entity, a plaintiff must file a notice of claim within ninety 

days of the accrual of the cause of action. N.J.S.A. 59:8-8. 

Under extraordinary circumstances, and accompanied by a showing 

that the public entity has not been substantially prejudiced, a 

plaintiff may file a late notice of claim within one year of the 
12

accrual of the claim. N.J.S.A. 59:8-9. However, failure to 

file within ninety days under normal conditions, or within one 

year under extraordinary circumstances, bars the claimant from 

bringing the tort claim against the public entity. N.J.S.A.

59:8-8(a).

Before determining whether a claimant has timely filed 

within the ninety-day time period, a court must determine the 

date on which the claim accrued. McDade v. Siazon, 208 N.J.

463, 475 (2011) (“The first task is always to determine when the 

claim accrued.” (quoting Beauchamp, supra, 164 N.J. at 118)). 

N.J.S.A. 59:8-1 of the Tort Claims Act governs accrual. The 

provision “does not define the date of accrual in any 

significant way, [but] the comment to that section states that 

‘[i]t is intended that the term accrual of a cause of action 

shall be defined in accordance with existing law in the private 

sector.’” Beauchamp, supra, 164 N.J. at 116 (second alteration 

in original) (footnote omitted) (quoting Harry A. Margolis & 

Robert Novack, Claims Against Public Entities, 1972 Task Force 

Comment to N.J.S.A. 59:8-1 (Gann 2000)). 

In general, our law in the private sector holds that a 

claim accrues on the date on which the underlying tortious act 

occurred. Id. at 117. However, that same common law allows for 

delay of the legally cognizable date of accrual when the victim 

is unaware of his injury or does not know that a third party is 
13

liable for the injury. Ibid. By operation of the discovery 

rule, the accrual date is tolled from the date of the tortious 

act or injury when the injured party either does not know of his 

injury or does not know that a third party is responsible for 

the injury. McDade, supra, 208 N.J. at 475; see also Ayers v. 

Jackson, 106 N.J. 557, 582 (1987) (“Few states follow New 

Jersey’s discovery rule that tolls the statute [of limitations

for personal-injury claims] until the victim discovers both the 

injury and the facts suggesting that a third party may be 

responsible.”). 

Whether the discovery rule applies depends on “whether the 

facts presented would alert a reasonable person, exercising 

ordinary diligence, that he or she was injured due to the fault 

of another.” Caravaggio v. D’Agostini, 166 N.J. 237, 246 

(2001). “The standard is basically an objective one -- whether 

plaintiff ‘knew or should have known’ of sufficient facts to 

start the statute of limitations running.” Ibid. (quoting Baird 

v. Am. Med. Optics, 155 N.J. 54, 72 (1998)). When a plaintiff 

knows he has “suffered an injury but [does] not know that it is 

attributable to the fault of another,” the discovery rule tolls 

the date of accrual as to that unknown responsible party. Ibid. 

And, when a plaintiff knows her injury “is the fault of another, 

but is reasonably unaware that a third party may also be 

responsible, the accrual clock does not begin ticking against 
14

the third party until the plaintiff has evidence that reveals 

his or her possible complicity.” Id. at 250.

In the setting of the Tort Claims Act, the discovery rule 

applies to the notice requirement as well: when the discovery 

rule tolls the accrual date, the ninety-day period within which 

the injured party must file a notice of claim against a public 

entity is likewise delayed until the injured party learns of the 

injury or of the third party’s responsibility for that injury. 

See McDade, supra, 208 N.J. at 475; see also Beauchamp, supra, 

164 N.J. at 122 (explaining that discovery rule tolls ninety-day 

notice period “[u]ntil the existence of an injury (or, knowledge 

of the fact that a third party has caused it) is ascertained”). 

Once the accrual date is established, our case law acknowledges 

the public-policy reasons for which the Tort Claims Act allows

only a short period for service of a notice of claim on the 

responsible public entity. See McDade, supra, 208 N.J. at 475-

76.

III.

We are reviewing the grant of summary judgment to the 

Township. Summary judgment is appropriate when, viewed in the 

light most favorable to the non-moving party, “the pleadings, 

depositions, answers to interrogatories and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact challenged and that the 
15

moving party is entitled to a judgment or order as a matter of 

law.” R. 4:46-2; see Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 528-29 (1995). Our review in this matter is

plenary. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (“An 

appellate court reviews an order granting summary judgment in 

accordance with the same standard as the motion judge.”). 

This appeal involves application of established principles

of the discovery rule. Agreeing with the Township’s argument, 

the trial and appellate courts relied on the two letters from 

Viridian in early 2011 -- notifying plaintiffs of environmental 

contamination that affected them and their property -- to 

conclude that plaintiffs should have been on notice to look for 

other responsible parties and should have found the Township’s 

involvement in time to file a notice of claim. We disagree that 

the record compels that conclusion and find that summary 

judgment was not appropriately entered in favor of the Township.

First, nothing about those communications would have 

alerted an objectively reasonable person to believe that the 

contaminants were coming from any source other than Macrietta’s 

establishment. The map that accompanied the March letter to 

plaintiffs and that showed the planned remediation does not 

reveal where the underground tanks were stored. The map 

revealed only that leaked contaminants required excavation of 

polluted soil on properties owned by the dry cleaner and the 
16

Township. That a leak occurred on one property and affected 

that property’s neighbors does not necessarily mean that any 

neighbor -- here, the Township -- is at fault. An objectively 

reasonable person could believe that the Township was simply 

another victim of the leaking contaminants. It was Macrietta

that notified plaintiffs and others -- including the Township 

and the NJDEP -- of the leak, and Macrietta that took steps to 

address its responsibility for the contaminated soil and other 

properties affected by the vapors of the leaked materials. We 

are not impressed by the map, which lacks the evidentiary value 

to compel the conclusion that it provided proof or raised 

suspicion that another entity was responsible.

Indeed, we note that, had plaintiffs searched recorded land 

documents seeking to learn whether the tanks were on Township 

property, their search would have come up empty. The evidence 

demonstrating that the Township authorized the dry cleaner to 

place tanks on public property came later through discovery when 

the Township located and turned over the 1946 memorandum to file 

stating same. 

The point is that plaintiffs were faulted for not being 

diligent enough in 2011 to think to look for another potentially 

liable third party and, specifically, for failing to know to do 

so within the abbreviated timeframe of the Tort Claims Act. 

Before the NJDEP released documents in July 2012, this record 
17

contained nothing to suggest that a public actor was 

responsible. The responsibility to look for other third parties

liable for Macrietta’s polluting was overblown in application 

here.

Two cases of this Court previously dealt with the discovery 

rule in the context of accrual of a claim against a public 

entity. Both involved situations in which the plaintiffs knew 

immediately that one or more public entities were involved.

In Beauchamp, supra, the plaintiff was rear-ended by a New 

Jersey Transit bus, and she suffered neck, shoulder, and back

pain, as well as headaches, as a result. 164 N.J. at 114. The 

plaintiff did not file a notice of claim within the time limits 

of the Tort Claims Act because, at first, her injuries did not 

appear serious enough to support the claim. Ibid. Later --

past the ninety-day period provided in the Tort Claims Act -- it 

became clear that the plaintiff had suffered permanent injuries. 

Id. at 115. 

Nine months after the accident, and less than two months 

after discovering that her injuries were permanent, the 

plaintiff filed a notice of claim with several government 

entities and also filed a motion to file a late notice of claim 

under N.J.S.A. 59:8-9. Ibid. The case thus involved the 

extraordinary-circumstances requirement for allowing a late 

filing of a notice of claim.
18

The trial court denied the motion, and the Appellate 

Division affirmed. Ibid. This Court reversed, but we did not 

hold that the discovery rule applied to toll the accrual date.

Id. at 123. Our holding turned on a conclusion that the 

plaintiff had established extraordinary circumstances to justify 

a late notice-of-claim filing. Ibid. The Court explained that 

the plaintiff’s accrual date was uncontested because she knew at 

the time of the car accident that she was injured; in fact, she 

consulted a doctor and a lawyer shortly after the accident. Id.

at 119. The Court rejected the argument that the discovery rule 

should toll the accrual date of the plaintiff’s claim until she 

knew her injuries were permanent, adhering instead to essential 

considerations in stating that “[t]he date of accrual of her 

cause of action was the date of the accident in which she knew 

she was injured and that a public entity was responsible.” 

Ibid. (emphasis added).

McDade, supra, also involved a tort claim against a public 

entity in which the plaintiff failed to comply with the noticeof-claim provision of the Tort Claims Act. 208 N.J. at 468. 

But again, as in Beauchamp, the plaintiff in McDade was on 

notice that public entities were involved. 

In McDade, the plaintiff tripped on a pipe that was 

protruding from a public sidewalk. Egg Harbor Township owned 

the sidewalk where the plaintiff slipped and fell, and a 
19

different entity, the Egg Harbor Township Municipal Utility 

Authority (MUA), owned the pipe. Id. at 469. The problem in 

McDade was that the plaintiff served a notice of claim within 

ninety days of the accident upon Egg Harbor Township, Atlantic 

County, and the State of New Jersey, but not the MUA. Id. at 

469-70. 

The MUA’s motion for summary judgment, claiming that the 

plaintiff’s notice of claim was untimely, was denied by the 

trial court. Id. at 469. The Appellate Division reversed, and 

this Court affirmed the Appellate Division. Id. at 481. We 

explained that the discovery rule did not apply to the claims

because the plaintiff, having experienced the accident, was

immediately aware of the injury when it occurred. Id. at 478. 

Although “not immediately aware of the true identity of the 

pipe’s owner,” the plaintiff was responsible under the discovery 

rule to exercise reasonable diligence to determine the correct 

public entity to sue. Id. at 478-79. The plaintiff in McDade, 

like the plaintiff in Beauchamp, knew immediately that public 

entities were involved, but did not look diligently enough to 

identify all public entities. The McDade opinion notes that the 

plaintiff had failed to conduct an inspection of the pipe, 

investigate its owner, or search the public record. Id. at 479. 

Thus, both Beauchamp and McDade addressed whether 

discovery-rule applications should result in tolling the accrual 
20

date for a claim against a public entity. However, neither 

application addressed circumstances in which plaintiffs learned 

that they had been injured by another -- a private party that 

had taken steps to assume responsibility for the problem caused 

by its negligence -- but nothing indicated involvement of a 

public entity. 

Our Court discussed a related problem in Caravaggio, supra, 

when considering the differences between two classes of 

plaintiffs: “those who do not know that they have been injured 

and those who know they have suffered an injury but do not know 

that it is attributable to the fault of another.” 166 N.J. at 

246. The Court determined that “‘[a] sub-category of the 

“knowledge of fault” cases is that in which a plaintiff knows 

she has been injured and knows the injury was the fault of 

another, but does not know that an additional party was also 

responsible for her plight.’” Id. at 248 (quoting Martinez v. 

Cooper Hosp. Univ. Med. Ctr., 163 N.J. 45, 54 (2000)); see also

Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43-44 

(2000) (tolling accrual of cause of action where plaintiff 

belatedly discovered that after-care physicians, in addition to 

other defendants, were at fault for plaintiffs’ injuries);

Mancuso v. Neckles, 163 N.J. 26, 36-37 (2000) (holding that 

where plaintiff brought claim against surgeon but was reasonably 

unaware of responsibility of radiologist, discovery rule could 
21

toll malpractice claim against radiologist); Savage v. Old 

Bridge-Sayreville Med. Group, P.A., 134 N.J. 241, 250 (1993) 

(remanding for Lopez hearing where plaintiff knew of injury and 

of one likely cause, but not that her physician was also 

liable).

Thus, in Caravaggio, supra, we reiterated:

Martinez, Savage, Gallagher and Mancuso

reaffirm the basic principle that where a 

plaintiff knows of an injury and that the 

injury is due to the fault of another, he or 

she has a duty to act. However, those cases 

also stand for the proposition that when a 

plaintiff knows of an injury, and knows that 

it is the fault of another, but is reasonably 

unaware that a third party may also be 

responsible, the accrual clock does not begin 

ticking against the third party until the 

plaintiff has evidence that reveals his or her 

possible complicity.

[166 N.J. at 249-50.]

That is the case here. This case involves the application 

of the discovery rule in a context where nothing suggested that 

a public entity bore any responsibility for plaintiffs’ 

injuries. The notice-of-tort-claim requirement does not 

eliminate normal application of the discovery rule. When a 

plaintiff is injured by a third party and has no reason to 

believe that another party, specifically a public entity, is 

responsible for the injury, then the discovery rule applies to 

toll the accrual date for triggering the notice-of-claim 

requirement. The discovery rule should be applied with 
22

reasonableness as to whether a diligent plaintiff would have or 

should have realized that a public entity was involved at all.3

Turning more specifically to the facts as they appear in 

this summary judgment record, plaintiffs have asserted that not 

until their receipt of documents from the NJDEP on July 3, 2012 

did they learn that the tanks that leaked and caused the 

contamination were actually located on Township property. The 

Township does not point to any earlier document revealing that 

information. 

Plaintiffs have presented facts demonstrating that Edan did 

not connect his health issues to the inhalation of odors from 

Macrietta’s environmental contaminants until his doctor made 

that connection for him. We accept that assertion as true for 

purposes of summary judgment. Further, plaintiffs’ counsel has 

painstakingly set out the back-and-forth communications with the 

NJDEP, which reflect the exact course of events from plaintiffs’ 

 

3 To similar effect, our Court applied the extraordinarycircumstances extension for filing a notice of claim in Lowe v. 

Zarghami, 158 N.J. 606 (1999). We found that the plaintiff 

faced extraordinary circumstances because there was no evidence 

that she knew or should have suspected that her doctor was 

associated with a public entity. Id. at 629-30. Although we 

determined that the plaintiff’s claim accrued in 1995 when she 

discovered that her medical problems could be associated with 

the metal clip inside her body and sought to pursue all medical 

personnel involved, we concluded that her motion to file a late 

notice of claim within one year of the injury’s accrual should 

allow her claim against the public entity to proceed. Id. at 

613, 625. 
23

OPRA request to the NJDEP’s release of the documents to counsel 

on July 3, 2012.4 Those communications show diligent pursuit of 

evidence that finally revealed that the tanks were on Township 

property. The notice of claim was timely filed after that point 

in time, and the amendment to the complaint was timely,

following from the notice of claim that was filed with the 

Township.

In sum, we are convinced on this record, as it exists thus 

far, that the Viridian letters from 2011 do not demonstrate that 

plaintiffs either knew or should have known that a public 

defendant might have been responsible for their injuries, 

triggering the exceedingly short time granted for presentation 

 

4 The record reveals the following sequence of events. On March 

16, 2012, plaintiffs filed an OPRA request with the NJDEP, 

seeking “[a]ny and all documents relating to the PCE 

contamination at the [Swan Cleaner’s] site.” On March 22, 2012, 

the NJDEP responded that it had located responsive documents and 

indicated that retrieving the documents would require a service 

fee for extraordinary effort and time. Plaintiffs paid the fee. 

On April 17, 2012, the NJDEP notified plaintiffs that copying 

the documents would take fifteen to twenty business days. On 

May 7, 2012, plaintiffs received an invoice for the cost of 

copying the requested documents, which plaintiffs paid. 

Thereafter, plaintiffs received “Community Right to Know” forms 

identifying substances maintained at the dry cleaner. On June 

8, 2012, plaintiffs followed up with the NJDEP, asking why no 

documents were released relating to the active environmental 

remediation at the site. On June 22, 2012, the NJDEP indicated 

that it found additional responsive documents. Again, 

plaintiffs received an invoice for copying fees, which 

plaintiffs paid on July 3, 2012. Plaintiffs then received 

documents that revealed that the Township had “allowed the 

installation of underground storage tanks on Township property 

contiguous to the dry cleaner property.” 
24

of the notice of claim required by the Tort Claims Act. We 

glean no evident lack of diligence here in failing to earlier 

detect the Township’s responsibility for its role in allowing 

the tanks that leaked to be on its property. 

That said, there has not been a Lopez hearing in this 

matter and, therefore, we hesitate to make findings that ought 

to be made in the first instance by the trial court after the 

opportunity for a hearing on the subject as opposed to a mere 

summary judgment record. A remand for such a hearing is 

required. However, in that hearing, the significance formerly 

placed on the Viridian letters should be reexamined in light of 

our observations of the quality and quantity of information 

those documents conveyed.

IV.

The judgment of the Appellate Division is reversed, and the 

matter is remanded to the trial court for further proceedings 

consistent with this opinion. 

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, 

and SOLOMON, join in JUSTICE LaVECCHIA’s opinion. JUSTICES 

PATTERSON and SOLOMON did not participate.