SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5953-17T1

NANCY DANCH,

Plaintiff-Respondent,

v.

BOROUGH OF FIELDSBORO, 

Defendant-Appellant,

and

WHITE HILL MANSION 

and THE FRIENDS OF 

WHITE HILL MANSION,

Defendants.

_____________________________

Submitted September 9, 2019 – Decided

Before Judges Fasciale, Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Docket No. L-0855-18.

Parker McCay, PA, attorneys for appellant (John C. 

Gillespie and Sarah E. Tornetta, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

September 17, 2019
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Levy Baldante & Finney, PC, attorneys for respondent 

(Kyle J. Keller, on the brief).

PER CURIAM 

Plaintiff Nancy Danch injured herself on property owned by defendant 

Borough of Fieldsboro. On July 26, 2018, Judge John E. Harrington entered an 

order, which granted plaintiff's motion to file a late notice under the Tort Claims 

Act (TCA), N.J.S.A. 59:1-1 to 12-3. Defendant appeals from that order arguing 

that the judge abused his discretion. On appeal, defendant maintains that 

plaintiff did not substantially comply with the notice requirements under the 

TCA and failed to demonstrate extraordinary circumstances. We disagree and 

affirm substantially for the reasons given by the judge in his comprehensive 

written opinion. 

On October 21, 2017, plaintiff tripped near a platform located in 

defendant's historic property known as the White Hill Mansion (the property). 

Plaintiff had been volunteering that day and interacting with co-defendant, The 

Friends of White Hill Mansion (The Friends).1 The Friends worked to restore 

and preserve the property. 

 

1 The court previously dismissed plaintiff's complaint against The Friends for 

failure to prosecute.
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I.

We begin with defendant's substantial compliance contention. Plaintiff 

had ninety days, or by December 21, 2017, to file her claim under the TCA. See

N.J.S.A. 59:8-8(a) (imposing the deadline for filing the notice). The judge 

correctly found that plaintiff had substantially complied with N.J.S.A. 59:8-4, 

entitled "Contents of claim," which provides that a claim under the TCA shall 

include:

a. The name and post office address of the claimant;

b. The post-office address to which the person 

presenting the claim desires notices to be sent;

c. The date, place and other circumstances of the 

occurrence or transaction which gave rise to the claim 

asserted;

d. A general description of the injury, damage or loss 

incurred so far as it may be known at the time of 

presentation of the claim;

e. The name or names of the public entity, employee 

or employees causing the injury, damage or loss, if 

known; and

f. The amount claimed as of the date of presentation 

of the claim, including the estimated amount of any 

prospective injury, damage, or loss, insofar as it may be 

known at the time of the presentation of the claim, 

together with the basis of computation of the amount 

claimed. 
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In his written opinion dated July 24, 2018, the judge made specific 

findings to support his conclusion that plaintiff substantially complied with the 

notice requirements under the TCA. In part, the judge stated:

[W]ithin nine (9) days of the subject incident, 

[President] Loretta Kelly of [The Friends] informed 

Patricia Hansell, Clerk of [defendant] via email of an 

incident that occurred at [the property] . . . . Ms. Kelly 

wrote [to Ms. Hansell] "the wom[an] . . . who fell at 

[the property] [is] Nancy Danch[,] [and Ms. Kelly 

provided plaintiff's address]. It doesn't look like she's 

pursuing anything, not yet." In addition to this, the 

email is titled "Pictures," which can reasonably be 

inferred that Ms. Kelly previously emailed Ms. Hansell

pictures of either the area where [plaintiff] fell and/or 

[plaintiff's] injuries. 

Furthermore, by October 22, 2017, the day after 

the subject incident, [Ms.] Kelly knew that [p]laintiff 

was hurt and hoped that she was "not too badly hurt." 

By October 28, 2017, seven (7) days after the subject 

incident, [Ms.] Kelly knew that [p]laintiff underwent 

jaw surgery for her facial fractures. Presu[mably], this 

information relating to [p]laintiff's injuries was 

ultimately relayed to Ms. Hansell before [the] email of 

October 30, 2017 between Ms. Kelly and Ms. Hansell. 

. . . Finally, and most persuasive[ly] . . . as of October 

30, 2017, just nine (9) days after the subject incident, 

[defendant] was undoubtedly notified of the name and 

address of [p]laintiff, the date of the incident, the 

location of the incident, the entity causing her injury, 

and possibly, [was] provided with photographs 

evidencing the incident and/or injuries sustained by 

[p]laintiff. 
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Thus, there is substantial credible evidence that well within ninety days of when 

the accident occurred, defendant had actual knowledge of the incident, including 

plaintiff's name and address, the date of the trip and fall, the location of the fall, 

photographs of the area of the fall and/or injuries, and a general description of 

the injury. 

As to the amount of the claim, on December 30, 2017, plaintiff wrote Ms. 

Kelly (who had been in communication with Ms. Hansell about the details of 

the incident) requesting reimbursement for her medical expenses not paid by 

plaintiff's insurance. But by that time (and within ninety days of the accident),

the full extent of the damages was unknown to plaintiff. That amount was yet 

to be calculated.

The notice requirements of the TCA are "not intended as 'a trap for the 

unwary.'" Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009)

(quoting Lowe v. Zarghami, 158 N.J. 606, 629 (1999)). The Supreme Court has 

recognized that the TCA notice requirements are "more properly denominated

as a notice of injury or loss." Beauchamp v. Amedio, 164 N.J. 111, 121 (2000). 

Therefore, "substantial rather than strict compliance with the notice 

requirements of the [TCA] may satisfactorily meet the statute's mandates." 

Lebron, 407 N.J. Super. at 215. The doctrine of substantial compliance is an 
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alternative to the extraordinary circumstances requirement and can serve to 

relieve a claimant, like plaintiff, of the TCA's notice requirements. See D.D. v. 

Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 149, 159 (2013). It is an 

equitable doctrine that is utilized

"to avoid the harsh consequences that flow from 

technically inadequate actions that nonetheless meet a 

statute's underlying purpose." Thus, the doctrine 

operates "to prevent barring legitimate claims due to 

technical defects." In general, it rests on a 

demonstration that a party took "a series of steps . . . to 

comply with the statute involved," and those steps 

achieved the statute's purpose, as for example, 

providing notice. Even so, the doctrine can only apply 

if there is no prejudice to the other party and if there is 

"a reasonable explanation why there was not strict 

compliance with the statute."

[Cty. of Hudson v. State, Dep't of Corr., 208 N.J. 1, 21-

22 (2011) (alteration in original) (citations omitted).]

On this record, and recognizing that there exists no prejudice whatsoever to 

defendant, we conclude that the judge did not abuse his discretion by invoking 

this equitable doctrine.2

 

2 Although not determinative, plaintiff's counsel points out in his merits brief 

that defendant never provided plaintiff with a claims form, and along those lines, 

implies that defendant did not produce such a form because no such form exists 

on defendant's website or elsewhere. 
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II.

Even if plaintiff failed to comply substantially with the notice 

requirements of the TCA, which is not the case, plaintiff demonstrated 

extraordinary circumstances warranting the late filing of the claims notice under 

N.J.S.A. 59:8-9. 

 The law governing the filing of a late notice of claim under the TCA is 

settled. N.J.S.A. 59:8-9, entitled "Notice of late claim," controls such filings 

and provides: 

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 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. 

This statute "commits the authority to grant a plaintiff's motion for leave to file 

late notice to the sound discretion of the trial court, and [its decision] will be 
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sustained on appeal in the absence of a showing of an abuse thereof." D.D., 213 

N.J. at 147 (internal quotation marks and citation omitted). 

"Courts faced with applications for leave to file a late notice of claim, 

therefore, must proceed with their evaluation mindful of the Legislature's 

direction that the proofs demonstrate circumstances that are not merely 

sufficient, but that they instead be extraordinary." Id. at 149. "[I]n engaging in 

the analysis of extraordinary circumstances, the court's focus must be directed 

to the evidence that relates to plaintiff's circumstances as they were during the 

ninety-day time period[.]" Id. at 151. Although the statute does not define the 

term extraordinary circumstances, "the meaning to be ascribed to that term has 

been developed on a case-by-case basis." Rogers v. Cape May Cty. Office of 

Pub. Def., 208 N.J. 414, 428 (2011).

In enacting N.J.S.A. 59:8-9, "the Legislature recognized that discretionary 

judicial relief from the ninety-day [TCA] requirement may be necessary to 

ameliorate the consequence of a late filing in appropriate cases." McDade v. 

Siazon, 208 N.J. 463, 476 (2011). "Although the ordinary 'abuse of discretion'

standard defies precise definition, it arises when a decision is 'made without a 

rational explanation, inexplicably departed from established policies, or rested 

on an impermissible basis,'" Moraes v. Wesler, 439 N.J. Super. 375, 378 (App. 
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Div. 2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)), 

or when "the discretionary act was not premised upon consideration of all 

relevant factors, was based upon consideration of irrelevant or inappropriate 

factors, or amounts to a clear error in judgment." Ibid. (quoting Masone v. 

Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). 

When a claimant has filed a motion for leave to file a late notice, as is

pertinent to our case, there must "be a showing of 'sufficient reasons constituting 

extraordinary circumstances' for the claimant's failure to timely file, and second,

that the public entity not be 'substantially prejudiced' thereby." McDade, 208 

N.J. at 477 (quoting N.J.S.A. 59:8-9). Here, there is no credible showing of 

substantial prejudice. We focus, instead, on the sufficiency of the reasons for 

the purported late filing. Of course, we do so fully understanding that there was 

no need to file the motion because plaintiff substantially complied with the 

notice provision of the TCA.

During the ninety days, and thereafter, plaintiff believed her verbal and 

written communications with Ms. Kelly constituted filing her TCA notice. From 

the day after the accident to the end of the ninety days, Ms. Kelly interacted with 

plaintiff not only as the president of The Friends, but also as someone who 

operated out of defendant's municipal building. Indeed, at the relevant 
10 A-5953-17T1

timeframe, the CEO of The Friends was defendant's mayor. And as Ms. Hansell 

admits, defendant had actual knowledge of the details of the trip and fall on the 

property. 

After the ninety days, Ms. Kelly continued responding as if an authorized 

representative of defendant. On January 1, 2018, Ms. Kelly responded to 

plaintiff's December 30, 2017 email inquiry asking if defendant would 

reimburse her for the outstanding medical expenses. Ms. Kelly's response – "I'll 

have to check. How much are your expenses?" – reinforced the fact that 

defendant had been informed about plaintiff's claim. On January 6, 2018, 

plaintiff replied to Ms. Kelly:

I am waiting for my oral surgeon's bill as this surgery 

was covered under my medical [insurance] and they 

sent it to my insurance company with [an] incorrect 

diagnos[is] code. The other expenses (minus surgery) 

to date amount to approximately $230. I will let you 

know as soon as I receive the surgery bill.

After a follow-up email from plaintiff on February 5, 2018, Ms. Kelly, for the 

first time, informed plaintiff to call defendant's clerk. Ms. Kelly, who had 

communicated with the clerk about the claim, explained "the last time I talked 

to [the clerk] she said you would have to file a lawsuit [and] since you waited 

so long to see a doctor[,] they probably won't cover any medical expenses." That

same day, plaintiff replied:
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The fall happened on 10/21 and I went to the medical 

express the next morning, 10/22, and was sent to 

Capital Health ER for a CT scan and x-rays of my 

injuries. I then followed up with my primary care, 

orthopedic, and oral surgeons immediately that next 

week and had [the] necessary tests completed. I had my 

jaw surgery Thursday, 10/26, four days after [the] fall.

In her affidavit, plaintiff certified that she called Ms. Hansell immediately and 

that, at that time, Ms. Hansell "never advised me that [defendant] did not have 

notice of my claim." On March 26, 2018, for the first time, defendant notified 

plaintiff that her claim was untimely under the TCA. On that day, plaintiff 

contacted counsel, who then made the motion four weeks later leading to the 

order under review.

We are convinced, as was Judge Harrington, that – even if there was no 

substantial compliance – plaintiff demonstrated sufficient reasons for the late 

filing of her notice under the TCA. In the judge's written opinion, the judge

made multiple additional findings along those lines, which the record credibly 

supports, stating:

[T]he May 23, 2018 Certification of Ms. Hansell 

provides evidence that both Ms. Hansell and 

[defendant] [were] on notice of [p]laintiff's claim prior 

to the expiration of the ninety (90) days required by [the 

TCA]. . . . In addition to this, [d]efendant attached [to 

its papers] a "New Jersey Business Gateway Search" 

for [The Friends] [which] reveals that Ms. Kelly . . . 

utilizes [defendant's] building . . . as her own 
12 A-5953-17T1

"agent/service" address. Hence, despite arguing that 

Ms. Kelly is not an "employee, agent . . . or otherwise 

authorized to act on behalf of [defendant]," it is clear 

she is authorized to use [defendant's] Municipal 

Building as her own address for purposes of service and 

for use by [The Friends]. 

. . . . 

Plaintiff honestly believed that she was, all along, filing 

a claim through her various communications with Ms. 

Kelly of [The Friends and defendant]. This is supported 

by the fact that [defendant's] clerk . . . admits to having 

actual knowledge of the incident involving the 

[p]laintiff, as well as [p]laintiff's personal information 

within nine (9) days of the incident, and the fact [that] 

Ms. Kelly's office (and [The Friends]) utilizes the 

mailing address of [defendant's] Municipal Building[.] 

Affirmed.