SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0620-22 

ESTATE OF KEOTEPIE KHIEV, 

ESTATE OF REACHSIEH KHIEV,1 

ESTATE OF REACHTHON 

KHIEV, and MICHELLE KHIEV, 

Plaintiffs-Respondents, 

v.

SOUTH JERSEY 

TRANSPORTATION AUTHORITY, 

Defendant-Appellant. 

_________________________________

Submitted December 11, 2023 – Decided February 14, 2024 

Before Judges Gilson and Berdote Byrne. 

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Docket No. L-1523-22.

Florio Perrucci Steinhardt Cappelli Tipton & Taylor, 

LLC, attorneys for appellant (Nicholas A. Sullivan and 

Wade Lawrence Dickey, of counsel and on the briefs). 

1

 Estate of Reachsieh Khiev improperly pled as Estate of Reachthsieh Khiev. 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0620-22

Friedman & Levin Associates and Charles Matthew 

Gibbs (McMonagle, Perri, McHugh, Mischak & 

Davis), attorneys for respondents (Charles Matthew 

Gibbs and Jason David Javie, on the brief). 

PER CURIAM 

 On December 26, 2021, four members of a family were involved in a onevehicle accident at a toll plaza on the Atlantic City Expressway. Three of the 

family members were killed, and the fourth member, a twelve-year-old girl, was 

severely injured. The estates of the decedents and guardian of the survivor 

moved to file a late tort-claims notice against the South Jersey Transportation 

Authority (defendant or the SJT Authority). Plaintiffs argued that their claims 

did not accrue until they received the video of the accident. Alternatively, they 

contended that extraordinary circumstances and a lack of prejudice to the public 

entity justified the late notice. The trial court agreed and allowed the notice to 

be served. 

 Defendant now appeals from the order granting plaintiffs leave to file a 

late tort-claims notice under the Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 

59:12-3. Discerning no abuse of discretion in the trial court's decision, we 

affirm. 
3 A-0620-22

I.

 On December 26, 2021, decedents Keotepie Khiev, Reachsieh Khiev, and 

Reachthon Khiev, and plaintiff Michelle Khiev (collectively, plaintiffs) were in 

a car that crashed at Egg Harbor Toll Plaza on the Atlantic City Expressway. 

Keotepie Khiev, Reachsieh Khiev, and Reachthon Khiev were killed, and 

Michelle Khiev was seriously injured. Defendant, the SJT Authority, owns and 

operates the Atlantic City Expressway. 

 On January 4, 2022, plaintiffs, through a family member, contacted and 

retained a law firm to investigate the crash. Plaintiffs' counsel then requested 

the police report and video of the crash. On January 19, 2022, counsel received 

a preliminary police report, but that report did not contain a full investigation or 

a video of the accident. 

 In February 2022, plaintiffs' counsel retained two experts to investigate 

the crash. Those experts were Fiocco Engineering, LLC, "experts in highway 

safety and traffic engineering," and David B. Roth, an "automotive engineering 

expert." Preliminary investigations by both experts did not reveal any obvious 

roadway defects. 

 On March 17, 2022, the New Jersey State Trooper with whom plaintiffs' 

counsel had been in contact advised plaintiffs that he had prepared a 
4 A-0620-22

supplemental report and that plaintiffs could now request the complete report, 

as well as a video of the crash. Plaintiffs' counsel made that request the same 

day. Thereafter, the State Police informed plaintiffs' counsel that they were not 

yet ready to release the final report. The final report was then delivered on May 

5, 2022, and the video of the accident was delivered on May 11, 2022. In the 

meantime, on March 26, 2022, the ninetieth day after December 26, 2021, had 

passed. 

 When plaintiffs' experts reviewed and discussed the video, they 

formulated the opinion that there was a design defect in the toll plaza that had 

substantially contributed to plaintiffs' deaths and injuries. In that regard, the 

experts opined that there was a sloped concrete barrier at the toll plaza, and that 

when plaintiffs' vehicle traveled up the slope of the barrier it caused the vehicle 

to combust and sustain catastrophic damage, which in turn led to the deaths and 

injuries of plaintiffs. 

 On May 31, 2022, plaintiffs moved for leave to file a late tort-claims 

notice on the SJT Authority. Initially, that motion was unopposed, and the court 

granted it in an order entered on June 24, 2022. Plaintiffs then filed their tortclaims notice on defendant on June 30, 2022. 
5 A-0620-22

 Thereafter, it was ascertained that defendant had not been properly served 

with the notice of motion. Accordingly, defendant filed a motion to vacate the 

June 24, 2022 order. It also filed opposition to plaintiffs' motion for leave to 

file a late tort-claims notice. After those motions were fully briefed, the trial 

court heard oral arguments on the motions. 

 On September 12, 2022, the trial court entered an order that (1) vacated

the June 24, 2022 order, (2) granted plaintiffs leave to file a late tort-claims 

notice, and (3) ruled that the notice would be deemed to have been served on 

June 30, 2022. The court supported its rulings with a written opinion. 

The trial court found that the date of accrual of plaintiffs' claims was May 

11, 2022, when plaintiffs "possessed sufficient information[] that a public entity 

may be responsible for the crash," rather than December 26, 2021, the date of 

the crash. Accordingly, the trial court held that the notice of claim had been 

filed within ninety days of the date of accrual and was timely. 

 In the alternative, the trial court found that there were extraordinary 

circumstances justifying the late notice. In that regard, the trial court found that 

plaintiffs had exercised due diligence in investigating the accident but 

determined that defendant was potentially liable only when they received the 

video. Additionally, the court found that defendant would not suffer any 
6 A-0620-22

substantial prejudice if the late claim was permitted because defendant had been 

aware of the accident and evidence and witnesses related to the accident were 

still available. The court noted that a toll plaza worker who had been injured in 

the accident was still available as a witness. The court also found that the 

damaged vehicle had been preserved and defendant had access to the video of 

the accident. 

 Defendant now appeals from the portion of the September 12, 2022 order 

allowing plaintiffs to file a late tort-claims notice. Orders granting or denying 

motions to extend the time to file a notice of claim under the Act are appealable 

to us as of right. See R. 2:2-3(b)(7). 

 II. 

 On appeal, defendant makes three arguments. First, it contends that the 

trial court misapplied the law in holding that the accrual date was the date 

plaintiffs received the video, rather than the date of the crash. Second, defendant 

asserts that the trial court abused its discretion in finding that, even if the claim 

accrued on the date of the crash, extraordinary circumstances justified allowing 

plaintiffs to file a late notice. Finally, defendant argues that the trial court 

abused its discretion in finding that there would be no substantial prejudice to 
7 A-0620-22

defendant in granting plaintiffs the right to file a late notice. Having considered 

these arguments in light of the record and law, we reject them and affirm. 

 The decision of whether to grant a plaintiff's motion for leave to file a late 

tort-claims notice under the Act is left "to the sound discretion of the trial court." 

D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013) (quoting 

Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)). The trial court's 

decision should not be disturbed "in the absence of a showing of an abuse" of 

discretion. Ibid. (quoting Lamb, 111 N.J. at 146); see also McDade v. Siazon, 

208 N.J. 463, 476-77 (2011). "Although deference will ordinarily be given to 

the factual findings that undergird the trial court's decision, the court's 

conclusions will be overturned if they were reached under a misconception of 

the law." D.D., 213 N.J. at 147 (citing McDade, 208 N.J. at 473-74). 

A. The Act. 

 The Act waives the State's sovereign immunity but does so with certain 

requirements and limitations. See N.J.S.A. 59:1-2 (explaining that "public 

entities shall only be liable for their negligence within the limitations of" the 

Act); see also Nieves v. Off. of the Pub. Def., 241 N.J. 567, 574-75 (2020). 

"Generally, immunity for public entities is the rule and liability is the 

exception." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). Accordingly, 
8 A-0620-22

the Act imposes "strict requirements upon litigants seeking to file claims against 

public entities." McDade, 208 N.J. at 468. 

A person or entity seeking to file a claim under the Act must file a notice 

of claim on a public entity "not later than the ninetieth day after accrual of the 

cause of action." Ibid. (quoting N.J.S.A. 59:8-8). The failure to serve a notice 

of claim within the statutory ninety-day period results in a bar against the claim 

and recovery. Id. at 476; N.J.S.A. 59:8-8. There is, however, an exception to 

the ninety-day time bar. In limited circumstances, relief can be afforded under 

the Act if a claimant moves for leave to file a late notice "within one year after 

the accrual of [the] claim." McDade, 208 N.J. at 476 (quoting N.J.S.A. 59:8-9). 

The trial court may grant the motion if there are "'sufficient reasons constituting 

extraordinary circumstances' for the claimant's failure to timely file" a notice of 

claim within the statutory ninety-day period, and if "the public entity [is not] 

'substantially prejudiced' thereby." Id. at 477 (quoting N.J.S.A. 59:8-9). 

Determining "extraordinary circumstances" and "substantial prejudice" 

requires a "trial court to conduct a fact-sensitive analysis of the specific case." 

Id. at 478. The Legislature intended the "extraordinary circumstances" 

requirement to be a demanding standard. See D.D., 213 N.J. at 148 (citing Lowe 

v. Zarghami, 158 N.J. 606, 625 (1999)). When analyzing the facts, a court must 
9 A-0620-22

determine how the evidence relates to the claimant's circumstances during the 

ninety-day period. Id. at 151. 

 In summary, courts evaluate a notice of claim's timeliness using a 

"sequential analysis." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). First, 

the court must determine the date when the claim accrued. Ibid. Second, the 

court determines whether a notice of claim was filed within ninety days of that 

date. Ibid. Finally, if the notice was not timely, the court must determine 

whether extraordinary circumstances justify a late notice. Id. at 118-19; Bayer 

v. Township of Union, 414 N.J. Super. 238, 258 (App. Div. 2010). 

B. The Date of Accrual of Plaintiffs' Claims. 

 The Act does not define the date of accrual of a claim. Ben Elazar v. 

Macrietta Cleaners, Inc., 230 N.J. 123, 134 (2017). Nevertheless, our Supreme 

Court has held that the accrual of a claim under the Act is to be determined "in 

accordance with existing law in the private sector." H.C. Equities, LP v. County 

of Union, 247 N.J. 366, 382 (2021) (quoting Beauchamp, 164 N.J. at 116). The 

Court has explained: 

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

claim accrues on the date on which the underlying 

tortious act occurred. However, that same common law 

allows for delay of the legally cognizable date of 

accrual when the victim is unaware of his [or her] injury 

or does not know that a third party is liable for the 
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injury. 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 [or 

her] injury or does not know that a third party is 

responsible for the injury. 

[Ben Elazar, 230 N.J. at 134 (internal citations 

omitted).]

 "The test for the application of the discovery rule is 'whether the facts 

presented would alert a reasonable person, exercising ordinary diligence, that he 

or she was injured due to the fault of another.'" McDade, 208 N.J. at 475 

(quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)). In other words, 

the cause of action accrues when the claimant has "two pieces of information 

that are the key to the discovery rule, namely an injury and 'facts suggesting that 

a third party may be responsible.'" Maher v. County of Mercer, 384 N.J. Super. 

182, 188 (App. Div. 2006) (quoting Ayers v. Township of Jackson, 106 N.J. 

557, 582 (1987)). 

 Examining the facts in this record, the trial court determined that 

plaintiffs' causes of action accrued on May 11, 2022, when their counsel 

received video footage of the crash. In reaching that determination, the court 

considered plaintiffs' diligence in retaining counsel, retaining experts, and 

seeking evidence concerning the crash, including the final accident report and 

video. The court then found that before plaintiffs' experts had an opportunity to 
11 A-0620-22

review and analyze the video, neither plaintiffs nor their experts had reasonable 

grounds to believe that the car's combustion was caused by a defect in the 

roadway. After viewing and discussing the video, however, the experts opined 

that the design of the toll plaza, and in particular the sloped concrete barrier, 

substantially contributed to the fire and the combustion of plaintiffs' vehicle. 

 The key issue in determining whether the discovery rule applied in this 

matter is whether there were facts suggesting that the SJT Authority may have 

been responsible for plaintiffs' deaths and injuries before May 11, 2022. 

Defendant argues that plaintiffs were aware of its involvement in the accident 

because they knew that the SJT Authority owned and operated the Atlantic City 

Expressway and the toll booths on the Expressway. While plaintiffs knew or 

should have known that defendant owned the roadway and toll plaza, the trial 

court found that it was only when plaintiffs' experts reviewed and analyzed the 

video that they learned that defendant might be responsible for plaintiffs' deaths 

and injuries. Those factual findings are supported by substantial, credible 

evidence, and we discern no abuse of discretion in the trial court's determination 

that plaintiffs' claims accrued for purposes of the notice provision of the Act on 

May 11, 2022. Consequently, the trial court also correctly found that the notice 

was then timely served on the SJT Authority on June 30, 2022. 
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 In affirming that determination, we express no opinion on the validity of 

plaintiffs' liability theory or their experts' opinions. Those issues are not 

currently before us and have not been explored in discovery or analyzed by the 

parties and the trial court. We hold only that the factual findings made by the 

trial court concerning the accrual date are supported in the record, do not 

constitute an abuse of discretion, and are consistent with the law concerning the 

discovery rule. 

C. Whether There Were Extraordinary Circumstances. 

 In the alternative, the trial court held that plaintiffs' late notice would be 

allowed because it was justified by extraordinary circumstances. What 

constitutes "extraordinary circumstances" for purposes of the Act "is inherently 

imprecise and must be determined on a case-by-case basis." Jeffrey v. State, 

468 N.J. Super. 52, 58 (App. Div. 2021) (citing O'Donnell v. N.J. Tpk. Auth., 

236 N.J. 335, 347 (2019)). "'[A]ny doubts' as to whether extraordinary 

circumstances exist 'should be resolved in favor'" of allowing a late filing. 

O'Donnell, 236 N.J. at 344 (quoting Feinberg v. State, Dep't of Env't Prot., 137 

N.J. 126, 134 (1994)). Courts analyze whether the "totality of unique facts and 

circumstances" constitute extraordinary circumstances. Id. at 349. Thus, the 

"inquiry focuses on the reasonable diligence of the plaintiff in investigating the 
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claim and determining the identity of the tortfeasor." McDade, 208 N.J. at 477. 

"The existence of a reasonably prompt and thorough investigation is thus the 

crucial inquiry." Id. at 477-78.

In finding extraordinary circumstances in this case, the court carefully 

analyzed plaintiffs' actions following the crash. Within two weeks of the fatal 

accident, plaintiffs' family members retained lawyers to investigate the matter. 

Those lawyers then contacted the State Police and diligently sought the accident 

report and related video. Counsel also retained experts in February 2022, less 

than sixty-five days after the accident. On March 17, 2022, plaintiffs' counsel 

learned that the final State Police accident report, as well as the video, could be 

requested. Plaintiffs' counsel then requested those items that same day. The 

State Police, however, took some time approving the final accident report and 

releasing the video. Consequently, plaintiffs' counsel received the final accident 

report on May 5, 2022, and the video on May 11, 2022. Plaintiffs' counsel then 

had the video reviewed and analyzed by the retained experts who, for the first 

time, had a basis to opine that defendant could be responsible for the 

catastrophic nature of the accident. 

 Given those facts, we discern no abuse of discretion in the trial court's 

determination that plaintiffs acted with due diligence and were prevented from 
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serving a timely tort-claims notice by extraordinary circumstances. Indeed, the 

facts here are very similar to the facts in Mendez v. S. Jersey Transp. Auth., 416 

N.J. Super. 525 (App. Div. 2010). In that case, we affirmed the trial court's 

granting of leave to file a late tort-claims notice. Id. at 536. In Mendez, the 

plaintiffs lost control of their car, which spun off the road and struck a snowremoval truck owned by the SJT Authority that was parked on the shoulder. Id. 

at 529-30. It was not until the plaintiffs obtained and analyzed a videotape of 

the accident that they were able to develop evidence that an ambulance might 

have caused plaintiffs to lose control of their car when it suddenly moved in 

front of plaintiffs' car just before the accident. Id. at 534. Like defendant here, 

the rescue squad that owned the ambulance argued that the plaintiffs in Mendez 

should have served a notice as soon as they learned of the potential involvement 

of the ambulance. Id. at 532. We rejected that argument, however, and reasoned 

that adopting such a position would "encourage whimsical filings of Tort Claims 

notices to beat the ninety-day deadline" and that "a diligent attorney [would] 

view the videotape firsthand to be able to file a Tort Claims notice in good faith." 

Id. at 534-35. 

 The same analysis that we used in Mendez applies here. In both this case 

and Mendez, plaintiffs' attorneys made diligent efforts to obtain video evidence 
15 A-0620-22

of the accident, and the video evidence, once obtained after more than ninety 

days from the date of the crash had passed, gave plaintiffs critical information 

that allowed them to discover a public entity may be responsible for their 

injuries. Id. at 534. So, the trial court did not abuse its discretion in finding 

extraordinary circumstances in this case.

D. Whether There is Substantial Prejudice to Defendant. 

 The final factor that must be considered is whether the SJT Authority has 

demonstrated that it will be substantially prejudiced if plaintiffs are allowed to 

file a late notice. The public entity bears "the burdens of production and 

persuasion on the question of prejudice" in evaluating a motion for leave to file 

a late notice. Id. at 535. Determining whether substantial prejudice exists 

requires "a fact-sensitive analysis of the specific case." McDade, 208 N.J. at 

478. "'Substantial prejudice in this context means substantial prejudice in 

maintaining one's defense,' such as 'the loss of witnesses, the loss of evidence, 

fading memories, and the like.'" Mendez, 525 N.J. Super. at 535 (quoting Blank 

v. City of Elizabeth, 318 N.J. Super. 106, 114-15 (App. Div. 1999)). "The fact 

of delay alone does not give rise to the assumption of prejudice; the public entity 

must present a factual basis for the claim of substantial prejudice." Id. at 535-

36. Therefore, general allegations of prejudice are not sufficient. Id. at 536. 
16 A-0620-22

 Defendant has not demonstrated any prejudice, much less substantial 

prejudice. The trial court found that defendant was well-aware of the accident 

when it occurred on December 26, 2021. The court also noted that the car had 

been preserved, the witnesses to the accident, including a toll plaza worker, were 

still available, and defendant had the final accident report and video. Defendant 

does not dispute any of those facts. More significantly, those facts establish that 

defendant has access to all the information and evidence that was available 

ninety days after the accident. Indeed, because of plaintiffs' diligence, the notice 

was filed within four months of the ninety-day period. Consequently, we discern 

no abuse of discretion in the trial court's finding that there was no substantial 

prejudice to defendant. 

 Affirmed.