SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4543-17T1

 A-4955-17T1

WILLIAM and CAROLYN 

MCFEELEY, husband and wife, 

Plaintiffs-Appellants,

v.

SUNNY KAR, D.O.,

Defendant-Respondent,

and 

BLESSIE PAGDILAO, R.N.,

JAMES FOREMAN, R.N., and

KENNEDY UNIVERSITY

HOSPITAL, INC.,

Defendants. 

_________________________________

Argued November 27, 2018 – Decided

Before Judges Gilson and Natali.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-3101-17.

NOT FOR PUBLICATION WITHOUT THE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.

January 18, 2019
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Pamela A. Brown-Jones argued the cause for appellants 

(Weiss & Paarz, PC, attorneys; Robert E. Paarz, of 

counsel; Pamela A. Brown-Jones, on the briefs).

Michael J. Lunga argued the cause for respondent.

PER CURIAM

These consolidated appeals arise out of a medical malpractice claim and 

present questions concerning proper notice under the New Jersey Tort Claims

Act (Act), N.J.S.A. 59:1-1 to 12-3. Plaintiffs William and Carolyn McFeeley 

appeal from an April 27, 2018 order denying their motion to file a late notice of 

tort claim against Rowan University and Sunny Kar, D.O., who was a surgical 

resident at the Rowan School of Osteopathic Medicine. On leave granted, 

plaintiffs also appeal from a second order entered on April 27, 2018, that 

dismissed their complaint against Dr. Kar and denied their motion to add the 

State of New Jersey as a defendant. Finally, plaintiffs appeal, on leave granted, 

from a May 24, 2018 order denying reconsideration of the orders entered on 

April 27, 2018.

Having reviewed the record and law, we affirm. The notice plaintiffs 

submitted was not effective under the Act. That notice was also not in 

substantial compliance with the notice requirements of the Act. Moreover, the 

trial court did not abuse its discretion in not permitting a late notice of tort claim. 
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Finally, the trial court did not err in denying plaintiffs' motion to amend their 

complaint to name the State of New Jersey as a defendant.

I.

We take the facts from the record developed on the motions. On March 

28, 2016, plaintiff William McFeeley was admitted to Kennedy University 

Hospital – Stratford (Kennedy Hospital) for gastric sleeve surgery. At that time, 

William was fifty-two years old. Following the surgery, on March 29, 2016, 

William suffered a heart attack.

Plaintiffs contend that the on-call surgical resident and nurses who treated 

William on March 29, 2016, were negligent because they failed to timely 

diagnose and treat the heart attack. Plaintiffs also assert that as a result of the 

delayed treatment, William sustained permanent damage to his heart.

On March 29, 2016, defendant Sunny Kar, D.O., was the on-call surgical 

resident at Kennedy Hospital. He acknowledges providing medical care to 

William on March 29, 2016. Dr. Kar did not work for Kennedy Hospital. 

Instead, in March 2016, Dr. Kar was a resident at the Rowan School of 

Osteopathic Medicine and was employed by Rowan University.

On May 19, 2016, plaintiffs' prior attorney sent a notice of tort claim to 

(1) the New Jersey Acting Attorney General; (2) "Kennedy Health System"; and 
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(3) "Rutgers, the State University of New Jersey, f/k/a UMDNJ/University of 

Medicine and Dentistry of New Jersey." That notice provided a general 

description of William's heart attack and alleged injuries and stated that the 

negligence took place at "Kennedy Health System-Stratford/University Medical 

Center."

The notice did not identify Rowan University. Instead, in response to the 

question that asks for the name of the public entity or entities that allegedly 

caused the damage, the notice stated: "Unknown at this time, including but not 

limited to Kennedy Health System/University Medical Center and/or Rutgers, 

the State University of New Jersey, f/k/a UMDNJ/University of Medicine and 

Dentistry of New Jersey, and/or any other state agency which selected, 

supervised and/or insured the above-named individuals." The notice also did 

not name Dr. Kar. Rather, in response to the question that asked for the identity 

of the public employees who were allegedly at fault, the notice stated: "Nurse 

Blessie (last name unknown) and others to be named after receipt of records[,]

any and all other physicians, nurses, and/or other healthcare providers identified 

in the records but whose names are illegible."

The cover letter that accompanied the notice of tort claim asked the 

recipients to deliver a copy of the notice to any medical providers who are public 
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employees or entitled to notice under the Act. The cover letter also asked the 

recipients to communicate with plaintiffs' attorney if "any additional 

information is required or if any specific claim form needs to [be] completed[.]" 

Plaintiffs represent that they and their prior lawyer did not receive any response 

to the notice of claim or cover letter.

In June 2017, plaintiffs retained new attorneys. Plaintiffs' new attorneys 

filed a complaint on August 8, 2017. The complaint named as defendants Dr. 

Kar, Nurse Blessie Pagdilao, and Kennedy Hospital. The complaint also named 

"John/Jane Doe[s]," who were unknown physicians, employers, and medical 

providers.

On November 14, 2017, Dr. Kar filed an answer. In his answer, Dr. Kar 

stated that he was an employee of Rowan University and, as an affirmative 

defense, he asserted that plaintiffs had failed to comply with the notice 

provisions of the Act. Three months later, on February 26, 2018, Dr. Kar filed 

a motion to dismiss plaintiffs' complaint against him for failure to serve a tort 

claim notice as required by the Act.

Plaintiffs opposed that motion and cross-moved to file a late tort claim 

notice and to amend their complaint to name the State of New Jersey as a 

defendant. The trial court heard oral arguments on those motions on April 27, 
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2018. That same day, the court entered orders (1) granting Dr. Kar's motion to 

dismiss the claims against him, (2) denying plaintiffs' motion to file a late tort 

claim notice against Dr. Kar and Rowan University, and (3) denying plaintiffs' 

motion to name the State of New Jersey as a defendant.

The court explained its rulings on the record. With regard to the motion 

to dismiss, the court held that the tort claim notice sent on May 19, 2016, was 

not in compliance with the Act because it failed to identify Rowan University. 

The court then reasoned that plaintiffs had not shown extraordinary 

circumstances and, therefore, were not entitled to file a late notice. Finally, the 

court ruled that plaintiffs would not be allowed to amend their complaint to 

name the State as a defendant because such an amendment would be an 

impermissible "end run" around the notice required by the Act.

Plaintiffs filed for reconsideration. The court denied that motion in an 

order entered on May 24, 2018, and explained the reasons for that denial on the 

record.

Plaintiffs appeal as of right from the order denying their motion to file a 

late tort claim notice. See Rule 2:2-3(a). We granted leave for plaintiffs to also 

appeal the orders dismissing the complaint against Dr. Kar, denying their motion 
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to add the State as a defendant, and denying their motion for reconsideration. 

We then consolidated the two appeals.

II.

On appeal, plaintiffs make four arguments, contending (1) the notice they 

sent on May 19, 2016 was in compliance with the Act and was effective against 

Rowan University and Dr. Kar; (2) alternatively, the notice was substantially 

compliant with the Act; (3) they should be permitted to file a late tort claim 

notice; and (4) they should be permitted to amend their complaint to name the 

State as a defendant. Given the requirements and limitations of the Act, we 

reject these arguments.

We begin our analysis with an overview of the Act. The Act governs tort 

claims against public entities and public employees. Rogers v. Cape May Cty. 

Office of the Pub. Def., 208 N.J. 414, 420 (2011). "'Public entity' includes the 

State, and any county, municipality, district, public authority, public agency, 

and any other political subdivision or public body in the State." N.J.S.A. 59:1-3. 

A "public employee" is "an employee of a public entity[.]" Ibid.

The Act "is the statutory mechanism through which our Legislature 

effected a waiver of sovereign immunity." D.D. v. Univ. of Med. & Dentistry 

of N.J., 213 N.J. 130, 133 (2013). "The guiding principle of the [Act] is that 
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'immunity from tort liability is the general rule and liability is the exception[.]'" 

Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. 

Twp. of Middletown, 154 N.J. 282, 286 (1998)).

The Act "establishes the procedures by which claims may be brought[.]" 

Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). One of the procedures the 

Act imposes on a party seeking to bring a tort claim is a requirement to file a 

notice of tort claim. D.D., 213 N.J. at 134; see also N.J.S.A. 59:8-1 to -11. The 

notice has a number of required components including (1) when it has to be 

filed, N.J.S.A. 59:8-8; (2) what information it must contain, N.J.S.A. 59:8-4;

and (3) where it has to be filed, N.J.S.A. 59:8-7. 

With regard to timing, the notice must be filed within ninety days of the 

claim's accrual. N.J.S.A. 59:8-8. In "extraordinary circumstances," the Act 

allows a late filing of a notice of claim. N.J.S.A. 59:8-9. In that regard, the Act 

provides:

A claimant who fails to file notice of his [or her] 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 [or her] 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 
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sufficient reasons constituting extraordinary 

circumstances for his [or her] 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.

[Ibid.]

The contents of a proper notice of claim are governed by N.J.S.A. 59:8-4. 

Among other information, the notice must include "[t]he name or names of the 

public entity, employee or employees causing the injury, damage or loss, if 

known[.]" N.J.S.A. 59:8-4(e). Our Supreme Court has construed that 

requirement to mean that "[t]he notice must include the name of the public 

entity, and the name of the employee or employees causing the injury, if known." 

Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (citing N.J.S.A. 59:8-

4(e)). Thus, while a public employee need not always be identified in the notice, 

a public entity must be identified. See In re Roy, 142 N.J. Super. 594, 599-600 

(App. Div. 1976) (explaining that the notice of tort claim did not require the 

names of specific public employees, but required that the claimant list which 

public entity employed the individuals involved in the accident).
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The Act also mandates where notices are to be presented. N.J.S.A. 59:8-7. 

For claims against the State, the notice "shall be filed either with (1) the Attorney 

General or (2) the department or agency involved in the alleged wrongful act or 

omission." Ibid. For claims against a local public entity, the notice "shall be 

filed with that entity." Ibid.

Guided by this general overview of the Act, we evaluate each of plaintiffs' 

four arguments. We begin with the motion to dismiss and review that order de 

novo. See Gomes v. Cty. of Monmouth, 444 N.J. Super. 479, 486 (App. Div. 

2016). A court dismissing a civil complaint with prejudice "must 'search[] the 

complaint in depth and with liberality to ascertain whether the fundament of a 

cause of action may be gleaned even from an obscure statement of claim, 

opportunity being given to amend if necessary.'" Ibid. (alteration in original) 

(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 

(1989)). "Nevertheless, a purely legal question of whether a defendant is 

insulated from liability because of an immunity or some other statutory 

provision ideally should be resolved, if possible, at an early stage of the 

litigation." Ibid.; see also Rivera v. Gerner, 89 N.J. 526, 536 (1982) (noting that 

resolving issues involving the Act through the pretrial process "is to be 

encouraged").
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A. The May 19, 2016 Notice

Plaintiffs contend that their May 19, 2016 notice was in compliance with 

the Act and effective because it was filed with the Attorney General and Rowan 

University is a state agency. Rowan University, however, is not a state agency.

Rowan University was established by the Legislature as "a body corporate 

and politic." N.J.S.A. 18A:64M-4. The Legislature declared that as a university,

"[Rowan University] shall be given a high degree of self-government and that 

the governance and conduct of the university shall be free of partisanship." 

N.J.S.A. 18A:64M-5. Accordingly, the board of trustees of Rowan University 

was given specific powers, including the power to "[s]ue and be sued in its own 

name." N.J.S.A. 18A:64M-9(y).

The university also has the right to retain independent legal counsel, 

including representation by the Attorney General. N.J.S.A. 18A:64M-9(z). 

With regard to tort claims, Rowan University, like other New Jersey public 

institutions of higher education, had to choose to retain its own legal counsel or 

elect to be represented by the Attorney General. Ibid.; N.J.S.A. 18A:3B-6(h). 

Moreover, Rowan University also had to choose whether to elect representation 

by the Attorney General on medical malpractice claims incurred at the School 

of Osteopathic Medicine. N.J.S.A. 18A:64M-33. As to both tort and medical 
12 A-4543-17T1

malpractice claims, Rowan University elected to be represented by the Attorney 

General. See Rowan Univ. Office of Risk Mgmt. & Ins., Professional Liability 

Program of Self-Insurance, Rowan University School of Osteopathic Medicine 

(July 2014), https://sites.rowan.edu/rmi/_docs/_profliability/SOMProfessionalLiabilityBooklet.pdf; see also General Liability, 

Rowan University, https://sites.rowan.edu/rmi/general.html (last visited Jan. 2, 

2018).

In short, Rowan University is a public entity and not a state agency. See

English v. Newark Hous. Auth., 138 N.J. Super. 425, 429-30 (App. Div. 1976) 

(describing a "public entity" as an entity that possesses sovereignty parceled to

it from the State, and is to that degree independent of the State, as opposed to 

an administrative part, such as a state agency, which merely shares in the State's 

sovereignty); see also N.J.S.A. 59:1-3 (limiting the definition of State to 

preclude any "entity which is statutorily authorized to sue and be sued"). While 

Rowan University has elected to be represented by the Attorney General for tort

and medical malpractice claims, that does not change its status as a public entity.

Accordingly, the issue here is whether the notice of tort claim filed with 

the Attorney General was effective against Rowan University and its employee, 

Dr. Kar. We hold that the failure to name Rowan University in the notice made 
13 A-4543-17T1

the notice ineffective under the Act. As already noted, the Act requires the 

notice to include the name of the public entity. N.J.S.A. 59:8-4(e). Our Supreme 

Court has explained that the Act's requirements are to be strictly construed, 

McDade v. Siazon, 208 N.J. 463, 474 (2011), and with regard to the contents of 

the notice, the public entity must be identified. See Velez, 180 N.J. at 290. The 

Court has also explained the purposes of the notice requirements, which are:

(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."

[Beauchamp, 164 N.J. at 121-22 (citations omitted) 

(first quoting Margolis & Novack, 1972 Task Force 

Comment to N.J.S.A. 59:8-3; then quoting Fuller v. 

Rutgers, State Univ., 154 N.J. Super. 420, 426 (App. 

Div. 1977)).]

Sending the Attorney General a notice that does not identify the specific 

public entity does not allow the Attorney General to identify what entity is 

allegedly at fault. Moreover, such a notice does not allow the public entity to 

review, adequately investigate, and potentially correct or settle the claim before 

a suit is brought. See Velez, 180 N.J. at 290; Beauchamp, 164 N.J. at 121-22. 
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Consequently, we affirm the trial court's order dismissing plaintiffs' claims 

against Dr. Kar for failure to comply with the notice requirements of the Act.

Plaintiffs argue that requiring the identity of the public entity in the notice 

would be a new rule, which should not be applied to them. We disagree. Since 

its enactment, the Act has required a notice to identify the public entity. N.J.S.A. 

59:8-4(e); see also Velez, 180 N.J. at 290.

B. Substantial Compliance

Next, and in the alternative, plaintiffs argue that if their May 19, 2016 

notice was defective, it was nonetheless substantially compliant. We disagree.

Substantial compliance, when applied to tort claims, "has been limited 

carefully to those situations in which the notice, although both timely and in 

writing, had technical deficiencies that did not deprive the public entity of the 

effective notice contemplated by the statute." D.D., 213 N.J. at 159. The failure 

to identify Rowan University as the public entity was not a technical deficiency. 

Without identifying Rowan University, the university was deprived of the 

effective notice contemplated by the Act.

Plaintiffs argue that because Rowan University had elected to be 

represented by the Attorney General for medical malpractice and tort claims, its 

notice sent to the Attorney General substantially complied with the Act. 
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Compliance with the provisions providing where notice must be filed, N.J.S.A. 

59:8-7, cannot be bootstrapped into substantial compliance with the provisions 

providing what information the notice must possess, N.J.S.A. 59:8-4(e). That 

point is illustrated here because the Attorney General represents numerous state 

agencies and public entities. If compliance with N.J.S.A. 59:8-7 was sufficient 

to fulfill the requirement of N.J.S.A. 59:8-4(e), than N.J.S.A. 59:8-4(e) would 

be rendered superfluous. As a condition of waiving sovereign immunity, the 

Act requires a claimant to identify the public entity that is allegedly at fault. 

N.J.S.A. 59:8-4(e); see also Velez, 180 N.J. at 290. Consequently, the notice 

sent on behalf of plaintiffs did not substantially comply with that statutory 

requirement.

C. A Late Notice of Claim

Plaintiffs also argue that the trial court erred in denying their motion to 

file a late notice of claim under the Act. We review such an order for an abuse 

of discretion. McDade, 208 N.J. at 476-77 (citing Lamb v. Glob. Landfill 

Reclaiming, 111 N.J. 134, 146 (1988)). "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).
16 A-4543-17T1

In support of their motion to file a late notice, plaintiffs submitted a 

certification from William McFeeley. In that certification, William states that 

he had no interactions with Dr. Sunny Kar during or after his surgery on March 

29, 2016, and had no recollection of ever meeting Dr. Kar. William also 

represents that he does not recall anyone notifying him that Dr. Kar was a 

medical resident from Rowan University. We discern no abuse of discretion in 

the trial court's determination that such contentions do not constitute 

extraordinary circumstances allowing a late notice under the Act.

Here, there was no showing that a review of William's medical records at 

Kennedy Hospital would not have disclosed that Dr. Kar provided care to 

William on March 29, 2016. In D.D., our Supreme Court held that an attorney's 

failure to file a timely tort claim notice did not amount to an extraordinary 

circumstance. 213 N.J. at 158. The plaintiff in D.D. claimed that she did not 

know that she needed to file a tort claim notice and that she was suffering from 

increased stress and anxiety due to the defendants' negligence. Id. at 137-38. 

Nevertheless, the Court held that such inattention cannot serve to "vault the 

statutory threshold." Id. at 157. Indeed, the Court explained that "sympathy for 

a particular plaintiff" cannot "obscure" the commandment in the Act "that relief 

be granted only in circumstances that are extraordinary." Id. at 158.
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D. The Amendment

Finally, plaintiffs argue that they should have been allowed to amend their 

complaint and name the State of New Jersey as a defendant. While amendments 

to complaints should ordinarily be freely granted, see Rule 4:9-1, here the 

amendment must be considered in light of the requirements of the Act. See

Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (noting "courts are free 

to refuse leave to amend when the newly asserted claim is not sustainable as a 

matter of law" (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 

256-57 (App. Div. 1997))).

A searching review of the record here discloses no claim against the State 

of New Jersey. Dr. Kar was an employee of Rowan University. While his 

lawyer mistakenly sometimes refers to Dr. Kar as a "state employee," Dr. Kar 

clearly was not a state employee. Instead, he was an employee of a public entity. 

Accordingly, amending the complaint to include the State of New Jersey as a 

defendant "would be a useless endeavor." Notte, 185 N.J. at 501. Just as 

importantly, as the trial court correctly noted, allowing plaintiffs to name the 

State as a defendant would be contrary to the notice and timing requirements of 

the Act. See ibid. (explaining courts consider potential prejudice to non-moving 

parties in determining whether to grant leave to amend a complaint).
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Accordingly, we also affirm the order denying plaintiffs' motion to amend their

complaint to name the State as a defendant.

In summary, the requirements and limitations imposed by the Act 

establish that plaintiffs did not file a timely notice, the notice was not in 

substantial compliance, there was no abuse of discretion in denying their request 

to file a late notice, and they had no basis to file a claim against the State. As a 

consequence, the trial court also did not err in denying reconsiderations of those 

orders.

Affirmed.