SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0724-18T1

ANTOINETTE MARRA, 

Plaintiff-Respondent, 

v. 

HOPATCONG SENIOR CENTER 

and BOROUGH OF HOPATCONG, 

Defendants-Appellants, 

and

HOPATCONG SENIORS, INC., 

LARRY D. WHITE, COUNTY OF

SUSSEX, and STATE OF NEW 

JERSEY,

Defendants. 

______________________________

Submitted July 16, 2019 – Decided July 26, 2019

Before Judges Vernoia and Mayer. 

On appeal from the Superior Court of New Jersey, Law 

Division, Sussex County, Docket No. L-0250-18.

NOT FOR PUBLICATION WITHOUT THE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.
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Dorsey & Semrau, LLC, attorneys for appellants (Fred 

C. Semrau, of counsel; Edward R. Pasternak, on the 

briefs).

Law Offices of James C. De Zao, PA, attorneys for 

respondent (James C. De Zao, III, on the brief).

PER CURIAM

Defendants Hopatcong Senior Center and Borough of Hopatcong appeal 

from a September 6, 2018 order granting leave to file a late notice of tort claim 

on behalf of plaintiff Antoinette Marra and denying their motion to dismiss the 

complaint. We reverse.

The relevant facts are as follows. On September 26, 2017, plaintiff tripped 

and fell on defendants' property. She suffered a broken arm, fractured hip, and 

other injuries. Following her fall, plaintiff had hip replacement surgery. After 

the surgery, plaintiff was transferred to a nursing home, where she spent the next 

two months recuperating. She was discharged from the nursing home on 

November 25, 2017, and began in-home care a few days later. 

Plaintiff first sought legal counsel to pursue claims against defendants in 

March 2018. Plaintiff admitted she was unaware of the ninety-day time period 

within which to file a notice of tort claim against defendants. Plaintiff 

mistakenly believed she had twenty-four months to file a lawsuit. 
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On May 18, 2018, plaintiff filed a personal injury complaint and motion 

for leave to file a late notice of tort claim.1 The motion was filed four and onehalf months after the deadline for timely filing a notice of tort claim.2

In her motion to file a late notice of tort claim, plaintiff alleged she 

suffered from various medical conditions, constituting exceptional 

circumstances and warranting acceptance of her late notice of claim. Defendants 

opposed the motion and filed a cross-motion to dismiss plaintiff's complaint. 

After hearing counsels' argument, the judge denied defendants' crossmotion and granted plaintiff's motion. The judge determined plaintiff suffered 

numerous health issues after her hip replacement surgery, precluding her ability 

to timely pursue her personal injury claims against defendants. 

According to the judge's written statement of reasons, "[p]laintiff has 

alleged and the court finds that she was so incapacitated, both physically and 

mentally, that she was unable to file a notice within [ninety] days." In support 

of his finding of extraordinary circumstances to support the filing of a late notice 

of tort claim, the judge explained:

the record reflects that [p]laintiff was diagnosed with 

Major Depressive Disorder, was bedridden at all times 

 

1

 Plaintiff never served defendants with the notice of tort claim. 

2

 The ninety-day deadline expired on December 26, 2017.
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except when she was in physical therapy, and could not 

function without assistance from the staff. Plaintiff 

also had difficulty keeping food down and could not 

complete basic tasks of personal hygiene or sitting in a 

chair without help. Plaintiff alleges she was unable to 

think of anything other than recovering. This is 

supported by her diagnosis report, her Assessment, and 

her Functional Abilities and Goals Admission record. 

Plaintiff had cataract surgery within a few days of the 

end of the [ninety]-day period, and she remained 

confined to her home for an extended period of time 

thereafter . . . [p]laintiff was expected to need home 

nursing care for a further eight weeks or more – a period 

that extended far beyond the [ninety]-day filing limit. 

The court finds these limitations sufficient to qualify as 

"extraordinary circumstances."

The judge found defendants "have not proved [they] would be prejudiced 

by the filing of a late claim." The judge expressly did not "rely on [p]laintiff's 

ignorance of the [ninety]-day deadline to reach [the] conclusion that 

extraordinary circumstances exist." 

On appeal, defendants argue plaintiff's motion for leave to file a late notice 

of tort claim should have been denied because she failed to establish 

extraordinary circumstances in accordance with the New Jersey Tort Claims Act 

(TCA), N.J.S.A. 59:1–1 to 12–3. Defendants contend plaintiff's medical issues 

were not so severe or debilitating as to preclude her filing a timely notice of tort 

claim. Because plaintiff failed to demonstrate extraordinary circumstances, 

defendants assert their motion to dismiss plaintiff's complaint should have been 
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granted. We review an order granting or denying a motion for leave to file a 

late notice of claim under the TCA for an abuse of discretion. See D.D. v. Univ. 

of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013); see also O'Donnell v. 

N.J. Tpk. Auth., 236 N.J. 335, 344 (2019) (noting N.J.S.A. 59:8–9 leaves the 

determination of whether a late notice may be filed to "the discretion of a judge 

of the Superior Court"). 

The TCA provides "broad but not absolute immunity for all public 

entities." Jones v. Morey's Pier, Inc., 230 N.J. 142, 154 (2017) (quoting 

Marcinczyk v. N.J. Police Training Comm'n, 203 N.J. 586, 597 (2010)). The 

TCA's "guiding principle" is that "immunity from tort liability is the general rule 

and liability is the exception." Ibid. (quoting D.D., 213 N.J. at 134).

The TCA "imposes strict requirements upon litigants seeking to file 

claims against public entities." McDade v. Siazon, 208 N.J. 463, 468 (2011).

N.J.S.A. 59:8-3 provides, "[n]o action shall be brought against a public entity or 

public employee under this act unless the claim upon which it is based shall have 

been presented" to the appropriate public entity in a written notice of claim. See 

also N.J.S.A. 59:8-4 to -7. "A claim relating to a cause of action . . . shall be 

presented . . . [no] later than the ninetieth day after accrual of the cause of 

action." N.J.S.A. 59:8-8.
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If a plaintiff misses the ninety-day deadline, a notice of claim may be filed 

up to a year after the claim accrues, but only if "extraordinary circumstances" 

excuse the delay and the public entity would not be "substantially prejudiced." 

Lowe v. Zarghami, 158 N.J. 606, 624-25 (1999); see also O'Donnell, 236 N.J. 

at 345-46. "The phrase 'extraordinary circumstances' was added to the statute 

in 1994" to "raise the bar for the filing of late notice from a 'fairly permissive 

standard' to a 'more demanding' one." Beauchamp v. Amedio, 164 N.J. 111, 118 

(2000) (quoting Lowe, 158 N.J. at 625). The TCA does not define 

"extraordinary circumstances," requiring courts to determine, on a case-by-case 

basis, whether "extraordinary circumstances" exist based on the facts presented. 

Lowe, 158 N.J. at 626. 

In finding "extraordinary circumstances" based on a plaintiff's medical 

condition, courts have looked to the "severity of the medical condition and the 

consequential impact" on the claimant's ability to pursue a claim. D.D., 213 N.J. 

at 150; see also Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533-35 

(App. Div. 2010) (determining plaintiff's injuries and memory loss from a car 

accident, requiring weeks in the hospital, constituted extraordinary 

circumstances); R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340-41 

(App. Div. 2006) (finding extraordinary circumstances where a student, who 
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contracted HIV from a teacher, was preoccupied with thoughts of death); Maher 

v. Cty. of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006) (finding 

extraordinary circumstances based on plaintiff's induced coma and low 

expectation of survival).

Here, plaintiff failed to demonstrate that her medical issues were so 

"severe, debilitating, or uncommon" that she was unable to contact an attorney 

to pursue her claims against defendants. D.D., 213 N.J. at 150. Plaintiff offered

her certification and the certification of her former daughter-in-law, describing

plaintiff's recovery from her injuries and her depressed mental state during the 

recovery period. Nowhere in the record is there any medical evidence from a 

physician that plaintiff was physically or mentally unable to contact an attorney

to file a timely notice of claim. 

Plaintiff was bedridden from September to November 25, 2017, the date 

of her discharge from the nursing home. However, upon her discharge from the 

nursing home, plaintiff still had thirty days within which to file a timely notice 

of claim. There is no evidence in the record that plaintiff was bedridden after 

she was discharged from the nursing home. While plaintiff required assistance 

with her activities of daily living, she suffered no medical condition so severe 

and debilitating as to impact her ability to pursue her personal injury claims. 
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Requiring assistance with bathing, dressing, and eating are common after 

surgery. Plaintiff's depression during her extended recovery period was not 

atypical, and she was treated for her depression. Plaintiff had ample opportunity 

after her discharge from the nursing home to seek assistance from her home care 

providers or her former daughter-in-law to pursue her personal injury claims in 

a timely manner.

Plaintiff states she was on multiple pain medications during the ninetyday time period for filing a notice of tort claim, implying she was unable to 

pursue her claims as a result of these medications. However, there is no 

evidence in the record that the medications compromised plaintiff's cognitive 

ability. The general descriptions offered by plaintiff of her post-injury pain, 

need for assistance with activities of daily living, and resulting depression are 

insufficient to qualify as extraordinary medical conditions allowing the late 

filing of a notice of claim. See D.D., 213 N.J. at 150. 

The records provided by plaintiff in support of her motion and relied upon 

by the motion judge contain self-serving and subjective statements of plaintiff's

pain and depression. The records are devoid of any medical opinion that

plaintiff suffered from a severe or debilitating medical condition that precluded 

her ability to seek legal counsel prior to December 26, 2017. Under the 
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circumstances, specifically the lack of medical or psychological treatment 

records, the judge mistakenly assumed facts regarding plaintiff's condition not 

supported by the record to conclude plaintiff demonstrated extraordinary 

circumstances justifying the late notice of claim. 

Because plaintiff failed to demonstrate extraordinary circumstances, we 

reverse the judge's order allowing plaintiff to file a late notice of tort claim. We

remand the matter for the judge to enter an order granting defendants' motion 

and dismissing plaintiff's complaint. 

Reversed and remanded. We do not retain jurisdiction.