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CHRIS CHRISTIE

Governor

State of New Jersey

OFFICE OF THE ATTORNEY GENERAL

DEPARTMENT OF LAW AND PUBLIC SAFETY

DIVISION OF LAW

JEFFREY S. CHIESA

Attorney General

KIM GUADAGNO

Lt. Governor

25 MARKET STREET

 PO BOX 112

TRENTON, NJ 08625-0112

CHRISTOPHER S. PORRINO

Director

April 5, 2012

Honorable Mary L. Cooper, U.S.D.J.

U.S. District Court for the

District of New Jersey

402 East State Street

Trenton, NJ 08608

Re: Joan Mullin, Administratrix of the

Estate of Robert Mullin, Deceased

and Joan Mullin, individually v.

State of New Jersey, et al.

Civil Action #11-0247 

Dear Judge Cooper:

On behalf of defendants, Karen Balicki, Robert Paterson, and

Marie Dunlap-Pryce please accept this letter in lieu of a more

formal submission in opposition to plaintiff’s “Notice of Motion to

File a Late Notice of Tort Claim.”

RELEVANT FACTS & PROCEDURAL HISTORY

Plaintiff’s claims in this matter all arise out of the January

17, 2009, death of Robert Mullin, Jr. [Document 1 ¶ 15]. On

January 10, 2010, plaintiff moved for, and was eventually granted,

permission to filed a late notice of claim against certain public

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April 5, 2012

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entities. [Document 69, Exhibit “C”]. Plaintiff did not file, and

did not seek to file, a late notice of claim against any individual

public employee. Id. 

On March 12, 2012, plaintiff filed the instant motion seeking

leave to file a late notice of tort claim against the entity

University of Medicine and Dentistry of New Jersey (UMDNJ) and

against the following individuals: Jayne Byrd, LPN; Karen Balicki;

Robert Patterson; and, Marie Dunlap-Pryce. Plaintiff’s motion is

out of time and should be denied.

ARGUMENT

Plaintiff’s instant motion to file a late notice of claim is

filed three years and two months after the accrual of the cause of

action. Accordingly, plaintiff is beyond the one year

jurisdictional limitation set for courts to have the ability to

grant permission to file a late notice of claim. Accordingly,

because plaintiff’s motion is out of time, it must be denied.

The New Jersey Tort Claims Act, at N.J.S.A. 59:1-2 provides as

follows:

. . . [I]t is hereby declared to be the public

policy of this State that public entities shall

only be liable for their negligence within the

limitations of this act and in accordance with the

fair and uniform principles established herein.

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April 5, 2012

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One of the principles established by the Tort Claims Act,

the requirement that a public entity receive notice that a party is

planning to make a claim against it, is set forth in N.J.S.A.

59:8-3:

No 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 in accordance with the

procedure set forth in this chapter.

The substantive portions of the Tort Claims Act which apply to

plaintiff are N.J.S.A. 59:8-8 and 59:8-9. N.J.S.A. 59:8-8 provides

as follows:

A claim relating to a cause of action . . .

for injury or damage to person or to property

shall be presented as provided in this chapter

not later than the ninetieth day after accrual

of the cause of action. . . The claimant shall

be forever barred from recovering against a

public entity or public employee if:

a. He failed to file his claim with the public

entity within 90 days of accrual of his claim

except as otherwise provided in section 59:8-9. . .

N.J.S.A. 59:8-9 provides, in pertinent part:

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

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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. . .

Plaintiff did not filed a notice of tort claim against any

individual or against the entity UMDNJ. More than one year has

passed since the accrual of plaintiff’s tort claims. Accordingly,

plaintiff's tort claims against those public entities and public

employees who received no notice are now forever barred pursuant to

N.J.S.A. 59:8-8. Furthermore, after the one year period provided

by N.J.S.A. 59:8-9 has elapsed, the court lacks jurisdiction to

relieve the claimant from her failure to have filed a timely notice

of claim. Iaconianni v.N.J. Turnpike Auth., 236 N.J. Super. 294-

298 (App. Div. 1989), cert. den. 121 N.J. 592 (1990). Pursuant to

Title 59, as a matter of jurisdiction, this court plaintiff cannot

grant plaintiff leave to file a late notice of tort claim.

Plaintiff’s motion should be denied.

CONCLUSION

In addition to the reasons set forth above, defendants, Karen

Balicki, Robert Paterson, and Marie Dunlap-Pryce join in codefendant, nurse Jane Byrd’s opposition to plaintiff’s motion.

Moreover, to the extent the court chooses to hear co-defendants

cross-motion to dismiss, then defendants, Karen Balicki, Robert

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Paterson, and Marie Dunlap-Pryce also renew their motion to dismiss

set forth at document number 51.

Respectfully submitted,

JEFFREY S. CHIESA

ATTORNEY GENERAL OF NEW JERSEY

By: s/ Joseph M. Micheletti 

Joseph M. Micheletti

Deputy Attorney General

c: Shelley Lynn Stangler, Esquire

155 Morris Avenue

Springfield, NJ 07081-1224

David C. Donohue, Esquire

Farkas & Donohue, LLC

389 Passaic Avenue

Fairfield, NJ 07004

Kevin Albert Terhune, Deputy Attorney General

New Jersey Division of Law

R. J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, NJ 08625-0112

John Joseph Welch, Esquire

2329 State Highway 34

Suite 103

Manasquan, NJ 087360-1442

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