SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4835-17T3

JAMES A. PRESSLEY, SR.,

Plaintiff-Respondent,

V.

COUNTY OF ATLANTIC

and ATLANTIC COUNTY

DEPARTMENT OF FAMILY 

AND COMMUNITY

DEVELOPMENT,

Defendants-Appellants.

___________________________

Submitted July 16, 2019 – Decided July 29, 2019

Before Judges Vernoia and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Docket No. L-1322-18.

James F. Ferguson, Atlantic County Counsel, attorney 

for appellants (James T. Dugan, Assistant County 

Counsel, on the brief).

James A. Pressley, Sr., respondent pro se.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Defendants County of Atlantic and Atlantic County Department of Family 

and Community Development (collectively, the County) appeal from a June 26, 

2018 order determining the County waived the right to challenge the timeliness 

of the notice of claim filed by plaintiff James A. Pressley, Sr. under the New 

Jersey Tort Claims Act (TCA), N.J.S.A. 59-1 to 12-3. For the reasons that 

follow, we reverse and remand.

This action stems from the County's termination of various needs based 

governmental benefits for which plaintiff was eligible based on the number of

children residing in plaintiff's household. Plaintiff appealed the County's 

termination of benefits. An administrative law judge reversed the County's 

termination of benefits, finding plaintiff's household consisted of five eligible 

members entitled to receipt of the benefits.1

Separate from his challenge regarding the termination of benefits, plaintiff 

claimed the County "knowingly, intentionally and willfully manufactured a false 

accusation of fraud" against him related to his eligibility for benefits. According 

to plaintiff, the County's wrongful conduct began on May 19, 2017, the date the 

County notified plaintiff that his benefits would be terminated. 

 

1

 The administrative law judge's decision, restoring plaintiff's benefits, was 

issued on December 22, 2017.
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The County terminated plaintiff's benefits effective June 1, 2017. On June 

2, 2017, plaintiff contacted the County's attorney, requesting a notice of tort 

claim form. Plaintiff requested the claim form because he alleged he was 

harassed by a Department of Family and Community Development employee. 

The County's attorney emailed the claim form to plaintiff that same day. Despite 

receiving the requested claim form on June 2, 2017, plaintiff did not file the 

form within the ninety-day period pursuant to N.J.S.A. 59:8-8. Nearly a year 

later, on May 23, 2018, plaintiff filed his notice of claim. 

Because plaintiff's notice of claim was incomplete, the County's claims 

adjuster contacted plaintiff. After a series of communications seeking additional 

information in support of plaintiff's claim, which plaintiff declined to provide, 

the claims adjuster sent a May 29, 2018 letter advising that plaintiff's notice of 

claim was "accepted and properly filed." The letter also stated that "should 

[plaintiff] undergo the prescribed medical care and/or include a lost wage claim, 

then [the information he] refused to supply to date will be required." 

Prior to receipt of the claims adjuster's letter, on May 22, 2018, plaintiff 

filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-

9. The County opposed the motion. However, based on the claims adjuster's 
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May 29, 2018 letter, plaintiff withdrew his motion for leave to file a late notice 

of tort claim. 

The claims adjuster then issued a June 11, 2018 letter, clarifying the 

County's position regarding plaintiff's notice of claim. The letter advised:

We received your notice of claim form originally on 

May 23, 2018 and following emails and phone 

conversations, you filed an amendment the next day. 

You wanted assurances your claim was properly filed. 

We acknowledged in a letter May 29th that your claim 

was properly filed and accepted with reservations. 

Since the filing of your claim, we have investigated this 

matter further. Your notice of claim form states the 

incident occurred on May 19, 2017 but that it is 

"ongoing." N.J.S.A. 59:8-8 requires a notice of claim 

to be filed within [ninety] days. Accordingly, we 

believe your claim is late.

Based on the June 11, 2018 letter, the County notified plaintiff his claim 

was untimely and therefore barred. Based on the County's position and the June 

11, 2018 letter from the claims adjuster, plaintiff revived his motion to file a late 

notice of tort claim. 

After hearing argument on June 22, 2018, the motion judge concluded that 

the claims adjuster's statements to plaintiff constituted a waiver of the County's 

right to assert the TCA's notice provisions as a defense. The judge stated:

I'm convinced that based upon [the claims adjuster's] 

letter and . . . conduct from the time the claim was 
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asserted that the County through [the County's claims 

administrator] and [the claims adjuster] has waived the 

right to raise the notice provisions in the Tort Claims 

Act as a defense.

. . . .

. . . what I am saying is that once [the claims adjuster] 

takes the steps that he's taken in this case and fails to 

tell the plaintiff – and I understand [the claims 

adjuster]'s not an attorney, but he's a claims 

representative. If he has a question in his mind about 

whether or not the notice of claim is timely filed, he 

does what every insurance company representative 

does, is deny the claim until an attorney can take a look 

at it and make a more definitive statement. He didn't 

do that. He acknowledged that the claim was properly 

filed.

The judge rejected the County's argument that the claims adjuster's 

statements were limited to the completeness of plaintiff's claim form and not an 

admission as to its timeliness. The judge reasoned "if a public entity can waive 

a defense by not raising it in an answer, a representative of a public entity can 

waive a defense of compliance with the notice requirements of the [TCA]." 

Having found the County waived the right to challenge the timeliness of 

plaintiff's notice of claim, the judge dismissed plaintiff's motion to file a late 

notice of tort claim as "moot." 

On appeal, the County raises several arguments. All but one of the 

County's arguments relate to the merits of plaintiff's motion seeking leave to file 
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a late notice of claim. Because the judge found plaintiff's motion for leave to 

file a late notice of claim was moot, he never ruled on the merits of that motion. 

Thus, we address only the County's argument that it did not waive the right to 

challenge plaintiff's failure to satisfy the ninety-day requirement for the filing 

of a timely notice of claim. 

The TCA requires a plaintiff to present his or her claim "not later than the 

90th day after accrual of the cause of action." N.J.S.A. 59:8-8. After ninety 

days, if a court finds "extraordinary circumstances," a plaintiff's notice of claim 

may be filed "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." N.J.S.A. 59:8-9.

We have held that "[t]he defense of failure to file notice under the [TCA]

is an affirmative one which must be pleaded" and that a defendant failing to 

assert the defense "may be found to have waived the protection thereof . . . ." 

Hill v. Bd. of Educ. of Middletown Twp., 183 N.J. Super. 36, 40 (App. Div.

1982). In Hill, the plaintiff failed to provide the public entity with the notice 

required under the TCA. Id. at 38-39. However, the public entity did not 

properly plead the lack of compliance with the TCA's notice requirements in its 

answer. Id. at 39-41. The public entity waited more than two and one-half years 
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to raise the issue of the plaintiff's failure to file a timely notice of claim. Id. at 

41. During that time period, the public entity received extensive discovery from 

the plaintiff and therefore had all of the information related to the plaintiff's 

claim. Ibid. Based on those facts, we held the public entity was estopped from 

asserting the plaintiff's action was barred as a result of the failure to comply with 

the TCA's notice requirements. Ibid. We noted the public entity's "conduct 

created the objective impression that it was waiving the notice requirements, 

especially in view of its failure to properly plead this defense." Ibid. 

The issue in this appeal is whether the County's claims adjuster waived

the County's right to assert the TCA's notice requirement as a defense. We are 

satisfied under these circumstances that the County did not "create[] the 

objective impression that it was waiving the notice requirements . . . ." Ibid.

Here, the claims adjuster, who is not a lawyer, never suggested that 

plaintiff's notice of claim was filed in accordance with the TCA. Nor did 

plaintiff request confirmation that his notice of claim was timely filed and 

complied with the requirements of the TCA. Rather, plaintiff sought 

confirmation that his claim was accepted and filed. 

Moreover, because plaintiff moved for leave to file a late notice of claim 

and complaint, the County had no opportunity to file an answer and assert
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affirmative defenses, including plaintiff's failure to comply with the 

requirements of the TCA. Upon receipt of plaintiff's motion for leave to file a 

late notice of tort claim, the County responded, advising plaintiff failed to timely 

file a notice of claim. 

Plaintiff's notice of claim and motion to file a late notice of tort claim were 

filed around May 22, 2018. As of May 22, 2018, plaintiff understood a motion 

was required to pursue his claims against the County. Based on the timing of 

plaintiff's motion, plaintiff could not have detrimentally relied on the letter from 

the County's claims adjuster, received seven days after plaintiff submitted his 

motion to file a late notice of claim, to invoke the doctrine of estoppel and 

preclude the County from arguing the failure to comply with the requirements 

of the TCA. 

As a result of the judge's mistaken conclusion that the County waived the 

timeliness defense to plaintiff's notice of claim, the judge did not decide

plaintiff's motion for leave to file a late notice of claim. Thus, we remand the 

matter to the motion judge to decide plaintiff's motion. We express no opinion 

regarding the outcome of that motion. 

Reversed and remanded. We do not retain jurisdiction.