Demetrius Lindsey v. Nj Transit Corporation

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3368-24 DEMETRIUS LINDSEY, Plaintiff-Appellant, v. NJ TRANSIT CORPORATION and ROBERT CUEVES, III, Defendants-Respondents. __________________________ Submitted September 21, 2026 – Decided September 29, 2026 Before Judges Sabatino and Torregrossa-O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0304-25. Jay L. Edelstein (Edelstein Law LLP), attorney for appellant. Jennifer Davenport, Attorney General, attorney for respondent NJ Transit Corporation (Christopher Weber, Assistant Attorney General, of counsel; Elizabeth Merrill, Deputy Attorney General, on the brief). PER CURIAM Plaintiff Demetrius Lindsey appeals from the March 28, 2025 Law Division order denying his motion for leave to file a late notice of tort claim under the New Jersey Tort Claims Act (TCA or the Act), N.J.S.A. 59:1-1 to :12- 3, and the May 13, 2025 order denying reconsideration. The trial court found plaintiff did not provide defendant New Jersey Transit Corporation (NJT) with timely notice of his claim for injuries allegedly sustained while a passenger on a NJT bus. The court also determined plaintiff presented no "extraordinary circumstances" justifying the unreasonable delay of almost one year from the incident to seek leave to file tort claims notice out of time. We affirm. I. Alleging he sustained injuries on February 13, 2024 while a passenger on a NJT bus, plaintiff filed a complaint on February 7, 2025, asserting claims of negligence and vicarious liability against NJT, the bus driver, Robert Cueves, III,1 and several fictitious parties. Plaintiff alleged the bus was traveling on Broad Street in Trenton, when Cueves "swerve[d]" the bus "to avoid a phantom 1 Cueves has not submitted a separate brief or otherwise joined the appeal; nor does the motion record reflect any independent representation of Cueves or separate arguments on his behalf. A-3368-24 2 vehicle" and applied the brakes causing plaintiff to fall from his seat to the bus's floor. Plaintiff claimed he suffered cervical and lumbar injuries, requiring ongoing medical treatment, physical therapy, and pain management. Cueves filed an internal Operator's Occurrence Report on the day of the incident listing plaintiff as an "injured part[y]" who "state[d] he fell out of his seat." A "NJT Incident Form" from that day noted the "operator" reported "an injury on board." The report stated, "Passenger is complaining of back, left knee, right ankle & testicles. Operator does have witness card. Passenger was transported to [hospital]." Indicating the "operator" stated a car "stop[ped] short in front of the bus" to make a turn, the report confirmed the operator explained he was forced to swerve causing the passenger to fall from his seat. On February 22, 2024, plaintiff's counsel sent a letter to NJT to the attention of the "Custodian of Records," stating in its entirety: Please be advised that I represent [plaintiff] for personal injuries arising from an accident at Broad St on February 13, 2024. At this time, I am requesting a copy of any incident reports identifying how the incident occurred, maintenance, the responding parties, etc. Kindly forward same via email to my office. Thank you for your prompt attention and time to this matter. A-3368-24 3 Plaintiff also completed a companion handwritten form, identifying his location on the bus, stating, "I saw the driver swerve between lanes. A greyish blue car coming from [illegible] stop. Car in front of bus stopped making the [illegible]." 2 By "Letter of Representation" from plaintiff's counsel to NJT "Claims Department/Legal Department," dated May 31, 2024, 108 days after the incident, plaintiff's counsel notified: Please be advised that I represent [plaintiff] with regard to injuries [he] sustained in the accident of February 13, 2024. Please update your file to reflect this information and forward any/all future correspondence to my attention. Please see the attached incident report for the date in question. At this time I would like to request that a claim be initiated for the client. [(Emphasis added).] An NJT claims investigator responded by letter dated June 5, 2024, advising NJT received but "[could not] accept" plaintiff's counsel's May 31 letter as providing "notice of claim within the meaning of" the TCA because "more than ninety . . . days ha[d] passed from the accrual of the claim." Email and telephonic correspondence followed between the investigator and plaintiff's 2 A copy of the document included in plaintiff's appendix is only partially legible. A-3368-24 4 counsel beginning in October 2024 to early January 2025, in which plaintiff's counsel cited as timely notice his initial February 22, 2024 letter. By January 8, 2025 email, the investigator clarified, "We discussed this back on October 18, 2024. The letter of representation was received after the 90th day. I would advise following up with the court at this point." On February 12, 2025, 364 days after the incident and less than a week after filing his complaint in the Law Division, plaintiff moved "For Leave to File Late Notice of Tort Claim Under the [TCA] Pursuant to [N.J.S.A.] 59:8-9." Plaintiff contended he provided timely notice because defendant allegedly had all necessary information regarding plaintiff's claim—including plaintiff's counsel's February 22, 2024 letter and the incident and occurrence reports— before the ninety-day deadline. He asserted counsel's early communication and NJT's actual immediate notice of the incident constituted "extraordinary circumstances," warranting late notice. At oral argument on March 28, 2025, plaintiff's counsel claimed "extraordinary circumstances" existed as "plaintiff reasonably believed [defendant] had all of the necessary information to be on notice" within the initial ninety days after the incident, emphasizing the motion for leave to file a late notice of claim was eventually filed before the one-year outer deadline set A-3368-24 5 forth in N.J.S.A. 59:8-9. Plaintiff's counsel also maintained defendant endured no prejudice. In response, NJT argued plaintiff did not file a sufficient notice of claim within time, which NJT claimed it "made clear" to plaintiff in writing in June 2024. Thus, NJT argued, there were "absolutely no extraordinary circumstances" to excuse "waiting . . . a day before the year deadline passes to file this motion for a late notice of claim." By order and oral decision, the court denied plaintiff's motion, finding plaintiff failed to demonstrate timely notice or extraordinary circumstances for the late filing. The court found unreasonable plaintiff's unexplained delay of almost one year from the incident, and eight months from NJT's officially rejecting notice as untimely, to seek leave of court to file late notice. Thereafter, plaintiff moved for reconsideration. Although conceding no claim was made through the NJT electronic "portal," plaintiff's counsel argued the court was "exalting form over substance," as NJT had early notice of plaintiff's name and "information about what happened." When the court questioned plaintiff's lengthy delay before filing for leave to file late, counsel indicated plaintiff filed the motion "out of an abundance of caution," as plaintiff believed he complied with the statute and timely notified NJT of his claim. To the court's inquiry as to whether "the actual inference of [plaintiff's] argument A-3368-24 6 [wa]s that one never really needs to file a notice of claim so long as there's some communication with the public entity or employee," plaintiff's counsel responded, "Well, yes. [A]s long as they have the information that's necessary." Plaintiff reiterated NJT suffered no prejudice in its ability to investigate the claim. Finding plaintiff simply reargued the merits, the court denied reconsideration. The court again considered the timeline of events and correspondence between the parties, finding neither substantial compliance with timely notice nor exceptional circumstances. The court also noted plaintiff retained counsel early, and "counsel [is] chargeable with the requirements of the [TCA]." It further reasoned "plaintiff's argument basically could by logic . . . render the . . . notice provisions of the [TCA] to be a virtual nullity" and "wreak havoc with the statutory scheme that our [L]egislature enacted." Plaintiff now appeals, reprising his argument that he "substantially complied" with the Act's notice requirements and contending the trial court failed to adequately consider substantial compliance as a threshold matter before assessing whether extraordinary circumstances warranted late filing. He claims the trial court never properly analyzed the information known to NJT within the initial ninety days of the bus incident against the statutory notice requirements A-3368-24 7 set forth in N.J.S.A. 59:8-4. Plaintiff again alternatively argues late notice should have been permitted due to the "extraordinary circumstances" surrounding his alerting NJT to a potential claim. He further asserts the trial court failed to address the absence of prejudice to NJT. II. "[W]e review de novo . . . whether the doctrine of substantial compliance applies to preserve" a claim under the TCA. H.C. Equities, LP v. Cnty. of Union, 247 N.J. 366 , 381 (2021). By contrast, "[p]ursuant to the express terms of the [TCA], we review a trial court's application of the extraordinary circumstances exception for abuse of discretion." O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344 (2019). Indeed, "[t]he decision to grant permission to file a late notice under the [TCA] 'within the one year period is a matter left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof.'" Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532 (App. Div. 2010) (quoting Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)). We "examine more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist A-3368-24 8 should be resolved in favor of the application." Mendez, 416 N.J. Super. at 533 (quoting Lowe v. Zarghami, 158 N.J. 606, 629 (1999)). Further, "[w]hile deference will ordinarily be given to discretionary decisions, such decisions will be overturned if they were made under a misconception of the applicable law." O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997) (citing Alk Assocs. v. Multimodal Applied Sys., Inc., 276 N.J. Super. 310, 314 (App. Div. 1994)) (noting "[d]espite the 1994 amendments [to the TCA], the abuse of discretion standard of review remain[ed] the same"). We review with deference a trial court's denial of a motion for reconsideration under Rule 4:49-2 and disturb those findings only upon an abuse of discretion. Branch v. Cream-O- Land Dairy, 244 N.J. 567 , 582 (2021). Clear statutory mandates further govern our review. The TCA modifies the doctrine of sovereign immunity and establishes the parameters within which an injured party may recover for the tortious acts of public entities and employees. Feinberg v. N.J. Dep't of Env't Prot., 137 N.J. 126, 133 (1994). The statute's "guiding principle" is "that immunity from tort liability is the general rule and liability is the exception." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013) (quoting Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005)). Therefore, the TCA "imposes strict requirements upon litigants A-3368-24 9 seeking to file claims against public entities," McDade v. Siazon, 208 N.J. 463, 468 (2011), and provides "no action shall be brought against a public entity . . . under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth." N.J.S.A. 59:8-3. Accordingly, N.J.S.A. 59:8-8 requires notice within ninety days of the incident. Failure to file within ninety days forever bars recovery against a public entity or public employee "except as otherwise provided in N.J.S.[A.] 59:8-9." N.J.S.A. 59:8-8(a). Claims filed with the public entity must contain essential information. Specifically, the notice "shall include": a. The name and post office address of the claimant; b. The post-office address to which the person presenting the claim desires notices to be sent; c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted; d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim; e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any A-3368-24 10 prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. [N.J.S.A. 59:8-4]. It is well-settled that [a]scertaining the timeliness of a [TCA] notice requires a simple, three-step sequential analysis that never changes. The first step is to determine when the cause of action accrued in accordance with N.J.S.A. 59:8- 1. . . . Once the date of accrual is ascertained, one can proceed to the second step, which "is to determine whether a notice of claim was filed within ninety days" as required by N.J.S.A. 59:8-8. "If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice" under N.J.S.A. 59:8-9. [McNellis-Wallace v. Hoffman, 464 N.J. Super. 409 , 416 (App. Div. 2020) (quoting Beauchamp v. Amedio, 164 N.J. 111, 118-19 (2000))]. Here, it is undisputed plaintiff's accrual date was February 13, 2024, the day of his fall, making May 13, 2024, the deadline for timely notice. Thus, plaintiff contends his claims should have been permitted to proceed as he "substantially complied" with notice prior to May 13, or alternatively, extraordinary circumstances permitted his late filing. Against this backdrop, we consider plaintiff's arguments. A-3368-24 11 A. We first consider plaintiff's claim he substantially complied with the TCA's notice requirement. Preliminarily, before considering substantively plaintiff's claim that he substantially complied with the TCA's notice requirement, we reject his argument that the trial court bypassed any analysis of whether he substantially complied and instead "assumed noncompliance and leapt directly to penalization." Notably, plaintiff elected to proceed by way of motion for leave to file a late tort claims notice, implicitly recognizing the TCA notice was out of time. Nonetheless, having reviewed the record, we are satisfied plaintiff raised and the court addressed his claim that he substantially complied with providing timely notice. Indeed, the court's questioning and reasoning reflected that it considered the totality of information known to NJT, and its sources and found no substantial compliance. The court found the February 22 letter was insufficient to constitute notice and rejected plaintiff's argument that the quantum of internal information known to NJT supplanted his obligation to comply with the statutory requirements. We discern no error. Courts have applied the equitable doctrine of "substantial compliance" to determine if a purported notice of claim satisfied the notice requirements of the TCA to assure technical defects do not unfairly bar legitimate claims. See D.D., A-3368-24 12 213 N.J. at 159-60 . However, invocation of that doctrine "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." H.C. Equities, 247 N.J. at 384 (quoting D.D., 213 N.J. at 159 ). In assessing "substantial compliance," courts consider: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5) a reasonable explanation why there was not a strict compliance with the statute. [Id. at 386 (quoting Galik v. Clara Maass Med. Ctr., 167 N.J. 341 , 353 (2001)).] Here, counsel's February 22, 2024 letter standing alone fell short of fulfilling the statutory notice requirements. It stated only that counsel represented plaintiff "for personal injuries arising from an accident on Broad St. on February 13, 2024," and requested copies of "incident" and "maintenance" reports. Missing from this letter was any notice that a claim was being made against NJT, the specifics or nature of such claim, or any mention of Cueves as a potentially responsible employee. The letter further omitted essential information required under N.J.S.A. 59:8-4, such as plaintiff's address, the A-3368-24 13 "circumstances of the occurrence or transaction which gave rise to the claim asserted." Further, the subsequent May 31, 2024 letter from plaintiff's counsel explicitly stated, "At this time I would like to request that a claim be initiated for the client," confirming its intended purpose to serve as plaintiff's notice of claim. Counsel's early correspondence was not notice. We are likewise not persuaded NJT's internal documentation of the incident or its knowledge plaintiff sustained an injury, combined with counsel's February 22 letter, equated to notice satisfying the TCA. NJT was at best aware an attorney requested information on plaintiff's behalf concerning the bus incident that allegedly caused plaintiff some level of injury. That is insufficient to satisfy plaintiff's obligations under the TCA as the party contemplating suit against a public entity. See H.C. Equities, 247 N.J. at 387 (finding the public entity cannot be expected "to analyze multiple communications and determine whether, viewed in the aggregate, they reveal an intent to sue"). That NJT had the arguable capacity to note the possibility some type of claim or litigation might later ensue is of no moment. The TCA does not impose upon the public entity an obligation to proactively cull its internal documentation to put itself on notice that a potential plaintiff failed to supply. A-3368-24 14 Moreover, as recognized by the trial court, plaintiff was represented by counsel who did not set forth a "reasonable explanation why there was not a strict compliance with the statute." Galik, 167 N.J. at 353. This unexplained omission is also fatal to plaintiff's alternative claim that extraordinary circumstances necessitated the trial court's permitting its late notice of tort claim to proceed. B. Turning to plaintiff's claim of extraordinary circumstances, we likewise are not convinced plaintiff met the exacting standard. We recognize, though "strict," the Act's ninety-day deadline is "not absolute." H.C. Equities, 247 N.J. at 382. N.J.S.A. 59:8-9 provides claimants failing to timely file notice of claim may seek permission to file as within time by applying to "the court for permission." The claimant must support the request with affidavits based upon personal knowledge of the affiant showing 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; 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. [(Emphasis added).] A-3368-24 15 The "extraordinary circumstances" requirement sought to "raise the bar" for filing late notices. Rogers v. Cape May Cnty. Off. of Pub. Def., 208 N.J. 414, 428 (2011). Thus, "in the absence of other sufficient evidence of extra[]ordinary circumstances that prevented plaintiff from pursuing a timely tort claim, . . . the court is not authorized to grant leave to file a late notice of tort claim." D.D., 213 N.J. at 135 . "[E]xtraordinary circumstances is not statutorily defined, and is determined on a case-by-case basis after consideration of the facts." Mendez, 416 N.J. Super. at 533 (citing Lowe, 158 N.J. at 626 ). "[I]n reviewing [the trial court's] decision[], [we] must ensure that [the] decision[] [is] faithful to the overall legislative framework in order that the statute's essential purposes be preserved and not eroded through excessive or inappropriate exceptions." D.D., 213 N.J. at 148-49 . Generally, "a plaintiff's ignorance of the ninety-day deadline or counsel's inattention or administrative shortcomings do not constitute extraordinary circumstances." Rogers, 208 N.J. at 428 ; see also D.D., 213 N.J. at 156-58 (acknowledging counsel's inadvertent omission does not meet the threshold); O'Neill, 304 N.J. Super. at 552 ("Ignorance of the law, without more, does not constitute sufficient reason for delay."). Thus, any mistaken belief by plaintiff and his counsel that sufficient notice already existed or error by counsel in A-3368-24 16 failing to include the requisite elements of sufficient tort claims notice in its initial letter, does not, without more, excuse noncompliance. Plaintiff's reliance on O'Donnell, 236 N.J. at 335 , is misplaced. In O'Donnell, the plaintiff, although acknowledging the New Jersey Turnpike Authority (NJTA) was the "responsible" entity, mistakenly served the notice of claim on the State for a deadly multi-car accident. Id. at 339-40 . Plaintiff then provided notice to the NJTA more than six months after the accident. Id. at 350 . Because the plaintiff's initial notice contained all the required information, including correctly identifying NJTA as the "responsible" party, and as NJTA received "nearly identical notice of claim" from another driver involved in the same accident who indicated plaintiff's deceased husband and child were also involved, the Court determined "the circumstances of th[e] case [we]re extraordinary" and permitted late notice. Id. at 350-51 (deeming the circumstances "rare" and allowing the claim to proceed). Unlike the early correspondence in O'Donnell, plaintiff's February 22 letter did not meet the statutory notice requirements. Also, here, plaintiff filed his motion for leave to file late notice 364 days after the incident, long after NJT expressly rejected plaintiff's claim as untimely. The circumstances presented here are not analogous to those in O'Donnell, but rather notable in their A-3368-24 17 distinguishing features, as we already concluded NJT's mere possession of some information regarding the bus incident did not somehow cure plaintiff's insufficient efforts and belated notice of claim. C. Finally, we discern no merit to plaintiff's argument that the trial court's failure to weigh any prejudice to NJT was error. Plaintiff's motion could not succeed once the trial court properly concluded plaintiff failed to show extraordinary circumstances. Concluding the motion to file late notice was properly denied, we similarly conclude the trial court properly denied reconsideration. Affirmed. A-3368-24 18