accrual claim in New Jersey

2025Thus, N.J.S.A. 59:8-9 provides a claimant may "file an application for leave to serve a late notice of claim on a showing of extraordinary circumstances, so long as the application is filed within one year of the accrual of the claim and the public entity has not been substantially prejudiced by the delay." O'Donnell, 236 N.J. at 346 .

2025Thus, "N.J.S.A. 59:8-9 permits a claimant to file an application for leave to serve a late notice of claim on a showing of extraordinary circumstances, so long as the application is filed within one year of the accrual of the claim and the public entity has not been substantially prejudiced . . . ." O'Donnell, 236 N.J. at 346 .

2021The harshness of N.J.S.A. 59:8-8's ninety-day requirement, however, is in part alleviated by N.J.S.A. 59:8-9, Rogers, 208 N.J. at 420-21, which "permits a court to allow a plaintiff to file a late notice of claim under 'extraordinary circumstances,' if the motion is made within one year of the accrual of the claim," id. at 427 (quoting Lowe v. Zarghami, 158 N.J. 606, 613 (1991)); see also O'Donnell, 236 N.J. at 345-46 .

2021The harshness of N.J.S.A. 59:8-8's ninety-day requirement, however, is in part alleviated by N.J.S.A. 59:8-9, Rogers, 208 N.J. at 420-21, which "permits a court to allow a plaintiff to file a late notice of claim under 'extraordinary circumstances,' if the motion is made within one year of the accrual of the claim," id. at 427 (alteration in original) (quoting Lowe v. Zarghami, 158 N.J. 606, 613 (1999)); see also O'Donnell, 236 N.J. at 345-46 .

2026The TCA bars a claimant from recovering against a public entity or public employee if "[t]wo years have elapsed since the accrual of the claim." N.J.S.A. 59:8-8(b); see also McDade v. Siazon, 208 N.J. 463, 474 (2011) (finding the TCA is strictly construed to permit lawsuits only in circumstances expressly delineated by the statute).

2021The discovery rule delays the accrual of a claim until "the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." McDade, 208 N.J. at 478 -79 (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)).

2019This statute "commits the authority to grant a plaintiff's motion for leave to file late notice to the sound discretion of the trial court, and [its decision] will be A-5953-17T1 7 sustained on appeal in the absence of a showing of an abuse thereof." D.D., 213 N.J. at 147 (internal quotation marks and citation omitted).

2017That *155 application may be granted "in the discretion of a judge of the Superior Court," if there is a showing of "sufficient reasons constituting extraordinary circumstances” for the claimant's failure to timely serve the notice, and if the public entity will not be "substantially prejudiced thereby.” N.J.S.A. 59:8-9; see also D.D., supra, 213 N.J. at 134-35 , 61 A.3d 906 (applying N.J.S.A. 59:8-9); McDade v. Siazon, 208 N.J. 463, 477 , 32 A.3d 1122 (2011) (same); Rogers, supra, 208 N.J. at 427, 31 A.3d 934 (same).

2018Application 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 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

1999The difficulty, of course, is that the motion papers were too perfunctory and uninformative to permit a judicial finding to that effect, and the judge did not pursue this obliquely raised assertion. [emphasis added.] This conclusion of "potential extraordinary circumstance," ante at 111, 723 A. 2d at 77, is sheer speculation. [3] N.J.S.A. 59:8-9 provides, in part: A claimant who fails to file a 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

2011A 59:8-9 (“[Claimant ..., 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____” (emphasis added)); Lowe v. Zarghami, 158 N.J. 606, 613 , 731 A.2d 14 (1999) (noting that N.J.S.A 59:8-9 “permits a court to allow a plaintiff to file a late notice of a claim under 'extraordinary circumstances,’ if the motion is made within one year of the accrual of the claim” (emphasis added)); see also Pilonero v. Twp. of Old Bridge, 236 N.J.Super. 529, 532 , 566 A.2d 546 (App.Div.1989) (“After the one-year limitation has pass

2011A 59:8-9 (“[Claimant ..., 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____” (emphasis added)); Lowe v. Zarghami, 158 N.J. 606, 613 , 731 A.2d 14 (1999) (noting that N.J.S.A 59:8-9 “permits a court to allow a plaintiff to file a late notice of a claim under 'extraordinary circumstances,’ if the motion is made within one year of the accrual of the claim” (emphasis added)); see also Pilonero v. Twp. of Old Bridge, 236 N.J.Super. 529, 532 , 566 A.2d 546 (App.Div.1989) (“After the one-year limitation has pass

2020N.J.S.A. 59:8-9 provides in A-1488-19T1 10 pertinent part that "[a] claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8" may "be permitted to file such notice at any time within one year after the accrual of his claim" if he can show "sufficient reasons constituting extraordinary circumstances for his failure to file" within ninety days of the accrual of his cause of action as required by N.J.S.A. 59:8-8, "provided that the public entity or the public employee has not been substantially prejudiced thereby." A claim "accrues" under section 8-1 of the Tort

2018Application 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 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

2021Ibid.

2020The discovery rule tolls the accrual date when "the victim either is unaware that he has been injured or, although aware of an injury, does not know that a A-0052-19T1 17 third party is responsible." Id.; see also Ben Elazar, 230 N.J. at 127 (finding that "[u]nder traditional equitable principles of our discovery rule, the date of the accrual of a claim . . . may be tolled when plaintiffs lack knowledge of fault of a third party").

1999In Feinberg v. State, D.B.P., 137 N.J. 126 [ 644 A.2d 593 ] (1994), plaintiff sought more specific information about the ownership of the Delaware and Raritan Canal but was thwarted by the original defendants who faded to disclose the identity of the responsible public entity for two years beyond the accrual of the claim.

1999In Feinberg v. State, D.B.P., 137 N.J. 126 [ 644 A.2d 593 ] (1994), plaintiff sought more specific information about the ownership of the Delaware and Raritan Canal but was thwarted by the original defendants who faded to disclose the identity of the responsible public entity for two years beyond the accrual of the claim.

2000Application 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 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 ti

2000Application 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 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 ti

2026"The filing of a notice of claim more than [ninety] days after the accrual of a claim without leave of court is a nullity." Priore v. State, 190 N.J.

1983Claimant’s motion seeking leave from the court to file a late notice was not filed until more than one year after the accrual of her claim. 190 N.J.Super. at 129 .

2021See also Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 98 (1996) (quoting Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968)) ("The traditional rule is that a cause of action accrues on the date when 'the right to institute and maintain a suit'[] first arises.").

1999On the question of accrual, the New Jersey Supreme Court has noted that "the Legislature has not specified when the cause of action shall be deemed to have accrued and the matter has therefore been left entirely to judicial interpretation and administration." Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 98 , 675 A. 2d 1077 (1996) (quoting *609 Rosenau v. City of New Brunswick, 51 N.J. 130, 137 , 238 A. 2d 169 (1968)).

2021Under the discovery rule, we have previously described the accrual date as the time which an injured party had "both of the two pieces of information that are key to the discovery rule, namely an injury and 'facts suggesting that a third party may be responsible.'" Maher v. County of Mercer, 384 N.J.

2006The court may grant leave for the late notice if the motion is filed within one year of the date of the accrual of the claim, "provided that the public entity or public employee has not been substantially prejudiced thereby." Ibid.

2021See also Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 98 (1996) (quoting Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968)) ("The traditional rule is that a cause of action accrues on the date when 'the right to institute and maintain a suit'[] first arises.").

1999On the question of accrual, the New Jersey Supreme Court has noted that "the Legislature has not specified when the cause of action shall be deemed to have accrued and the matter has therefore been left entirely to judicial interpretation and administration." Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 98 , 675 A. 2d 1077 (1996) (quoting *609 Rosenau v. City of New Brunswick, 51 N.J. 130, 137 , 238 A. 2d 169 (1968)).

2021The discovery rule delays the accrual of a claim until "the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." McDade, 208 N.J. at 478 -79 (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)).

1998Thus, the claim is that at the time of the default on the loan, April 1, 1989, the plaintiff would have known facts indicating “a basis for an actionable claim” if it had exercised “reasonable diligence and intelligence.” Lopez v. Swyer, 62 N.J. 267, 272 , 300 A.2d 563 (1973).

2019Def. , 208 N.J. 414 , 420, 31 A.3d 934 (2011), the Legislature created a mechanism through which a claimant could obtain judicial approval to file a late notice of claim under certain circumstances: 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.

2019Def. , 208 N.J. 414 , 420, 31 A.3d 934 (2011), the Legislature created a mechanism through which a claimant could obtain judicial approval to file a late notice of claim under certain circumstances: 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.

2019As we held in Circle Chevrolet and reiterated in Olds , "the determination of the accrual of a legal-malpractice claim for the purposes of imposing the entire-controversy bar is like the determination of the accrual of the bar of the statute of limitations." Olds , 150 N.J. at 436 , 696 A.2d 633 (citing Circle Chevrolet , 142 N.J. at 296 , 662 A.2d 509 ). 5 In both decisions, we derived our analysis from the discovery rule, the equitable principle governing statute of limitations cases that "triggers the accrual of the statute of limitations for attorney-malpractice actions." Ibid.

2019As we held in Circle Chevrolet and reiterated in Olds , "the determination of the accrual of a legal-malpractice claim for the purposes of imposing the entire-controversy bar is like the determination of the accrual of the bar of the statute of limitations." Olds , 150 N.J. at 436 , 696 A.2d 633 (citing Circle Chevrolet , 142 N.J. at 296 , 662 A.2d 509 ). 5 In both decisions, we derived our analysis from the discovery rule, the equitable principle governing statute of limitations cases that "triggers the accrual of the statute of limitations for attorney-malpractice actions." Ibid.

2015Dist., 387 N.J.

2008Dist., 387 N.J.Super. 331, 340 , 903 A. 2d 1110 (App.Div.2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J.Super. 399, 403 , 675 A. 2d 1176 (App.Div.1996), overruled on other grounds by Beauchamp, supra, 164 N.J. at 120 , 751 A. 2d 1047 ), this "discretion is limited to cases in which the claimant's affidavit shows `sufficient reasons constituting extraordinary circumstances' for the delay and there is no `substantial[ ] prejudice[ ]' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J.Super. at 403 , 675 A. 2d 1176 ) (alterations in original).

1983Similarly, the facts of Anaya v. Tp. of Vernon, 139 N.J.Super. 409 (App.Div.1976), certif. den. 71 N.J. 494 (1976); Pinckney v. City of Jersey City, 140 N.J.Super. 96 (Law Div.1976); and Bell v. County of Camden, et al., 147 N.J.Super. 139 (App.Div.1977), are distinguishable from the facts herein.

1977Bell v. Camden Cty., supra at 142; Keller v. Somerset Cty., 137 N.J.

2020See also Tortorello v. Reinfeld, 6 N.J. 58, 65 (1959); Margolis and Novack, Claims against Public Entities, 1972 Task Force Comment to N.J.S.A. 59:8-1 (2020).

2019Before plaintiff became aware that her privacy was invaded, defendants had the "opportunity to plan for potential liability and correct the underlying condition." Id. at 345 (quoting Jones v. Morey's Pier, Inc., 230 N.J. 142, 155 (2017)).