39:4-97 Careless driving Fine or imprisonment not exceeding 15 days, or both Fine $50-$200 2 MVC points plus court costs and 2 Car insurance points

 39:4-97 Careless driving 

Fine or imprisonment not exceeding 15 days, or both

Fine $50-$200 2 MVC points plus court costs and 2 Car insurance points and possible non renewal by insurance company penalty at 39:4-104

     Plus Judge Can Suspend DL for Willful Traffic Offense. 

State v. Moran  202 NJ 311 (2010) 

       The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

 

39:4-97.     Careless driving  
    39:4-97.  A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving. 

 

           The NJ Appellate Division in held in State v Lutz 309 N.J. Super. 317 (App. Div. 1998) that merely because an accident took place a driver does not been the driver is guilty of careless driving. The court wrote:

          "Finally, we find merit in defendant's contention that the State failed to prove beyond a reasonable doubt that he was guilty of careless driving. 

The court wrote:

     It appears that both the Municipal Court judge and the Law Division judge applied a res ipsa loquitur analysis in finding defendant guilty of careless driving.   The doctrine of res ipsa loquitur, however, has no application in the determination of careless driving due to the quasi-criminal nature of the proceeding in which the State has the burden of proving beyond a reasonable doubt all elements of the offense.   See State v. Wenzel, 113 N.J.Super., 215, 216-18, 273 A.2d 395 (App.Div.1971) (the mere fact of an “otherwise unexplained jackknifing” where a tractor-trailer entering a construction area had jackknifed on the wet roadway, crossed into the opposite lane and broadsided another truck fatally injuring the truck's driver, did not establish that the defendant had been driving carelessly.)

The careless driving statute provides:

[a] person who drives a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.

[N.J.S.A. 39:4-97.]

Here, other than the accident itself, the State only presented defendant's statement that his vehicle began to slide on the wet highway and continued to do so when he tapped his brakes.   Moreover, his apology was not an admission to driving carelessly, but merely a statement that his car had slid on the wet pavement.   The State presented no evidence indicating that defendant had been speeding, driving too fast for the wet road conditions, distracted or otherwise driving without due caution and circumspection.   Consequently, there was insufficient evidence to support defendant's conviction for careless driving, and we reverse that conviction.

 

      In State v. Wenzel, 113 N.J. Super. 215 (App. Div. 1971) defendant was charged with careless driving when his tractor-trailer jackknifed and struck another trailer. The State's only witness did not see the accident. There was no evidence defendant was speeding or that he drove without due caution or circumspection. However, both the municipal and county courts determined that an otherwise unexplained jackknifing was indicative of careless driving. The Appellate Division reversed, holding the res ipsa doctrine employed by the lower courts had no place in a quasi-criminal action for careless driving. The rationale of the Wenzel decision applies to this case.

                                                     

See also State v Roenicke 174 N.J. Super. 513 (Law Div 1980)

       Defendant was involved in a one-car accident, which was not observed, by the trooper or any other witness. The State failed to establish beyond a reasonable doubt that he drove in a reckless manner.  Defendant cannot be found guilty of reckless driving, and his conviction is set aside.

 

          More info at http://www.njlaws.com/careless_reckless_driving.htm

 

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 

Kenneth Vercammen’s office represents persons charged with Serious Traffic offenses. Criminal and Motor vehicle violations are expensive.  If convicted, you will have to pay high fines in court, face probation, and other serious penalties that may effect future employment.

You should consider hiring a Certified Municipal Court Law Attorney such as Kenneth Vercammen to Represent you . Very few attorneys in New Jersey have been able to pass the rigid test to be recognized by the Supreme Court as a Certified Municipal Court Law Attorney.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in penalties you need excellent legal representation. The cheap attorney is never the answer. Schedule a free in-office consultation if you need experienced legal representation in a traffic/municipal court matter.

Our website www.njlaws.com provides details on jail terms for criminal offenses and other traffic matters. Call the Law Office of Kenneth Vercammen a to schedule a free in-office consultation to hire a trial attorney for Criminal/ DWI/ Municipal Court Traffic/ Drug offenses.  Please call us to schedule an appointment if you need experienced legal representation in a criminal matter. Save this letter for future reference.

                                          Kenneth Vercammen, Certified Criminal Trial Attorney

                                          Past NJSBA “Municipal Court Attorney of the Year”

Former Prosecutor of Cranbury Municipal Court 

and co-Author of: ABA  "Handling Drug and DWI Cases." 

Celebrating 30+ years of providing excellent service to clients since 1985. We fight to win!

For information on points, fines, jail and suspension for this violation, go to KennethVercammen.com/traffic_minimum_penalties.htm

 

39:4-85 Failure to pass to left when overtaking 4 MVC points

 39:4-85 Failure to pass to left when overtaking 4 MVC points

    Penalties set forth at 39:4-203 Fine or imprisonment not exceeding 15 days, or both

fines $50 $200 plus court costs, 4 car insurance points and possible non renewal by insurance company

 

39:4-85  Passing to left when overtaking; passing when in lines; passing on right.


39:4-85. The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.  If vehicles on the roadway are moving in two or more substantially continuous lines, the provisions of this paragraph and section 39:4-87 of this Title shall not be considered as prohibiting the vehicles in one line overtaking and passing the vehicles in another line either upon the right or left, nor shall those provisions be construed to prohibit drivers overtaking and passing upon the right another vehicle which is making or about to make a left turn.

 

The driver of a vehicle may overtake and pass another vehicle upon the right as provided in this section only under conditions permitting such movement in safety.  In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway.

amended 1951, c.23, s.45; 2014, c.69, s.6.

 

plus possible loss of license

Judge Can Suspend DL for Willful Traffic Offense. 

State v. Moran  202 NJ 311 (2010) 

         The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

 

39:6B-2 Penalties revised for No insurance Failure to carry motor vehicle insurance coverage

  39:6B-2 Penalties revised for No insurance Failure to carry motor vehicle insurance coverage-  

 

First offense: Fine and a period of

community service as determined

by the court, and suspension of

driving privileges by Court up to 1 year

fine $300 -$1000 plus court costs

Plus 9 car insurance points and $750 in MVC surcharges per offense

 

No insurance 2^nd & Subsequent offense: 

Shall be subject to 14 days

imprisonment, mandatory 30 days

community service and

 suspension up to two years

fine up to $5000 plus court costs

Plus 9 car insurance points and $750 in MVC surcharges per offense

 

39 :6B-2  Penalties. New law 2019 No more mandatory suspension

   An owner or registrant of a motor vehicle registered or principally garaged in this State who operates or causes to be operated a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by P.L.1972, c.197 (C.39:6B-1 et seq.), and an operator who operates or causes a motor vehicle to be operated and who knows or should know from the attendant circumstances that the motor vehicle is without motor vehicle liability insurance coverage required by P.L.1972, c.197 (C.39:6B-1 et seq.) shall be subject, for the first offense, to a fine of not less than $300 nor more than $1,000 and a period of community service to be determined by the court.  

The court, in its discretion, also may suspend the person's right to operate a motor vehicle over the highways of this State for a period of up to one year from the date of conviction; provided, however, the period of license suspension may be reduced or eliminated if the person provides the court with satisfactory proof of motor vehicle liability insurance at the time of the hearing. 

 Upon subsequent conviction, the person shall be subject to a fine of up to $5,000 and shall be subject to imprisonment for a term of 14 days and shall be ordered by the court to perform community service for a period of 30 days, which shall be of a form and on terms as the court shall deem appropriate under the circumstances, and  the court, in its discretion, may suspend the person's right to operate a motor vehicle over the highways of this State for a period of up to two years from the date of the conviction. In deciding the duration of any suspension of the person's right to operate a motor vehicle pursuant to this section, the court shall consider the circumstances of the violation and whether the loss of driving privileges will result in extreme hardship and alternative means of transportation are not readily available.  After the expiration of the suspension, the person may make application to the Chief Administrator of the New Jersey Motor Vehicle Commission for a license to operate a motor vehicle, which application may be granted at the discretion of the chief administrator.  The chief administrator's discretion shall be based upon an assessment of the likelihood that the individual will operate or cause a motor vehicle to be operated in the future without the insurance coverage required by this act.  A complaint for violation of this act may be made to a municipal court at any time within six months after the date of the alleged offense.

   Failure to produce at the time of trial an insurance identification card or an insurance policy which was in force for the time of operation for which the offense is charged creates a rebuttable presumption that the person was uninsured when charged with a violation of this section.

   L.1972, c.197, s.2; amended 1983, c.141, s.1; 1987, c.46; 1988, c.156, s.15; 1990, c.8, s.49; 1997, c.151, s.12; 2013, c.237; 2019, c.276, s.17.

39:3-33 Fictitious or Unclear plates

 39:3-33 Fictitious or Unclear plates

Display of unclear or

indistinct license plates

 

Typically 1^st offense you’re looking at $56 fine and $33 court costs.  It is the subsequent offenses once the officer pulls you over which become a problem.

 

  If default in

fine, then imprisonment not

exceeding 10 days

fine up to $100

39 :3-33 .    Markers; requirements concerning; display of fictitious or wrong numbers, etc.; punishment  

      The owner of an automobile which is driven on the public highways of this State shall display not less than 12 inches nor more than 48 inches from the ground in a horizontal position, and in such a way as not to swing, an identification mark or marks to be furnished by the division; provided, that if two marks are issued they shall be displayed on the front and rear of the vehicle; and provided, further, that if only one mark is issued it shall be displayed on the rear of the vehicle; and provided, further, that the rear identification mark may be displayed more than 48 inches from the ground on tank trucks, trailers and other commercial vehicles carrying inflammable liquids and on sanitation vehicles which are used to collect, transport and dispose of garbage, solid wastes and refuse. Motorcycles shall also display an identification mark or marks; provided, that if two marks are issued they shall be displayed on the front and rear of the motorcycle;  and provided, further, that if only one mark is issued it shall be displayed on the rear of the motorcycle.  

    The identification mark or marks shall contain the number of the registration certificate of the vehicle and shall be of such design and material as prescribed pursuant to section 2 of P.L.1989, c.202 (C.39:3-33.9). All identification marks shall be kept clear and distinct and free from grease, dust or other blurring matter, so as to be plainly visible at all times of the day and night.  

    No person shall drive a motor vehicle which has a license plate frame or identification marker holder that conceals or otherwise obscures any part of any marking imprinted upon the vehicle's registration plate or any part of any insert which the director, as hereinafter provided, issues to be inserted in and attached to that registration plate or marker.  

    The director is authorized and empowered to issue registration plate inserts, to be inserted in and attached to the registration plates or markers described herein.  They may be issued in the place of new registration plates or markers; and inscribed thereon, in numerals, shall be the year in which registration of the vehicle has been granted.  

    No person shall drive a motor vehicle the owner of which has not complied with the provisions of this subtitle concerning the proper registration and identification thereof, nor drive a motor vehicle which displays a fictitious number, or a number other than that designated for the motor vehicle in its registration certificate.  During the period of time between the application for motor vehicle registration and the receipt of registration plates from the division, no person shall affix a plate or marker for the purpose of advertisement in the position on a motor vehicle normally reserved for the display of the registration plates required by this section if the plate or marker is designed with a combination of letters, numbers, colors, or words to resemble the registration plates required by this section.  

    A person convicted of displaying a fictitious number, as prohibited herein, shall be subject to a fine not exceeding $500.00 or imprisonment in the county jail for not more than 60 days.  

    A person violating any other provision of this section shall be subject to a fine not exceeding $100.00.  In default of the payment thereof, there shall be imposed an imprisonment in the county jail for a period not exceeding 10 days.  A person convicted of a second offense of the same violation may be fined in double the amount herein prescribed for the first offense and may, in default  of the payment thereof, be punished by imprisonment in the county jail for a period not exceeding 20 days. These penalties shall not apply to the display of a fictitious number.  

    Amended 1943,c.173; 1952,c.46,s.2; 1968,c.363,s.1; 1973,c.164; 1981,c.133,s.1; 1983,c.428; 1989,c.132,s.1; 1989,c.202,s.1.  

 

39:6B-2 Penalties revised for No insurance Failure to carry motor vehicle insurance coverage

  39:6B-2 Penalties revised for No insurance Failure to carry motor vehicle insurance coverage- No more mandatory DL suspension

 

First offense: Fine and a period of

community service as determined

by the court, and suspension of

driving privileges by Court up to 1 year

fine $300 $1000 plus court costs

Plus 9 car insurance points and $750 in MVC surcharges per offense

 

No insurance 2^nd & Subsequent offense: 

Shall be subject to 14 days

imprisonment, mandatory 30 days

community service and

 suspension up to two years

fine up to $5000 plus court costs

Plus 9 car insurance points and $750 in MVC surcharges per offense

 

39 :6B-2  Penalties. New law 2019 No more mandatory suspension

   An owner or registrant of a motor vehicle registered or principally garaged in this State who operates or causes to be operated a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by P.L.1972, c.197 (C.39:6B-1 et seq.), and an operator who operates or causes a motor vehicle to be operated and who knows or should know from the attendant circumstances that the motor vehicle is without motor vehicle liability insurance coverage required by P.L.1972, c.197 (C.39:6B-1 et seq.) shall be subject, for the first offense, to a fine of not less than $300 nor more than $1,000 and a period of community service to be determined by the court.  

The court, in its discretion, also may suspend the person's right to operate a motor vehicle over the highways of this State for a period of up to one year from the date of conviction; provided, however, the period of license suspension may be reduced or eliminated if the person provides the court with satisfactory proof of motor vehicle liability insurance at the time of the hearing. 

 Upon subsequent conviction, the person shall be subject to a fine of up to $5,000 and shall be subject to imprisonment for a term of 14 days and shall be ordered by the court to perform community service for a period of 30 days, which shall be of a form and on terms as the court shall deem appropriate under the circumstances, and  the court, in its discretion, may suspend the person's right to operate a motor vehicle over the highways of this State for a period of up to two years from the date of the conviction. In deciding the duration of any suspension of the person's right to operate a motor vehicle pursuant to this section, the court shall consider the circumstances of the violation and whether the loss of driving privileges will result in extreme hardship and alternative means of transportation are not readily available.  After the expiration of the suspension, the person may make application to the Chief Administrator of the New Jersey Motor Vehicle Commission for a license to operate a motor vehicle, which application may be granted at the discretion of the chief administrator.  The chief administrator's discretion shall be based upon an assessment of the likelihood that the individual will operate or cause a motor vehicle to be operated in the future without the insurance coverage required by this act.  A complaint for violation of this act may be made to a municipal court at any time within six months after the date of the alleged offense.

   Failure to produce at the time of trial an insurance identification card or an insurance policy which was in force for the time of operation for which the offense is charged creates a rebuttable presumption that the person was uninsured when charged with a violation of this section.

   L.1972, c.197, s.2; amended 1983, c.141, s.1; 1987, c.46; 1988, c.156, s.15; 1990, c.8, s.49; 1997, c.151, s.12; 2013, c.237; 2019, c.276, s.17.

39:3-4 Unregistered Vehicle Violations

39:3-4 Unregistered Vehicle Violations

39:3-4 Driving or parking unregistered motor vehicle

Fine: Zero- $100 plus court costs. No surcharge, no points

 

Any person violating the provisions of this section shall be subject to a fine not exceeding $100, except that for the misstatement of any fact in the application required to be made to the chief administrator, the person making such statement or omitting the statement that the motor vehicle is to be used as a leased motor vehicle when that is the case shall be subject to the penalties provided in R.S. 39:3-37.

39:3-4 Driving or parking unregistered motor vehicle

Fine: Zero- $100 plus court costs. No surcharge, no points

If this is the only violation it is not cost effective to hire a trial attorney. Our minimum fee is $500.

 

Any person violating the provisions of this section shall be subject to a fine not exceeding $100, except that for the misstatement of any fact in the application required to be made to the chief administrator, the person making such statement or omitting the statement that the motor vehicle is to be used as a leased motor vehicle when that is the case shall be subject to the penalties provided in R.S. 39:3-37.

 

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Our office helps people with traffic/municipal court tickets throughout New Jersey, including drivers charged with driving while suspended and refusal. If someone pleads guilty to unregistered vehicle, they will have to pay fines to the court, plus pay surcharges to the DMV, now Motor Vehicle Commission

 

The following is the law on Unregistered vehicle violations

39:3-4 Registration of automobiles and motorcycles, application, registration certificates; expiration; issuance; violations; notification. 39:3-4. Except as hereinafter provided, every resident of this State and every nonresident whose automobile or motorcycle shall be driven in this State shall, before using such vehicle on the public highways, register the same, and no automobile or motorcycle shall be driven unless so registered.

Such registration shall be made in the following manner: An application in writing, signed by the applicant or by an agent or officer, in case the applicant is a corporation, shall be made to the chief administrator or the chief administrator's agent, on forms prepared and supplied by the chief administrator, containing the name, street address of the residence or the business of the owner, mailing address, if different from the street address of the owner's residence or business, and age of the owner, together with a description of the character of the automobile or motorcycle, including the name of the maker and the vehicle identification number, or the manufacturer's number or the number assigned by the chief administrator if the vehicle does not have a vehicle identification number, and any other statement that may be required by the chief administrator. A post office box shall appear on the application only as part of a mailing address that is submitted by the owner, agent or officer, as the case may be, in addition to the street address of the applicant's residence or business; provided, however, the chief administrator, upon application, shall permit a person who was a victim of a violation of N.J.S. 2C:12-10, N.J.S. 2C:14-2, or N.J.S. 2C:25-17 et seq., or who the chief administrator otherwise determines to have good cause, to use as a mailing address a post office box, an address other than the applicant's  address or other contact point. An owner whose last address appears on the records of the division as a post office box shall change his address on his application for renewal to the street address of his residence or business and, if different from his street address, his mailing address unless the chief administrator has determined, pursuant to this section, that the owner may use a post office box, an address other than the owner's address or other contact point as a mailing address. The application shall contain the name of the insurer of the vehicle and the policy number. If the vehicle is a leased motor vehicle, the application shall make note of that fact and shall include along with the name and street address of the lessor the name, street address and driver license number of the lessee.

Thereupon the chief administrator shall have the power to grant a registration certificate to the owner of any motor vehicle, if over 17 years of age, application for the registration having been properly made and the fee therefor paid, and the vehicle being of a type that complies with the requirements of this title. The form and contents of the registration certificate to be issued shall be determined by the chief administrator.

If the vehicle is a leased motor vehicle, the registration certificate shall, in addition to containing the name and street address of the lessor, identify the vehicle as a leased motor vehicle.

The chief administrator shall maintain a record of all registration certificates issued, and of the contents thereof.

Every registration shall expire and the registration certificate thereof become void on the last day of the twelfth calendar month following the calendar month in which the certificate was issued; provided, however, that the chief administrator may, at his discretion, require registrations which shall expire, and issue certificates thereof which shall become void, on a date fixed by him, which date shall not be sooner than three months nor later than 26 months after the date of issuance of such certificates, and the fees for such registrations, including any other fees or charges collected in connection with the registration fee, shall be fixed by the chief administrator in amounts proportionately less or greater than the fees established by law. The chief administrator may fix the expiration date for registration certificates at a date other than 12 months if the chief administrator determines that the change is necessary, appropriate or convenient in order to aid in implementing the vehicle inspection requirements of chapter 8 of Title 39 or for other good cause. The chief administrator may, for good cause extend a registration beyond the expiration date that appears upon the registration certificate for periods not to exceed 12 additional months. The chief administrator may extend the expiration date of a registration without payment of a proportionate fee when the chief administrator determines that such extension is necessary for good cause. If any registration is so extended, the owner shall pay upon renewal the full registration fee for the period fixed by the chief administrator as if no extension had been granted.

Notwithstanding any other provision of law to the contrary, every registration for new passenger automobiles shall expire and the registration certificate shall become void on the last day of the 48th calendar month following the calendar month in which the certificate was initially issued. On and after February 1, 2005, the provisions of this paragraph shall not apply to new passenger automobiles purchased by a rental company for use as rental passenger automobiles. As used in this paragraph, "rental company" means a person engaged in the business of renting motor vehicles; and "rental passenger automobile" means a passenger automobile that is rented without a driver and used in the transportation of persons or property other than commercial freight.

If the new passenger automobile being registered is a leased passenger automobile, the registration shall expire in accordance with the term of the lease. If the term of the lease extends beyond one or more 12-month periods by one or more months, the registration period shall be based upon the full year into which one or more of the months extend; provided, however, the registration period for a leased automobile shall not exceed 48-months.

Following the 48-month period of the initial registration of a new passenger automobile, the subsequent registration shall expire, and the registration certificate shall become void, on the last day of the 12th calendar month following the calendar month in which the certificate was next issued.

All motorcycles for which registrations have been issued prior to the effective date of P.L. 1989, c.167 and which are scheduled to expire between November 1 and March 31 shall, upon renewal, be issued registrations by the chief administrator which shall expire on a date fixed by him, but in no case shall that expiration date be earlier than April 30 nor later than October 31. The fees for the renewal of the motorcycle registrations authorized under this paragraph shall be fixed by the chief administrator in an amount proportionately less or greater than the fee established by R.S. 39:3-21.

Application forms for all renewals of registrations for passenger automobiles shall be sent to the last addresses of owners of motor vehicles and motorcycles, as they appear on the records of the division.

No person owning or having control over any unregistered vehicle shall permit the same to be parked or to stand on a public highway.

Any police officer is authorized to remove any unregistered vehicle from the public highway to a storage space or garage, and the expense involved in such removal and storing of the vehicle shall be borne by the owner of the vehicle, except that the expense shall be borne by the lessee of a leased vehicle.

 

 

The chief administrator may extend the expiration date of a registration certificate without payment of a proportionate fee when the chief administrator determines that such extension is necessary, appropriate or convenient to the implementation of vehicle inspection requirements. If any registration certificate is so extended, the owner shall pay upon renewal the full registration fee for the period fixed by the chief administrator as if no extension had been granted.

The New Jersey Motor Vehicle Commission shall make a reasonable effort to notify any lessor whose name and address is on file with the commission, or any other lessor the commission may determine it is necessary to notify, of the requirements of this amendatory act.

A lessor doing business in this State shall notify in writing the lessee of a motor vehicle registered pursuant to this Title of any change in its policies or procedures affecting the registration of the motor vehicle.

Claim v town barred where notice of claim not complied MICHAEL J. KELSEY, v. TOWNSHIP OF EAST HANOVER, NJ,

 Claim v town barred where notice of claim not complied MICHAEL J. KELSEY, 

v.

TOWNSHIP OF EAST HANOVER, NJ,

Defendant-Respondent. ________________________

Submitted January 11, 2021 – Decided April 21, 2021 Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0564-19.

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.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4859-18

Plaintiff, Michael J. Kelsey, appeals from an April 15, 2019 order denying his motion to file a late tort claim against defendant, Township of East Hanover (Township). He also appeals from a May 31, 2019 order denying his motion for reconsideration. After reviewing the record in light of the applicable legal principles, we affirm substantially for the reasons set forth in the written decision rendered by Judge William J. McGovern, III., denying plaintiff's initial motion and the judge's oral decision denying plaintiff's motion for reconsideration.

This appeal arises from plaintiff's claim that as a result of a snowstorm on March 7–8, 2018, trees located on land owned by the Township fell and damaged plaintiff's adjacent property about one week later, around March 12 or 13, 2018. Plaintiff contends that he and his assistant orally advised the Township about the damage shortly thereafter. Plaintiff did not, however, send a written notice of tort claim to the Township within the ninety-day deadline prescribed by N.J.S.A. 59:8-8. On March 12, 2019, plaintiff filed a motion to file a late notice of claim. In denying that motion, Judge McGovern determined that the affidavit in support of the application "fail[ed] to describe exactly what happened, where, and when; only that claimant verbally 'notified' the Township on [March 13,

2

A-4859-18

2018] but this is inadequate factually. It is impossible to discern from [plaintiff]'s papers when the claim accrued."1

On May 6, 2019, plaintiff filed a motion for reconsideration. In support of that motion, plaintiff offered additional information that had not been provided at the time he filed his initial motion. After oral argument, Judge McGovern noted that "[plaintiff's] motion for reconsideration advances additional and extensive new information that the [c]ourt did not have at its disposal upon the original motion . . . which was in the possession of [defendant] . . . when he filed his original application; but he didn't include it." The judge concluded this new information was improperly presented.

Over the Township's objection, Judge McGovern ruled that the damage to plaintiff's property occurred on March 13, 2018 and that plaintiff therefore filed the motion for leave to file a late notice of claim one day before the expiration of the one-year deadline for such applications. However, Judge McGovern also determined that plaintiff failed to establish extraordinary circumstances for the

1 At the motion hearing, the Township contended that the damage accrued as of the snowstorm on March 7–8, 2018, thus rendering plaintiff's March 12, 2018 motion for leave to file a late notice of claim fatally noncompliant with the one- year deadline imposed under N.J.S.A. 59:8-9. The Township renews this contention on appeal. Because we affirm Judge McGovern's decision on the merits, we need not address this issue further.

 

3

A-4859-18

late filing or otherwise demonstrate that the Township has not been substantially prejudiced by the delay in filing a notice of claim. Accordingly, the judge denied plaintiff's motion for reconsideration.

I.
We begin our analysis by acknowledging the legal principles applicable

to this appeal. Claims against a public entity for damages are governed by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -14. The TCA defines the extent of the Legislature's waiver of sovereign immunity and "establishes the procedures by which claims may be brought[.]" Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). Pursuant to the TCA, any plaintiff bringing a tort suit against a public entity must file a pre-suit notification of the claim in writing within ninety days of the accrual of the action or else be "forever barred" from asserting that cause of action. Guzman v. City of Perth Amboy, 214 N.J. Super. 167 (App. Div. 1986). "The rationale underlying the notice requirement of the Act is to expedite investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense." Wood v. Cnty of Burlington, 302 N.J. Super. 371, 375 (App. Div. 1997) (quoting Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989)). Oral notice cannot satisfy this obligation. See Velez v. City of

   

4

A-4859-18

Jersey City, 358 N.J. Super. 224, 238 (App. Div. 2003). "Oral notice, even where it contains the elements required by N.J.S.A. 59:8-4, does not constitute substantial compliance." Ibid. (citing Anske v. Borough of Palisades Park, 139 N.J. Super. 342, 348 (App. Div. 1976)).

The TCA permits late filing only under limited circumstances. N.J.S.A. 59:8-9 provides that:

A claimant who fails to file notice of his claim within the [ninety] days as provided by 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 . . . 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 sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed in 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[.]

Leave to file a late notice of claim must be sought within a reasonable period of time after the abatement of whatever conditions necessitated late filing in the first place. See Wood, 302 N.J. Super. at 380 (unexplained nine-month delay in filing motion for leave to file late notice contributed to denial of motion which was brought at the end of the one-year period).

  

5

A-4859-18

The scope of appellate review is narrow. "The [trial judge] has discretion to grant or deny permission to file a late notice of claim within the one-year period, and the decision 'will be sustained on appeal in the absence of a showing of an abuse thereof.'" O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)).

Motions for reconsideration are governed by Rule 4:49-2, which states in relevant part that, "[t]he motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred[.]" A motion for reconsideration provides the court—not the litigant—with an opportunity to take the proverbial "second bite at the apple" to correct errors inherent in a prior ruling. Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015).

"Reconsideration cannot be used to expand the record and reargue a motion," but "is only to point out 'the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.'" Capital Fin. Co. of Del. Valley Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting R. 4:49-2). Importantly for purposes of this appeal,

    

6

A-4859-18

reconsideration cannot be the vehicle to introduce new information in order to cure an inadequacy in the motion record. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

Reconsideration "is not appropriate merely because a litigant is dissatisfied with a decision of the court[.]" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rather, it is reserved for "cases which fall into that narrow corridor" where the prior decision was "based upon a palpably incorrect or irrational basis" or the court failed to consider or appreciate "probative, competent evidence," or where "a litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (emphasis added).

Reconsideration "is a matter within the sound discretion of the [judge], to be exercised in the interest of justice." D'Atria, 242 N.J. Super. at 401. Accordingly, we will not disturb a trial judge's denial of a motion for reconsideration absent a clear abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). An "abuse of discretion only arises on demonstration of 'manifest error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554,

        

7

A-4859-18

572 (2005)), and occurs when the trial judge's decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis[.]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

II.
Judge McGovern denied plaintiff's original motion because plaintiff failed

to set forth sufficient facts describing the incident, when the claim accrued, and the extraordinary circumstances explaining plaintiff's inability to timely file a notice of claim. Judge McGovern emphasized there was "no adequate certification or affidavit as to why there was a delay in filing the application," and that plaintiff failed "to describe exactly what happened with the who, what, when, and where," that is, "the details . . . factually as to what occurred within the knowledge of the claimant so that the court could make an informed decision."

Plaintiff asserts that he is a "disabled individual, which prevented [him] from filing the Notice of Tort Claim . . . due to said on-going disabilities that are extraordinary circumstances, which are beyond [his] control." A known physical or mental condition can qualify as an extraordinary circumstance, but

 

8

A-4859-18

only if the medical or emotional condition is "severe, debilitating or uncommon." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 149–152 (2013). The Supreme Court explained that when determining whether such disability constitutes extraordinary circumstances to justify a late notice of claim, "[the judge]'s focus must be directed to the evidence that relates to plaintiff's circumstances as they were during the ninety-day time period, because that is the time during which the notice should have been filed." Id. at 151. The D.D. Court rejected the plaintiff's claim in that case, noting that "[the plaintiff's] certification [was] vague about the timing of her medical and emotional complaints," the doctor's note submitted in support was "not tied to the relevant time frame," and that there was no "evidence in the record that plaintiff was prevented from acting to pursue her complaint or that her ability to do so was in any way impeded by her medical and emotional state." Ibid. The Court thus concluded that the plaintiff had failed to show an inability to properly file, but rather had demonstrated diligence in her efforts in pursuing her claim. Ibid.

In the matter before us, the record shows Judge McGovern was appropriately mindful that plaintiff suffered from health issues for which he was receiving treatment. The judge nonetheless determined that the information plaintiff provided from health care professionals regarding his disability failed

9

A-4859-18

to establish that he was incapable of timely filing within the ninety-day period. To the contrary, the gravamen of plaintiff's argument on reconsideration was that he was diligent in following up with employees of the Township Department of Public Works regarding his claim, thus demonstrating his health issues did not preclude him from filing a written notice of tort claim. Judge McGovern found, as in D.D., plaintiff's disability was not specifically tied to the ninety- day window and that his efforts demonstrated his attention to the matter. Id. at 151. Judge McGovern added that plaintiff employed an assistant responsible for handling his administrative matters. Plaintiff's assistant contacted Township employees about the claim numerous times during the ninety-day window and thus was capable of assisting in filing a written notice of tort claim within the ninety-day period.

Plaintiff also claims Township employees misled him regarding the statutory requirement to file a written notice of claim. Specifically, plaintiff asserts his assistant verbally informed the Township of his desire to file a notice of tort claim but that employees told the assistant that "there was no need to file an actual tort claim form with the town, as the town was already notified and

10

A-4859-18

aware of the damage."2 Plaintiff further asserts his assistant "contacted . . . [a Township employee] in person and via telephone numerous times" and spoke with employees of the Department of Public Works, Town Hall, and the Clerk's office, who never informed plaintiff that a tort claim needed to be filed. Plaintiff also contends the Township failed to provide a tort claim form until March 11, 2019, after the ninety-day deadline expired. The Court in D.D. addressed a similar claim alleging that the defendants in that case "failed to alert [the plaintiff] to the statutory filing requirements," and concluded "[it could] find no basis on which to read into the statute any requirement that the plaintiff be advised of the technical requirements for pursuing a claim." D.D., 213 N.J. at 156. Moreover, plaintiff alleges that these conversations took place before he filed his initial motion; as such, they should have been properly asserted in support of that motion instead of on reconsideration. See Cummings, 295 N.J. Super. at 384.

2 It is not clear from plaintiff's submissions whether he is arguing on appeal that oral notice to the Township was sufficient. We note that the TCA clearly provides that notice in writing is required even when oral notice has been provided. See N.J.S.A. 59:8-4; see also Velez, 358 N.J. Super. at 238 (noting that oral notice does not constitute substantial compliance); In re Roy, 142 N.J. Super. 594, 601 (App. Div. 1976) (holding that an argument that notice given during an oral conversation constituted substantial compliance is "without merit").

    

11

A-4859-18

We conclude that Judge McGovern did not rest his decision upon a palpably incorrect or irrational basis, nor did he fail to consider or appreciate the significance of probative, competent evidence. Rather, the judge acted well within the ambit of his discretion in denying the initial motion for leave to file a late notice of claim and thereafter in denying plaintiff's motion for reconsideration. In denying the reconsideration motion, Judge McGovern properly rejected plaintiff's belated attempt to cure his original motion's deficiencies by including additional information that could have and should have been provided at the outset. We agree with Judge McGovern that the procedural requirements of the TCA are not relaxed because a litigant is self-represented. See Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241 (App. Div. 1995) ("Procedural rules are not abrogated or abridged by plaintiff's pro se status.").

Finally, plaintiff contends Judge McGovern abused his discretion because he "provided no written findings or opinions. . . for the [May 31, 2019] order[.]" We disagree and note that Judge McGovern acted well within his discretion by providing a statement of reasons on the record at the conclusion of the May 31, 2019 oral argument. See R. 1:7-4(a) (providing that a trial judge "shall, by an

12

A-4859-18

opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . .") (emphasis added).

To the extent we have not addressed them, any remaining arguments raisedbyplaintifflacksufficientmerittowarrantdiscussioninthisopinion. R. 2:11-3(e)(1)(E).

Affirmed.

13

A-4859-18