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MER-L-001614-22 10/05/2022 3:51:45 PM Pglof2 Trans ID: LCV20223551671
PAUL R. ADEZIO
MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street
P.O Box 8068
Trenton, New Jersey 08650
(609) 989-6511
By: Paul R. Adezio, Mercer County Counsel (029481985)
Attorneys for Defendants Mark White and County of Mercer
SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY
Plaintiff(s), LAW DIVISION
Vv. DOCKET No.: MER-L-1614-22
MARK WHITE, STATE OF NEW Civil Action
JERSEY, COUNTY OF MERCER,
CITY OF TRENTON, DEPARTMENT NOTICE OF MOTION TO DISMISS;
OF TRANSPORTATION, JOHN DOES RULE 4:6-2
1-10 (fictitious names), RICHARD ROES
1-10 (fictitious names), and ABC
COMPANIES, INC. 1-10
(fictitious names),
Defendants.
To: Civil Motions Clerk
Mercer County Superior Court
Court House
175 S. Broad Street
Trenton, New Jersey 08650
PLEASE TAKE NOTICE that on Friday, November 4, 2022, at 9:00 a.m., or as soon
thereafter as counsel may be heard, the undersigned attorneys for Defendants County of Mercer
and Mark White shall move before the Superior Court of New Jersey, Law Division, Mercer
County, at the Mercer County Civil Courts Building, 175 S. Broad Street, Trenton, New Jersey,
for an Order dismissing the Complaint with prejudice as to County Defendants. Rule 4:6-2(e).
A brief and Certification submitted in support of said motion are attached hereto. Oral
argument is waived on this motion. Rule 1:6-2.
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s/ Paul R. Adezio
Paul R. Adezio
Mercer County Counsel
Dated: October 5, 2022
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PAUL R. ADEZIO
MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street
P.O Box 8068
Trenton, New Jersey 08650
(609) 989-6511
By: Paul R. Adezio, Mercer County Counsel (029481985)
Attorneys for Defendants Mark White and County of Mercer
SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY
Plaintifi(s), LAW DIVISION
V. DOCKET No.: MER-L-1614-22
MARK WHITE, STATE OF NEW Civil Action
JERSEY, COUNTY OF MERCER,
CITY OF TRENTON, DEPARTMENT ORDER
OF TRANSPORTATION, JOHN DOES
1-10 (fictitious names), RICHARD ROES
1-10 (fictitious names), and ABC
COMPANIES, INC. 1-10
(fictitious names),
Defendants.
THIS MATTER having been opened to the Court by Paul R. Adezio, Mercer County
Counsel, attorney for Defendants County of Mercer and Mark White for an Order dismissing the
Complaint of Shaquana Clayborn (“Plaintiff”), and the Court having considered the pleadings
submitted in support herein, any opposition thereto, and for good cause shown;
IT IS on this day of , 2022
1 ORDERED that Plaintiff's Complaint be and hereby is dismissed with prejudice as to
Defendants County of Mercer and Mark White pursuant to Rule 4:6 — 2(e); and it is
further.
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2. ORDERED that a true copy of this Order shall be served upon all parties of record who
have not been served through eCourts, nor served personally in Court, within seven (7)
days from the date hereof.
Hon. Anthony M. Massi, J.S.C
This motion was
OPPOSED
NOT OPPOSED
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PAUL R. ADEZIO
MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street
P.O Box 8068
Trenton, New Jersey 08650
(609) 989-6511
By: Paul R. Adezio, Mercer County Counsel (029481985)
Attorneys for Defendants Mark White and County of Mercer
SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY
Plaintiff(s), LAW DIVISION
Vv. DOCKET No.: MER-L-1614-22
MARK WHITE, STATE OF NEW Civil Action
JERSEY, COUNTY OF MERCER,
CITY OF TRENTON, DEPARTMENT CERTIFICATION OF COUNSEL
OF TRANSPORTATION, JOHN DOES
1-10 (fictitious names), RICHARD ROES
1-10 (fictitious names), and ABC
COMPANIES, INC. 1-10
(fictitious names),
Defendants.
I, Paul R Adezio, being of full age, hereby certify as follows:
1 I currently serve as the County Counsel for the County of Mercer, and am defending the
subject litigation on behalf of Defendants County of Mercer and Mark White (“County
Defendants”). As such, I have relevant knowledge of the facts herein.
2. This Certification is submitted in support of the County Defendants’ motion seeking to
dismiss the
Complaint of Plaintiff Shaquana Clayborn (“Plaintiff”) for failure to state a claim. Rule 4:6 — 2.
3 I have had the opportunity to review the tort claims notices that are received and
maintained by the Mercer County Counsel’s office, and have found no tort claims notice having
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been submitted by Plaintiff with respect to the underlying accident, which allegedly occurred on
or about December 4, 2020.
4 Correspondence was sent to Plaintiff's counsel with regard to this issue; as of the date of
this Certification, no response has been received. Exhibit A.
I certify the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, and subject to punishment.
/s Paul R. Adezio
Paul R. Adezio
Mercer County Counsel
Dated: October 5, 2022
Note: The Certification bearing the original signature of the affidavit shall be filed if requested
by the Court or a party. Rule 1:4-4
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PAUL R. ADEZIO
MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street
P.O Box 8068
Trenton, New Jersey 08650
(609) 989-6511
By: Paul R. Adezio, Mercer County Counsel (029481985)
Attorneys for Defendants Mark White and County of Mercer
SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY
Plaintiff(s), LAW DIVISION
a DOCKET No.: MER-L-1614-22
MARK WHITE, STATE OF NEW Civil Action
JERSEY, COUNTY OF MERCER,
CITY OF TRENTON, DEPARTMENT
OF TRANSPORTATION, JOHN DOES
1-10 (fictitious names), RICHARD ROES
1-10 (fictitious names), and ABC
COMPANIES, INC. 1-10
(fictitious names),
Defendants.
BRIEF IN SUPPORT OF THE MOTION OF DEFENDANTS COUNTY OF MERCER
AND MARK WHITE TO DISMISS THE COMPLAINT FOR FAILING TO STATE A
CLAIM; RULE 4:6-2
PAUL R. ADEZIO
MERCER COUNTY COUNSEL
640 S. Broad Street
Trenton, NJ 08650
(609) 989-6511
Attorneys for Defendant County of Mercer
and Mark White
Paul R. Adezio, Mercer County Counsel
On the Brief
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PRELIMINARY STATEMENT
The present matter concerns an application by Defendants County of Mercer and Mark
White (“County Defendants”) seeking to dismiss the Complaint of Plaintiff Shaquana Clayborn
(“Plaintiff”) for failing to state a claim upon which relief can be granted, pursuant to Rule 4:6 — 2.
According to the Complaint, the incident in question occurred on or about December 4,
2020 at the intersection of Parkway Avenue and Pennington Avenue, in Trenton, New Jersey.
The New Jersey Tort Claims Act, N.J.S.A 59:1-1 et seq., (“the Act”) requires a party
seeking to file a claim against a public entity to submit a notice of tort claim no later than ninety
(90) days from the date of the incident.
STATEMENT OF FACTS
Plaintiff Shaquana Clayborn allegedly sustained injuries as a result of a motor vehicle
accident which occurred on or about December 4, 2020 in Trenton, New Jersey.
No timely notice of tort claim has been received by the County. See, the Certification of
Counsel submitted herewith.
No motion was filed by the Plaintiff seeking the Court’s permission to file a late notice of
tort claim. Cf, N.J.S.A. 59:8 -9, Notice of late claim.
On or about September 16, 2022, Plaintiff filed the present lawsuit. In lieu of filing an
Answer, the County now moves to dismiss the Complaint.
LEGAL ARGUMENT
I PLAINTIFF’S FAILURE TO FILE A TIMELY NOTICE OF
TORT CLAIM REQUIRES THE DISMISSAL OF
THE COMPLAINT,
The Act requires strict compliance with its provisions, the most important of which is
arguably the requirement of providing a timely tort claim notice (“TCN”) to the affected public
entity. The failure of a party to follow said procedures results in any subsequent action being a
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nullity. Here, inasmuch as the Plaintiff did not file a Tort Claim Notice within the time limits
prescribed by the Act, the Complaint must be dismissed with prejudice.
A. A Tort Claim Notice must be filed within ninety (90) days of the subject
incident.
Since 1972, the liability of the State of New Jersey and all public entities, including
Defendants Mercer County Park Commission and County of Mercer, has been controlled by the
Act. The basic legislative premise of the Act is re-establishing immunity for all governmental
bodies. To that end, the Act is to be strictly construed to effectuate its purpose. McDade v. Siazon,
208 N.J. 463, 474 (2011).
Under the Act, a claimant must follow certain procedural steps in order to properly present
aclaim for damages against a public entity:
“No action shall be brought against a public entity or public
employee under this act unless the claim upon which it is
based shall have been presented in accordance with the
procedure set forth in this chapter.”
N.LS.A. 59:8-3, Claims for damages against public entities.
“A claim relating to a cause of action for... injury... to
person...shall be presented as provided in this chapter not
later than the ninctieth day after accrual of the cause of
action. After the expiration of six months from the date the
notice of claim is received, the claimant may file suit in an
appropriate court of law. The claimant shall be forever
barred from recovering against the public entity...if: a. He
failed to file his claim with the public entity within 90 days
of accrual of his claim except as otherwise provided in
section 59:8 —9;...”
N.J.S.A 59:8-8, Time for presentation of claims.
The failure to comply with the time requirements under the Act is an absolute bar to recovery
against a public entity. Guzman v. City of Perth Amboy, 214 N. J. Super. 167 (App. Div. 1986);
Karzewski v. Nowicki, 188 N.J. Super. 355, 357 (App. Div. 1982).
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The Courts have explained the purpose of the 90-day limit includes to “compel a claimant
to expose his intention and information early in the process in order to permit the public entity to
undertake an investigation while witnesses are available and the facts are fresh.” Lutz v. Township
of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977). See also, O’Neill v. City of Newark,
304 N.J. Super. 543, 549 (App. Div. 1997). Filing a Complaint without the prerequisite Tort Claim
Notice is a nullity. Guzman, 214 N.J. Super. at 171.
Here, no Tort Claim Notice was timely filed within ninety (90) days of Plaintiff Shaquana
Clayborn’s December 4, 2020 accident. The 90 days would have expired on or about March 4,
2021.
To date, no Tort Claim Notice has been filed. See, the Certification of Counsel, supra.
B. Plaintiff has not attempted to seck permission to file a late Tort Claim
Notice.
As noted in N.J.S.A, 59:8 — 8, supra, even if a claimant, as here, misses the 90-day window
for submitting a Tort Claim Notice, the Act provides an additional opportunity:
“A claimant who fails to file notice of his claim within 90
days..., 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
ufficient reasons constituting extraordinary circumstances
for his failure to file notice of claim within the period of time
prescribed by section 59:8-8 ... or to file a motion seeking
leave to file a late notice of claim within a reasonable time
thereafter;...”
N.J.S.A. 59:8-9, Notice of late claim (emphasis added).
The statute was amended in 1994 to include the requirement of the demonstration of “extraordinary
circumstances” by a plaintiff seeking relief. L. 1994, c. 49, section 5.
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The primary focus of the present motion is the phrase “sufficient reasons constituting
extraordinary circumstances” in the statute. The Courts have found that the determination of
whether extraordinary circumstances exist, justifying filing a late Tort Claim Notice, is for the
Court to decide on a case-by-case analysis. Lowe v. Zarghami, 158 N.J. 606 (1999). The Supreme
Court in Lowe added that is a combination of factors, not only one factor, as to what would
constitute sufficient reasons constituting extraordinary circumstances. Id. at 626.
In analyzing whether the applicant has demonstrated the requisite “sufficient reasons
constituting extraordinary circumstances”, the New Jersey Supreme Court has ruled that a
sequential three-step process must be employed:
1 Determine when the claim accrued; then
2. Determine whether a notice of claim was filed within 90 days; if not
3. Decide whether extraordinary circumstances exist justifying a late notice.
Beauchamp v. Amedio, 164 N.J. 111, 118 — 119 (2000).
Plaintiff has not attempted to seck permission from the Court to file an admittedly late Tort
Claim Notice. If she did, the daunting criteria that must be demonstrated, supra, confirms that such
an application would be futile. See also, Rogers v. Cape May County, 208 N.J. Super. 414, 427
(App. Div. 2011), holding that filing a late Tort Claim Notice without the Court’s permission is a
nullity.
TI. PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
Per R. 4:6-2(e), dismissal of a Complaint for failure to state a claim upon which relief can
be granted is warranted if the Complaint states no basis for relief and discovery would not provide
one. See, Pressler and Vernicro, New Jersey Court Rules, 2022 Edition, comment on R. 4:6-2(e).
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A motion to dismiss for failure to state a claim must be decided solely upon the pleadings
submitted, namely the Complaint filed by a plaintiff.
In Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 (1989), the Supreme
Court set forth the standard to be used in ruling on such a motion to dismiss:
“In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry is limited to
examining the legal sufficiency of the facts alleged on the face of the complaint
[citation omitted]. However, a reviewing court ‘searches the complaint in depth and
with liberality to ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim, opportunity being given to amend
if necessary’ [citation omitted]. At this preliminary stage of the litigation the Court
is not concerned with the ability of plaintiffs to prove the allegation contained in
the complaint [citation omitted]. For purposes of analysis plaintiffs are entitled to
every reasonable inference of fact [citation omitted]. The examination of a
complaint’s allegations of fact required by the aforestated principles should be one
that is at once painstaking and undertaken with a generous and hospitable
approach.”
Id. at 746.
Notwithstanding the Printing-Mart standard of review, where the public interest requires
same, prompt adjudication of a motion to dismiss is appropriate. Enourato v. N.J. Building
Auth., 182 N.J. Super. 58, 64-65 (App. Div. 1981), aff@. 90 N.J. 396 (1982). On a motion to
dismiss, “[the Court] will not accept unsupported conclusions, unwarranted inferences or
sweeping legal conclusions cast in the form of factual allegations”. Carter v. Georgerich, 78 F.
Supp. 2d 332, 334 (D.N.J. 2000); Scheidt v. DRS ‘Technologies, 424 N.J. Super. 188, 193 (App.
Div. 2012). Most importantly to the case at bar, if the Complaint states no basis for relief and
discovery would not provide one, then the dismissal of the Complaint is appropriate.
Sparroween, LLC v. Twp. of West Caldwell, 452 N.J. Super. 329, 339 (App. Div. 2017). “...a
dismissal is mandated when the factual allegations are palpably insufficient to support a claim
upon which relief
can be granted. Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987).
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The Plaintiff failed to file a timely Tort Claim Notice. As noted, supra, the failure to file a
Tort Claim Notice renders a Complaint against a public entity a nullity. Guzman, 214 N.J. Super.
at 171. It follows that Complaint cannot legally proceed, and should be dismissed for failure to
state a claim.
CONCLUSION
For the foregoing reasons, it is respectfully requested that the Court grant the motion of
County Defendants County of Mercer and Mark White, and dismiss the Plaintiff's Complaint for
failing to state cause of action. Rule 4:6-2. The Plaintiff's failure to timely file a Tort Claim Notice
renders the Complaint a nullity.
Oral argument is waived. Rule 1:6-2(d).
Respectfully submitted,
s/ Paul R. Adezio
Paul R. Adezio
Mercer County Counsel
Dated: October 5, 2022
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PAUL R. ADEZIO
MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street
P.O Box 8068
Trenton, New Jersey 08650
(609) 989-6511
By: Paul R. Adezio, Mercer County Counsel (029481985)
Attorneys for Defendants Mark White and County of Mercer
SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY
Plaintifi(s), LAW DIVISION
Vv. DOCKET No.: MER-L-1614-22
MARK WHITE, STATE OF NEW Civil Action
JERSEY, COUNTY OF MERCER,
CITY OF TRENTON, DEPARTMENT CERTIFICATION OF SERVICE
OF TRANSPORTATION, JOHN DOES
1-10 (fictitious names), RICHARD ROES
1-10 (fictitious names), and ABC
COMPANIES, INC. 1-10
(fictitious names),
Defendants.
I hereby certify that the original Notice of Motion, Brief, Certification, proposed Order
and Certification of Service were filed this date with the Civil Motions Clerk, Mercer County
Superior Court, 175 S. Broad Street, Trenton, NJ 08650, by eCourts filing.
I further certify that a true copy of the motion papers was provided this date to the Hon.
Anthony M. Massi, J.S.C., Mercer County Superior Court, 175 S. Broad Street, Trenton, NJ
08650 by mail.
I further certify that a true copy of the motion papers was served this date on counsel of
record by eCourts filing.
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I certify the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
s/ Paul R. Adezio
Paul R. Adezio
Mercer County Counsel
Dated: October 5, 2022
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EXHIBIT A
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G8_COn COUNTY OF MERCER
OFFICE OF COUNTY COUNSEL
McDADE ADMINISTRATION
BUILDING
640 SOUTH BROAD STREET
P.O. BOX 8068
TRENTON, NEW JERSEY 08650-0068
(609) 989-6511
(609) 392-8625 Fax
BRIAN M. HUGHES
COUNTY EXECUTIVE
KELVIN S. GANGES LILLIAN L. NAZZARO, ESQ
(CHIEF OF STAFF COUNTY ADMINISTRATOR
PAUL R. ADEZIO
EL
September 19, 2022
VIA FAX AND REGULAR MAIL
Karim Arzadi, Esq.
163 Market Street
Perth Amboy, NJ 08861
RE: Clayborn v. White, et al.
Docket No. MER-L-1614-22
Dear Sir/Madam:
This office represents the County of Mercer.
I have reviewed the filed Complaint in the above matter on ecourts. Please be advised
that this office will accept service on behalf of the County of Mercer. If acceptable, our office an
provide the Acknowledgment.
A review of our files does not reflect that a Notice of Tort Claim was received regarding
this claim. Cf, N.J.S.A. 59:1-1 et seq. Please advise if you did timely file a NTC, and if so,
please provide a copy.
Please call me with any questions. Thank you.
Yours trul
Paul R. Adezio
Mercer County Counsel
PRA/ms
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MER-L-001614-22 10/05/2022 3:51:45 PM Pglof2 Trans ID: LCV20223551671 PAUL R. ADEZIO MERCER COUNTY COUNSEL McDade Administration Building 640 South Broad Street P.O Box 8068 Trenton, New Jersey 08650 (609) 989-6511 By: Paul R. Adezio, Mercer County Counsel (029481985) Attorneys for Defendants Mark White and County of Mercer SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY MERCER COUNTY Plaintiff(s), LAW DIVISION Vv. DOCKET No.: MER-L-1614-22 MARK WHITE, STATE OF NEW Civil Action JERSEY, COUNTY OF MERCER, CITY OF TRENTON, DEPARTMENT NOTICE OF MOTION TO DISMISS; OF TRANSPORTATION, JOHN DOES RULE 4:6-2 1-10 (fictitious names), RICHARD ROES 1-10 (fictitious names), and ABC COMPANIES, INC. 1-10 (fictitious names), Defendants. To: Civil Motions Clerk Mercer County Superior Court Court House 175 S. Broad Street Trenton, New Jersey 08650 PLEASE TAKE NOTICE that on Friday, November 4, 2022, at 9:00 a.m., or as soon thereafter as counsel may be heard, the undersigned attorneys for Defendants County of Mercer and Mark White shall move before the Superior Court of New Jersey, Law Division, Mercer County, at the Mercer County Civil Courts Building, 175 S. Broad Street, Trenton, New Jersey, for an Order dismissing the Complaint with prejudice as to County Defendants. Rule 4:6-2(e). A brief and Certification submitted in support of said motion are attached hereto. Oral argument is waived on this motion. Rule 1:6-2. MER-L-001614-22 10/05/2022 3:51:45 PM Pg2of2 Trans ID: LCV20223551671 s/ Paul R. Adezio Paul R. Adezio Mercer County Counsel Dated: October 5, 2022 MER-L-001614-22 10/05/2022 3:51:45 PM Pglof2 Trans ID: LCV20223551671 PAUL R. ADEZIO MERCER COUNTY COUNSEL McDade Administration Building 640 South Broad Street P.O Box 8068 Trenton, New Jersey 08650 (609) 989-6511 By: Paul R. Adezio, Mercer County Counsel (029481985) Attorneys for Defendants Mark White and County of Mercer SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY MERCER COUNTY Plaintifi(s), LAW DIVISION V. DOCKET No.: MER-L-1614-22 MARK WHITE, STATE OF NEW Civil Action JERSEY, COUNTY OF MERCER, CITY OF TRENTON, DEPARTMENT ORDER OF TRANSPORTATION, JOHN DOES 1-10 (fictitious names), RICHARD ROES 1-10 (fictitious names), and ABC COMPANIES, INC. 1-10 (fictitious names), Defendants. THIS MATTER having been opened to the Court by Paul R. Adezio, Mercer County Counsel, attorney for Defendants County of Mercer and Mark White for an Order dismissing the Complaint of Shaquana Clayborn (“Plaintiff”), and the Court having considered the pleadings submitted in support herein, any opposition thereto, and for good cause shown; IT IS on this day of , 2022 1 ORDERED that Plaintiff's Complaint be and hereby is dismissed with prejudice as to Defendants County of Mercer and Mark White pursuant to Rule 4:6 — 2(e); and it is further. MER-L-001614-22 10/05/2022 3:51:45PM Pg2of2 Trans ID: LCV20223551671 2. ORDERED that a true copy of this Order shall be served upon all parties of record who have not been served through eCourts, nor served personally in Court, within seven (7) days from the date hereof. Hon. Anthony M. Massi, J.S.C This motion was OPPOSED NOT OPPOSED MER-L-001614-22 10/05/2022 3:51:45 PM Pglof2 Trans ID: LCV20223551671 PAUL R. ADEZIO MERCER COUNTY COUNSEL McDade Administration Building 640 South Broad Street P.O Box 8068 Trenton, New Jersey 08650 (609) 989-6511 By: Paul R. Adezio, Mercer County Counsel (029481985) Attorneys for Defendants Mark White and County of Mercer SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY MERCER COUNTY Plaintiff(s), LAW DIVISION Vv. DOCKET No.: MER-L-1614-22 MARK WHITE, STATE OF NEW Civil Action JERSEY, COUNTY OF MERCER, CITY OF TRENTON, DEPARTMENT CERTIFICATION OF COUNSEL OF TRANSPORTATION, JOHN DOES 1-10 (fictitious names), RICHARD ROES 1-10 (fictitious names), and ABC COMPANIES, INC. 1-10 (fictitious names), Defendants. I, Paul R Adezio, being of full age, hereby certify as follows: 1 I currently serve as the County Counsel for the County of Mercer, and am defending the subject litigation on behalf of Defendants County of Mercer and Mark White (“County Defendants”). As such, I have relevant knowledge of the facts herein. 2. This Certification is submitted in support of the County Defendants’ motion seeking to dismiss the Complaint of Plaintiff Shaquana Clayborn (“Plaintiff”) for failure to state a claim. Rule 4:6 — 2. 3 I have had the opportunity to review the tort claims notices that are received and maintained by the Mercer County Counsel’s office, and have found no tort claims notice having MER-L-001614-22 10/05/2022 3:51:45 PM Pg2of2 Trans ID: LCV20223551671 been submitted by Plaintiff with respect to the underlying accident, which allegedly occurred on or about December 4, 2020. 4 Correspondence was sent to Plaintiff's counsel with regard to this issue; as of the date of this Certification, no response has been received. Exhibit A. I certify the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, and subject to punishment. /s Paul R. Adezio Paul R. Adezio Mercer County Counsel Dated: October 5, 2022 Note: The Certification bearing the original signature of the affidavit shall be filed if requested by the Court or a party. Rule 1:4-4 MER-L-001614-22 10/05/2022 3:51:45PM Pglof7 Trans ID: LCV20223551671 PAUL R. ADEZIO MERCER COUNTY COUNSEL McDade Administration Building 640 South Broad Street P.O Box 8068 Trenton, New Jersey 08650 (609) 989-6511 By: Paul R. Adezio, Mercer County Counsel (029481985) Attorneys for Defendants Mark White and County of Mercer SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY MERCER COUNTY Plaintiff(s), LAW DIVISION a DOCKET No.: MER-L-1614-22 MARK WHITE, STATE OF NEW Civil Action JERSEY, COUNTY OF MERCER, CITY OF TRENTON, DEPARTMENT OF TRANSPORTATION, JOHN DOES 1-10 (fictitious names), RICHARD ROES 1-10 (fictitious names), and ABC COMPANIES, INC. 1-10 (fictitious names), Defendants. BRIEF IN SUPPORT OF THE MOTION OF DEFENDANTS COUNTY OF MERCER AND MARK WHITE TO DISMISS THE COMPLAINT FOR FAILING TO STATE A CLAIM; RULE 4:6-2 PAUL R. ADEZIO MERCER COUNTY COUNSEL 640 S. Broad Street Trenton, NJ 08650 (609) 989-6511 Attorneys for Defendant County of Mercer and Mark White Paul R. Adezio, Mercer County Counsel On the Brief MER-L-001614-22 10/05/2022 3:51:45 PM Pg2of7 Trans ID: LCV20223551671 PRELIMINARY STATEMENT The present matter concerns an application by Defendants County of Mercer and Mark White (“County Defendants”) seeking to dismiss the Complaint of Plaintiff Shaquana Clayborn (“Plaintiff”) for failing to state a claim upon which relief can be granted, pursuant to Rule 4:6 — 2. According to the Complaint, the incident in question occurred on or about December 4, 2020 at the intersection of Parkway Avenue and Pennington Avenue, in Trenton, New Jersey. The New Jersey Tort Claims Act, N.J.S.A 59:1-1 et seq., (“the Act”) requires a party seeking to file a claim against a public entity to submit a notice of tort claim no later than ninety (90) days from the date of the incident. STATEMENT OF FACTS Plaintiff Shaquana Clayborn allegedly sustained injuries as a result of a motor vehicle accident which occurred on or about December 4, 2020 in Trenton, New Jersey. No timely notice of tort claim has been received by the County. See, the Certification of Counsel submitted herewith. No motion was filed by the Plaintiff seeking the Court’s permission to file a late notice of tort claim. Cf, N.J.S.A. 59:8 -9, Notice of late claim. On or about September 16, 2022, Plaintiff filed the present lawsuit. In lieu of filing an Answer, the County now moves to dismiss the Complaint. LEGAL ARGUMENT I PLAINTIFF’S FAILURE TO FILE A TIMELY NOTICE OF TORT CLAIM REQUIRES THE DISMISSAL OF THE COMPLAINT, The Act requires strict compliance with its provisions, the most important of which is arguably the requirement of providing a timely tort claim notice (“TCN”) to the affected public entity. The failure of a party to follow said procedures results in any subsequent action being a MER-L-001614-22 10/05/2022 3:51:45PM Pg3of7 Trans ID: LCV20223551671 nullity. Here, inasmuch as the Plaintiff did not file a Tort Claim Notice within the time limits prescribed by the Act, the Complaint must be dismissed with prejudice. A. A Tort Claim Notice must be filed within ninety (90) days of the subject incident. Since 1972, the liability of the State of New Jersey and all public entities, including Defendants Mercer County Park Commission and County of Mercer, has been controlled by the Act. The basic legislative premise of the Act is re-establishing immunity for all governmental bodies. To that end, the Act is to be strictly construed to effectuate its purpose. McDade v. Siazon, 208 N.J. 463, 474 (2011). Under the Act, a claimant must follow certain procedural steps in order to properly present aclaim for damages against a public entity: “No action shall be brought against a public entity or public employee under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.” N.LS.A. 59:8-3, Claims for damages against public entities. “A claim relating to a cause of action for... injury... to person...shall be presented as provided in this chapter not later than the ninctieth day after accrual of the cause of action. After the expiration of six months from the date the notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against the public entity...if: a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8 —9;...” N.J.S.A 59:8-8, Time for presentation of claims. The failure to comply with the time requirements under the Act is an absolute bar to recovery against a public entity. Guzman v. City of Perth Amboy, 214 N. J. Super. 167 (App. Div. 1986); Karzewski v. Nowicki, 188 N.J. Super. 355, 357 (App. Div. 1982). MER-L-001614-22 10/05/2022 3:51:45PM Pg4of7 Trans ID: LCV20223551671 The Courts have explained the purpose of the 90-day limit includes to “compel a claimant to expose his intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh.” Lutz v. Township of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977). See also, O’Neill v. City of Newark, 304 N.J. Super. 543, 549 (App. Div. 1997). Filing a Complaint without the prerequisite Tort Claim Notice is a nullity. Guzman, 214 N.J. Super. at 171. Here, no Tort Claim Notice was timely filed within ninety (90) days of Plaintiff Shaquana Clayborn’s December 4, 2020 accident. The 90 days would have expired on or about March 4, 2021. To date, no Tort Claim Notice has been filed. See, the Certification of Counsel, supra. B. Plaintiff has not attempted to seck permission to file a late Tort Claim Notice. As noted in N.J.S.A, 59:8 — 8, supra, even if a claimant, as here, misses the 90-day window for submitting a Tort Claim Notice, the Act provides an additional opportunity: “A claimant who fails to file notice of his claim within 90 days..., 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 ufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 ... or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter;...” N.J.S.A. 59:8-9, Notice of late claim (emphasis added). The statute was amended in 1994 to include the requirement of the demonstration of “extraordinary circumstances” by a plaintiff seeking relief. L. 1994, c. 49, section 5. MER-L-001614-22 10/05/2022 3:51:45 PM Pg5of7 Trans ID: LCV20223551671 The primary focus of the present motion is the phrase “sufficient reasons constituting extraordinary circumstances” in the statute. The Courts have found that the determination of whether extraordinary circumstances exist, justifying filing a late Tort Claim Notice, is for the Court to decide on a case-by-case analysis. Lowe v. Zarghami, 158 N.J. 606 (1999). The Supreme Court in Lowe added that is a combination of factors, not only one factor, as to what would constitute sufficient reasons constituting extraordinary circumstances. Id. at 626. In analyzing whether the applicant has demonstrated the requisite “sufficient reasons constituting extraordinary circumstances”, the New Jersey Supreme Court has ruled that a sequential three-step process must be employed: 1 Determine when the claim accrued; then 2. Determine whether a notice of claim was filed within 90 days; if not 3. Decide whether extraordinary circumstances exist justifying a late notice. Beauchamp v. Amedio, 164 N.J. 111, 118 — 119 (2000). Plaintiff has not attempted to seck permission from the Court to file an admittedly late Tort Claim Notice. If she did, the daunting criteria that must be demonstrated, supra, confirms that such an application would be futile. See also, Rogers v. Cape May County, 208 N.J. Super. 414, 427 (App. Div. 2011), holding that filing a late Tort Claim Notice without the Court’s permission is a nullity. TI. PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. Per R. 4:6-2(e), dismissal of a Complaint for failure to state a claim upon which relief can be granted is warranted if the Complaint states no basis for relief and discovery would not provide one. See, Pressler and Vernicro, New Jersey Court Rules, 2022 Edition, comment on R. 4:6-2(e). MER-L-001614-22 10/05/2022 3:51:45 PM Pg6of7 Trans ID: LCV20223551671 A motion to dismiss for failure to state a claim must be decided solely upon the pleadings submitted, namely the Complaint filed by a plaintiff. In Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 (1989), the Supreme Court set forth the standard to be used in ruling on such a motion to dismiss: “In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint [citation omitted]. However, a reviewing court ‘searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary’ [citation omitted]. At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint [citation omitted]. For purposes of analysis plaintiffs are entitled to every reasonable inference of fact [citation omitted]. The examination of a complaint’s allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.” Id. at 746. Notwithstanding the Printing-Mart standard of review, where the public interest requires same, prompt adjudication of a motion to dismiss is appropriate. Enourato v. N.J. Building Auth., 182 N.J. Super. 58, 64-65 (App. Div. 1981), aff@. 90 N.J. 396 (1982). On a motion to dismiss, “[the Court] will not accept unsupported conclusions, unwarranted inferences or sweeping legal conclusions cast in the form of factual allegations”. Carter v. Georgerich, 78 F. Supp. 2d 332, 334 (D.N.J. 2000); Scheidt v. DRS ‘Technologies, 424 N.J. Super. 188, 193 (App. Div. 2012). Most importantly to the case at bar, if the Complaint states no basis for relief and discovery would not provide one, then the dismissal of the Complaint is appropriate. Sparroween, LLC v. Twp. of West Caldwell, 452 N.J. Super. 329, 339 (App. Div. 2017). “...a dismissal is mandated when the factual allegations are palpably insufficient to support a claim upon which relief can be granted. Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987). MER-L-001614-22 10/05/2022 3:51:45PM Pg7of7 Trans ID: LCV20223551671 The Plaintiff failed to file a timely Tort Claim Notice. As noted, supra, the failure to file a Tort Claim Notice renders a Complaint against a public entity a nullity. Guzman, 214 N.J. Super. at 171. It follows that Complaint cannot legally proceed, and should be dismissed for failure to state a claim. CONCLUSION For the foregoing reasons, it is respectfully requested that the Court grant the motion of County Defendants County of Mercer and Mark White, and dismiss the Plaintiff's Complaint for failing to state cause of action. Rule 4:6-2. The Plaintiff's failure to timely file a Tort Claim Notice renders the Complaint a nullity. Oral argument is waived. Rule 1:6-2(d). Respectfully submitted, s/ Paul R. Adezio Paul R. Adezio Mercer County Counsel Dated: October 5, 2022 MER-L-001614-22 10/05/2022 3:51:45PM Pglof2 Trans ID: LCV20223551671 PAUL R. ADEZIO MERCER COUNTY COUNSEL McDade Administration Building 640 South Broad Street P.O Box 8068 Trenton, New Jersey 08650 (609) 989-6511 By: Paul R. Adezio, Mercer County Counsel (029481985) Attorneys for Defendants Mark White and County of Mercer SHAQUANA CLAYBORN, SUPERIOR COURT OF NEW JERSEY MERCER COUNTY Plaintifi(s), LAW DIVISION Vv. DOCKET No.: MER-L-1614-22 MARK WHITE, STATE OF NEW Civil Action JERSEY, COUNTY OF MERCER, CITY OF TRENTON, DEPARTMENT CERTIFICATION OF SERVICE OF TRANSPORTATION, JOHN DOES 1-10 (fictitious names), RICHARD ROES 1-10 (fictitious names), and ABC COMPANIES, INC. 1-10 (fictitious names), Defendants. I hereby certify that the original Notice of Motion, Brief, Certification, proposed Order and Certification of Service were filed this date with the Civil Motions Clerk, Mercer County Superior Court, 175 S. Broad Street, Trenton, NJ 08650, by eCourts filing. I further certify that a true copy of the motion papers was provided this date to the Hon. Anthony M. Massi, J.S.C., Mercer County Superior Court, 175 S. Broad Street, Trenton, NJ 08650 by mail. I further certify that a true copy of the motion papers was served this date on counsel of record by eCourts filing. MER-L-001614-22 10/05/2022 3:51:45 PM Pg2of2 Trans ID: LCV20223551671 I certify the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. s/ Paul R. Adezio Paul R. Adezio Mercer County Counsel Dated: October 5, 2022 MER-L-001614-22 10/05/2022 3:51:45PM Pglof2 Trans ID: LCV20223551671 EXHIBIT A MER-L-001614-22 10/05/2022 3:51:45PM Pg2of2 Trans ID: LCV20223551671 G8_COn COUNTY OF MERCER OFFICE OF COUNTY COUNSEL McDADE ADMINISTRATION BUILDING 640 SOUTH BROAD STREET P.O. BOX 8068 TRENTON, NEW JERSEY 08650-0068 (609) 989-6511 (609) 392-8625 Fax BRIAN M. HUGHES COUNTY EXECUTIVE KELVIN S. GANGES LILLIAN L. NAZZARO, ESQ (CHIEF OF STAFF COUNTY ADMINISTRATOR PAUL R. ADEZIO EL September 19, 2022 VIA FAX AND REGULAR MAIL Karim Arzadi, Esq. 163 Market Street Perth Amboy, NJ 08861 RE: Clayborn v. White, et al. Docket No. MER-L-1614-22 Dear Sir/Madam: This office represents the County of Mercer. I have reviewed the filed Complaint in the above matter on ecourts. Please be advised that this office will accept service on behalf of the County of Mercer. If acceptable, our office an provide the Acknowledgment. A review of our files does not reflect that a Notice of Tort Claim was received regarding this claim. Cf, N.J.S.A. 59:1-1 et seq. Please advise if you did timely file a NTC, and if so, please provide a copy. Please call me with any questions. Thank you. Yours trul Paul R. Adezio Mercer County Counsel PRA/ms