A Superior Court judge already dismissed the Lakewood Housing Authority from a lawsuit that claims that a guardrail they once removed from Cedar Bridge Avenue in Lakewood is heavily to blame for a traffic crash fatality last summer.
The Plaintiffs are now attempting to grab another bite out of the apple. The Housing Authority is fighting back equally hard.
According to the Lakewood Township Police Department report, a multi-agency investigation revealed that a juvenile driving with 2 passengers - one being a juvenile - eastbound on Cedarbridge Avenue approached the cross street of Clover Street at a high rate of speed. An unidentified vehicle was in the left-hand turn lane attempting to make a left-hand turn onto Clover Street. The juvenile operator attempted to navigate around that vehicle and lost control of the vehicle. The vehicle left the roadway and struck the face of a building. The vehicle overturned and came to an uncontrolled rest on its hood. The juvenile passenger, who was seated in the rear of the vehicle, was ejected from the vehicle and was pronounced deceased at the scene.
As first reported here on FAA News, back in May, the family of the deceased juvenile, represented by Old Bridge Attorney Zlata Rudikh of Rudikh and Associates, filed a lawsuit charging that there used to be a guardrail on the side of this road, and its removal is heavily to blame for this fatality.
Guardrails are protective devices for redirecting errant vehicles from colliding with an obstruction, and they are designed to reduce the severity of crashes.
Prior to redevelopment of the adjacent Chambers Crescent apartments, there was a guardrail along this section of Cedar Bridge Avenue.
The Chambers Crescent apartments were redeveloped by contractors working for the Lakewood Housing Authority, and at some point during the construction process, the contractors removed the guardrail. The Ocean County Engineering Department typically inspects construction sites along county-owned roads such as Cedar Bridge Avenue to ensure that all existing road infrastructure is replaced. Somehow, in this particular case, the County was unaware that the guardrail was removed, and failed to oversee its replacement, records show that county officials have confirmed, the lawsuit charges.
Between 2019 and August 20, 2021, there were over 100 reportable motor vehicle crashes on this section of Cedar Bridge Avenue, police records show.
The lawsuit was filed by Alex Vlasyuk and Tetyana Vlasyuk, as parents / administrators of the Estate and by way of Ad Prosequendom for the Estate of Volodimir Vlasyuk, the deceased minor.
The lawsuit names as defendants to the suit Dimitriy Kurik, the operator of the vehicle, as well as his parents Natalia Kurik and Vyacheslav Polushkin, and the owner of the vehicle Eshmatie Persaud, Lakewood Township, Ocean County Engineering Department, as well as the Lakewood Housing Authority, and their co-developers and construction contractors, Chambers Crescent Apartments, R. Stone and Company, and Community Investment Strategies, Inc. as well as Maser Consulting, the engineer for the housing project.
To ensure that roadside safety features are capable of performing their intended functions, periodic review, inspection, and maintenance of traffic barriers are necessary and should be a part of the normal maintenance function, and inspection should also be triggered by a crash report indicating a high severity or incidence of run-off-road crashes, the lawsuit contends.
The suit seeks "compensatory damages for conscious pain and suffering, wrongful death, survivorship damages, and past and future economic damages together with interest, attorney's fees, and costs of suit".
Although the suit was originally filed back in May, it was not formally served upon the various defendants until the end of July.
Immediately, Maser Consulting, the engineer for the housing project, settled out of court and was dismissed without prejudice.
As first reported here on FAA News, in September, the Lakewood Housing Authority (LHA), represented by Somerville Attorneys Richard Grace and Richard Gantner filed a Motion to get dismissed with prejudice from the case due to the Plaintiff's failure to comply with the New Jersey Tort Claims Act and to state a claim upon which relief can be granted.
The New Jersey Tort Claims Act (TCA) provides that before any Tort Claim litigation against a governing entity begins, a potential plaintiff must - within 90 days of the accident - comply with the statutory requirements of notice to the proper governing entity regarding the claim.
Under the Act, a plaintiff is required to prove that public property owned and operated by the government is in a dangerous condition, which, when used by a foreseeable person in a reasonable manner, was the cause of the plaintiff’s injuries which resulted in a permanent loss of a bodily function.
Once proper notice of the Tort Claim is provided, the government entity is allowed at least a six month period to review the claim before a lawsuit can be filed.
LHA's attorneys wrote in their brief that the Plaintiff's did send LHA a Tort Claims Act Notice, however, it was only received after the 90 days deadline, and the Plaintiff did not timely petition the court for an extension to the 90 days timeline.
Additionally, they charged that the notice does not state "a general description of the injury, damage or loss incurred ... and the amount claimed as of that date... together with the basis of computation of the amount claimed" as is required by law.
The attorneys asserted that the Plaintiff's failed to make a specific claim against LHA upon which relief can be granted because, while the lawsuit does claim that had there been a guardrail in place, the deceased may not have been killed, the lawsuit does not - and can not - satisfactorily make a claim that LHA had any responsibility to maintain the roadway. Additionally, instead of naming specific defendants and their specific responsibility which they neglected, the lawsuit only vaguely names "the Township, County, LHA, and the State of New Jersey" collectively and claims they all "had a nondelegable duty to make sure the inherently dangerous hazard at issue did not exist and was not negligently removed".
Finally, LHA asserted that the New Jersey Appellate Division has specifically found that the task of ensuring a "heightened standard of care" towards people who are on one's property, and liability towards a person who has been injured because of a dangerous condition on private property only applies to "invitees". As Plaintiff's admit, the death was caused by their own car crash, and therefore "the decedent was not an invitee".
Attorney Jonathan Rodgers of Rudikh and Associates, representing the Plaintiffs, responded with Opposition, simply claiming that there are additional parties in the case (who were injured in the crash) and their attorney sent the LHA their own Tort Claims notice which did fulfill all of the TCA regulations, so technically, the LHA did receive a proper notice about this fatal crash (albeit not from this Plaintiff).
Attorney Richard Grace, representing the Lakewood Housing Authority, responded with a Reply Brief, in which he clarified why specifically the Plaintiff's Tort Claim failed to comply with the Act.
"The statute requires a notice contain:
(a) The name and post office address of the claimant;
(b) the post office address to which the person presenting the claim desires notices to be sent;
(c) the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
(d) A general description of the injury, damage, or loss incurred so far as it may be known at the time of presentation of the claim;
(e) The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
(f) The amount claimed as of the date of presentation of the claim including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.
"It cannot be disputed that this letter failed to substantively comply with each of the above requirements. First, there is no mention of any address relating to the claimant as required by subpart (a). There is no designation of an address for service of further notice pursuant to subpart (b). Regarding subpart (c), the date of accident is included, but the letter provides only that the wrongful death took place “at the [sic] your establishment.” The circumstances surrounding the transaction or occurrence giving rise to the claim are not described. For purposes of subpart (d), there is no description of any injuries, damage or loss incurred, notwithstanding the vague reference to “wrongful death", wrote Mr. Grace.
"As plaintiffs stated in their opposition, “the purpose of the stringent notice requirement is to expedite incident investigation in furtherance of prelitigation settlement, and to allow the public entity to prepare a colorable defense.” Plaintiffs’ September 7, 2021 letter does not indicate what circumstances could result in liability against the Housing Authority, nor does it provide any estimation of damages that could serve to guide the evaluation of prelitigation settlement, or indicate any information that would contribute to a defense. Most simply put, it is impossible to glean a viable cause of action against the Housing Authority from this letter", Mr. Grace continued.
The County of Ocean also filed a Motion seeking to get them dismissed from the case, with prejudice, on the basis that the Plaintiff also did not properly serve them with a Notice of Tort Claim prior to the filing of the lawsuit.
The lawsuit names as a defendant "Ocean County Engineering Department". The county's motion for dismissal notes that this case is improperly pled as the "Ocean County Engineering Department" is not a legal entity separate and apart from from the County of Ocean, rather, it is simply a department within the County of Ocean.
Inasmuch as this is a case against the County of Ocean which is a governing entity, the Plaintiff was required to timely and properly serve a Notice of Tort Claim upon the correct governing entity prior to the filing of the lawsuit. The county's motion asserted that no Notice of Tort Claim was properly served.
As part of providing service of the lawsuit, the Plaintiff provided Certified Mail green card receipts that purport to show that they did indeed mail Tort Claim notices to the County on August 16, 2021 (which would have satisfied the 90 day post-crash, 6 months prior to filing suit notice rule).
These notices were sent to "Ocean County, 119 Hooper Avenue, Attn: Administrator of Tort Claims" as well as "Ocean County Prosecutor's Office, 119 Hooper Avenue, Attn: Administrator of Tort Claims".
This is the address of the Ocean County Prosecutor's Office, which is a separate public agency. The County of Ocean's official address is the administrative building located at 101 Hooper Avenue. The person authorized to accept service is Michelle Gunter, clerk of the county, and neither she nor Antoinette DePaola, Senior Management Assistant for Ocean County Risk Management Division ever received this Tort Claim notice, the moving documents claim.
It is now well past the 90 day limit and therefore, even if the Plaintiff were to serve new Tort Claim notices now, their claim would be moot, Attorney Mary Jane Lidaka wrote.
The Plaintiff's responded with Opposition to the Motion, essentially agreeing that they did incorrectly mail the Tort Claims Notice to the Prosecutor's Office, but that "the Prosecutor's Office should have then forwarded it to that County's Administration office".
At the hearing held in October, Ocean County Superior Court Judge Craig Wellerson ruled simply that "the Plaintiff failed to timely serve a TCA notice on the LHA and therefore their claims are dismissed as to the LHA".
Judge Wellerson did not specify exactly which of the LHA's arguments he found to be the deciding factor to determine that the Plaintiff failed to comply with the TCA.
As to Ocean County, Judge Wellerson tossed out the TCA notice that was addressed to the Ocean County Prosecutor's Office. However, addressing the TCA notice that was addressed to "Ocean County, 119 Hooper Avenue, Attn: Administrator of Tort Claims", Judge Wellerson noted that although it was mailed to the incorrect address, it did in fact have the correct name on the envelope and therefore, if it was handed over from the Prosecutor's Office to the County Administration, that may be sufficient service.
Ocean County's attorney argued back that "handing over letters is never sufficient, it needs to be served properly and timely".
Judge Wellerson directed the Plaintiff to, within 60 days, depose the county Prosecutor's Office and Administration mailing service to ascertain who exactly received this TCA and whether or not it was forwarded to the proper Administration official, and if it was then that could be sufficient service, "but I leave the Plaintiff to their proofs", he concluded.
Following the filing of the complaint, Rudikh and Associates was additionally retained to represent 2 other Plaintiff's who were injured in this crash. These plaintiffs were standing inside the house when the car came crashing inside, injuring them.
Just 3 days after the crash, on July 8th, Freehold Attorney Nicholas Caliendo representing these individuals served Lakewood Township, Lakewood Housing Authority, and Ocean County with a Tort Claims Act notice.
It appears that this TCA notice does fulfill all of the TCA regulations, so if the judge would have permitted the Plaintiff to amend their complaint, the Housing Authority could have been right back on the hook. (In fact, as noted above, Attorney Jonathan Rodgers of Rudikh and Associates, representing the Plaintiffs, tried to use Mr. Caliendo's TCA notice as a basis to argue that the Housing Authority was already properly "on notice regarding the crash" because they previously received that other letter).
A complaint may only be amended without a judge's consent prior to the filing of any responses to the Lawsuit. As responses had already been filed, Rudikh and Associates filed a Motion seeking to amend their complaint to include these additional plaintiffs.
Judge Wellerson gave a written denial of the Motion to Amend the Complaint, without giving any reason for the denial.
The Plaintiffs have now filed a Motion for Reconsideration on all 3 decisions, arguing that service upon any County agency should be sufficient "service", and that their notice to the Lakewood Housing Authority "substantially and reasonably complied with the TCA" as, although it did not contain everything in the notice requirement, it did contain enough information for them to at least "initiate an investigation into the matter and ascertain their responsibility."
Both Ocean County and the Lakewood Housing Authority have filed Opposition to the motion, arguing on procedural grounds that it does not meet the threshold for a "Reconsideration" as "the Court did not err in its ruling."
Oral arguments have not been requested by any party so Judge Wellerson is expected to release a written decision this Friday.
Curiously, the Township of Lakewood only served an Answer to the complaint, but no Motion for Dismissal. The LHA's "invitee" argument is pretty straightforward, and the Township likely could have made the same argument, as well as the argument that the Plaintiff failed to state a claim upon which relief can be granted as the lawsuit only vaguely names "the Township, County, LHA, and the State of New Jersey" collectively and claims they all "had a nondelegable duty to make sure the inherently dangerous hazard at issue did not exist and was not negligently removed" - however, Cedar Bridge Avenue is owned by Ocean County and not by Lakewood Township.
Instead, Lakewood Township submitted an Answer to the lawsuit, indicating it is ok with the case continuing - at taxpayer expense.
Why is the Township not working feverishly to get immediately dismissed from the lawsuit as they have expended on the Lake Terrace and Bnos Brocha lawsuits?
Is the answer, perhaps, that the Township only fights strongly in court when they want to help Lakewood developers??
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