Back in January, Lakewood Township, Lakewood Housing Authority, and Ocean County were slammed with a second lawsuit that claims that a guardrail that was once removed from Cedar Bridge Avenue in Lakewood is heavily to blame for a devastating traffic crash last summer.

Ocean County is now fighting strongly to get out of the lawsuit.

The suit involves a fatal traffic crash that took place on the evening of July 5, 2021, on Cedarbridge Avenue at Clover Street in Lakewood.

According to the Lakewood Township Police Department report, a multi-agency investigation revealed that Dimitriy N. Kurik, a juvenile, was driving with 2 passengers - one being Volodimir Vlasyuk, 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. Dimitriy Kurik 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.

Volodimir Vlasyuk, the juvenile passenger who was seated in the rear of the vehicle, was ejected from the vehicle and was pronounced deceased at the scene.

Terrance L. Tenner and Karen L. Gorman were inside the building that was crashed into. They were severely injured as a result of the crash.

Just one month prior to the crash, the juvenile driver received citations for driving an unregistered vehicle and displaying fictitious plates, and just 2 days prior to the crash, the juvenile driver was issued a citation for driving under the influence of liquor or drugs.

A lawsuit now filed by Tenner and Gorman, represented by Old Bridge Attorney Zlata Rudikh of Rudikh and Associates, charges his parents for failing to restrain their "out of control" child.

The lawsuit also charges Eshmatie Persaud who was the owner of the motor vehicle. The lawsuit asserts because there were no reports of this vehicle being stolen, the owner must have consented to it being operated by this driver.

Additionally, the lawsuit charges 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.

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 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 Eshmatie Persaud, the owner of the vehicle; 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.

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."

Ocean County, represented by Toms River Attorney  Mary Jane Lidaka Esq., has now filed a Motion for Summary Judgement, which seeks to get out of the lawsuit based on several technicalities, mainly on the basis that the Plaintiff failed to comply with the New Jersey Tort Claims Act (TCA).

The 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.

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.

The Plaintiff's former attorney incorrectly mailed a Tort Claim notice to the Office of Ocean County Clerk Scott Colabella, instead of the office of the Clerk of the Board of Commissioners, which is the correct office to serve Ocean County.

The letter does not identify a specific location of the accident, but merely states "Chambers Crescent, Lakewood, NJ." The letter does indicate that the driver of the vehicle was traveling eastbound on Cedar Bridge Avenue and lost control of the car causing it to crash "through the front door of claimant's former residence," it does not provide the address of same.

The letter was forwarded to the county's Risk Management office, which responded with providing the attorney with the county's official notice of Tort Claim form, which seeks specific questions to ascertain exactly what the damages are and how the county is responsible. The Risk Management office wrote to the attorney that "failure to return this letter completely may deem your claim fatal." They additionally wrote that the County does not own or have any jurisdiction over the Chambers Crescent community property.

The Plaintiff's attorney never did complete and return the county's official notice of Tort Claim form.

"The letter does not provide any information as to what the claim against the County of Ocean is our how it would be involved in this one-car accident. Although the letter asserts that the 'public entity/employees responsible for claimants' injuries' include the County of Ocean, there is no factual basis or information provided with regard to same. No specific County property is identified and no reference is made to any defects in the County's roadway.

"The notice letter is devoid of any information that would actually put the County on notice of a claim against it or determine the direction that an investigation should take. Without a specific address being provided, the letter did not provide the precise location of the subject accident and merely indicated that it was on Cedar Bridge Avenue," Ms. Lidaka wrote.

Ms. Lidaka further asserts although Cedar Bridge Avenue is a County road, the notice letter fails to satisfy the purposes of the notice requirements of the TCA as it fails to indicate any defects or dangerous condition of the roadway, but merely indicates that the juvenile driver "lost control of the subject vehicle."

"Plaintiff's notice letter did not satisfy the purposes of the notice requirements of the TCA, particularly where the County is lumped together with other public entity Defendants and the allegations are against them collectively," Ms. Lidaka wrote.

Ms. Lidaka further asserts that there never were any guardrails in or adjacent to, the County right-of-way, and even if there used to be guardrails on the Chambers Crescent property, the County does not routinely inspect private property along county roadways.

"Here, Plaintiff must prove that the County's property was in a dangerous condition at the time of the accident. Moreover, it is the actual physical condition of the property itself that must create the dangerous condition. State Statue defines 'dangerous condition' as 'a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is foreseeable that it will be used.

"Furthermore, Plaintiffs must prove that the alleged condition created a 'substantial risk of injury when such property is used with due care.' This requirement means that a Plaintiff has to prove that an actual physical condition of the property itself creates the dangerous condition. In other words, an activity taking place on public property does not create a 'dangerous condition' for purposes of imposing liability against a public entity under the TCA.

"The physical condition of the subject roadway itself does not constitute a dangerous condition of public property as defined by the TCA, when used with due care by motorists and proper adherence to the motor vehicle statuses. Clearly, in the matter at hand, the driver of the motor vehicle was not exercising due care in the operation of same. In point of fact, the operator of the motor vehicle was issued several summonses as a result of the crash.

"The complaint does not identify any defect in Cedar Bridge Avenue. Plaintiffs cannot establish a dangerous condition of public property that created a reasonably foreseeable risk of the kind of injury incurred that was created by an employee of the County, as is required by the TCA. Nor can Plaintiffs prove that Ocean County had actual or constructive notice or knowledge of any alleged dangerous condition," Ms. Lidaka concluded.

The motion is returnable Friday March 31, before Judge James Den Uyl.

The Plaintiffs have not yet responded to the motion.

This is the second lawsuit filed regarding this motor vehicle crash.

As first reported here on FAA News, back in May 2022, the family of the deceased juvenile also filed a lawsuit against Lakewood Township, Ocean County, and the Lakewood Housing Authority.

That lawsuit also named Maser Consulting, the engineer for the housing project, however they immediately settled the matter out of court and were dismissed without prejudice.

As previously reported here on FAA News, Ocean County Superior Court Judge Craig Wellerson already dismissed the Lakewood Housing Authority from that lawsuit for the Plaintiff's failure to comply with the Tort Claims Act.

Ocean County has also filed a motion for dismissal from that lawsuit for the Plaintiff's failure to comply with the Tort Claims Act. A hearing on that motion is expected to take place later this month.

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