Due to red tape known as the New Jersey Tort Claims Act, Superior Court Judge Craig Wellerson has now formally dismissed Ocean County from a lawsuit that claims that a guardrail that was once removed from Cedar Bridge Avenue in Lakewood is heavily to blame for a traffic crash fatality in the summer of 2021.

The guardrail was removed and not replaced during the Lakewood Housing Authority's redevelopment of the nearby Chambers Crescent apartments.

The Housing Authority was already dismissed from the lawsuit.

The suit involves a fatal traffic crash that took place on the evening of July 5, 2021, on Cedar Bridge 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.

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 he was issued a citation for driving under the influence of liquor or drugs.

As first reported here on FAA News, back in May 2022, the family of the deceased juvenile, represented by Old Bridge Attorney Zlata Rudikh of Rudikh and Associates, charged his parents for failing to restrain their "out of control" child.

The lawsuit also charged Eshmatie Persaud, 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.

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 named 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."

As previously reported here on FAA News, in August 2022, Ocean County filed a Motion seeking to get dismissed from the case with prejudice, on the basis that the Plaintiff failed to comply with the New Jersey Tort Claims Act (TCA) as they did not properly serve them with a Notice of Tort Claim prior to the filing of the lawsuit.

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 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, however 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, Attorney Mary Jane Lidaka Esq. of Berry, Sahradnik, Kotzas, and Benson wrote.

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, Ms. Lidaka added.

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 a hearing held on the matter back in October 2022, 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," he 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."

As previously reported here on FAA News, at a hearing held in October 2022, Ocean County Superior Court Judge Craig 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.

Instead of doing depositions, the Plaintiff filed a Motion for Reconsideration, asking that the county not be dismissed from the case even without them doing depositions.

At a hearing at the end of December on the Motion for Reconsideration, Judge Wellerson denied the request, saying "trust me, I know that you do need to do depositions." He added that although he previously granted until the end of December to complete the depositions, under the circumstances he will grant another 30 days until the end of January to complete the depositions.

The Plaintiff's did depositions on County employees in mid-January and were unable to find that they did receive the misaddressed Tort Claim notice.

However, instead of waving the white flag, at a subsequent hearing in February, the Plaintiff's attorney again asserted that "the Prosecutor's Office should have then forwarded it to the County's Administration office."

At that point Judge Wellerson asked if they did depositions on the Prosecutor's Office. They said no. Judge Wellerson granted them 30 days to do depositions on the Prosecutor's Office to ascertain what they did with the letter once they received it.

It has been over 6 weeks since then and they have still not shown up with any proof that the Prosecutor's Office received the letter and forwarded it to the proper Ocean County Administration office.

As such, Judge Wellerson has now formally dismissed Ocean County from the lawsuit.

The lawsuit began with 15 Defendants. It is now down to 7.5 left.

Judge Wellerson has already dismissed with prejudice the Lakewood Housing Authority (LHA), who are represented by Somerville Attorneys Richard Grace and Richard Gantner, on the basis that the TCA notice they did receive failed to satisfy the Act, and for "failure to state a claim upon which relief can be granted."

Maser Consulting, the engineer for the housing project, immediately settled out of court and was dismissed without prejudice.

The parents of the driver as well as the owner of the vehicle have been dismissed from the case due to the Plaintiff's failure to serve them.

The complaint also named as Defendant's the 3 auto insurance carriers of the passengers and alleged that they owe uninsured/ underinsured motorist coverage as the juvenile driver was uninsured. One insurance carrier has already been dismissed completely from the case on the basis that the car was properly insured with sufficient coverage so as to not require the uninsured/ underinsured motorist coverage benefits to be garnished. A second insurance carrier has been partially dismissed on the same basis.

This leaves as defendants only the car insurance companies, co-developers and construction contractors, Chambers Crescent Apartments, R. Stone and Company, and Community Investment Strategies... and Lakewood Township who did not bother to fight to get dismissed from the case.

Discovery in the matter as to the remaining Defendants will continue into June.

As previously reported here on FAA News, a separate lawsuit was subsequently filed by two additional plaintiffs who were standing inside their home and were injured when the car came crashing inside their home.

Ocean County and the Lakewood Housing Authority have filed Motions to Dismiss. Both motions are returnable before Judge James Den Uyl next week, April 14. The Plaintiff has not yet responded to the motions.

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