ESTATE OF ELIJAH RODRIGUEZ VS. KIWANIS AMBULANCE SERVICE OF BOONTON, INC. (L-2243-19, MORRIS COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3669-19 Estate of ELIJAH RODRIGUEZ, by and through his administratrix ad prosequendum, ESMERALDA CANARTE, and ESMERALDA CANARTE, individually, Plaintiffs-Respondents, v. KIWANIS AMBULANCE SERVICE OF BOONTON, INC, BOONTON POLICE DEPARTMENT, SAINT CLARE'S HOSPITAL-DENVILLE, and LYNN MCCOY, D.O., Defendants, and TOWN OF BOONTON, Defendant-Appellant. ______________________________ Submitted March 15, 2021 – Decided July 19, 2021 Before Judges Messano and Smith. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2243-19. Dorsey & Semrau, LLC, attorneys for appellant (Fred C. Semrau, of counsel; Edward R. Pasternak, on the briefs). Pellettieri Rabstein & Altman, attorneys for respondents (Thomas R. Smith, of counsel and on the brief). PER CURIAM Defendant Town of Boonton (Boonton) appeals denial of its motion for reconsideration of a November 8, 2019 order granting plaintiff's motion to deem her late tort claim notice timely filed. Boonton argues the court erred by finding the notice of motion was properly served. Although not properly raised below, Boonton also argues plaintiff did not provide sufficient reasons to prove extraordinary circumstances. See N.J.S.A. 59:8-9 (permitting claimant to file a late notice of claim upon demonstrating extraordinary circumstance for the failure to file within time). For the reasons set forth below, we affirm. I. Elijah Rodriguez, a minor, suffered a choking incident while in his home in Boonton on May 9, 2019. Emergency medical services were summoned, and A-3669-19 2 Rodriguez was transported via ambulance to the hospital emergency room , but he unfortunately died. He was fifteen years old. Plaintiff Esmeralda Canarte, Elijah's mother, contacted a law firm on July 29, 2019, eighty-one days after the incident. A representative of the firm met with plaintiff the very next day. Without being retained, the firm ordered the police report to ascertain whether there were any public entities or public employees involved. The firm received the police report on Friday, August 16, 2019. Plaintiff then retained the firm. Boonton is a municipal entity with offices located at 100 Washington Avenue. On August 19, 2019, one-hundred and two days after Elijah's death, plaintiff's counsel sent a tort claims notice to Boonton administrator Neil Henry (Henry) at the municipal office via certified mail, return receipt requested. Boonton acknowledged receipt of the tort claims notice by signing the certified mail receipt. The municipal clerk, Cynthia Oravits (Oravits), then forwarded the tort claims notice to the Morris County Joint Insurance Fund (JIF). On August 26, 2019, the JIF wrote plaintiff’s counsel advising it was Boonton's third-party claims administrator; it also requested plaintiff's HIPAA release in order to investigate the matter. On September 9, 2019, the JIF wrote plaintiff's counsel stating that due to the "lateness of reporting …

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