Elazar v. Macrietta Cleaners, Inc.

Decision Date26 July 2017
Parties Edan BEN ELAZAR and Edna Ben Elazar, Plaintiffs–Appellants, v. MACRIETTA CLEANERS, INC., d/b/a Swan Custom Cleaners and d/b/a Coit Services, Macrietta Realty, Co., Coit Services of Central New Jersey Inc., Estate of Max Stauber, Henrietta Stauber, Alan W. Stauber, Norman A. Sobin, Steven D. Lasker, Estate of William B. Rocker, Lynn Schonbraun and Carol Rubin as personal representatives of the Estate of Joan Rocker Newman, Swan Cleaners and Dyers, Inc., Carolynn Laundry, Inc., Township of Cranford, a New Jersey municipal corporation, and John and Jane Does 1–100, Defendants–Respondents.
CourtNew Jersey Supreme Court

230 N.J. 123
165 A.3d 758

Edan BEN ELAZAR and Edna Ben Elazar, Plaintiffs–Appellants,
v.
MACRIETTA CLEANERS, INC., d/b/a Swan Custom Cleaners and d/b/a Coit Services, Macrietta Realty, Co., Coit Services of Central New Jersey Inc., Estate of Max Stauber, Henrietta Stauber, Alan W. Stauber, Norman A. Sobin, Steven D. Lasker, Estate of William B. Rocker, Lynn Schonbraun and Carol Rubin as personal representatives of the Estate of Joan Rocker Newman, Swan Cleaners and Dyers, Inc., Carolynn Laundry, Inc., Township of Cranford, a New Jersey municipal corporation, and John and Jane Does 1–100, Defendants–Respondents.

Supreme Court of New Jersey.

Argued April 24, 2017
Decided July 26, 2017


Stuart J. Lieberman argued the cause for appellants (Lieberman & Blecher, attorneys; Stuart J. Lieberman of counsel and on the brief, and Michael G. Sinkevich, on the brief).

Elizabeth A. Kenny argued the cause for respondent Township of Cranford (McElroy Deutsch Mulvaney & Carpenter, attorneys; Robert P. Donovan, of counsel and on the brief, and Elizabeth A. Kenny on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

230 N.J. 127

This case involves a tort claim against a municipality that was dismissed for failure to comply with the Tort Claims Act requirement that a public-entity defendant be served with a notice of claim "not later than the 90th day after accrual of the cause of action." N.J.S.A. 59:8–8. At issue is whether accrual of plaintiffs' claim against the public-entity defendant should have been tolled in accordance with the discovery rule.

In determining when a cause of action accrues for purposes of that notice requirement, common law principles governing accrual of a tort claim apply. Under traditional equitable principles of our discovery rule, the date of the accrual of a claim—ordinarily, the date of the injury—may be tolled when plaintiffs lack knowledge of fault of a third party. The accrual date of a claim may also be tolled when plaintiffs, knowing that one third party is liable, do not know that their injury is also the responsibility of an additional party. In this instance, we consider how discovery-rule principles apply to establish the accrual date of a claim, where circumstances did not appear to implicate a third-party public-entity defendant.

Plaintiffs maintain that this matter was prematurely dismissed without proper accounting for the fact that a private party had taken responsibility for the tort and without proper consideration of how, in these circumstances, that action affects the accrual of plaintiffs' claims against the public entity. We agree with plaintiffs

230 N.J. 128

that it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable

165 A.3d 761

basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed. However, because a Lopez1 hearing was never held, we decline to make findings and instead remand to permit the trial court to conduct a Lopez proceeding as directed in this opinion.

I.

A.

On September 18, 2012, plaintiffs Edan and Edna Ben Elazar commenced an action in tort for personal injuries as well as property damages. The action was filed against private parties. The bodily injury claims filed by both husband and wife were premised on a theory that they were exposed to airborne contamination while working indoors at their electronics repair business on property adjacent to a dry cleaner.

Importantly, for purposes of this appeal, on September 11, 2012, plaintiffs' counsel served the Township of Cranford (Township) with a notice of claim under the Tort Claims Act, dated September 4, 2012; and, one year later, on September 4, 2013, plaintiffs amended their complaint to add the Township as a defendant on their claims for personal injuries.

The Township filed a motion for summary judgment to dismiss on the basis of failure to submit a timely notice of claim under N.J.S.A. 59:8–8. We glean the following facts from the summary judgment record, which includes depositions and documentary evidence produced in discovery conducted thus far. The facts are presented in the light most favorable to plaintiffs, who opposed entry of summary judgment.

230 N.J. 129

B.

The events that give rise to plaintiffs' claims relate to activities associated with the dry cleaner that operated next door to plaintiffs' business.

Swan Custom Cleaners was a dry cleaning establishment located in the Township. The dry cleaner fronts on a street, and there is Township-owned property behind it. In February 1946, the Township's inspector of buildings authorized the dry cleaner to install three underground fuel oil and solvent storage tanks on the Township's property. The authorization is not a recorded document. A copy of the inspector's memorandum to file was produced in discovery. Importantly, the underground tanks stored tetrachloroethylene (also known as percholoroethylene or PCE), a chemical used in the dry cleaning process. In 1985, Macrietta Realty (Macrietta)2 purchased Swan Custom Cleaners and operated the dry cleaning business for more than twenty years.

In 1988, plaintiffs opened their electronics repair business on property next door to the dry cleaner. Plaintiffs noticed that a chemical odor emanated from the dry cleaning business but did not question it. Since the 1990s, both plaintiffs have experienced medical problems: Edan and Edna have chronic asthma and bronchitis, and Edna has a chronic blood disorder.

In 1998, Macrietta's underground storage tanks were removed, and soil tests at the time revealed contamination in the area surrounding the tanks. Macrietta notified the New Jersey Department of Environmental Protection (NJDEP), and the NJDEP notified the Township of the contamination. Since then, environmental

165 A.3d 762

remediation at the site has been an ongoing effort. The dry cleaner ceased operations in 2008.

In 2010, as part of the environmental-remediation process, Macrietta retained Viridian Environmental Consultants (Viridian).

230 N.J. 130

Viridian sampled the air quality in properties surrounding the dry cleaner, including plaintiffs' electronics store. When the samples revealed high levels of tetrachloroethene, air sampling continued into 2011.

On January 13, 2011, Viridian installed at the electronics store an ultraviolet unit designed to eliminate contaminants. The next day, January 14, Viridian sent a letter to the Township's health department, advising the Township that there was an immediate environmental concern at plaintiffs' property because of the detected levels of contaminants. Plaintiffs received a copy of this letter.

On March 11, 2011, Viridian wrote a letter addressed to plaintiffs, explaining that high levels of contaminants discovered on plaintiffs' property created a health risk. The letter also detailed some of the remedial efforts that Macrietta had undertaken since discovering the contamination. Attached to the letter was a map, which indicated the parameters of property that would need to be excavated to remediate environmental damage from the contamination. The excavated property included Macrietta's property and part of the Township's property. The map did not indicate the original location of the removed tanks, but rather depicted the extent of the affected soil to be removed. Plaintiffs, who are immigrants from Iran and Israel, do not read English; their son, who is proficient in English, read the letters to them.

On January 12, 2012, Edan visited his pulmonologist complaining of a worsening cough. He told his doctor that chemical odors had permeated his shop for years. And, he explained that Viridian had recently conducted tests that reported high levels of air contamination inside his business's building. The doctor told Edan that he believed there was a connection between Edan's asthma and the contaminants that Viridian reported. When deposed, Edan stated that, before his consultation with his doctor, he did not know that the chemical odors he smelled were connected to his health problems. Edan sought a second opinion and, after that doctor agreed that a connection could exist between the chemical

230 N.J. 131

contamination and plaintiffs' medical conditions, in March 2012, plaintiffs retained counsel.

Plaintiffs' lawyer promptly filed a request under the Open Public Records Act, N.J.S.A. 47:1A–1 to –13, with the NJDEP seeking "[a]ny and all documents relating to the PCE contamination at the [Swan Cleaner's] site," including information about "testing, notices of violation, remediation, [cleanup], third party impact, correspondence between governmental entities and property owners, correspondence between governmental entities and third parties regarding said cleanup, and any other reports detailing the cleanup of this site." On July 3, 2012, the NJDEP responded to the...

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