Jump to Navigation
Jump to Content

Elazar v. Macrietta Cleaners, Inc.

ELR Citation: 46 ELR 20123
Nos. A-0990-15T2, (N.J. Super. Ct. App. Div., 07/06/2016)

A New Jersey appellate court affirmed a lower court decision that dismissed as untimely shop owners' lawsuit against a town for injuries they allegedly suffered due to chemical vapors emanating from leaking USTs. Although the USTs belonged to the dry cleaner next door to the plaintiffs' shop, the tanks were buried in adjoining municipal property with the town's permission. The lower court dismissed the suit, which was filed in 2012, holding that the claim accrued no later than January 2011, when the dry cleaner's environmental consultant wrote to plaintiffs about the contamination and cleanup efforts. On appeal, the shop owners contend that their notice of tort claim should be deemed timely based on application of the discovery rule. The owners argued that there was no reason for them to suspect that the town permitted a private business to place USTs on public property, thereby involving the town in the contamination. But the discovery rule does not delay accrual when the plaintiff "knows about the injury but cannot determine the tortfeasor's identity." Here, the owners suffered respiratory illness for many years and suspected the adjoining dry cleaner may have been a cause. In addition, they received letters in January and March 2011 reporting that contamination arising from the basement posed a health risk. At that point, if not sooner, it was reasonable for them to conclude not only that they had suffered an injury, but that a third party was at fault.