ARLENE REMINGTON v. VILLAGE OF RIDGEWOOD (L-4827-19, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 1, 2022
• Docket: A-1542-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1542-20

ARLENE REMINGTON,

Plaintiff-Appellant,

v.

VILLAGE OF RIDGEWOOD and VERIZON NEW JERSEY, INC.,

Defendants-Respondents. ____________________________

Submitted January 24, 2022 – Decided February 1, 2022

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4827-19.

Lynch Lynch Held Rosenberg, PC, attorneys for appellant (Neil S. Weiner, on the briefs).

McManimon, Scotland & Baumann, LLC, attorneys for respondent Village of Ridgewood (William W. Northgrave and Joshua H. Raymond, on the brief).

PER CURIAM In this slip and fall case, plaintiff appeals from three orders. First, a

February 5, 2021 order denying her timely motion to confirm a mandatory

personal injury arbitration award. Second, a February 5, 2021 order (a) denying

her motion to vacate a December 7, 2021 order granting defendant's summary

judgment motion after the deadline for filing a trial de novo (TDN); and (b) then

backdating summary judgment in defendant's favor to December 4, 2021, the

last date for filing the TDN. And third, a February 16, 2021 dismissal order.

Defendant could have but never filed a TDN. Plaintiff was, therefore, entitled

to confirm the arbitration award. We reverse, remand, and direct the judge to

enter an order confirming the award.

Plaintiff injured herself when she fell on defendant's property. On

November 4, 2020, while defendant's motion for summary judgment was

pending, the parties appeared for mandatory arbitration, resulting in a $75,000

award in plaintiff's favor. On Friday, December 4, 2020—the deadline for filing

a TDN—the judge conducted oral argument on defendant's summary judgment

motion. The judge did not decide the summary judgment motion that day.

Instead, the judge stated she needed time to review her notes and was "hopeful

that you'll have my order and decision on this case by next week," meaning after

the deadline for filing a TDN.

A-1542-20 2 On Monday, December 7, plaintiff filed her motion to confirm the

arbitration award. Plaintiff could not have filed that motion sooner because the

thirty-day deadline expired on Friday. Out of an abundance of caution, on

December 7, plaintiff's counsel requested that the judge (who had not yet

adjudicated defendant's summary judgment motion) withhold ruling on

defendant's dispositive motion since plaintiff's counsel had filed the motion to

confirm the award. Nevertheless, on December 7, the judge granted defendant's

motion for summary judgment, which was consistent with her remarks on the

return date of the motion that she would rule on it the following week .

On December 10, plaintiff filed a motion to vacate the December 7 order

granting defendant's summary judgment motion. On January 8, 2021, the judge

granted plaintiff's motion to vacate the December 7 summary judgment order as

it was unopposed. Even though defendant had not filed a TDN, defendant later

filed a motion to vacate the January 8 order and reinstate summary judgment in

its favor. On February 5, 2021, the judge entered the orders under review

without conducting oral argument. In reinstating summary judgment to

defendant, she backdated the order to December 4—the last day defendant had

to file a TDN.

A-1542-20 3 Plaintiff emphasizes defendant never filed a TDN and that a defendant

must do so to reject a mandatory arbitration award. Plaintiff contends that

defendant's filing for summary judgment and waiting for the judge to adjudicate

such a motion does not toll the thirty-day deadline for filing a TDN. If defendant

planned to reject the arbitration award, plaintiff asserts defendant was required

to file a TDN. That was never done, even though defendant had the opportunity

to do so because on the thirtieth day to file the TDN—which was also the return

date of defendant's summary judgment motion—the judge clearly stated she

would decide defendant's motion for summary judgment the following week.

Plaintiff argues, therefore, the judge erred by denying her motion to confirm the

award.

Plaintiff is correct in arguing that a party who seeks to reject an arbitration

award must file a TDN with the Clerk of the Court within thirty days of the filing

of the award. R. 4:21A-6(b)(1); N.J.S.A. 2A:23A-26. Rule 4:21A-6(b)(1) states

that the action shall be dismissed after the arbitrator files an award unless:

within [thirty] days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a [TDN] and pays a [TDN] fee as set forth in paragraph (c) of this rule.

A-1542-20 4 If a party fails to do so, the other party—here plaintiff—must file a motion to

confirm the arbitration award within fifty days of the filing of the award to bind

both parties to the award.1 R. 4:21A-6(b)(3). Plaintiff complied with the rule

in all respects.

In denying plaintiff's motion to confirm the award, the judge typed in the

order that had she rendered a decision on December 4, "plaintiff could not have

filed the motion to confirm the arbitration award." While that is true, the fact is

that the judge did not adjudicate the summary judgment motion on December 4.

Indeed, the judge not only waited until the following week, but she also verified

on December 4 that she expected to review her notes and decide the summary

judgment motion by "next week," which is obviously after the deadline for filing

a TDN.

Expecting a judge to grant summary judgment on the thirtieth day,

especially when the judge herself stated on the record that she had hoped to

1 Plaintiff argues defendant also failed to demonstrate extraordinary circumstances for filing a TDN. Under certain circumstances, a trial judge may extend the thirty-day deadline for filing a TDN, such as if extraordinary circumstances can be shown "and that those circumstances did not arise from attorney's 'mere carelessness' or 'lack of proper diligence.'" Hartsfield v. Fantini 149 N.J. 611, 618 (1997) (quoting In re T., 95 N.J. Super. 228, 235 (App. Div. 1967)). But here, defendant never filed or attempted to file a TDN, before or after the deadline. A-1542-20 5 release her decision the following week, does not relieve defendant from filing

a TDN whatsoever, or somehow toll the deadline for filing the TDN. Defendant

was obligated to file a TDN. See, e.g., Pellettieri, Rabstein & Altman v.

Protopapas, 383 N.J. Super. 142, 148 (App. Div. 2006) (where the parties

participated in mandatory arbitration and filed motions for summary judgment

and a TDN); Cineas v. Mammone, 270 N.J. Super. 200, 202-03 (App. Div. 1994)

(same).

Reversed and remanded with instructions to enter an order confirming the

$75,000 arbitration award in plaintiff's favor. We do not retain jurisdiction.

A-1542-20 6