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Derosa v. Donohue

Decided: April 8, 1986.

THOMAS M. DEROSA, PLAINTIFF,
v.
JOHN J. DONOHUE AND CITY OF ASBURY PARK, DEFENDANTS



Milberg, A.j.s.c.

Milberg

This matter is presently before me on the motion of plaintiff to confirm an arbitration award pursuant to R. 4:21A-6(b)(3), and on the cross-motion by defendants to set aside the award and grant a trial de novo, pursuant to R. 4:21A-6(b)(1).

On January 24, 1986, this automobile negligence action was arbitrated in accordance with N.J.S.A. 39:6A-24 et seq. and R. 4:21A. The arbitrator rendered an award in favor of plaintiff in the sum of $15,000, exclusive of prejudgment interest.

The arbitration award was filed on January 24, 1986. R. 4:21A-6(b)(1) provides that a party desiring to reject the award must file a notice demanding a trial de novo with the civil case manager within 30 days after the filing of the award. Hence, the final day for filing such a notice in this case was February 24, 1986.

Counsel for defendants states in his affidavit that on February 18, 1986, his office mailed defendants' demand for a trial de novo to the civil case manager; a copy was sent to counsel for plaintiff on the same day. By letter dated February 28, 1986, the civil case manager informed counsel that the notice was received on February 26 -- "two (2) days late." Accordingly, defendants' demand for a trial de novo was denied.

On March 10, 1986, plaintiff filed a timely motion to confirm the arbitration award and to enter judgment thereon. R. 4:21A-6(b)(3). On March 13, 1986, defendants filed a cross-motion for an order setting aside the award and restoring the case to the trial list for a trial de novo. Oral argument was heard on March 27, 1986.

Defendants argue that the notice was mailed with ample time to spare -- that they are the victims of an error by the postal service. Additionally, defendants urge that the date of mailing is dispositive, not the date the notice was received. See R. 1:5-4(b).

Plaintiff asserts that the 30-day limitation of R. 4:21A-6(b)(1) should not be relaxed or enlarged under these circumstances. He contends that defendants delayed until the final hour and that they should have taken steps to personally deliver the notice or to promptly inquire of the civil case manager as to its timely delivery. Having failed to do so, the risk of delay in the mail, plaintiff argues, was their own. See Leake v. Bullock, 104 N.J. Super. 309, 313 (App.Div.1969). Plaintiff also argues that R. 1:5-4(b) cannot avail the defendant because the issue here is not timely service but timely filing.

Plaintiff is accurate in his latter assertion. R. 4:21A-6(b)(1) is clear in its requirement that the notice of demand for a trial de novo be filed with the civil case manager within the prescribed time. "In contemplation of law, a paper or pleading is considered as filed when delivered to the proper custodian and received by him to be kept on file." Poetz v. Mix, 7 N.J. 436, 442 (1951); emphasis supplied. R. 1:5-4(b) provides only that, where service by ordinary mail is authorized, service shall be complete upon mailing. The rule does not speak to the filing of a paper; hence it is of no aid to defendants.

Nevertheless, I find that defendants' notice should be deemed filed nunc pro tunc.

Plaintiff places great reliance on Leake v. Bullock, 104 N.J. Super. 309 (App.Div.1969). In that case a complaint was mailed to the clerk's office on the afternoon of the third day preceding the running of the statute of limitations and was received by the clerk one day thereafter. The Appellate Division determined that, due to the short time remaining to file the complaint, plaintiff should have either filed it directly with a Superior Court judge in her area or personally delivered it to the clerk; however, since plaintiff chose to mail it to the clerk without prompt follow-up inquiry, under the circumstances ...


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