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Gerzsenyi v. Richardson

Decided: June 18, 1986.

ZOLTAN GERZSENYI AND EDITH GERZSENYI, PLAINTIFFS-APPELLANTS,
v.
WILLIAM C. RICHARDSON AND HOUSE OF HARLEY, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Monmouth County.

Furman, Petrella and Skillman. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

Plaintiffs appeal the denial of their motion for a trial de novo following an automobile arbitration proceeding, as well as a second order confirming the arbitrator's award.

The automobile accident which was the subject of the arbitration occurred on September 20, 1982. The complaint was filed November 29, 1982. Defendants filed an answer denying liability. The matter was then scheduled for arbitration pursuant to the then applicable interim state-wide rules governing automobile arbitration. See 114 N.J.L.J. 637 (December 20, 1984). These rules have now been included, in modified form, in the Rules of Court. R. 4:21A-1, et seq., effective January 2, 1986. The arbitration was held on May 15, 1985 and an award of $30,000, plus $8,700 in interest was made.

The then effective Rule 10B of the interim statewide arbitration rules had provided:

B. The matter shall be subject to automatic dismissal unless:

(1) within 30 days of the date of the arbitration decision, either party rejects the decision and moves for a trial de novo. Such motion shall be filed with the Civil Case Manager and shall be accompanied by appropriate proof of service pursuant to R. 1:5-3 indicating service on all parties of interest; . . . . [114 N.J.L.J. 646].

The Rules of Court subsequently adopted to implement the automobile arbitration provisions of N.J.S.A. 39:6A-24 to 35, provide in R. 4:21A-6(b):

(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award unless:

(1) within 30 days after filing of the arbitration award, a party thereto files with the civil case manager a notice, to be served on all other parties, of rejection of the award and demand for a trial de novo;. . . .

On or about June 13, 1985 plaintiffs' attorneys mailed a motion, returnable July 12, 1985, to the Clerk of the Superior Court, the Monmouth County Clerk and defendants' attorney seeking a trial de novo on all issues. Defendants cross-moved seeking a confirmation of the arbitration award. Plaintiffs' motion was not received by the Clerk of the Superior Court (and presumably the case manager) until Monday, June 17, 1985. This was after June 14, 1985 which was the thirtieth day following the arbitration award. R. 10B of the interim statewide arbitration rules required that within 30 days after filing of the arbitration award, a party thereto could reject it and demand a trial de novo by filing a motion*fn1 for a trial de novo with the civil case manager and serving a copy on other interested parties.

Plaintiffs' motion was denied as untimely, and the cross-motion which sought confirmation of the arbitration award was granted. The judge noted on the July 12, 1985 order denying the motion that the time for filing a motion for a trial de novo expired on June 14, 1985 and that because this motion was filed on June 17, 1985, which was three days late, it was not filed within time. Instead of taking an appeal, plaintiffs thereafter filed a motion dated July 16, 1985, and returnable on August 2, ...


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