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Sprowl v. Kitselman

Decided: October 29, 1993.

JOHN H. SPROWL AND NANCY SPROWL H/W AND SPROWL AMBULANCE SERVICE INC., D/B/A SPROWL AMBULANCE TRANSPORT, PLAINTIFF-APPELLANT,
v.
THOMAS G. KITSELMAN, DEFENDANT-RESPONDENT. DONATO IPPOLITO AND JOSEPHINE IPPOLITO, HIS WIFE, PLAINTIFF-RESPONDENT, V. GREATER PATERSON GENERAL HOSPITAL, VANDEETO ASSOCIATION, GREATER PATERSON GENERAL PROFESSIONAL BUILDING AND JOHN DOE 1 THROUGH X, (X BEING A NUMBER AS YET UNDETERMINED) BEING PERSONS OR CORPORATIONS WHOSE IDENTITIES ARE PRESENTLY UNKNOWN, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County and Bergen County.

Pressler,*fn1 Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Appellants in these cases seek a review of judgments adjudicating the effect of their inaction on plaintiffs' rights to arbitration under R. 4:21A-1 et seq. In each case the neglectful attorney seeks to bring the matter within the "extraordinary circumstances" exception to the filing deadlines explained in Mazakas v. Wray, 205 N.J. Super. 367, 371, 500 A.2d 1085 (1985); see also Gerzsenyi v. Richardson, 211 N.J. Super. 213, 217, 511 A.2d 699 (1986). We consolidate the appeals for the purpose of this opinion only.

In the matters before us, we must determine whether to apply the Mazakas standard (1) to the fifty-day time limitation for confirmation of an arbitration under R. 4:21A-6(b)(2) and (3) (in Ippolito), and (2) to an application to vacate a dismissal of the complaint where the arbitration was defective because of the failure to notify plaintiffs' attorney of the hearing, and where counsel after learning of the arbitration award neglected to take appropriate timely action (in Sprowl). We determine that in both of the situations presented to us the stringent "extraordinary circumstances" standard is inapplicable.

Ippolito v. Greater Paterson General Hospital

In Ippolito, defendants appeal from a Law Division judgment confirming an arbitration award, after an arbitration held pursuant to R. 4:21A-1 et seq. The arbitration award was filed June 12, 1992, and after the passage of the thirty-day period when either party could request a trial de novo (R. 4:21A-6(b)(1); N.J.S.A.

39:6A-31), plaintiffs' attorney forwarded signed releases to defense counsel. Nothing more occurred until plaintiffs' attorney received an order of dismissal of the complaint. It had been entered by the court since fifty days had expired from the date of the award and no consent order nor motion for confirmation had been filed. See R. 4:21A-6(b)(2) and (3). The trial court vacated the dismissal and confirmed the arbitration award.

The Ippolito plaintiffs' counsel had forwarded the signed releases to defendants' attorneys, who failed to object or in any way indicate that the delay in returning the settlement draft was caused by anything more than their client's or carrier's inability to process the papers and obtain the requisite signatures in a timely manner. Plaintiffs and their attorneys could reasonably have expected that, absent some affirmative indication from their adversaries, the arbitration award was final and that a motion to confirm the award was unnecessary.*fn2

The trial Judge noted that defendants' position became clear only after the fiftieth day had passed. They wanted the case dismissed or, in the alternative, the matter listed for a trial de novo. Plaintiffs' arbitration award for $24,750 would have therefore been extinguished. The trial Judge stated that arbitration is favored and finality in the proceedings is sought. The trial Judge also noted that defendants neither sought a trial de novo within thirty days of the award nor moved to enlarge the time for doing so. On this basis, the trial Judge determined to set aside the dismissal and confirm the arbitration award.

We agree with the action taken by the trial Judge. A procedural dismissal, even if provided for by court rule, is subject to vacation under the standards set forth in R. 4:50-1, provided that there has been no detrimental reliance upon the parties' failure to confirm the award in a timely manner. We see no reason to bar a reasonable extension of time if the explanations

given by the party seeking to confirm the award meet the ...


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