The opinion of the court was delivered by: Vogelson
This is a motion to vacate the award of the arbitrator, for attorneys fees and court costs. The motion is brought by Mansion Supply Company, Inc., herein plaintiff, against Ashok R. Bapat and Shaila A. Bapat, and Page Group, Inc., herein defendants. For the reasons set forth here, plaintiff's motion is granted and the matter is remanded to the arbitrator for a determination of damages.
The facts of the case are as follows: Plaintiff is a supplier of windows and other building products for construction developers and builders. Defendant Page Group, Inc., at one time was the general contractor for the construction of single family home for defendants Ashok R. Bapat and Shaila A. Bapat in Voorhees, New Jersey. As part of their contract, defendant Page Group, Inc. contracted with plaintiff for the purchase of windows and the related accessories that were required for the construction of the home. A contract was then entered into by defendant, Page Group, Inc. and plaintiff, Mansion Supply Company, for certain windows and the necessary accessories. Plaintiff delivered the windows at a cost of $30,810.89, which has not been paid. Further, Page Group, Inc. ordered but has not taken delivery of, certain accessories for the windows at a cost of $3,307.13.
In order to perfect a lien against the property for the sum owed, Mansion filed a Notice of Unpaid Balance and Right to File Lien (NUB) on August 21, 1995, in compliance with the New Jersey Construction Lien Law, N.J.S.A. 2A:44A-1, N.J.S.A. 2A:44A-6, N.J.S.A. 2A:44A-21(b)(1). In addition, plaintiff also filed a lien claim on this date. Further, it filed a demand for arbitration with the American Arbitration Association. N.J.S.A. 2A:44A-21(b)(3), seeking payment for the windows installed and related accessories.
Defendants, Ashok R. Bapat and Shaila A. Bapat, argued that they did not contract with the plaintiff and even if they had, plaintiff had filed after the statutory time limit had run. As a result, defendants sought dismissal of the action, attorney's fees and costs.
Both parties proceeded to arbitration which was held on September 26, 1995. After listening to testimony from all parties, the arbitrator found that the NUB was filed properly by plaintiff, but further found that the lien claim was improper. The arbitrator stated that, "the filing of [an NUB] as stipulated by section 20(e) of the construction lien law, does not constitute . . . the filing of a lien claim nor does it extend the time the lien claim can be filed." In conjunction with this statement the arbitrator noted that the time to file a lien claim for items listed in the NUB had expired under the standard set forth in N.J.S.A. 2A:44A-6. As a result, the lien claim was deemed invalid and discharged. Due to this finding, the arbitrator did not reach any Conclusion on or award damages. Plaintiffs promptly appealed to this court.
The sole issue on appeal is the determination of the statutory time limits set forth in N.J.S.A. 2A:44A-1, as it relates to residential construction contracts. The relevant sections of the Construction Lien Law are as follows:
A lien claim shall be signed, acknowledged and verified by oath of the claimant or, in the case of a partnership or corporation, a partner or duly authorized officer thereof, and filed with the county clerk not later than 90 days following the date the last work, services, material or equipment was provided for which payment is claimed. No lien shall attach, or be enforceable under the provisions of this act and, in the case of a residential construction contract, compliance with sections 20 and 21 of this act, unless the lien claim is filed in the form, manner and within the time provided by this section and section 8 of this act....
[N.J.S.A. 2A:44A-6 (emphasis added).]
The filing of a lien for work, services, material or equipment furnished pursuant to a residential construction contract shall be subject to the following additional requirements:
.... (3) Unless the parties have otherwise agreed in writing to an alternative dispute resolution mechanism, simultaneously with the service under paragraph (2) of this subsection, the lien claimant shall also serve a demand for arbitration and fulfill all the requirements and procedures of the American Arbitration Association to institute an expedited proceeding before a single arbitrator designated by the American Arbitration Association.
... (6) The arbitrator shall make [its] determinations ... within 30 days of receipt of the lien claimant's demand for arbitration by the ...