On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-8410-02.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Lisa and S.L. Reisner.
This case presents an issue of substantial compliance with the requirement that a demand for a trial de novo, following non-binding arbitration, be served within thirty days after the arbitration award. R. 4:21A-6(b)(1). The trial court confirmed an arbitration award in plaintiffs' favor, based on a finding that defendants' counsel failed to serve plaintiffs' counsel with a copy of the demand notice. Based on the undisputed facts of record, we conclude that defendants substantially complied with the rule, and we therefore reverse and remand this case for trial.
Plaintiffs filed a personal injury lawsuit against defendants in 2002. The case was submitted to mandatory non-binding arbitration which resulted in an award of $336,000 in plaintiffs' favor. The award was issued on July 29, 2004. On August 23, 2004, defendants' law firm, Cullen and Dykman Bleakley Platt LLP (Cullen firm), mailed a de novo demand to the court for filing; it was received and filed on August 26, 2004.
According to the certification of service filed with the court, and according to her deposition testimony, Peggy M. Shulman, a secretary in the Cullen firm, also mailed a copy of the demand to plaintiffs' counsel, Sharkey & Campisi, on August 23, 2004. At her deposition, Shulman testified that she personally mailed the envelope in a mailbox outside the Cullen firm's law office.
According to certifications filed by plaintiffs' counsel Gregory Campisi and Jeffrey Campisi, they never received the de novo demand, although they were vigilantly watching the mail to see if a demand would arrive. Instead, during the week of August 23, 2004, Jeffrey Campisi received a deposition notice from the Cullen firm. Instead of calling the Cullen firm to inquire about this notice, he and his partner waited until the thirty day time limit for filing the de novo demand had passed and then called the court on September 2, 2004, to ask whether a demand had been filed. According to Gregory Campisi, when he called the civil arbitration office, Charmin Lyons of that office advised him that a demand had been filed on August 26, 2004. She also faxed him a copy of the demand, the cover letter, and Shulman's certification of service. On September 3, 2004, plaintiffs' counsel filed a motion to confirm the arbitration award, premised on the assertion that, although the de novo demand was timely filed, they had not been served with it.
Defendants filed opposition to the motion, supported by a certification from a Cullen firm attorney, Kenneth Farina, attesting that the demand had been served on plaintiffs' counsel.*fn1 On the return date of plaintiffs' motion, the judge directed that Shulman be deposed.
At that deposition, Shulman testified unambiguously that she had been specifically assigned to file and serve the de novo demand, and she described in detail the steps she followed in mailing the notice to the court and in mailing the notice to plaintiffs' counsel. When asked to respond to a certification of plaintiff's counsel asserting that defense counsel did not serve the notice on plaintiff counsel's firm, she indicated that that statement was inaccurate:
Q: Why do you believe that is ...