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Malik v. Ruttenberg

March 3, 2008

RIC MALIK AND KAREN S. MALIK, H/W, PLAINTIFFS-RESPONDENTS,
v.
A. FRED RUTTENBERG, ESQUIRE, BLANK & ROME, LLC, DEFENDANTS, AND AMERICAN ARBITRATION ASSOCIATION AND PETER LILOIA, III, ESQUIRE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8128-06.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: October 31, 2007

Reargued:*fn1 February 6, 2008

Before Judges Cuff and Lisa.

Before Judges Cuff, Lisa and Lihotz.

In this appeal we address whether N.J.S.A. 2A:23B-14a immunizes defendants American Arbitration Association (AAA) and Peter Liloia, III, from civil liability for personal injuries sustained by plaintiff Ric Malik due to an alleged physical assault that occurred during a recess in a commercial arbitration proceeding. We granted leave to appeal an order denying defendants' motion to dismiss and reverse.

The facts are straightforward and undisputed. Plaintiff Ric Malik entered into a contract to perform substantial renovations to a home in Moorestown in 2003. A serious dispute arose between Malik and the homeowners. In accordance with the contract between the parties, the dispute was submitted to arbitration pursuant to the rules established by defendant AAA. Liloia was appointed as the arbitrator.

The arbitration was protracted and contentious. On November 17, 2005, the attorney representing Malik in the arbitration objected to the actions of one of the attorneys representing the homeowners and urged Liloia to remove him from the proceeding. Liloia denied the request and called a brief recess. During the recess, Malik alleges that the attorney who he sought to eject from the proceedings assaulted him in the lobby. Liloia did not observe the altercation and the altercation did not occur in the room where the arbitration proceeding was being conducted.

In his complaint, Malik asserts that defendants AAA and Liloia knew of the dangerous propensities of the homeowner's attorney but failed to exercise reasonable care to control these tendencies. Following denial of defendants' initial motion to dismiss, AAA and Liloia filed an answer in which they asserted that N.J.S.A. 2A:23B-14 immunized them from liability. On June 5, 2007, defendants renewed their motion to dismiss. The motion judge referred to the affidavit of merit filed by plaintiffs, which stated that defendants had a duty to control the proceedings and the failure to do so "falls outside of the scope of arbitral immunity." Therefore, finding that plaintiffs had pled "a viable cause in tort against the defendants," the motion judge denied defendants' renewed motion to dismiss.

Rule 4:6-2(e) permits litigants, prior to the filing of a responsive pleading, to file a motion to dismiss an opponent's complaint, counterclaim, cross-claim, or third-party complaint for "failure to state a claim upon which relief can be granted." The Supreme Court has explained the proper analytical approach to such motions in Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), and its progeny. The motion judge must accept as true all factual assertions in the complaint. Smith v. SBC Commc'ns, Inc., 178 N.J. 265, 268-69 (2004). The judge must also accord to the non-moving party every reasonable inference from those facts. Id. at 282. The complaint must be examined "'in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim.'" Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

This court applies the same standard as the trial court to determine whether to grant or deny a motion to dismiss for failure to state a claim. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005); Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002). Thus, like the trial court, this court must accept as true the facts alleged in the complaint, and credit all reasonable inferences of fact therefrom, to ascertain whether there is a claim upon which relief can be granted. Donato, supra, 374 N.J. Super. at 483; Seidenberg, supra, 348 N.J. Super. at 250.

Whether a common law or statutory immunity applies to a party is a question of law. Norris v. Borough of Leonia, 160 N.J. 427, 438 (1999) (citing State v. Culver, 23 N.J. 495 (1957)). If an immunity applies and bars civil liability, it trumps any theory of negligence. Pico v. State of New Jersey, 116 N.J. 55, 62-63 (1989). A motion to dismiss filed early in a proceeding is a particularly ...


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