On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4751-03 and Law Division, Special Civil Part, Union County, Docket No. DC-19653-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 17, 2008
Before Judges Cuff and C.L. Miniman.
Defendant Francisco Pesantes appeals from a November 2, 2007, order denying his motion to vacate an order entered on August 7, 2007, confirming an arbitration award and restore his answer to the complaint. We affirm.
Because the matter is entirely one of procedure, we do not recite the facts in depth. Suffice it to say that plaintiff Rajwinder Saini was the driver of a motor vehicle involved in a collision with defendant Pesantes,*fn1 was injured as a result, and instituted this action for damages, with plaintiff Gurpal Saini making a per quod claim and plaintiff GSA Insurance Company presumably making a subrogation claim for property damage and personal injury protection (PIP) payments. After the time for discovery expired, the matter was listed for arbitration on July 10, 2007, at which time plaintiffs and their counsel appeared, but defendant and his counsel did not. After waiting for over ninety minutes, "Barbara" from the court's arbitration office called counsel for defendant and his staff advised her that they did not have the arbitration scheduled. Plaintiffs' counsel then consented to an adjournment and, while defense counsel's staff was still on the telephone, "Barbara" advised plaintiffs' counsel and defense counsel's staff that the new arbitration date would be August 7, 2007.
On the latter date, plaintiffs and their counsel appeared, but defendant and his counsel again did not. Over the course of thirty minutes between 9:30 and 10:00 a.m., Fee O'Brien, also from the court's arbitration office, attempted to reach defense counsel's office and left messages, but no response was received. As a result, the judge supervising arbitrations entered an order striking defendant's answer and permitting the arbitration to proceed. An award was rendered in favor of plaintiffs that day in the amount of $17,722.91. On August 9, 2007, plaintiffs' counsel served a copy of the order on defense counsel.
When no request for trial de novo was received by plaintiffs' counsel within the time allowed by Rule 4:21A-6, that is, by September 6, 2007, he served and filed a notice of motion to confirm the award and enter judgment, which was returnable on October 5, 2007. That motion was unopposed and an order for judgment in the amount of the award was entered that day. The judgment was served on defense counsel on October 9, 2007.
Unbeknownst to the judge who entered the judgment, defendant had filed a motion on October 4, 2007, to vacate both the order striking his answer and the arbitration award. In support of that motion, defense counsel certified to (1) hearsay conversations occurring between his secretary and plaintiffs' counsel on July 11, 2007, in which they allegedly agreed that the matter was not ready for arbitration because the time for discovery was not properly calculated,*fn2 (2) hearsay conversations occurring that same day between his office and Barbara in the arbitration office, (3) attempts by his office on July 11 and August 3, 2007, to speak to the team leader about the May 29, 2007, discovery end date, and (4) conversations between his office and O'Brien at 9:35 a.m. on August 8, 2007.
On October 9, 2007, plaintiffs' counsel wrote a letter to the court respecting defendant's motion. He pointed out that there was no timely objection to plaintiffs' motion to confirm the arbitration award and no timely request for trial de novo, even though the arbitration award had been timely served on defendant. He reiterated his earlier sworn statements that on July 11, 2007, Barbara advised defense counsel's office that the new arbitration date would be August 7, 2007 and that he was present when she did so. As a result, he requested that the motion be denied with prejudice or, alternatively, if granted, that counsel fees be awarded to him for his two appearances for arbitration. Oral argument was not requested by either side and the motion was decided on the papers on November 2, 2007.
Judge James P. Hurley attached a written decision to his order, which we repeat in full here:
R. 4:21A-6 indicates that a dismissal will be entered subsequent to the filing of an arbitration award unless, within 30 days: a party notifies the civil division manager of rejection of the award, makes a demand for a trial de novo, and pays the trial de novo fee outlined in subsection (c) of the rule.
Defendant offers contested evidence that he did not receive notice of the 2nd arbitration hearing. For the purposes of this motion, such facts are irrelevant for reasons set forth below. However, Defendant has offered no excuse for failing to file a timely rejection of the award. The failure to timely object, file for a trial de novo, and pay the de novo fee are relevant and controlling for the purposes of this motion.
[Defendant] makes excuses based on insufficient notice for failing to appear at the August arbitration hearing. Be that as it may, this has nothing to [do] with a motion to vacate the award, because adequate notice of the award was served. Had the record indicated that Defendant was not noticed of the arbitration award, his recitation of allegations of failure to receive notice of the arbitration hearing itself would have weight with respect to dismissing the award. Yet, this is not the case. The record shows that both the court, and his adversary, provided defendant with notice of the award. Instead, ...