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L&M Co. v. Unity Dental Health Services

March 22, 2010


On appeal from Superior Court of New Jersey, Law Division, Civil Part, Passaic County, Docket No. L-2323-07.

Per curiam.


Argued January 27, 2010

Before Judges Graves, Sabatino and J.N. Harris.

Plaintiff L&M Company (L&M), appeals from an order entered on May 15, 2009, confirming an arbitration award and entering judgment in favor of defendant Unity Dental Health Services, P.A. (Unity Dental) in the amount of $35,430.74. Plaintiff claims it was "forced into arbitration" because the court "gave it no other alternative," and further contends the arbitrator's decision was factually and legally incorrect. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

In 1995, landlord L&M entered into a six-year commercial lease with defendant Unity Health Services, Inc. (Unity Health), an entity owned by Robert Dubman, D.D.S., for the rental of premises located at 1219 Main Avenue in Clifton (the 1995 lease). The parties renewed the lease for an additional period of five years from February 1, 2001, through January 31, 2006. On January 10, 2006, L&M negotiated a new two-year lease (the 2006 lease) with a different entity, defendant Unity Dental Health Services, P.A. (Unity Dental), which was also owned by Dr. Dubman.

During the term of the 2006 lease, Unity Dental informed plaintiff that it wanted to assign the lease to a company that was purchasing its business. As a condition for the assignment, L&M demanded the sum of $19,396.45, for unpaid rent and other charges allegedly owed by Unity Health under the 1995 lease and by Unity Dental under the 2006 lease. To obtain the assignment, Unity Dental paid the sum of $19,396.45 to L&M under protest.

In June 2007, L&M filed a complaint against Unity Dental for unpaid rent and other charges. However, in its second amended complaint L&M asserted claims against both Unity Health and Unity Dental. Both defendants filed a joint answer denying that any monies were owed to plaintiff, and Unity Dental filed a counterclaim seeking to recover the money it had paid to plaintiff under protest for plaintiff's consent to assign the 2006 lease.

On August 29, 2008, the presiding civil judge denied defendants' motion to amend their answer to include the statute of limitations as a separate defense, but the court noted on the order that "[p]laintiff may only seek damages for alleged violations of the 2006 [lease]." L&M filed a motion on short notice for reconsideration and also sought to adjourn the trial, which was scheduled for September 22, 2008. However, the court declined to hear the motion for reconsideration and denied plaintiff's request to adjourn the trial.

On September 22, 2008, the parties appeared in court with their attorneys and agreed to submit their dispute to binding arbitration before retired Superior Court Judge Amos C. Saunders. The parties' agreement was set forth on the record, and the court signed a consent order memorializing the agreement.

The attorneys for the parties also signed an "Agreement for Binding Arbitration" prepared by retired Judge Saunders. Pursuant to that agreement, the arbitrator's decision was final and could not be vacated unless a party established "grounds to vacate the award in accordance with N.J.S.A. 2A:23B-23" or there was "a modification or correction of the award by the court pursuant to N.J.S.A. 2A:23B-24." The agreement also authorized the arbitrator "to enforce the underlying leases in dispute to require one party to indemnify the other party for attorney fees and costs of arbitration."

The arbitration hearings took place on November 11 and November 20, 2008. Following the hearings, both parties submitted written summations with supporting documents to the arbitrator. In a written decision on February 4, 2009, the arbitrator entered an award and judgment in favor of Unity Dental on its counterclaim, together with an award of counsel fees, in the total amount of $34,558.74.

In a letter dated March 19, 2009, plaintiff's attorney asked the arbitrator to reconsider his decision, and the arbitrator subsequently amended the award to properly reflect the allocation of counsel fees. The adjustment increased the original award by $872, resulting in a final judgment in favor of Unity Dental and against plaintiff, L&M, in the total amount of $35,430.74.

In April 2009, Unity Dental filed a motion to confirm the arbitration award. L&M opposed the motion, but it never moved to vacate the award. Following oral argument on May 15, 2009, the trial court confirmed ...

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