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ERS Construction Co. v. Gerace

April 23, 2010

ERS CONSTRUCTION CO., PLAINTIFF-RESPONDENT,
v.
CARMEN GERACE, JR. AND NANCY GERACE, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-262-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2010

Before Judges Baxter and Coburn.

Defendants Carmen Gerace, Jr. and Nancy Gerace appeal from a June 26, 2009 Law Division order that confirmed an arbitration award, thereby entering judgment in favor of plaintiff ERS Construction Company in the amount of $21,195. We reject defendants' argument that the trial judge erred when he concluded that, to confirm the arbitration award, plaintiff was not obliged to file a summary action and was entitled to proceed by motion. We likewise reject defendants' contention that they were entitled to 120 days to object to the arbitration award, but the judge wrongly confirmed the award only forty-nine days after it was entered.

We affirm.

I.

Plaintiff filed this action in May 2006 to recover money allegedly owed by defendants for construction of a home in Sea Isle City. Defendants denied they owed plaintiff any money and asserted a counterclaim for alleged construction defects. On September 17, 2007, the parties executed a consent order in which they agreed to dismiss their complaint and counterclaim with prejudice and to submit their respective claims to "statutory binding arbitration proceedings" with a private arbitrator.

The consent order specified that the Law Division would retain jurisdiction if necessary to "complete the binding arbitration proceedings and/or enforce the award of said proceedings." Arbitration hearings were held before the arbitrator on February 18 and March 19, 2009, after which he issued an award in favor of plaintiff in the amount of $21,195.

On May 26, 2009, plaintiff filed a motion for entry of judgment on the arbitration award. Defendants opposed the motion on the grounds that the "private binding arbitration, in which they had participated was governed by the New Jersey Arbitration Act, N.J.S.A. 2A:24-7, and not by Rule 4:21A-6." They further maintained that plaintiff had not complied with the provisions of the Arbitration Act because it had proceeded by motion, rather than by filing a summary action.

In a written statement of reasons attached to his June 26, 2009 order, Judge Daryl F. Todd, Sr. rejected defendants' contentions, reasoning:

Pursuant to N.J.S.A. 2A:24-7, a party to an arbitration may, within three months after the award is delivered to him[,] commence a summary action in the court aforesaid for the confirmation of the award. The confirmation is to be granted unless the award is vacated, modified or corrected. N.J.S.A. 2A:24-7. The award must be in writing and delivered to one of the parties or their attorneys. [Ibid.] This arbitration was not conducted under R. 4:21A-6(b)(3).

....

The award is in writing, was delivered to Plaintiff, and Plaintiff has moved within three months of delivery to confirm the ...


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