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Walters v. Breathless 2000

July 23, 2010

WILLIAM WALTERS, PLAINTIFF-RESPONDENT,
v.
BREATHLESS 2000 AND CHRISTOFIS KONTOS, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3130-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2010

Before Judges Carchman and Parrillo.

Defendants Breathless 2000 (Breathless) and Christofis Kontos appeal from an order of the Law Division confirming an arbitration award in favor of plaintiff William Walters and denying their motion for leave to file a demand for trial de novo out of time. Additionally, defendant Kontos argues that the judgment against him must be set aside because plaintiff's amended complaint adding him as a named defendant was barred by the statute of limitations and the arbitrator made no finding of his liability. We affirm in part and reverse and remand in part.

On September 4, 2007, plaintiff filed a complaint against Breathless, a gentlemen's club in Rahway, ABC Corp. 1-10, and John Does 1-10, seeking recovery for injuries suffered from a slip and fall in the men's restroom of the facility on December 18, 2005. Plaintiff alleged he slipped on a slick substance that smelled like cleaning fluid in the men's restroom. The complaint alleged defendants negligently and carelessly owned, leased, managed, controlled, possessed, repaired, occupied, operated and/or maintained the [] premises so as to cause a dangerous condition, namely a slipper[y] substance and/or water on the bathroom floor, to exist thereon creating a hazard to exist as a result of which [p]laintiff [] was caused to fall and sustain serious personal injuries.

The complaint further alleged defendants "negligently and carelessly failed to make proper and timely inspections" of the premises, particularly the bathrooms. Breathless answered on November 5, 2007.

On November 11, 2008, almost a year after the statute of limitations expired, plaintiff moved for leave to amend his complaint to add Kontos, Breathless' principal shareholder, as a defendant. Plaintiff also sought to add a second claim alleging that Kontos (and/or Breathless) "negligently supervised, trained and/or hired its employees by failing to properly and adequately supervise, instruct, manage and/or train its employees regarding proper cleaning protocol, bathroom maintenance, cleaning and/or general maintenance." The Law Division granted plaintiff's motion.

Thereafter, the matter proceeded to compulsory arbitration, pursuant to Rule 4:21A-1(a)(2), on March 19, 2009, and the arbitrator awarded $500,000 in damages against "Breathless[.]" The "Report and Award of Arbitrator(s)" (Award) does not list Kontos as a defendant in the case caption, refer to him in the brief statement of reasons, nor assess any liability against him. The Award simply lists "Breathless" as the defendant, includes only that party under the party listing of defendants, and attributes 100% liability to "Breathless" alone. The Award states:

Plaintiff a [p]atron and invitee in defendant's bar. Goes to the bathroom and slips and falls on a wet substance on the floor of a stall. Said it smelled like a cleaning fluid. There was a bathroom attendant in the bathroom area. Fracture to left hip, necessitating a left hip anthroplasty, left [indiscernible]. Medical bills over [$]200,000. Medicare lien. Judgment for plaintiff $500,000.00.

According to defendants, their counsel's paralegal sent a demand for trial de novo to the Union County's civil division manager, by regular mail, on April 17, 2009, which is one day prior to the expiration of the thirty-day deadline set by Rule 4:21A-6(b)(1) and Rule 1:3-1.*fn1 In fact, the thirty-day period actually ended the next business day after Saturday, April 18, 2009, which was Monday, April 20, 2009. Defendants claim the United States Postal Service (USPS) returned the envelope on April 28, 2009, seven business days later, bearing the mark "insufficient postage." In this regard, the paralegal's certification states:

6. The envelope was returned by the postal service advising for insufficient postage [sic]. The notice was initially mailed within the time permitted by R. 4:21A-6(b)(1). The office[']s postal meter machine indicated that the postage was correct[.] [T]his device is a sealed unit and indicates the postage to be applied. The postal meter machine is unlike the devices of some years ago where one would first place the item on [a] mechanical scale and then read the weight and then read down a chart and then apply postage from a sheet of stamps or dial the postage from a USPS postal meter machine.

8. Our bookkeeper received the returned envelope from the Woodbridge Post Office on Tuesday, April 28, 2009 and placed the returned item in a new envelope and again sent it to the Court. Unfortunately, I was not aware that the mailing was returned because I was out of the country. When I returned I was advised by the Court that they received our demand for trial de novo out of time and the[y] were not accepting it because it was late. I advised that I did, in fact, send same on time, however, they would not accept it. . . .

Moreover, defense counsel's bookkeeper certifies: "I opened the envelope, took out the contents and addressed a new envelope and sent it out to the court on April 28, 2009 . . . Unfortunately, I was unaware as to the time sensitivity of the contents of the envelope, and I did not keep the original envelope that was marked insufficient postage." Apparently, plaintiff's counsel never received service of the demand within the thirty-day period as required under Rule 4:21A-6(b)(1).

Accordingly, on April 23, 2009, plaintiff moved to confirm the arbitration award, and on May 5, 2009, defendants cross-moved for leave to file a demand for trial de novo out of time, claiming that the office postage meter had indicated that the postage was correct. In granting plaintiff's motion to confirm and denying defendants' cross-motion for relief, the judge reasoned:

In this instance, for the purposes of this motion the court is accepting the fact that it was mailed on April 17th.

And if it was, it certainly is within the 30 days and that's what the rule specifically says. The rule specifically says that under 4:21-A6 subsection B it must be - it says within 30 days after the filing of the arbitration award the trial de novo request must be served or filed.

And in this instance we acknowledge for reasons it was not. And it apparently was not actually filed until sometime after April 28th because according to the defendant's explanation, the papers went out, they came back on or about April 28th and the secretary repackaged the papers and sent them back out again by mail.

The comments of that rule clearly addresses the relevant law covering this matter. The demand is to be filed with the court within 30 days. A relaxation of the time requirement is only upon extraordinary circumstances. And case law has determined the negligence of an attorney or his office staff does not meet the standard for relaxation of the filing rule. The Hartsf[i]eld ...


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