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Brenda Nieves and Benjamin Nieves v. Archie Gadeon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 23, 2012

BRENDA NIEVES AND BENJAMIN NIEVES, PLAINTIFFS-APPELLANTS,
v.
ARCHIE GADEON, JR., BEATA NARATH, WILLIAM NARATH, MARIAN BUCURESTEANU, AND FLORIDA BUCURESTEANU, DEFENDANTS-RESPONDENTS, AND TIFFANY S. JERVIS AND MAURICEAN A. JERVIS, DEFENDANTS.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-933-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2012 -

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

In this automobile negligence action, plaintiffs Brenda Nieves and Benjamin Nieves appeal from orders entered on March 4, 2009, June 16, 2009, and March 4, 2011, which denied their motions to restore their complaint to the active trial calendar. We affirm.

Plaintiffs were involved in a four-car accident on the Garden State Parkway. In a complaint filed on January 31, 2006, plaintiffs alleged that defendants were negligent and careless in the operation of their vehicles. A second complaint involving the same accident was subsequently filed by Beata Narath and William Narath, and the two cases were consolidated in the Law Division on May 12, 2006.

Pursuant to Rule 4:21A-1(a)(1), the consolidated cases were scheduled for mandatory non-binding arbitration on March 4, 2008, but one of the attorneys wrote a letter to the trial court's arbitration administrator requesting that the cases be removed from arbitration:

The parties in this matter have agreed to mediation. As there are a significant number of counsel and parties in this matter it is unlikely that the standard arbitration through the Court will assist in the resolution of this matter. The mediation has been scheduled for March 5, 2008 at 10:00 a.m. As such, please remove the above matters from arbitration. The arbitration is currently scheduled for March 4, 2008. Furthermore, please do not reschedule the arbitration for another date as we will be resolving this matter through mediation.

In a subsequent letter to the arbitration administrator, counsel reported that the "mediation efforts were unsuccessful as to both matters," and counsel requested "that both matters be placed back on the arbitration list." The cases were never re-listed for arbitration, however, because they were administratively dismissed on February 14, 2008, when counsel advised the matters would be resolved through mediation.

Plaintiffs' first motion to restore their case to the trial court calendar was denied on March 4, 2009. The court noted on the order that it could not determine "whether all parties in both matters were served," and the court found "plaintiffs failed to establish good cause for reinstatement." Then, instead of appealing, plaintiffs waited until May 2009 to file a second motion to restore their complaint. The court found plaintiffs failed to present any new information, and it entered an order on June 16, 2009, denying plaintiffs' motion.

No appeal was taken from the June 16, 2009 order. Instead, plaintiffs waited until February 15, 2011, to file another motion to restore their complaint to the trial court calendar. Following oral argument, the court ruled that plaintiff's motion was yet another request for reconsideration of prior orders, and the court denied the application.

Plaintiffs argue on appeal, as they did in the Law Division, that their complaint should be restored; the trial court abused its discretion in denying relief under Rule 4:50-1; and defendants will not suffer any prejudice if the case is reinstated. In response, defendants contend the orders entered by the trial court should be affirmed; plaintiffs' appeal should be dismissed because it is untimely; and they would be "unduly prejudiced" if plaintiffs' complaint is restored.

We review a trial judge's denial of a motion to reinstate a complaint under the abuse of discretion standard. Baskett v. Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011). In this case, the motion judge correctly determined that plaintiffs' third motion to restore their complaint was procedurally barred because plaintiffs did not appeal from the orders entered on March 4, 2009, and June 16, 2009. As this court has previously noted, a motion for relief from a final judgment or order under Rule 4:50-1 "may not be used as a substitute for a timely appeal," Wausau Ins. Co. v. Prudential Prop. and Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998), and untimely motions for reconsideration are governed by the same principle. Ibid.

Moreover, plaintiffs have offered no explanation for the substantial delay between the second and third motions for restoration. Under these circumstances, the trial court's decision to deny plaintiffs' motion to reinstate their complaint was not an abuse of discretion.

Affirmed.

20120823

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