ARLENE REMINGTON v. VILLAGE OF RIDGEWOOD (L-4827-19, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1542-20
ARLENE REMINGTON,
Plaintiff-Appellant,
v.
VILLAGE OF RIDGEWOOD
and VERIZON NEW JERSEY,
INC.,
Defendants-Respondents.
____________________________
Submitted January 24, 2022 – Decided February 1, 2022
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-4827-19.
Lynch Lynch Held Rosenberg, PC, attorneys for
appellant (Neil S. Weiner, on the briefs).
McManimon, Scotland & Baumann, LLC, attorneys for
respondent Village of Ridgewood (William W.
Northgrave and Joshua H. Raymond, on the brief).
PER CURIAM
In this slip and fall case, plaintiff appeals from three orders. First, a
February 5, 2021 order denying her timely motion to confirm a mandatory
personal injury arbitration award. Second, a February 5, 2021 order (a) denying
her motion to vacate a December 7, 2021 order granting defendant's summary
judgment motion after the deadline for filing a trial de novo (TDN); and (b) then
backdating summary judgment in defendant's favor to December 4, 2021, the
last date for filing the TDN. And third, a February 16, 2021 dismissal order.
Defendant could have but never filed a TDN. Plaintiff was, therefore, entitled
to confirm the arbitration award. We reverse, remand, and direct the judge to
enter an order confirming the award.
Plaintiff injured herself when she fell on defendant's property. On
November 4, 2020, while defendant's motion for summary judgment was
pending, the parties appeared for mandatory arbitration, resulting in a $75,000
award in plaintiff's favor. On Friday, December 4, 2020—the deadline for filing
a TDN—the judge conducted oral argument on defendant's summary judgment
motion. The judge did not decide the summary judgment motion that day.
Instead, the judge stated she needed time to review her notes and was "hopeful
that you'll have my order and decision on this case by next week," meaning after
the deadline for filing a TDN.
A-1542-20
2
On Monday, December 7, plaintiff filed her motion to confirm the
arbitration award. Plaintiff could not have filed that motion sooner because the
thirty-day deadline expired on Friday. Out of an abundance of caution, on
December 7, plaintiff's counsel requested that the judge (who had not yet
adjudicated defendant's summary judgment motion) withhold ruling on
defendant's dispositive motion since plaintiff's counsel had filed the motion to
confirm the award. Nevertheless, on December 7, the judge granted defendant's
motion for summary judgment, which was consistent with her remarks on the
return date of the motion that she would rule on it the following week .
On December 10, plaintiff filed a motion to vacate the December 7 order
granting defendant's summary judgment motion. On January 8, 2021, the judge
granted plaintiff's motion to vacate the December 7 summary judgment order as
it was unopposed. Even though defendant had not filed a TDN, defendant later
filed a motion to vacate the January 8 order and reinstate summary judgment in
its favor. On February 5, 2021, the judge entered the orders under review
without conducting oral argument. In reinstating summary judgment to
defendant, she backdated the order to December 4—the last day defendant had
to file a TDN.
A-1542-20
3
Plaintiff emphasizes defendant never filed a TDN and that a defendant
must do so to reject a mandatory arbitration award. Plaintiff contends that
defendant's filing for summary judgment and waiting for the judge to adjudicate
such a motion does not toll the thirty-day deadline for filing a TDN. If defendant
planned to reject the arbitration award, plaintiff asserts defendant was required
to file a TDN. That was never done, even though defendant had the opportunity
to do so because on the thirtieth day to file the TDN—which was also the return
date of defendant's summary judgment motion—the judge clearly stated she
would decide defendant's motion for summary judgment the following week.
Plaintiff argues, therefore, the judge erred by denying her motion to confirm the
award.
Plaintiff is correct in arguing that a party who seeks to reject an arbitration
award must file a TDN with the Clerk of the Court within thirty days of the filing
of the award. R. 4:21A-6(b)(1); N.J.S.A. 2A:23A-26. Rule 4:21A-6(b)(1) states
that the action shall be dismissed after the arbitrator files an award unless:
within [thirty] days after filing of the arbitration award,
a party thereto files with the civil division manager and
serves on all other parties a notice of rejection of the
award and demand for a [TDN] and pays a [TDN] fee
as set forth in paragraph (c) of this rule.
A-1542-20
4
If a party fails to do so, the other party—here plaintiff—must file a motion to
confirm the arbitration award within fifty days of the filing of the award to bind
both parties to the award.1 R. 4:21A-6(b)(3). Plaintiff complied with the rule
in all respects.
In denying plaintiff's motion to confirm the award, the judge typed in the
order that had she rendered a decision on December 4, "plaintiff could not have
filed the motion to confirm the arbitration award." While that is true, the fact is
that the judge did not adjudicate the summary judgment motion on December 4.
Indeed, the judge not only waited until the following week, but she also verified
on December 4 that she expected to review her notes and decide the summary
judgment motion by "next week," which is obviously after the deadline for filing
a TDN.
Expecting a judge to grant summary judgment on the thirtieth day,
especially when the judge herself stated on the record that she had hoped to
1
Plaintiff argues defendant also failed to demonstrate extraordinary
circumstances for filing a TDN. Under certain circumstances, a trial judge may
extend the thirty-day deadline for filing a TDN, such as if extraordinary
circumstances can be shown "and that those circumstances did not arise from
attorney's 'mere carelessness' or 'lack of proper diligence.'" Hartsfield v. Fantini
149 N.J. 611, 618 (1997) (quoting In re T., 95 N.J. Super. 228, 235 (App. Div.
1967)). But here, defendant never filed or attempted to file a TDN, before or
after the deadline.
A-1542-20
5
release her decision the following week, does not relieve defendant from filing
a TDN whatsoever, or somehow toll the deadline for filing the TDN. Defendant
was obligated to file a TDN. See, e.g., Pellettieri, Rabstein & Altman v.
Protopapas, 383 N.J. Super. 142, 148 (App. Div. 2006) (where the parties
participated in mandatory arbitration and filed motions for summary judgment
and a TDN); Cineas v. Mammone, 270 N.J. Super. 200, 202-03 (App. Div. 1994)
(same).
Reversed and remanded with instructions to enter an order confirming the
$75,000 arbitration award in plaintiff's favor. We do not retain jurisdiction.
A-1542-20
6