CITIMORTGAGE v. DOO SOO KIM a/k/a DAVID KIM, and MIJA KIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5866-04T15866-04T1

CITIMORTGAGE,

Plaintiff,

v.

DOO SOO KIM a/k/a DAVID KIM,

and MIJA KIM,

Defendants-Respondents/

Third-Party Plaintiffs,

v.

FODAY MANSARAY,

Third-Party Defendant-Appellant,

and

EASTERN AMERICAN MORTGAGE COMPANY,

WEICHERT INSURANCE AGENCY, JIMCOR

AGENCIES and ALEA LONDON,

Third Party Defendants.

________________________________________

 

Submitted December 7, 2005 - Decided January 25, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, No. L-1209-04.

Thomas D. Williamson, attorney for Third

Party Defendant/Appellant.

Glenn A. Bergenfield, attorney for Defendant/Third

Party Plaintiff-Respondent (Kimberly A. Shubert,

of counsel and on the brief).

PER CURIAM

Third-party defendant Foday Mansaray appeals from a trial court order denying his motion for an extension of time within which to file a request for a trial de novo. After reviewing the record in light of the contentions advanced on appeal, we affirm, although for reasons other than those stated by the trial court.

David Kim and his wife owned rental property located at 707 Somerset Street in Somerset which they refinanced. In connection with that refinancing, they used a mortgage broker, Eastern American Mortgage, by whom Mansaray is employed. In the process of refinancing, they learned that the insurance on the property had lapsed and had to be replaced. Mansaray filled out the insurance application. In the course of doing so, he erroneously described the property as owner-occupied. Kim signed the application and sent it to Weichert Insurance. This form was lost in the mail, and Mansaray's office faxed a copy to Weichert. Weichert, utilizing that faxed copy, then prepared another application, repeating Mansaray's erroneous description of the property as owner-occupied. Plaintiffs signed that application, and the refinancing proceeded.

Several months later, a fire destroyed the property but the insurer declined coverage, based upon the erroneous description of the property as owner-occupied. Without insurance proceeds, Kim was unable to rebuild, and the property went into foreclosure.

Kim filed a third-party complaint against Mansaray and Weichert, seeking damages due to their negligent completion of the insurance application. Kim's claim against Weichert and Mansaray was scheduled for arbitration under R. 4:21A; before the arbitration was conducted, Kim negotiated a resolution of his claim against Weichert. Mansaray, however, did not appear on March 16, 2005, the scheduled date for the arbitration, and the arbitrators, after crediting the settlement received from Weichert, entered an award of $29,819.27 against Mansaray and in favor of Kim.

On Friday April 15, 2005, Mansaray's attorney mailed a request to the Civil Case Manager requesting a trial de novo and enclosed a check for two hundred dollars. On April 16, a copy of the request was received at the office of Kim's attorney. On Monday, April 18, the request arrived at the Somerset County Court House. On April 20, it was returned to Mansaray's attorney, together with his check, with the explanation that the time within which to request a trial de novo had expired.

On May 3, 2005, Kim filed a motion to confirm the arbitration award and enter judgment against Mansaray. Mansaray filed a cross-motion, seeking an extension of time within which to request a trial de novo. Mansaray's motion was supported by the certification of his attorney in which he related that Mansaray did not appear at the arbitration because he had been called back to Sierra Leone to attend to family matters. Although the certification did not give the date when Mansaray returned to New Jersey, it is clear from its text that he had returned by April 15, the date upon which the initial request for a trial de novo was placed in the mail. The trial court granted Kim's motion and denied Mansaray's.

Having reviewed the record, we are satisfied the trial court was clearly correct in denying the motion for an extension of time. R. 4:21A-6 provides that a notice that a party is rejecting an arbitration award and requesting a trial de novo must be filed within thirty days of the award. Depositing the request for a trial de novo in the mail on April 15, the thirtieth day, did not constitute filing. Pressler, Current N.J. Court Rules, comment 2 on R. 1:5-6(b) (2006).

That thirty-day deadline, moreover, may only be extended upon a showing of "extraordinary circumstances." Hartsfield v. Fantini, 149 N.J. 611, 618 (1997); Wallace v. JFK Hartwyck at Oak Tree, 149 N.J. 605, 609 (1997). Mansaray failed to provide any explanation for the failure to file the request within thirty days of the arbitration award, let alone meet the threshold of extraordinary circumstances. In such a posture, the trial court had no alternative but to deny the motion for an extension of time.

The order under review is affirmed.

 

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A-5866-04T1

January 25, 2006