FREDERICK M. WEINBERG v. TODD M. COHAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2801-10T4

FREDERICK M. WEINBERG,

Plaintiff-Appellant,

v.

TODD M. COHAN,

Defendant-Respondent,

and

TODD M. COHAN and

SABRINA Z. ANDRICH,

Third-Party Plaintiffs-

Respondents,

v.

FREDERICK M. WEINBERG and

JANICE T. NINI,

Third-Party Defendants-

Appellants.

__________________________________

March 16, 2012

Submitted January 30, 2012 - Decided

 

Before Judges A. A. Rodr guez, Sabatino and Ashrafi.

 

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Docket No.

L-961-10.

 

Bruce I. Afran, attorney for appellants.

Nicholas Z. Hegedus, attorney for

respondents.

PER CURIAM

In this appeal, we reverse two January 21, 2011 orders of the Law Division that denied appellants' motion for reinstatement of their claims and defenses and for a trial de novo pursuant to Rule 4:21A-6(c) and that, instead, confirmed an arbitration award as a final judgment pursuant to Rule 4:21A-6(b)(3). The extraordinary circumstances of a weather-related court closing and delay in delivery of appellants' submissions for filing required that the court relax the strict deadlines provided by the rules for a trial de novo.

Third-party defendants Frederick Weinberg and Janice Nini ("tenants") were residential tenants of third-party plaintiffs Todd Cohan and Sabrina Andrich ("landlords"). After the tenancy ended, Weinberg filed a complaint in the Special Civil Part against Cohan for failure to refund the security deposit. In response, the landlords filed claims against both tenants alleging failure to pay rent and other damages in an amount that exceeded the monetary jurisdictional limit of the Special Civil Part. See R. 6:1-2(a)(1). The case was transferred to the Law Division. See R. 6:4-1(c).

After discovery, the court scheduled mandatory arbitration under Rule 4:21A-1. The arbitration hearing was held on November 17, 2010. The arbitrator issued an award the same day in favor of the landlords for $9,950.

Within thirty days after the award was issued, on December 13, 2010, the tenants attempted to file a demand for a trial de novo pursuant to Rule 4:21A-6(b)(1). The clerk of the Law Division stamped the demand as "Received but not filed" because it did not include the $200 fee for a trial de novo. See R. 4:21A-6(c). On December 14, 2010, the clerk returned the tenants' papers to their attorney with a notice stating that the filing fee was required and had not been received and also stating: "Pursuant to Rule 1:5-6(c), you may return this transmittal notice with the requested corrections(s) within ten (10) days of the date of this notice and the date stamped received will be honored as the file date."

Because the ten-day deadline fell on Friday, December 24, 2010, a State holiday, the tenants had until Monday, December 27, to retransmit their demand for a trial de novo. On December 24, the tenants' attorney delivered a package to Federal Express with instructions for delivery to the court the next business day, December 27. The package contained the demand for trial de novo and the $200 filing fee.

Over the weekend, a major storm buried the State in snow, resulting in an order from the Governor's Office closing all government offices on December 27, including the courts. After the courts re-opened on Tuesday, December 28, Federal Express still had difficulty making deliveries because of weather and road conditions. Federal Express delivered the tenants' package to the court on Wednesday, December 29. The clerk declined to accept the filing as timely and notified the tenants' attorney that the time to file for a trial de novo had expired.

In the meantime, by a notice of motion dated December 21, 2010, the attorney for the landlords sought confirmation of the arbitration award as a judgment against the tenants pursuant to Rule 4:21A-6(b)(3). The tenants filed opposition and a cross-motion on January 13, 2011. The tenants sought acceptance of their demand for trial de novo as timely filed and reinstatement of the case to the trial calendar.

On January 21, 2011, the Law Division entered two orders. It denied the tenants' cross-motion, stating as the reason: "Notice of trial de novo not filed in time and failed to cure w/in 10 day extension." The court also granted the landlords' motion for confirmation of the arbitration award and entered judgment against the tenants for $9,950 plus prejudgment interest of $20.98 and court costs to be taxed. The tenants then filed this appeal.

The thirty-day time limit for demanding a trial de novo pursuant to Rule 4:21A-6(b)(1) is not jurisdictional, Mazakas v. Wray, 205 N.J. Super. 367, 372 (App. Div. 1985), but it must be strictly enforced and may not be expanded except upon a showing of extraordinary circumstances, Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 609 (1997). "A fact-sensitive analysis is necessary in each case to determine what constitutes an extraordinary circumstance." Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 310 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The extraordinary circumstance may not have arisen "from an 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)).

Here, unlike in Hartsfield, supra, 149 N.J. at 619, and Martinelli, supra, 345 N.J. Super. at 311-12, the one-day delay in delivery of the corrected papers was not caused by failures and omissions within the office of the attorney for the tenants. As shown by documented proofs from Federal Express, the attorney gave the papers to Federal Express with proper instructions for timely delivery to the court. Delivery and filing of the papers on December 27, 2010, would have been within the time period permitted by Rules 4:21A-6(b)(1) and 1:5-6(c). An extraordinary act of nature caused the delay until December 29 when the papers were actually delivered to the court. We reject the landlords' contention that the tenants' attorney was careless and failed to act diligently because he did not anticipate the unusual weather delay and the inability of Federal Express to deliver the papers as instructed.

An extension of the deadline for filing a demand for trial de novo "must be sparingly [granted] with a view to implementing both the letter and spirit of the compulsory arbitration statute and the rules promulgated pursuant thereto, to the end that the arbitration proceedings achieve finality." Mazakas, supra, 205 N.J. Super. at 372. Granting a one-day extension in the circumstances of an unforeseen weather delay does not deviate from the letter and spirit of the arbitration rules.

R

eversed and remanded for reinstatement of the pleadings on the trial calendar.