CUSTOM LAMINATIONS INC v. BRAMSON HOUSE, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CUSTOM LAMINATIONS, INC.,

d/b/a THE CLI GROUP,

Plaintiff-Respondent,

v.

BRAMSON HOUSE, INC.,

Defendant-Appellant,

and

C&M SHADE CORPORATION,

Defendant.

_______________________________________

November 13, 2014

Submitted October 28, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3085-11.

McElroy Deutsch Mulvaney & Carpenter, LLP, attorneys for appellant (Frank Holahan, of counsel and on the brief).

Philip M. Lustbader, David Lustbader, P.C., attorneys for respondent (David Lustbader, on the brief).

PER CURIAM

Defendant Bramson House, Inc. ("Bramson") appeals from an order entered by the Law Division on September 16, 2013, which denied its motion for a determination that it had timely filed its demand for a trial de novo pursuant to Rule 4:21A-6(b)(1). We affirm.

In June 2011, plaintiff Custom Laminations, Inc., doing business as The CLI Group ("CLI"), filed a complaint against Bramson seeking monies due for manufacturing certain shades and window treatments. In December 2011, Bramson filed an answer, denying liability on the ground that the products were defective and unfit for their intended use. Bramson filed counterclaims against CLI alleging negligence and breach of contract. Bramson sought damages of $88,728.36. In April 2012, CLI denied liability.

In October 2012, CLI filed an amended complaint, naming its subcontractor, C&M Shade Corporation ("C&M"), as an additional defendant. CLI alleged that, if Bramson is correct in its allegations regarding the shades and window treatments, it is due to the negligence or "other actionable conduct" on the part of C&M. In January 2013, C&M filed an answer denying liability, and filed a counterclaim against CLI, seeking $5760 due from CLI for the order.

The matter was referred for mandatory arbitration pursuant to Rule 4:21A-1(a). The arbitration took place on June 11, 2013. On that date, the arbitrator entered his award, requiring Bramson to pay CLI $17,178.64, and CLI to pay C&M $5760. On July 11, 2013, Bramson provided a notice of demand for a trial de novo to Federal Express for delivery to the court. The civil division manager returned the notice as untimely.

Thereafter, plaintiff filed a motion to enter judgment on the arbitration award, and Bramson filed a cross-motion to return the matter to the active trial list. The motion judge entered judgment on the award, and denied Bramson's cross-motion. On the order, the judge wrote, "Application is denied. Movant has failed to provide any documentation regarding the filing [and] service of the de novo, no transmittal letter to the court or to his adversary."

On appeal, Bramson argues that the motion judge erred by failing to accept the notice of demand for a trial de novo as timely. Bramson maintains that it complied with the thirty-day filing requirement of Rule 4:21A-6(b)(1) because it provided the notice to the Federal Express courier on July 11, 2013. In support of this contention, Bramson cites Rule 1:5-4(c), which provides, among other things, that service by a commercial courier may be complete "upon the courier's receipt of the paper from the sender[.]" We reject these arguments and affirm.

Rule 4:21A-6(b)(1) provides that an order shall be entered dismissing the complaint following the filing of an arbitrator's award unless, within thirty days of the award, a party to the proceeding "files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee . . . ."

Here, the arbitrator filed his award on June 11, 2013. According to the rule, the notice of demand for a trial de novo had to be filed within thirty days. It is undisputed that Bramson did not file the notice with the civil division manager within the time required by the rule. The motion judge correctly found that Bramson's notice was untimely, and Bramson had not provided any basis for concluding otherwise.

Bramson's contention that its notice should be considered as having been timely filed as of July 11, 2013, because it provided the notice to Federal Express on that date is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We note, however, that Bramson's reliance upon Rule 1:5-4(c) is misplaced. That rule applies to the service of papers, not filing.

Affirmed.