LYUDMILA ASABINA v. BRIAN PADOVANI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LYUDMILA ASABINA,

Plaintiff-Appellant,

v.

BRIAN PADOVANI,

Defendant-Respondent.

____________________________

December 5, 2014

Submitted November 18, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1929-11.

Robert S. Ramo (Yadgarov & Associates, PLLC), attorney for appellant.

Kent & McBride, P.C., attorneys for respondent (Christopher D. Devanny, on the brief).

PER CURIAM

Plaintiff Lyudmila Asabina appeals from a September 20, 2013 order granting a motion filed by defendant Brian Padovani to confirm a June 19, 2013 arbitration award, and denying plaintiff's cross-motion to file a demand for a trial de novo or to remove the case from arbitration nunc pro tunc. We affirm, substantially for the reasons stated by Assignment Judge Yolanda Ciccone in her oral opinion issued September 20, 2013.

Plaintiff, a New York resident, and defendant, a New Jersey resident, were involved in an accident at a ski resort in Pennsylvania. Plaintiff's complaint alleged that while she was skiing and defendant was skiing or snowboarding,1 he negligently or recklessly collided with her. Plaintiff initially sued defendant in New York, but on defendant's motion her complaint was dismissed for lack of jurisdiction. She then sued defendant in New Jersey.

Following completion of discovery, the parties participated in mandatory court-annexed arbitration. See R. 4:21A-1(a)(2). The arbitrator found defendant 85% liable for the accident. However, the arbitrator awarded plaintiff no damages, finding that her claim was barred by Pennsylvania's Skier's Responsibility Act (the Ski Act), 42 Pa.C.S. 7102(c). Plaintiff failed to file a demand for a trial de novo within the thirty-day time limit set by Rule 4:21A-6(b). Instead, she sought several adjournments of a summary judgment motion defendant filed a few days before the arbitration.2

At some point, defendant filed a motion to confirm the arbitration, and plaintiff filed a cross-motion to either file her de novo demand four months out of time, or to withdraw the case from arbitration nunc pro tunc. She argued that the case involved complex legal issues, warranting the relief she sought. Judge Ciccone found there were no complex issues or other extraordinary circumstances justifying the late filing, and she confirmed the arbitration award. See R. 4:21A-6. She also concluded that Rule 4:21A-1(c), concerning the withdrawal of a case from arbitration, "was not intended to be invoked after the arbitration has already been held."

On this appeal, plaintiff argues that the trial court erred in granting defendant's motion and denying her cross-motion. She also asserts that the arbitrator "lacked jurisdiction to render an award" because Rule 4:21A is unconstitutional. The trial court declined to entertain plaintiff's constitutional challenge to Rule 4:21A, because plaintiff failed to serve notice on the Attorney General as required by Rule 4:28-4(a). We agree and conclude as well that the issue was waived when plaintiff participated in the arbitration without objection. See N.J.S.A. 2A:23A-20(b). However, even if we consider the argument, it is clearly without merit. See Jersey Cent. Power & Light Co. v. Melcar Utility Co., 212 N.J. 576, 596-98 (2013). Plaintiff's remaining arguments warrant no discussion beyond the following comments. R. 2:11-3(e)(1)(E).

We infer that plaintiff intentionally avoided suing defendant in Pennsylvania because that state's law is highly unfavorable to skiers injured at ski resorts. However, on this record, there is no colorable choice-of-law issue. Because the accident and the conduct that caused it occurred in Pennsylvania, there is a presumption that Pennsylvania law will apply. P.V. v. Camp Jaycee, 197 N.J. 132, 144-45 (2008). Moreover, New Jersey does not have "'a more significant relationship . . . [with] the occurrence and the parties' than Pennsylvania." Ibid. (quoting Restatement (Second) of Conflict of Laws 146 (1971)). In fact, on this record, New Jersey has no relationship to the accident or the parties, beyond the fortuitous circumstance that defendant lives here. Plaintiff does not suggest otherwise. Hence, Pennsylvania law applies.

Unlike New Jersey, Pennsylvania provides strict immunity to ski resorts against lawsuits by skiers injured on the ski slopes. Defendant's reliance on Tayar v. Camelback Ski Corp. Inc., 47 A.3d 1190 (Pa. 2012), is misplaced, because that case did not address the Ski Act. Moreover, in a case defendant did not even cite on this appeal much less distinguish, the Ski Act has been held to protect fellow skiers and snowboarders as well as the ski resorts. Bell v. Dean, 5 A.3d 266, 271-73 (Pa. Super. Ct. 2010). Like this case, Bell involved a collision between a skier and a snowboarder at a ski resort, and it is directly on point here. Consequently, even if the trial court had allowed plaintiff to file a de novo demand four months late, the case would properly have been dismissed on summary judgment.

Affirmed.

1 At the arbitration, the parties agreed that defendant was snowboarding.

2 We infer that defendant filed the motion early as a precautionary measure, anticipating that plaintiff would lose at arbitration and would file a de novo demand. Perhaps because plaintiff's attorney practices in New York, he did not understand the need to promptly file the de novo demand within the time limit set forth in Rule 4:21A-6, regardless of the pending summary judgment motion. However, as further explained herein, his mistake made no difference to the ultimate outcome of the case.