STEPHEN M. SEGAL, INC. v. EDWARD KERSHBAUMER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4264-05T14264-05T1

STEPHEN M. SEGAL, INC.,

Plaintiff-Appellant,

v.

EDWARD KERSHBAUMER and

PETER KERSHBAUMER,

Defendant-Respondent.

______________________________

 

Submitted November 27, 2006 - Decided December 13, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer

County, L-1075-04.

Otto James Kostbar, attorney for appellant.

Marte and Toadvine, attorneys for respondent

Peter Kershbaumer (Thomas E. Kopil, on the brief).

Edward Kershbaumer, respondent, relies on brief filed by respondent Peter kershbaumer.

PER CURIAM

Plaintiff appeals from a March 17, 2006, order denying his application for entry of judgment in accordance with an arbitrator's decision. We reverse and remand for the entry of a judgment confirming the arbitration award.

The uncontested facts demonstrate that on April 22, 2004, plaintiff filed a Law Division complaint against defendants alleging breach of a contract requiring defendants to pay a real estate commission. Defendants, employing the same counsel, filed separate answers and the matter was referred to arbitration. Peter Kershbaumer discharged counsel and appeared pro se at the arbitration. On December 14, 2005, the arbitrators entered an award finding defendants jointly liable to plaintiff in the amount of $4375. Neither plaintiff nor either defendant sought a trial de novo within thirty days, see R. 4:21A-6(b)(1), and no party sought to confirm the arbitration award within fifty days of its filing. See R. 4:21A-6(b)(3). Accordingly, on February 8, 2006, a computer-generated order dismissing plaintiff's complaint was entered. See R. 4:21A-6(b).

Plaintiff did not move to vacate the dismissal. Instead, on February 16, 2006, plaintiff moved "for an order entering judgment against the defendants" in the amount of the arbitrator's award. The motion was accompanied by a certification of counsel that recited his "multiple conversations with [counsel for Edward Kershbaumer] regarding this matter and whether the defendants would settle this matter." He also asserted that he had "placed several calls to Peter Kershbaumer but we were unable to speak with each other." Plaintiff's motion did not indicate a desire to obtain a trial de novo, but instead specifically requested that judgment be entered in accordance with the arbitration award.

The motion judge denied the motion on the grounds that "R. 4:21A-6 prescribes the steps required to enforce an arbitration award. Here, the plaintiff has clearly failed to complete the steps required of it to preserve its award. As a result, this matter is dismissed. Thus the provisions of [R.] 4:42-2 and [R.] 4:47, which allow for the entry of judgment are not applicable." The judge also noted that, "Plaintiff submits that it failed to confirm the order as it was attempting to engage in settlement negotiations, however, no such conversation ever occurred and the settlement was not reached."

We agree that the motion by plaintiff was not to confirm an award and that even had the motion been thus styled, it would have been untimely. Nevertheless, we also conclude that had plaintiff moved to vacate the dismissal, so as to permit a late application to confirm the award, the motion would have been granted in accordance with Allen v. Heritage Court Assocs., 325 N.J. Super. 112 (App. Div. 1999). We there held that a dismissal for failure to seek timely "confirmation of an arbitration award is a 'procedural dismissal,' which is 'subject to vacation under the standards set forth in R. 4:50-1.'" Id. at 117 (quoting Sprowl v. Kitselman, 267 N.J. Super. 602, 606 (App. Div. 1993)). The post-arbitration attempts by plaintiff to settle the dispute were sufficient to permit relief under R. 4:50. Id. at 119.

In this case, there is no dispute that plaintiff's counsel, after the arbitration award, attempted to settle this matter with both defendants through the attorney who had, until immediately before arbitration, represented both defendants and that he attempted on several occasions to contact the pro se defendant. Those efforts, almost identical to those referenced in Allen, would require vacation of the order of dismissal on a motion seeking that relief.

Plaintiff, as we have noted, did not attempt to vacate the dismissal in order to seek confirmation of the arbitration award. Instead, he sought a direct entry of judgment. We do not believe that plaintiff should be barred from relief as a result of this procedural misstep. The "Rules of procedure are not simply a minuet scored for lawyers to prance through on pain of losing the dance contest should they trip." Stone v. Twp. of Old Bridge, 111 N.J. 110, 125 (1988) (Clifford J., dissenting). Under these circumstances, where no defendant has suggested prejudice, the motion for the entry of judgment should have been treated as a motion to vacate the dismissal and for a confirmation of the arbitrator's award.

 
Reversed and remanded for the entry of a judgment confirming the arbitration award in conformity with this opinion.

The record does not contain the order requiring arbitration, but we infer that it was entered pursuant to R. 4:21A-1(a)(3) or

R. 4:21A-1(b).

(continued)

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A-4264-05T1

 

December 13, 2006