RAJWINDER SAINI v. FRANCISCO PESANTES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2666-07T32666-07T3

RAJWINDER SAINI and GURPAL SAINI, per quod,

Plaintiffs-Respondents,

v.

FRANCISCO PESANTES,

Defendant-Appellant,

and

MOTOR CARRIER EASTERN INTERMODAL,

Defendant.

_________________________________

GSA INSURANCE COMPANY, a Corporation, and GURPAL SAINI,

Plaintiffs-Respondents,

v.

FRANCISCO PESANTES,

Defendant-Appellant,

and

MOTOR CARRIER EASTERN INTERMODAL,

Defendant.

_________________________________

 
Submitted: September 17, 2008 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4751-03 and Law Division, Special Civil Part, Union County, Docket No. DC-19653-03.

Richard Mik, attorney for appellant.

Clark & DiStefano, attorneys for respondents GSA Insurance Company, Rajwinder Saini and Gurpal Saini, per quod (Max J. Stagliano, on the brief).

PER CURIAM

Defendant Francisco Pesantes appeals from a November 2, 2007, order denying his motion to vacate an order entered on August 7, 2007, confirming an arbitration award and restore his answer to the complaint. We affirm.

Because the matter is entirely one of procedure, we do not recite the facts in depth. Suffice it to say that plaintiff Rajwinder Saini was the driver of a motor vehicle involved in a collision with defendant Pesantes, was injured as a result, and insti tuted this action for damages, with plaintiff Gurpal Saini mak ing a per quod claim and plaintiff GSA Insurance Company pre sumably making a subrogation claim for property damage and per sonal injury protection (PIP) payments. After the time for discovery expired, the matter was listed for arbitration on July 10, 2007, at which time plain tiffs and their counsel appeared, but defendant and his counsel did not. After waiting for over ninety minutes, "Barbara" from the court's arbitration office called counsel for defendant and his staff advised her that they did not have the arbitration scheduled. Plaintiffs' coun sel then consented to an adjournment and, while defense counsel's staff was still on the telephone, "Barbara" advised plaintiffs' counsel and defense counsel's staff that the new arbitration date would be August 7, 2007.

On the latter date, plaintiffs and their counsel appeared, but defendant and his counsel again did not. Over the course of thirty minutes between 9:30 and 10:00 a.m., Fee O'Brien, also from the court's arbitration office, attempted to reach defense counsel's office and left messages, but no response was received. As a result, the judge supervising arbitrations entered an order striking defendant's answer and permitting the arbitration to proceed. An award was rendered in favor of plaintiffs that day in the amount of $17,722.91. On August 9, 2007, plaintiffs' counsel served a copy of the order on defense counsel.

When no request for trial de novo was received by plain tiffs' counsel within the time allowed by Rule 4:21A-6, that is, by September 6, 2007, he served and filed a notice of motion to confirm the award and enter judgment, which was returnable on October 5, 2007. That motion was unopposed and an order for judgment in the amount of the award was entered that day. The judgment was served on defense counsel on October 9, 2007.

Unbeknownst to the judge who entered the judgment, defen dant had filed a motion on October 4, 2007, to vacate both the order striking his answer and the arbitration award. In support of that motion, defense counsel certified to (1) hearsay conver sations occurring between his secretary and plain tiffs' counsel on July 11, 2007, in which they allegedly agreed that the matter was not ready for arbitration because the time for discovery was not properly calculated, (2) hearsay conversa tions occurring that same day between his office and Barbara in the arbitration office, (3) attempts by his office on July 11 and August 3, 2007, to speak to the team leader about the May 29, 2007, discovery end date, and (4) conversations between his office and O'Brien at 9:35 a.m. on August 8, 2007.

On October 9, 2007, plaintiffs' counsel wrote a letter to the court respecting defendant's motion. He pointed out that there was no timely objection to plaintiffs' motion to confirm the arbitration award and no timely request for trial de novo, even though the arbitration award had been timely served on defendant. He reiterated his earlier sworn statements that on July 11, 2007, Barbara advised defense counsel's office that the new arbitration date would be August 7, 2007 and that he was present when she did so. As a result, he requested that the motion be denied with prejudice or, alternatively, if granted, that counsel fees be awarded to him for his two appearances for arbitration. Oral argument was not requested by either side and the motion was decided on the papers on November 2, 2007.

Judge James P. Hurley attached a written decision to his order, which we repeat in full here:

R. 4:21A-6 indicates that a dismissal will be entered subsequent to the filing of an arbitration award unless, within 30 days: a party notifies the civil division manager of rejection of the award, makes a demand for a trial de novo, and pays the trial de novo fee outlined in subsection (c) of the rule.

Defendant offers contested evidence that he did not receive notice of the 2nd arbitration hearing. For the purposes of this motion, such facts are irrelevant for reasons set forth below. However, Defendant has offered no excuse for failing to file a timely rejection of the award. The failure to timely object, file for a trial de novo, and pay the de novo fee are relevant and controlling for the purposes of this motion.

[Defendant] makes excuses based on insuf ficient notice for failing to appear at the August arbitration hearing. Be that as it may, this has nothing to [do] with a motion to vacate the award, because adequate notice of the award was served. Had the record indicated that Defendant was not noticed of the arbitration award, his reci tation of allegations of failure to receive notice of the arbitration hearing itself would have weight with respect to dismissing the award. Yet, this is not the case. The record shows that both the court, and his adversary, provided defendant with notice of the award. Instead, Defendant simply failed to object to the award as required by R. 4:21A-6. Thus, there is no basis provided for granting the relief requested in the moving papers.

Defendant, relying on counsel's hearsay certification, con tends that Judge Hurley erred in so ruling because he did not receive notice of the August 7, 2007, arbitration and argues that the judge was required to conduct a plenary hearing to resolve the factual disputes raised by his counsel's certifica tion. As a result, defendant urges that he should not have been required to pay the de novo filing fee "when the arbitration proceeding should not have occurred in the first place" because on July 11, 2007, his counsel was given thirty days to arrive at a mutually convenient arbitration date.

Defendant is correct in one respect disputes of fact may not be resolved based on conflicting certifications. See, e.g., Conforti v. Guliades, 245 N.J. Super. 561, 565 (App. Div. 1991), aff'd, 128 N.J. 318 (1992). However, certifications must be "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to tes tify." R. 1:6-6. Defense counsel's certification does not meet this evidential requirement because much of it constitutes inad missible hearsay. Jamson v. Great Atl. & Pac. Tea Co, 363 N.J. Super. 419, 427 (App. Div. 2003) (attorney's hearsay certifica tion "was inadequate to establish" facts asserted therein), certif. denied, 179 N.J. 309 (2004); Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998). Thus, there was no right to a plenary hearing in these circumstances.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in this opinion, Rule 2:11-3(e)(1) (E), and we affirm substantially for the reasons expressed by Judge Hurley in his written opinion dated November 2, 2007. We add only that a litigant served with an arbitration award has thirty days in which to take some action to avoid entry of a judgment, whether that action is a notice of rejection of the award and demand for trial de novo pursuant to Rule 4:21A-6(b)(1) or a motion to vacate the award and, in this case, for reconsid eration under Rule 4:49-2 of the order striking defen dant's answer and defenses pursuant to Rule 1:2-4(a) by showing good cause for the failure to appear. Having failed to do either, relief from the October 5, 2007, order was available only under Rules 4:49-2 and 4:50-1, but counsel's hearsay certi fication did not establish a ground for relief under those rules.

Even had defendant moved to relax the thirty-day limit on filing a trial de novo, which he did not, he would have had to prove extraordinary circumstances to justify such relief and demonstrate "that those circumstances did not arise from an attorney's 'mere careless ness' 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)) (failure to review diary and supervise secretary not an extraordinary circum stance); see also Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 610 (1997) (con cluding that an attorney's failure to file for a trial de novo within thirty days "because he marked the wrong date in his cal endar" was not an extraordinary circumstance justifying exten sion of the thirty-day period); Marti nelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 311-12 (App. Div. 2001) (computer malfunc tion not an extraordinary circumstance), certif. denied, 171 N.J. 338 (2002). Defense counsel's hearsay certification does not establish any extraordinary circumstance.

Affirmed.

Because defendant Motor Carrier Eastern Intermodal defaulted, we shall hereafter refer to Pesantes as defendant.

The claim that the time for discovery was not properly calculated appears to be based on the date that the answer was filed sometime on or after February 22, 2007. However, the complaint in this matter was filed sometime prior to August 10, 2004. Although we do not know from the record before us the first date when a defendant was served, we infer from the extensive gap between institution of the action and defendant's answer that the time for discovery in this case did not run from the filing of that answer but rather from ninety days from the first date when one of the defendants was served. R. 4:24-1.

(continued)

(continued)

9

A-2666-07T3

November 10, 2008