ERS CONSTRUCTION CO v. CARMEN GERACE, JR.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6030-08T26030-08T2

ERS CONSTRUCTION CO.,

Plaintiff-Respondent,

v.

CARMEN GERACE, JR. and

NANCY GERACE, jointly,

severally and in the

alternative,

Defendants-Appellants.

________________________________________________________________

 

Submitted April 12, 2010 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-262-06.

Cozen O'Connor, attorneys for appellants (Robert V. Dell'Osa, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendants Carmen Gerace, Jr. and Nancy Gerace appeal from a June 26, 2009 Law Division order that confirmed an arbitration award, thereby entering judgment in favor of plaintiff ERS Construction Company in the amount of $21,195. We reject defendants' argument that the trial judge erred when he concluded that, to confirm the arbitration award, plaintiff was not obliged to file a summary action and was entitled to proceed by motion. We likewise reject defendants' contention that they were entitled to 120 days to object to the arbitration award, but the judge wrongly confirmed the award only forty-nine days after it was entered.

We affirm.

I.

Plaintiff filed this action in May 2006 to recover money allegedly owed by defendants for construction of a home in Sea Isle City. Defendants denied they owed plaintiff any money and asserted a counterclaim for alleged construction defects. On September 17, 2007, the parties executed a consent order in which they agreed to dismiss their complaint and counterclaim with prejudice and to submit their respective claims to "statutory binding arbitration proceedings" with a private arbitrator.

The consent order specified that the Law Division would retain jurisdiction if necessary to "complete the binding arbitration proceedings and/or enforce the award of said proceedings." Arbitration hearings were held before the arbitrator on February 18 and March 19, 2009, after which he issued an award in favor of plaintiff in the amount of $21,195.

On May 26, 2009, plaintiff filed a motion for entry of judgment on the arbitration award. Defendants opposed the motion on the grounds that the "private binding arbitration, in which they had participated was governed by the New Jersey Arbitration Act, N.J.S.A. 2A:24-7, and not by Rule 4:21A-6." They further maintained that plaintiff had not complied with the provisions of the Arbitration Act because it had proceeded by motion, rather than by filing a summary action.

In a written statement of reasons attached to his June 26, 2009 order, Judge Daryl F. Todd, Sr. rejected defendants' contentions, reasoning:

Pursuant to N.J.S.A. 2A:24-7, a party to an arbitration may, within three months after the award is delivered to him[,] commence a summary action in the court aforesaid for the confirmation of the award. The confirmation is to be granted unless the award is vacated, modified or corrected. N.J.S.A. 2A:24-7. The award must be in writing and delivered to one of the parties or their attorneys. [Ibid.] This arbitration was not conducted under R. 4:21A-6(b)(3).

. . . .

The award is in writing, was delivered to Plaintiff, and Plaintiff has moved within three months of delivery to confirm the arbitration award. N.J.S.A. 2A:24-7.

Defendant objects to the confirmation of the award on a procedural ground. Defendant claims that Plaintiff is required to file a summary action to confirm the arbitration award and has not done so, and that, therefore, Plaintiff's motion must be dismissed. . . . The Plaintiff, however, is not required by the language of the statute [N.J.S.A. 2A:24-7] to file . . . a summary action. The language is permissive and not mandatory. The motion to confirm the arbitrator's award is appropriate without a new summary action being filed. Relying on the complaint filed May 8, 2006 is appropriate in these circumstances.

On appeal, defendants advance the same arguments they presented to the Law Division, namely that Rule 4:21A-6 does not apply to a private binding arbitration such as the one in which they participated and that the court erred when it applied that Rule to confirm the arbitration award.

II.

Defendants are correct that Rule 4:21A-6 does not apply to private arbitration such as the one conducted here, and applies solely to mandatory court-ordered arbitration. As is abundantly clear from the judge's June 26, 2009 statement of reasons, which we have quoted, the judge did not rely on that Rule when he entered judgment in favor of plaintiff. In fact, he expressly commented that "[t]his arbitration was not conducted under R. 4:21A-6(b)(3)" (emphasis added). That being so, defendants' attack on the judge's order of June 26, 2009 -- on the grounds that the judge improperly relied on the provisions of Rule 4:21A-6 -- is entirely devoid of merit and warrants no further discussion.

Next, we address defendants' argument that N.J.S.A. 2A:24-7 requires plaintiff to have filed a summary action and the judge erred when he held to the contrary. N.J.S.A. 2A:24-7 provides:

The award must be in writing and acknowledged or proved in like manner as a deed for the conveyance of real estate and delivered to one of the parties or his attorney.

A party to the arbitration may, within 3 months after the award is delivered to him, unless the parties shall extend the time in writing, commence a summary action in the court aforesaid for the confirmation of the award or for its vacation, modification or correction. Such confirmation shall be granted unless the award is vacated, modified or corrected.

[Emphasis added.]

As is evident from the statutory language, a party who seeks to confirm the arbitration award "may" file a summary action to do so, but is not obliged to proceed by such method. Here, where plaintiff had already filed a complaint in the Law Division, Judge Todd correctly determined that requiring plaintiff to institute a summary action and file yet another complaint would serve no useful purpose, as such complaint would be an entirely superfluous pleading. We have been provided with no meritorious basis to reject that conclusion.

Moreover, the parties' September 17, 2007 consent order expressly provided that the court "will maintain jurisdiction . . . to . . . enforce the award of said proceedings." Obviously, once the court retained jurisdiction, as the consent order required, there was no need to file a complaint in order to confer jurisdiction upon the court.

Last, we address defendants' claim that the judge wrongly entered judgment forty-nine days after the arbitration award was entered rather than permit them the 120 days that N.J.S.A. 2A:24-7 specifies. This argument too is meritless. First, nothing in the language of N.J.S.A. 2A:24-7 affords a party 120 days in which to object to the confirmation of an arbitration award. Moreover, defendants were afforded an opportunity to object to the entry of judgment against them, and the judge considered their objections before entering judgment in plaintiff's favor.

Affirmed.

 

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A-6030-08T2

April 23, 2010