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March 28, 2014


Argued March 10, 2014 Decided


Before Judges Parrillo and Kennedy.


On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2012-10143, and on appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0152-11.



Kenneth L. Thomson argued the cause for appellants (Manning, Caliendo & Thomson, attorneys; Mr. Thomson, of counsel, and on the brief).


J. Russell Cozier argued the cause for respondent in A-3649-12 (Lawrie, Cozier and Vivenzio, attorneys; Patricia R. Carley, of counsel; Mr. Cozier, on the brief).


Gerald J. Gunning argued the cause for respondent in A-4687-12 (Stein, McGuire, Pantages & Gigl, attorneys; Mr. Gunning, of counsel and on the brief).


Plaintiff appeals from a February 28, 2013 order of the Division of Workers' Compensation (Division) dismissing his complaint for benefits. Plaintiff also appeals from a May 3, 2013 order of the Law Division refusing to vacate its earlier grant of summary judgment dismissing his personal injury action.1 We affirm.2

On March 11, 2009, plaintiff fell on the stairs at the East Whitehouse Fire Department "due to an improperly installed/secured runner." As a result of the fall, plaintiff suffered a tear to his right distal bicep, and sprained his right elbow. At the time, plaintiff was a self-employed podiatric surgeon in New York, and a voluntary firefighter at the East Whitehouse Fire Department.

Following the accident, a workers' compensation report was completed by plaintiff and submitted to the compensation carrier for the municipality. In his initial report to the workers' compensation carrier the day after the accident, plaintiff stated he was at the firehouse for "weekly drill night" when he fell on the stairs connecting the fire truck bay and the main office at the firehouse. Plaintiff's hospital bill and other medical expenses were paid by the compensation carrier. On April 30, 2009, a claims representative for the compensation carrier wrote to plaintiff advising it was closing its file because plaintiff had not responded to the claim representative's attempts to contact plaintiff to discuss his treatment and work status.

On March 8, 2011, plaintiff filed a complaint in the Law Division against defendant, the East Whitehouse Fire Department, alleging its negligence proximately caused him to sustain personal injuries on March 11, 2009.3 Defendant filed an answer denying the allegations of the complaint and asserting various affirmative defenses, including the workers' compensation bar under N.J.S.A. 34:15-8. Defendant thereafter moved for summary judgment arguing that plaintiff's complaint, which alleged no intentional misconduct, must be dismissed because it was barred by N.J.S.A. 34:15-8.

After the motion was filed, plaintiff's then-counsel asked if defendant would agree to "remand this matter to [w]orkers' compensation court" but defendant did not agree. Plaintiff's letter brief in opposition to the motion suggested that plaintiff may not have been undertaking "public fire duty" pursuant to N.J.S.A. 34:15-43 at the time of the accident, and asked the Law Division to deny defendant's motion and to "transfer" the case to the Division.

On March 30, 2012, the motion judge granted summary judgment and dismissed the complaint. In a Memorandum of Decision stating his reasons for granting summary judgment, the motion judge noted that plaintiff failed to cite authority to support transfer of the complaint, and stated, "[t]he Workers' Compensation [Division] is not a division of the Superior Court amenable to transfers. If plaintiff wishes to proceed in that [c]ourt he may do so independently of this case."

No appeal was taken from that judgment. Rather, on April 17, 2012, plaintiff filed a claim petition against defendant in the Division. Defendant answered and moved to dismiss the petition because it was filed more than two years after the last compensation payment on March 26, 2009. N.J.S.A. 34:15-51. Plaintiff's present counsel opposed the motion and cited Townsend v. Great Adventure, 178 N.J. Super. 508 (App. Div. 1981), to support the argument that the Law Division should have transferred the matter to the Division. Plaintiff conceded that Townsend had been neither argued nor even brought to the attention of the judge in the Law Division, but insisted, without citation to other authority, that the Division had the "jurisdiction to right the wrong imposed upon the [p]etitioner by the Superior Court."

The workers' compensation judge issued an order on February 28, 2013, dismissing the claim petition pursuant to N.J.S.A. 34:15-51. In a brief written opinion, the judge explained that because plaintiff did not appeal the Law Division's Order granting Summary Judgment, and did not file a timely compensation claim petition, "nothing in Townsend [] would operate to save this claim which was filed well beyond the two year statute of limitations."

After defendant's motion had been filed in the Division, but prior to the judge's ruling, plaintiff moved before the Law Division "pursuant to Rule 1:13-1, or in the alternative pursuant to Rule 4:50-1," and requested that it "simply remand" the matter to the Division, "in the interest of justice."

On March 22, 2013, the motion judge denied plaintiff's motion and in his written decision, determined that "no calculation, grammatical or other clerical []error was made as contemplated under R[ule] 1:13-1 in rejecting a transfer" and that "[p]laintiff's brief fail[ed] to assert a single basis for which it is entitled to relief from judgment under R[ule] 4:50-1. . . . Since plaintiff is seeking relief from judgment, plaintiff must necessarily demonstrate why such relief is warranted. Plaintiff does not indicate which subsection of R[ule] 4:50-1 entitles plaintiff to its requested relief."

On March 28, 2013, plaintiff filed a second, nearly identical, motion "pursuant to Rule 1:13-1 and Rule 4:50-1," again requesting the Law Division to transfer the matter to the Division in the interest of justice. Plaintiff relied upon Rule 4:50-1(a),(d) and (f), Rule 1:13-4, and, as before, Townsend, supra, 178 N.J. Super. 508.

On May 3, 2013, the motion judge denied plaintiff's motion. With respect to plaintiff's argument under Rule 4:50-1(a) he held, in pertinent part, as follows:



[p]laintiff's failure to exercise due diligence and present relevant case law at the time of the summary judgment motion in March 2012 is not the type of inadvertence or excusable neglect contemplated by the Rules. . . . Th[e] [c]ourt [did] not believe plaintiff exercised due diligence or reasonable prudence. Specifically, th[e] [c]ourt note[d] that plaintiff failed to substantively oppose defendant's motion for summary judgment and simply requested a transfer.


. . . .


It was not the [c]ourt's responsibility to seek out relevant case law in support of plaintiff's argument.


Accordingly, the motion judge did "not find that a sufficient mistake, surprise, inadvertence or excusable neglect exist[ed]."

The judge found that Rule 4:50-1(d) also did not provide plaintiffs with relief, stating,

plaintiff has not demonstrated that the [c]ourt's decision was improper so as to be rendered void. The [c]ourt reviewed the facts before it and found that no genuine issue of material fact existed as to whether plaintiff's sole remedy was limited to that provided under the Workers' Compensation Act. This reasoning still stands. Plaintiff does not contest this reasoning, but instead contests the [c]ourt's procedural decision to dismiss the case altogether instead of transferring it to Workers' Compensation Court like the Appellate Division held was appropriate in Townsend. This does not make the [c]ourt's order on the merits of defendant's summary judgment motion void.


The judge also disagreed with plaintiff's contention that relief was proper under Rule 4:50-1(f)'s "catchall" exception. He found Townsend "unpersuasive as a basis for granting plaintiff's current motion[,]" stating,

[u]nlike in Townsend, plaintiff in this case did not have a simultaneous case pending in the Workers' Compensation Court at the time this Law Division action was dismissed. Instead, plaintiff filed a claim in Workers' Compensation a few weeks after this [c]ourt granted defendant's motion for summary judgment and dismissed plaintiff's action. Further, the plaintiff in Townsend took an appeal to the Appellate Division regarding the Law Division's improper dismissal of the action. Plaintiff in this case [took] no such appeal. Rather plaintiff waited over one year and then sought relief from judgment in this [c]ourt in March 2013. Despite that denial, and subsequent dismissal of the claim in Workers' Compensation Court, plaintiff now makes the same motion putting forth arguments that this [c]ourt noted were lacking in the first motion for relief for judgment. Further, the [c]ourt is not persuaded that relief from judgment would be equitable, as granting plaintiff's motion would simply transfer the action to Workers' Compensation Court and defendant has already obtained a dismissal of the action in that [c]ourt.


Because of the importance that we attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when "truly exceptional circumstances are present." Hous. Auth. of Morristown, [ ] 135 N.J. [274,] [ ] 286 [1994] (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). However, "[b]ecause R. 4:50-1(f) deals with exceptional circumstances, each case must be resolved on its own particular facts."

We note that, as with Townsend, plaintiff failed to cite Rule 1:13-4(a) as authority for the transfer of his negligence action to the Division in opposing summary judgment. Plaintiff appeals from the February 23, 2012 order of the workers' compensation judge and from the Law Division order of May 3, 2013.

Plaintiff raises the following argument on appeal from the order of the workers' compensation judge:



With respect to the order entered in the Law Division, plaintiff argues:




We disagree and affirm essentially for the reasons set forth by the judges in their respective opinions. We add only the following.

We turn first to plaintiff's appeal from the Law Division order of May 3, 2013. In his first argument, plaintiff asserts that the motion judge's order for summary judgment on March 30, 2012, "was an improper disposition of the matter" because the motion court, on its own initiative, should have transferred the action to the Division pursuant to Rule 1:13-4(a). This argument, challenging a judgment from which there has been no appeal taken, prompts us at the outset to clarify what is cognizable on appeal and what is not. Such clarification is important because it bears upon the standard of review we employ on the appellate level.

Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2014); and see, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

Having not appealed from the judgment of March 30, 2012, and having only appealed from the order of May 3, 2013, we do not employ a de novo standard of review. See, e.g., Manalapan Realty v. Manalapan Twp. Comm, 140 N.J. 336 (1995). Rather, because the order of May 3, 2013, denied relief under Rule 4:50-1, our standard of review is whether the motion court abused its discretion in deciding not to re-open the judgment.4

R. 4:50-1 states, in relevant part,

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . (d) the judgment or order is void; . . . or (f) any other reason justifying relief from the operation of the judgment or order.


"A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hodgson v. Applegate, 31 N.J. 29, 37 (1959). Therefore, the motion court's "decision granting or denying an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1993) (citations omitted). An abuse of discretion occurs "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007) (internal quotation marks and citation omitted).

When a trial court decides a motion under Rule 4:50-1, and thereby "reconcile[s] the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case," U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (internal quotation marks and citation omitted), the court's "determination . . . warrants substantial deference[.]" Ibid. We conclude that the plaintiff failed to demonstrate that he was entitled to relief under Rule 4:50-1. As such, the judge did not abuse his discretion.

There are significant procedural differences between Townsend and the case before us. In Townsend, the plaintiff filed a complaint against the defendant in the Law Division. Townsend, supra, 178 N.J. Super. at 513. Within thirty days of that date, the plaintiff filed a claim petition against the defendant in the Division. Ibid. The defendant in the Law Division action then moved to dismiss citing the bar under N.J.S.A. 34:15-8. Id. at 513-14. The court held that the plaintiff's negligence complaint against his employer, Great Adventure, should have been transferred to the Division:

Clearly, [the plaintiff] should have simultaneously filed a petition in the Division of Workers' Compensation since he was alert to the possibility that such a claim might be appropriate. Indeed, if appellant had filed such a petition instead of the Law Division action on August 25, 1977, it unquestionably would have been timely. See N.J.S.A. 34:15-51. Yet there can be no doubt that appellant did file a pleading within two years of the accident seeking to recover from Great Adventure for his injuries. Thus, even though appellant filed in the wrong forum his complaint against Great Adventure should have been transferred, not dismissed. This is particularly true because a dismissal caused his claim to be barred without an adjudication on the merits, certainly a result not to be favored since his claim, though in the wrong forum, was timely brought.


[Id. at 517-18 (footnote omitted).]


Relying on Townsend, plaintiff argues that his case should have been transferred to the Division pursuant to Rule 1:13-4(a). The Rule provides, in pertinent part, that

if any court is without jurisdiction of the subject matter of an action or issue therein . . . it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper court, or administrative agency, if any, in the State. The action shall then be proceeded upon as if it had been originally commenced in that court or agency.


[R. 1:13-4(a).]


The problem faced by plaintiff in making this argument is three-fold: first, plaintiff never appealed from the Law Division's judgment of March 30, 2012, and, consequently, as noted, we analyze plaintiff's arguments as challenging an exercise of the court's discretion under Rule 4:50-1; second, plaintiff here, unlike the plaintiff in Townsend, not only failed to have filed a claim petition prior to the entry of the judgment of dismissal, but also, again unlike the plaintiff in Townsend, did not file a claim petition for over three years after the last compensation payment; and third, plaintiff's motion in the Division to apply an earlier filing date had already been denied.

Turning now to the order of dismissal entered in Workers' Compensation Court, N.J.S.A. 34:15-51 requires claimants to file a petition for workers' compensation resulting from accidental injury on the job within two years of the accident, or, if part payment has been made, within two years of the last payment. Where there is a failure to timely file a claim petition, the remedy of workers' compensation becomes unavailable. Barone v. Harra, 77 N.J. 276, 280 (1978).

Accordingly, the compensation judge's order in this case was proper and must be affirmed. Plaintiff's request that the judge, in effect, recognize and apply the filing date of the Law Division action retroactively after that relief had been denied in the Law Division is without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).


1 Plaintiff's wife was also a party in the Law Division on a per quod cause of action. We refer to plaintiff in the singular, however, for ease of reference.

2 We consolidate these appeals for the purpose of this opinion.

3 At the time, plaintiff was represented by counsel other than his current appellate counsel.

4 To further add to the procedural imbroglio created by plaintiff, we must observe that plaintiff's motion which resulted in the order of May 3, 2013, should be considered a motion for reconsideration in light of the fact that the same motion had been denied earlier on March 22, 2013 by the same motion judge. "[I]f the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002). If the order were thus considered, the standard of review changes again from whether the motion judge abused discretion in denying the motion under Rule 4:50-1 to an abuse of discretion in considering a motion of reconsideration under Rule 4:49-2. Such a motion is addressed to the motion court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). "Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Fusco, supra, 349 N.J. Super. at 462. Trial courts should grant motions for reconsideration "only under very narrow circumstances." Ibid. Nonetheless, in order to avoid peeling this onion too deeply, we shall confine our review to the standard required under Rule 4:50-1.