KATHLEEN G. SABO v. MILLENNIUM COMMUNICATIONS GROUP, INC.

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4136-15T2

KATHLEEN G. SABO, a/k/a KATHLEEN
SABO and JOHN SABO, her husband,

        Plaintiffs-Respondents,

v.

MILLENNIUM COMMUNICATIONS
GROUP, INC., and J. FLETCHER
CREAMER & SON, INC.,


        Defendants-Respondents,

and

VERIZON NEW JERSEY, INC., a/k/a
VERIZON FIOS, PUBLIC SERVICE
ELECTRIC AND GAS COMPANY, a/k/a
PSE&G, INC., PASSAIC COUNTY
SHERIFF'S DEPARTMENT, SHERIFF
RICHARD H. BERDNIK, TOWNSHIP OF
WAYNE, and STATE OF NEW JERSEY,

        Defendants,

and

COUNTY OF PASSAIC,

        Defendant-Appellant.

________________________________

              Argued November 28, 2017 – Decided December 12, 2017
           Before Judges Fasciale and Moynihan.

           On appeal from Superior Court of New Jersey,
           Law Division, Passaic County, Docket No.
           L-0100-14.

           Paul J. Giblin, Jr., argued the cause for
           appellant.

           Lisa   A.  Lehrer   argued   the  cause   for
           respondents Kathleen G. Sabo and John Sabo
           (Davis, Saperstein & Salomon, PC, attorneys;
           Lisa A. Lehrer, of counsel and on the brief).

           Peter S. Cuddihy argued the cause for
           respondent Millennium Communications Group
           Inc. (Margolis Edelstein, attorneys; Peter S.
           Cuddihy, on the brief).

           Thomas M. Licata argued the cause for
           respondent J. Fletcher Creamer & Son, Inc.
           (Malapero, Prisco, Klauber, & Licata LLP,
           attorneys; Thomas M. Licata, on the brief).


PER CURIAM

     Defendant County of Passaic appeals from a May 24, 2016 order

denying its Rule 4:50-1(f) motion to vacate a December 29, 2015

order,   which   confirmed   a   personal   injury   arbitration     award.

Defendant argues that the judge abused his discretion. We disagree

and affirm.




                                    2                              A-4136-15T2
     In June 2015, the parties arbitrated plaintiff's personal

injury claim.1      Defendant's portion of the award amounted to

$78,000.     Defendant failed to file a timely trial de novo (TDN).

Plaintiff moved to confirm the award and defendant filed a cross-

motion seeking permission to file the TDN out-of-time.         In support

of the cross-motion, defendant's counsel submitted a certification

explaining primarily that the failure to file a timely TDN was

essentially due to his vacation schedule.           The judge granted

plaintiff's motion, confirmed the award, and denied defendant's

cross-motion.

     After the judge confirmed the award and entered judgment for

plaintiff,    defendant   moved   for   reconsideration   of   the   order

denying its request to file a late TDN.          In January 2016, the

judge denied defendant's reconsideration motion.          Plaintiff then

attempted to execute on the judgment.

     Defendant then appealed from the December 29, 2015 order.

Plaintiff moved before us to dismiss the appeal as out-of-time.

Plaintiff argued that defendant's counsel had known about the

December 29, 2015 order as early as January 27, 2016.          In support

of that argument, plaintiff's counsel produced a letter from



1
    We refer to Kathleen G. Sabo as plaintiff, not her husband
John Sabo, who brought a per quod claim.


                                    3                            A-4136-15T2
defendant's     counsel    dated   January          27,    2016   referring    to   the

December    29,   2015    order.        On       April    12,   2016,   we   dismissed

defendant's appeal from the December 29, 2015 order, concluding

that defendant filed it untimely.

       Defendant then filed its Rule 4:50-1(f) motion seeking to

vacate the December 29, 2015 order.                Defendant had argued that the

arbitrator incorrectly found defendant at fault for the accident.

According to defense counsel, plaintiff named defendant as a party

incorrectly.       The judge denied that motion, pointed out that

defendant could have rejected the award by filing a TDN, and

rendered an oral opinion.          He concluded that Subsection (f) of

Rule   4:50-1     was    "not   meant    to       dilute    the   severity     of   the

arbitration rules."         The judge also remarked that if defendant

believed it was entitled to judgment as a matter of law, defense

counsel had the opportunity to engage in motion practice before

the arbitration, which he did not do.

       The decision whether to grant a motion for relief from a

final judgment under Rule 4:50-1 "is left to the sound discretion

of the trial court."        Mancini v. EDS ex rel. N.J. Auto. Full Ins.

Underwriting Ass'n, 
132 N.J. 330, 334 (1993).                           "The rule is

'designed    to   reconcile      the    strong       interests     in    finality    of

judgments and judicial efficiency with the equitable notion that



                                             4                                A-4136-15T2
courts should have authority to avoid an unjust result in any

given case.'"    US Bank Nat'l Ass'n v. Guillaume, 
209 N.J. 449, 467

(2012) (quoting Mancini, 
132 N.J. at 334).        "The trial court's

determination . . . warrants substantial deference, and should not

be reversed unless it results in a clear abuse of discretion."

Ibid.     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.'"        Id.

at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 
191 N.J. 88,

123 (2007)).

     Defendant contends that relief under Subsection (f) applies

because plaintiff named it incorrectly as a party. This subsection

of the rule, however, is only available when "truly exceptional

circumstances are present."     Baumann v. Marinaro, 
95 N.J. 380, 395

(1984).    "The rule is limited to 'situations in which, were it not

applied, a grave injustice would occur.'"       Guillaume, supra, 
209 N.J. at 484 (quoting Hous. Auth. of Morristown v. Little, 
135 N.J.
 274, 289 (1994)).     As the judge stated, a party cannot use Rule

4:50-1(f) to circumvent the proscribed process for challenging an

arbitration award.    Even if Subsection (f) controlled, we see no

abuse of discretion, let alone a clear abuse of discretion.




                                   5                          A-4136-15T2
     At the oral argument before the judge on defendant's motion

to vacate, defense counsel stated that before the arbitration

occurred, the court had suppressed defendant's answer without

prejudice for failure to provide discovery.          Assuming that was

true, defendant could have moved to restore the pleading, extend

the discovery end date, adjourn the arbitration proceeding, file

a TDN, or timely appeal from the December 29, 2015 order.          And if

defendant believed plaintiff had named it as a party erroneously,

then defendant could have moved for summary judgment or could have

aggressively   pursued   other   avenues   to   dismiss   the   complaint

against it.

     Affirmed.




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