                                NOT FOR PUBLICATION WITHOUT THE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-4814-17T1

BRUCE BUZALSKI,

          Plaintiff-Appellant,

v.

GEOPEAK ENERGY, a New Jersey
Limited Liability Company, and
GENE KINGMAN,

     Defendants-Respondents.
________________________________

                    Submitted April 30, 2019 – Decided May 21, 2019

                    Before Judges Hoffman and Enright.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Docket No. L-1721-14.

                    Cronin Trial Lawyers, attorneys for appellant (Joseph
                    D. Cronin, on the brief).

                    Schenkman Jennings, LLC, attorneys for respondent
                    GeoPeak Energy (Martin J. Jennings, Jr., on the brief).

PER CURIAM
      Plaintiff, Bruce Buzalski, appeals from an order denying his application

for reconsideration dismissing his complaint and directing the parties to pursue

arbitration. We affirm.

      On February 16, 2012, plaintiff executed a contract with defendant, GeoPeak

Energy, for the installation of solar panels at his home. Consistent with the terms of

this contract, GeoPeak agreed to install a solar power generation system leased by

SunPower Solar Program I, LLC. The GeoPeak contract specified that all payments

due under the contract would be "made to SunPower Lease Programs and no money

is owed to GeoPeak Energy." Therefore, on February 24, 2012, plaintiff entered into

a separate lease agreement with SunPower. SunPower’s lease named GeoPeak as

the "Dealer/Installer" of the system but the lease also made clear any designated

dealer or installer was not a party to the lease.

      Shortly after his solar panel system was installed, plaintiff complained the

system did not work as represented and that it did not generate the savings projected

by GeoPeak. He also claimed the other named defendant, Gene Kingman, as

GeoPeak's employee, made certain misrepresentations to him and induced plaintiff

to sign the SunPower lease.

      As plaintiff's grievances were not resolved to his satisfaction, he instituted suit

against GeoPeak and Kingman in 2014. In his complaint, plaintiff asserted claims


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                                           2
against defendants for breach of contract, the implied covenant of good faith and fair

dealing, fraud and violations of the New Jersey Consumer Fraud Act. He did not

include SunPower in the suit.

      In August 2015, plaintiff moved for summary judgment against GeoPeak. In

response, GeoPeak moved for dismissal of plaintiff's complaint, based upon

paragraph 21 of SunPower's lease. That paragraph specified any dispute, claim or

disagreement related to the lease:

             shall be resolved . . . by final and binding arbitration,
             and not by court action . . . . You may choose one of
             the following arbitration organizations and its
             applicable rules: The American Arbitration Association
             ("AAA") 334 Madison Ave., Floor 10, New York, New
             York . . . or JAMS, 1920 Main Street, Ste. 300, Irvine,
             CA . . . , or any other organization that you may choose,
             subject to our approval . . . . Each of the parties to this
             Lease shall bear its own costs and expenses . . . .
             However, we will advance your filing, administration,
             service or case management fee, and your arbitrator or
             hearing fee, all up to a maximum of $1500.

      On November 23, 2015, the trial court found GeoPeak’s contract with plaintiff

and SunPower's lease with plaintiff constituted a single integrated contract.

Therefore, the trial court determined plaintiff and GeoPeak were bound to arbitrate

their dispute. The trial court entered an order dismissing plaintiff's complaint and

compelling arbitration. At the same time, it ordered Kingman's answering pleadings

and defenses to be stricken with prejudice.

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                                          3
      According to plaintiff, after the parties were directed to arbitration, he selected

an arbitrator from AAA at a location in Voorhees. GeoPeak did not agree with this

selection and rejected plaintiff's claim it was responsible for payment of any

arbitration fees. Therefore, GeoPeak did not submit to arbitration. It is undisputed

AAA terminated arbitration for lack of payment of its requisite fee. Plaintiff then

moved to reinstate his complaint. His application was denied in 2016 after the

motion judge upheld the prior court determination that the parties’ arbitration

agreement was enforceable.

      Once the parties were directed to return to arbitration, plaintiff admits he again

selected AAA in Voorhees to arbitrate the dispute. He avers GeoPeak refused to

participate in arbitration. GeoPeak responds that there is nothing in the record

supporting his contention that he engaged in a second good faith attempt to

commence arbitration. At any rate, arbitration did not proceed after the parties had

been ordered a second time to arbitrate their dispute. Thus, plaintiff moved again

to have his complaint reinstated. Although GeoPeak objected to his application, the

trial court granted plaintiff's motion on June 9, 2017.

      Next, in January 2018, GeoPeak renewed its efforts to dismiss plaintiff's

complaint. He objected, reminding the trial court of the parties' lack of success with

arbitration. Nevertheless, following oral argument, the trial court entered another


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                                           4
order on February 20, 2018, referring the case back to arbitration and granting

GeoPeak's motion to dismiss plaintiff's complaint. Although he moved for

reconsideration of this dismissal, plaintiff's reconsideration motion was denied

on May 11, 2018, leading to the instant appeal.

      Plaintiff argues the trial court erred when it denied his motion for

reconsideration and returned the parties to arbitration. He accuses GeoPeak of

stonewalling by objecting to his chosen arbitrator and by failing to advance the

requisite fee for arbitration. He also cites to Roach v. BM Motoring, LLC, 228 N.J.

163 (2017) for the proposition that GeoPeak's non-payment of filing and arbitration

fees amounted to a material breach of the integrated contract. Therefore, he insists

GeoPeak now should be precluded from enforcing the arbitration provision of that

contract. He also contends he was not limited to the two locations referenced in

paragraph 21 of SunPower’s lease and suggests this provision is ambiguous.

Moreover, he complains the February 20, 2018 and May 11, 2018 orders conflict

with the trial court's order of June 9, 2017, which allowed his complaint to be

reinstated. Lastly, he insists SunPower's lease is fraudulent so any arbitration clause

contained in the lease is unenforceable.

      GeoPeak opposes each of plaintiff’s arguments. It argues he has continuously

ignored paragraph 21 of SunPower’s lease by choosing an arbitrator from New


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                                           5
Jersey, rather than from one of the two locations mandated in the lease and has

wrongfully demanded payment of arbitration fees from GeoPeak. Furthermore,

GeoPeak questions why plaintiff neglected to name SunPower as a party to this

proceeding and failed to pursue SunPower for payment of the arbitration fee.

      The validity of an arbitration agreement is a question of law; therefore, we

review the trial court’s order compelling arbitration de novo. Barr v. Bishop Rosen

& Co., Inc., 442 N.J. Super. 599, 605 (App. Div. 2015) (citing Hirsch v. Amper Fin.

Servs., LLC, 215 N.J. 174, 186 (2013)). Here, paragraph 21 of the lease between

plaintiff and SunPower clearly confirmed the parties were required to resolve any

disputes by final and binding arbitration, rather than court action, and it specified

they would not have the right to a jury trial. Contrary to plaintiff’s assertions, we

find paragraph 21 of the lease also plainly identified the arbitration organizations

and locations that were to be used in the event of a dispute, even though it left open

the possibility of an alternative arbitrator, if approved by SunPower. Thus, we do

not find GeoPeak materially breached the integrated contract when rejecting

plaintiff's chosen arbitrator. We further are mindful that neither party appealed the

November 23, 2015 order nor subsequent orders finding SunPower’s lease and

GeoPeak’s contract were integrated, such that the parties were bound to arbitrate




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                                          6
their differences.   Therefore, we find no error in the trial court's rejection of

plaintiff's various arguments and its enforcement of the integrated contract.

      New Jersey "has recognized arbitration as a favored method for resolving

disputes." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168

N.J. 124, 131 (2001). Public policy "requir[es] a liberal construction of contracts in

favor of arbitration." Alamo Rent A Car, Inc. v. Galarza, 306 N.J. Super. 384, 389

(App. Div. 1997). A court cannot decline to enforce an arbitration provision based

on public policy or defenses unrelated to the making of the agreement. NAACP of

Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 427-28 (App. Div.

2011). Applying these principles to the facts of this case, we find the trial court’s

enforcement of the arbitration clause in SunPower’s lease to be appropriate and

equitable.

      Next, we review the denial of plaintiff’s motion for reconsideration under

the abuse of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389

(App. Div. 1996) (citing CNF Constructors, Inc. v. Donohoe Constr. Co., 57

F.3d 395, 401 (4th Cir. 1995)). Abuse of discretion occurs "when a decision is

'made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis.'"        U.S. Bank Nat’l Ass'n v.




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                                          7
Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores,

Inc., 191 N.J. 88, 123 (2007)).

      "A motion for reconsideration . . . is a matter left to the trial court's sound

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane

Morris, LLP, 202 N.J. 79, 87 (2010)). A party may move for reconsideration of

a court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based

its decision on "a palpably incorrect or irrational basis," (2) the court either

failed to consider or "appreciate the significance of probative, competent

evidence[,]" or (3) the moving party is presenting "new or additional information

. . . which it could not have provided on the first application[.]" Cummings v.

Bahr, 295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,

401-02 (Ch. Div. 1990)).

      Plaintiff did not establish the May 11, 2018 order was decided on a

palpably incorrect or irrational basis, nor did he present new or additional

evidence not available to him prior to entry of the May 11, 2018 order. In fact,

the record reflects the trial court carefully considered the same objections

plaintiff now raises on appeal, including his argument that the May 11, 2018

order conflicts with the June 9, 2017 order.         Ultimately, when it rejected

plaintiff’s recycled arguments, the trial court relied on the law of the case,


                                                                             A-4814-17T1
                                         8
reaffirming GeoPeak’s contract and SunPower’s lease were integrated. Thus, it

properly concluded the parties were obliged to arbitrate their dispute.

      As the trial court applied the appropriate principles and provided a rational

explanation for denying plaintiff's motion for reconsideration, we affirm that denial.

However, we remand this matter to the trial court for entry of an order compelling

the parties to initiate arbitration proceedings consistent with the terms of their

integrated contract. That order should specify a date by which the necessary

payment for arbitration should be paid (up to $1500), the party responsible for said

fee and a date by which arbitration should commence. Such an order should move

the proverbial ball forward in this longstanding matter.

      Affirmed. We remand to the trial court for entry of an order in accordance

with this opinion.




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