                                NOT FOR PUBLICATION WITHOUT THE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-4465-18T2

DONALD UNGER,

          Plaintiff-Appellant,

v.

LOUIS GARGIULO,

     Defendant-Respondent.
__________________________

                    Argued telephonically May 28, 2020 –
                    Decided June 15, 2020

                    Before Judges Fuentes and Haas.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-8763-12.

                    Wolfgang Heimerl argued the cause for appellant
                    (Heimerl Law Firm, attorneys; Wolfgang Heimerl and
                    Susan Curtain Gouldin, on the briefs).

                    Michael C. McQueeny argued the cause for respondent
                    (Genova Burns, LLC, attorneys; Michael C.
                    McQueeny, of counsel and on the brief).

PER CURIAM
      Plaintiff Donald Unger appeals from a May 10, 2019 Law Division order

denying his motion to relax the time restraints to file a confirmation of an

October 27, 2015 arbitration award under Rule 4:21A-6(b)(3). We affirm.

      Plaintiff and defendant Louis Gargiulo are former business associates. On

December 3, 2012, plaintiff filed a complaint against defendant in which he

sought to recoup $50,982.99 that defendant allegedly owed him. The parties

proceeded to non-binding arbitration and, on October 27, 2015, the arbitrator

rendered a $25,000 award to plaintiff. Plaintiff was represented by counsel at

this time.

      Rule 4:21-6(b) states:

             (b) Dismissal. An order shall be entered dismissing the
             action following the filing of the arbitrator's award
             unless:

             (1) within 30 days after filing of the arbitration
             award, a party thereto files with the civil division
             manager and serves on all other parties a notice of
             rejection of the award and demand for a trial de novo
             and pays a trial de novo fee as set forth in paragraph (c)
             of this rule; or

             (2) within 50 days after the filing of the arbitration
             award, the parties submit a consent order to the court
             detailing the terms of settlement and providing for
             dismissal of the action or for entry of judgment; or

             (3) within 50 days after the filing of the arbitration
             award, any party moves for confirmation of the

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                                         2
            arbitration award and entry of judgment thereon. The
            judgment of confirmation shall include prejudgment
            interest pursuant to [Rule] 4:42-11(b).

      If none of the alternative actions stated in the Rule has occurred and been

documented in the court's record, the court clerk administratively dismisses the

lawsuit. Here, plaintiff failed to file either a proper demand for trial de novo

within thirty days, or a motion within fifty days for confirmation of the

arbitration award as a judgment. Accordingly, the court clerk administrativel y

dismissed plaintiff's complaint on December 29, 2015.

      On April 9, 2019, over three years after the dismissal of his complaint,

plaintiff filed a motion to restore the matter to the calendar, confirm the

arbitration award, and enter judgment. In Allen v. Heritage Court Assocs., 325

N.J. Super. 112, 116 (App. Div. 1999), we distinguished a belated request for a

trial de novo from a belated request to confirm an arbitration award. Because

the thirty-day time limitation for demanding a trial de novo is a statutory

requirement under N.J.S.A. 2A:23A-26, as well as a requirement of our court

Rule 4:21-6(b)(1), the thirty-day time limitation is strictly enforced. Ibid. That

deadline will be relaxed only upon a showing of "extraordinary circumstances."

Hartsfield v. Fantini, 149 N.J. 611, 618 (1997).




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                                        3
      On the other hand, the fifty-day limitation period for seeking confirmation

of an arbitration award is not fixed by statute. Instead, it "is a 'procedural

dismissal,' which is 'subject to vacation under the standards set forth in [Rule]

4:50-1.'" Allen, 325 N.J. Super. at 117 (quoting Sprowl v. Kitselman, 267 N.J.

Super. 602, 606 (App. Div. 1993)). As our former colleague Judge Steven

Skillman cogently explained in Allen, "[a]lthough a motion to vacate a dismissal

for failure to file a timely motion to confirm an arbitration award should be

viewed with great liberality, litigants should be discouraged from adopting a

cavalier attitude towards the requirement that a motion to confirm must be filed

within fifty days." Id. at 121.

      Here, plaintiff's motion to confirm the October 27, 2015 arbitration award

was not filed until April 9, 2019. In attempting to explain this over three -year

delay, plaintiff asserted that after the arbitrator rendered his award, plaintif f's

attorney made a motion to be relieved as plaintiff's counsel. Plaintiff stated that

in late November 2015, he mailed a pro se order he drafted confirming the

arbitration award to the clerk's office, but it was never filed. Plaintiff asserted

that he did not learn that the award had not been confirmed until shortly before

he filed his motion in April 2019. At the same time, however, the record

indicates that plaintiff sent a letter dated December 2, 2015 to the clerk's office


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                                         4
in which he complained that his attorney failed to provide sufficient evidence to

the arbitrator and, as a result, the award was only $25,000, which was $15,000

less than the $40,000 figure plaintiff now believed he was due.

      Under these circumstances, Judge Garry J. Furnari denied plaintiff's

untimely motion to confirm the arbitration award. In a written statement of

reasons explaining his ruling, Judge Furnari stated:

            Dismissal of a case pursuant to Rule 4:21-6(b)(3) for
            failure to file a timely motion for confirmation of an
            arbitration award is a procedural dismissal which is
            subject to vacation under the standard set forth in Rule
            4:50-1. Nevertheless, litigants should be discouraged
            from adopting a cavalier attitude towards the rule.
            [Plaintiff] admits that he was aware of the date the
            award was entered and the date by which he was
            required to file a confirmation of the award. In fact,
            after the discharge of his prior counsel, he appears to
            have attempted to file the confirmation of the award pro
            se. His explanation of waiting more than three years to
            either pursue, verify, or act upon said confirmation fails
            to provide good cause to justify the vacation of the
            dismissal. Plaintiff's reliance on Allen . . . is misplaced.
            In that case, the defendant made a motion to vacate the
            dismissal within 30 days of dismissal of the case.

This appeal followed.

      On appeal, plaintiff argues that his "mere failure to confirm entry by the

trial court of his Uniform Order Confirming Arbitration Award, which was

timely submitted to the trial court, constitutes excusable neglect" and, therefore,


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                                         5
the trial court erred in denying his motion to restore the matter to the calendar

in order to confirm the award. We disagree.

      As stated above, plaintiff's motion to confirm the arbitration award was

filed over three years late. Plaintiff conceded he was aware of the requiremen t

that he confirm the award within 50 days. Although he alleges he mailed a copy

of a draft order confirming the award to the clerk's office, he did nothing to

follow up on that order to ensure it was received and filed. Shortly after he

asserts he submitted the order, he also sent a letter to the clerk in which he

questioned the arbitrator's award based on his belief that his attorney did not

represent him properly at the arbitration.

      As set forth in Allen, plaintiff seeks to vacate the dismissal of his

complaint and to confirm the arbitration award pursuant to Rule 4:50-1. The

only provisions of the Rule that might apply to these circumstances are

subsections (a) and (f). Subsection (a) would theoretically permit our vacating

the dismissal because of the "mistake, inadvertence . . . or excusable neglect" of

plaintiff. However, subsection (a) is not available to plaintiff because a motion

under that subsection must be brought within one year of the judgment or order

that is to be vacated. R. 4:50-2. Here, plaintiff's motion was filed on April 9,




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                                        6
2019, more than three years after his lawsuit was dismissed on December 29,

2015.

        Subsection (f) of Rule 4:50-1 is not subject to a one-year time limitation,

and it may permit a court to vacate an administrative dismissal, such as in this

case, for "any other reason justifying relief from the operation of the judgment

or order." However, a motion under subjection (f) must be made "within a

reasonable time," R. 4:50-2, and such a motion is granted "sparingly, in

exceptional situations." Housing Auth. of Town of Morristown v. Little, 135

N.J. 274, 289 (1994). The Supreme Court has stated that relief under subsection

(f) "is available only when truly exceptional circumstances are present and only

when the court is presented with a reason not included among any of the reasons

subject to the one year limitation." Baumann v. Marinaro, 95 N.J. 380, 395

(1984).

        Here, even if we view plaintiff's circumstances "with great liberality"

under Allen, plaintiff has not shown "exceptional circumstances" to set aside the

dismissal more than three years after it was entered. Unlike the circumstances

in Allen and its progeny that permitted late confirmation of an arbitration award,

plaintiff's delay was not a matter of only several weeks or months; it was several

years. Moreover, the delay was not caused by any conduct of defendants, such


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                                         7
as settlement proposals that lulled plaintiff into missing a deadline. See Allen,

325 N.J. Super. at 119; Sprowl, 267 N.J. Super. at 606.

      We also reject plaintiff's contention that the courts administrative

dismissal of his complaint on December 29, 2015, was a "clerical mistake" or

"oversight" that could be corrected by the court "at any time" under Rule 1:13-

1. That Rule obviously applies only to clerical mistakes in a judgment, order,

or other part of the record. See Testa v. Zimmerman, 218 N.J. Super. 552, 556-

57 (App. Div. 1987) (holding that the clerk's failure to record a request for entry

of default does not entitle the plaintiff to an eventual as within time default

judgment where other rights have vested in the interim).

      Accordingly, we affirm the court's May 10, 2019 order denying plaintiff's

motion to confirm the arbitration award substantially for the reasons set forth by

Judge Furnari in his well-reasoned written decision.

      Affirmed.




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