Opinion
DOCKET NO. A-5973-13T4
01-05-2016
OZCAN CEYLAN, Plaintiff-Respondent/Cross-Appellant, v. KARACAY TURKS-MOSLEM MOSQUE, MOSLEM MOSQUE, THE MOSLEM MOSQUE, INC., and MOSLEM MOSQUE INC., CORP., Defendants-Appellants/Cross-Respondents.
Yolanda A. Ayala argued the cause for appellant/cross-respondent (Gallo Vitucci Klar, attorneys; Jason B. Levoy and Ms. Ayala, on the brief). Aram Ingilian argued the cause for respondent/cross-appellant (Bakmazian & Associates, attorneys; Mr. Ingilian, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3072-12. Yolanda A. Ayala argued the cause for appellant/cross-respondent (Gallo Vitucci Klar, attorneys; Jason B. Levoy and Ms. Ayala, on the brief). Aram Ingilian argued the cause for respondent/cross-appellant (Bakmazian & Associates, attorneys; Mr. Ingilian, on the brief). PER CURIAM
Defendants Karacay Turks-Moslem Mosque, Moslem Mosque, The Moslem Mosque, Inc., and Moslem Mosque Inc., Corp. (collectively, defendants or the mosque), appeal from an August 11, 2014 order, denying their motion for leave to file an untimely demand for a trial de novo, following a $135,000 arbitration award in favor of plaintiff Ozcan Ceylan. Defendants also appeal from an order of the same date confirming the award. Additionally, they appeal from an August 8, 2014 order denying their summary judgment motion on the issue of charitable immunity. Plaintiff cross-appeals from the order confirming the arbitration award insofar as it denied his application for pre-judgment interest.
Having reviewed the record, we affirm the August 11, 2014 orders denying the trial de novo motion and confirming the arbitration award, except that we conclude defendant was entitled to pre-judgment interest. We affirm the order denying defendants' summary judgment motion.
Plaintiff filed a complaint alleging that in 2010, he fell and was injured on a staircase after using a restroom in the mosque. At his deposition, plaintiff testified that a friend asked him to give her a ride to the mosque, without stating any particular purpose for her visit. According to plaintiff, after he dropped the friend off, his car became blocked in by other vehicles in the mosque's parking lot. Due to a kidney problem, he entered the mosque solely for the urgent purpose of using the bathroom, which was downstairs. While climbing back up the stairs to exit the mosque, plaintiff fell when a defective stair railing pulled away from the wall.
Following discovery, the case was scheduled for a court-ordered non-binding arbitration. On June 6, 2014, shortly before the arbitration date, defendants filed a summary judgment motion. On June 13, 2014, the arbitrator issued a $135,000 award in plaintiff's favor. Although the summary judgment motion had a return date of July 11, 2014, which would have been before the 30-day deadline for defendants to file a demand for a trial de novo, defense counsel's law firm sent the court a letter on July 7 asking that the motion be adjourned to July 25.
Defendants then failed to file a timely demand for a trial de novo. According to a certification from defendants' counsel, the de novo demand was not filed due to her error. The attorney attested that she had recently filed a de novo demand in another case and mistakenly thought she had filed one in this case. Defense counsel realized the error on July 16, 2014, when she received plaintiff's motion to confirm the award. The next day, defense counsel filed a motion for leave to file for a trial de novo, nunc pro tunc, although the demand notice itself was not filed until July 25, 2014. The trial court denied the motion on August 11, noting that "extraordinary circumstances [were] not demonstrated why a timely de novo [was] not taken."
We agree with the trial court's reasoning on the de novo motion. In Hartsfield v. Fantini, 149 N.J. 611 (1997), our Supreme Court made it clear that an attorney's failure to supervise office staff, failure to keep proper track of deadlines, or other similar careless errors, do not constitute "'extraordinary circumstances' sufficient to relax the thirty-day rule." Id. at 619; see R. 4:21A-6(b)(1). As the Court stated:
We agree with those courts that have found an attorney's failure to supervise staff or heavy workload to be insufficient to satisfy the "extraordinary circumstances" requirement. We emphasize that the circumstances must be "exceptional and compelling."The extraordinary circumstances rule applies to defendants and plaintiffs equally. See Wallace v. JFK Hartwyck at Oak Tree, 149 N.J. 605 (1997). An "honest mistake" resulting from "mere carelessness on the part of the attorney" does not constitute extraordinary circumstances. Id. at 610.
[Hartfield, supra, 149 N.J. at 619 (citing Baumann v. Marinaro, 95 N.J. 380, 393 (1984)).]
We are not persuaded by defendants' argument that a "public policy" reason, in the form of their asserted charitable immunity defense, warrants relaxation of the time limit. Defendants had an opportunity, albeit informal, to argue the merits of their case before the arbitrator. See Hartsfield, supra, 149 N.J. at 618; see also Wallace, supra, 149 N.J. at 610. However, it is not clear from the award whether they even raised their charitable immunity defense at the arbitration. In any event, if a claim of an alleged meritorious defense were sufficient to excuse a defendant's late filing of a de novo demand, the exception would swallow the thirty-day rule and defeat its purpose. See Hartsfield, supra, 149 N.J. at 617-18 (holding that the standards for setting aside a judgment under Rule 4:50-1 do not apply to motions to relax the thirty-day rule for a de novo demand); see also Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 313 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).
We find no merit in defendants' alternate argument that the filing of their summary judgment motion should, in effect, have tolled the deadline for filing a de novo demand. Defendants cite no cases on point to support that argument. Moreover, defendants caused the delay in deciding their summary judgment motion when they requested that it be adjourned. Their argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Our holding on the de novo motion obviates the need to decide defendants' alternate argument, concerning their charitable immunity defense. Nonetheless, for the sake of completeness, we briefly address the issue. The record does not support many of defendants' key factual assertions, aimed at supporting their argument that defendant was a beneficiary of defendants' religious works at the time of his injury. See N.J.S.A. 2A:53A-7(a); see also Harrington v. Clara Maass Hosp., 208 N.J. Super. 365, 368-69 (App. Div. 1986). Applying the appropriate standard of review, and viewing the evidence in the light most favorable to plaintiff, the motion record was insufficient to warrant judgment for defendants on that issue. See Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013).
We reverse on the cross-appeal, which concerns an order entered by another judge, denying prejudgment interest. We review that decision for abuse of discretion. See Cty. of Essex v. First Union, 186 N.J. 46, 61 (2006). The judge's statement of reasons written on the order indicated that the interest was calculated on an amount that included the attorney's fee. See R. 4:42-11(b). That was not accurate and therefore, the decision was a mistaken exercise of the court's discretion.
The attorney deducted his fee from the arbitration award before applying the interest calculation to the balance of the award. We find that plaintiff submitted a correct interest calculation and established his right to $3,939.36 in interest as of the date of the order. We reverse and remand for the limited purpose of entering an amended judgment which includes the prejudgment interest.
Affirmed in part, reversed and remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION