Chase v. Scalici

• Decision Date: 07 November 1983
• Citation: 468 N.Y.S.2d 365,97 A.D.2d 25
• Parties: Sydney J. CHASE, Appellant, v. Beverly SCALICI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 365

468 N.Y.S.2d 365

97 A.D.2d 25

Sydney J. CHASE, Appellant, v. Beverly SCALICI, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 7, 1983.

Sydney J. Chase, Mineola, appellant pro se.

Before TITONE, J.P., and LAZER, THOMPSON and WEINSTEIN, JJ.

TITONE, Justice Presiding.

We are called upon to construe the rules governing alternative dispute resolution by arbitration (22 NYCRR Part 28). The rules mandate that civil actions in which the recovery sought is $6,000 or less be submitted to compulsory arbitration subject to a court jury trial de novo on demand. Specifically, the question posed is whether the 30-day period for demanding a trial de novo provided by the rules (22 NYCRR 28.12[a] ) may be extended as a matter of judicial discretion (see CPLR 2004). We hold that it may not.

In July, 1980, plaintiff, Sydney J. Chase, commenced this action to recover legal fees of $772.21 from defendant, Beverly Scalici, for services rendered in connection with matrimonial litigation. Chase had begun to render these services while a member of a law firm known as Skoy, Lowell, Chase & Nussbaum, P.C., and continued to represent Scalici as a client when the firm disbanded. The firm simultaneously commenced a separate action to recover fees of $1,963.75.

Scalici served separate pro se answers, consisting of denials and counterclaims. Stating that the two actions involved common questions of law and fact, the Skoy firm moved for a joint trial, without consolidation. The motion was granted, the court expressly directing that separate judgments be entered.

As provided by the rules promulgated pursuant to CPLR 3405 (22 NYCRR Part 28), the matter was set down for arbitration. Following a hearing at which the defendant was represented by counsel, the arbitrator rendered separate awards, which were duly filed on June 19, 1981. He found for Chase in the sum of $300 in the first action. In the second action, he dismissed the complaint and awarded Scalici $300 on her counterclaim. The Skoy firm filed what is conceded to be a timely demand for a trial de novo. More than five months later, in November, 1981, Scalici made application for an order permitting a trial de novo of all issues in both actions.

Finding the "confusion" created by the separate awards to be "understandable", the District Court purported to exercise its discretion to extend the time to file. On appeal, the Appellate Term affirmed, reasoning that trial courts have an inherent power to authorize a belated demand for a trial de novo lest there be "an impediment upon a person's untrammeled constitutional rights to a trial 'according to the course of the common law' ". Cognizant that its decision conflicted with those of other courts which had considered the issue, it granted leave to appeal. We now reverse.

Prompted by court congestion and a general dissatisfaction with the method of compensating victims of automobile accidents, the Legislature, in 1970, authorized the promulgation of rules requiring that civil actions in which relatively small sums were involved be submitted to compulsory arbitration (L.1970, ch. 1004; see Governor's Memorandum, McKinney's Session Laws of N.Y., 1970, p. 3143). The program, patterned on a system successfully pioneered in Pennsylvania, was implemented on an experimental basis in Rochester and in the Bronx and was later expanded statewide (see CPLR 3405; L.1978, ch. 156; L. 1977, ch. 165; King, Arbitration in Philadelphia and Rochester, 58 ABAJ 712; Committee Report, Variations on Pennsylvania System: Partial Elimination of Jury Trials in Civil Cases Through Compulsory Arbitration Before Panels of Lawyers, 22 The Record of the Association of the Bar of the City of New York 638; Arbitration of Civil Cases in State Called Success, NYLJ, March 10, 1983, p. 1, col. 1).

As required by legislation (CPLR 3405) and the constitutional right to trial by court or jury (N.Y. Const., art. I, § 2; art. VI, § 18; see Matter of Nuro Transp. v. Judges of Civil Court of City of N.Y. for County of Queens, 95 A.D.2d 779, 781, 463 N.Y.S.2d 264), the rules provide that any dissatisfied litigant, "within 30 days after the award is filed with the appropriate court clerk", may demand a trial de novo as a matter of right (22 NYCRR 28.12[a]; see Bayer v. Ras, 71 Misc.2d 464, 336 N.Y.S.2d 261). Nonetheless, to discourage automatic applications, the demanding party must pay the arbitration fees at the time the demand is filed and cannot recover them even if ultimately successful (22 NYCRR 28.12[c] ). Further limitations are placed on the recovery of interest and costs (22 NYCRR 28.12[e] ).

Prior to the Appellate Term's decision in this case, the time periods were strictly construed. Regardless of whether notice of an award's filing had been given (see Statom v. Lumbermens Mut. Cas. Co., 106 Misc.2d 442, 444, 431 N.Y.S.2d 875; Cerame v. Genesee Monroe Racing Assn., 72 Misc.2d 567, 568, 339 N.Y.S.2d 646), decisions uniformly equated a demand for a trial de novo with a notice of appeal, thus deeming the 30-day period to be nonextendable (Watson v. Jarvis, 116 Misc.2d 285, 445 N.Y.S.2d 861; Parker, Clark Assoc. v. E S M Data Systems, 108 Misc.2d 827, 439 N.Y.S.2d 68; Helfand v. Helfand, 91 Misc.2d 965, 398 N.Y.S.2d 840; McGuire v. Bricks, 74 Misc.2d 217, 343 N.Y.S.2d 166). We agree with these holdings.

Analysis should begin with the language of the pertinent rule itself. By its terms, an extension is permitted only in instances in which "the defendant either serves or files a timely demand for a trial de novo but neglects through mistake or excusable neglect to do one of those two acts within the time limited" (22 NYCRR 28.12[b] ). This parallels CPLR 5520 (subd. [a] ) which governs appeals. There is, of course, no inherent power to extend the time to appeal (CPLR 5514, subd. [c]; see Huht v. City of New York, 60 N.Y.2d 57, 467 N.Y.S.2d 187, 454 N.E.2d 527; Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71; Pallone v. New York Tel. Co., 34 A.D.2d 1091, 312 N.Y.S.2d 672 [Appeal No. 2] ).

Pennsylvania's statutory and regulatory provisions, on which, as noted, the New York scheme is patterned, are similarly worded (42 Pa.C.S.A. § 7361; 1983 Pennsylvania Rules of Court, 1308) and the Pennsylvania courts have consistently construed its 30-day filing period as jurisdictional, holding that an extension cannot be retroactively granted absent fraud or a breakdown in the court's operation (Oakley, Inc. v. School Dist. of Phila., 464 Pa. 330, 334, 346 A.2d 765, 767; Gillardy v. Ashcraft, 288 Pa.Super. 37, 430 A.2d 1201, app. dsmd. 497 Pa 587, 442 A.2d 693; MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815, 817).

Moreover, consistent with the policy of discouraging de novo trials, the rules also direct that "[u]nless a demand is made for a trial de novo, or the award vacated [on grounds specified in 22 NYCRR 28.13], the award shall be final and judgment shall be entered thereon by the clerk of the court" (22 NYCRR 28.11, emphasis supplied). The goals of speeding the disposition of civil causes and reducing court congestion and costs would be retarded if the finality accorded judgments in general were not applicable to compulsory arbitrations (see, e.g., Evans & Bulman, Alternative Dispute Resolution Method Holds Out Promise of Great Utility, NYLJ, January 24, 1980, p 25, col 2; Memorandum of Office of Court Administration in Support of chapter 165 of the Laws of 1977, McKinney's Session Laws of N.Y., 1977, p. 2611).

In short, as with a notice of appeal, we view the rule as intended to set " 'a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands. Any other construction of the [rule] would defeat its purpose' " (Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521, quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483).

We are not persuaded by the arguments advanced by the Appellate Term that the 30-day limitation would not be constitutional if rigidly applied and that courts possess inherent control over the judgments they have rendered.

There is simply no constitutional issue involved. The regulations directing compulsory arbitration are constitutional because they afford the litigants the opportunity for a trial de novo (Matter of Nuro Transp. v. Judges of Civil Court of City of N.Y. for County of Queens, supra; see Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873; Matter of Smith, 381 Pa. 223, 112 A.2d 625, app. dsmd. sub nom Smith v. Wissler, 350 U.S. 858, 76 S.Ct. 105, 100 L.Ed. 762). Like any other right, constitutional or statutory, it may be waived by a failure to assert it in a timely fashion (Glass v. Thompson, 51 A.D.2d 69, 76, 379 N.Y.S.2d 427; cf. Gonzalez v. Concord Plaza Syndicates, 41 N.Y.2d 414, 393 N.Y.S.2d 362, 361 N.E.2d 1011; People v. Prim, 40 N.Y.2d 946, 947, 390 N.Y.S.2d 407, 358 N.E.2d 1033; People v. Consolazio, 40 N.Y.2d 446, 455, 387 N.Y.S.2d 62, 354 N.E.2d 801, cert. den. 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100).

Nor do courts possess a general power to revise judgments to revive an expired right of appeal (see May v. May, 66 A.D.2d 918, 410 N.Y.S.2d 716; Matter of Kolasz v. Levitt, 63 A.D.2d 777, 779, 404 N.Y.S.2d 914; Curran v. City of Rochester, 50 A.D.2d 1059, 376 N.Y.S.2d 284, mot. for lv. to app. dsmd. 38 N.Y.2d 917, 382 N.Y.S.2d 978, 346 N.E.2d 816; cf. Hecht v. City of New York, Supra; Albright v. New York Life Ins. Co., 261 App.Div. 419, 26 N.Y.S.2d 210 [FOSTER, J.] ). As the Court of Appeals has said:

"The rule has long been settled and inflexibly applied that the trial court has no revisory or appellate jurisdiction to correct by amendment error in substance affecting the...