SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3992-16T2

VINCENZO GALLINA and

MARIA GALLINA,

Plaintiffs-Appellants,

v.

ADRENALINE FAMILY ENTERTAINMENT,

INC., CLEMENTON LAKE OPERATIONS,

LLC, CLEMENTON LAKE MANAGEMENT,

LLC, CLEMENTON LAKE HOLDINGS, LLC,

CLEMENTON LAND, LLC, and 

BOB'S SPACE RACERS, INC.,

Defendants-Respondents.

___________________________________

Argued April 12, 2018 – Decided June 6, 2018

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Docket No. L2764-12.

Michael Confusione argued the cause for 

appellants (Hegge & Confusione, LLC, 

attorneys; Michael Confusione, of counsel 

and on the brief).

Charles C. Daley, Jr., argued the cause for 

respondents Adrenaline Family Entertainment 

and Clementon Lake (Barnaba & Marconi, LLP, 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3992-16T2

attorneys; Dennis M. Marconi and Tyler L. 

Williams, on the brief).

Law Office of Peter A. Callahan, attorneys 

for respondent Bob's Space Racers, Inc., 

join in the brief of respondents Adrenaline 

Family Entertainment and Clementon Lake.

PER CURIAM

Plaintiffs, Vincenzo Gallina and his wife Maria Gallina, 

appeal from the Law Division's April 28, 2017 order denying 

their motion to reinstate their complaint against defendants, 

Adrenaline Family Entertainment, Inc., Clementon Lake 

Operations, LLC, Clementon Lake Management, LLC, Clementon Lake 

Holdings, LLC, Clementon Land, LLC and Bob's Space Racers, Inc. 

The complaint sought damages for injuries sustained by Vincenzo1

on an amusement attraction, allegedly due to defendants' 

negligence in their ownership or operation of the ride or park 

at which the attraction was available to the public. 

After plaintiffs filed suit, the parties participated in an 

arbitration of plaintiffs' claims that resulted in a "no cause" 

determination and the dismissal of their complaint. Plaintiffs 

then filed a motion to reinstate their complaint, arguing that 

they did not agree to waive their right to a trial in court 

 

1 We refer to plaintiffs by their first names to avoid any 

confusion caused by their common last name. No disrespect is 

intended. 
3 A-3992-16T2

before a judge or jury, despite their participation in the 

arbitration. The motion judge denied the application without a 

hearing, finding that, like a party who agreed to a bench trial 

and after an unsatisfactory verdict demanded a new trial by 

jury, plaintiffs were bound by the result of the arbitration 

because they participated in it, without objection.

On appeal, plaintiffs contend that the motion judge should 

have conducted an evidentiary hearing before deciding whether

the agreement to arbitrate bound them in light of their claim 

that they did not know they were waiving their right to a trial. 

For the reasons that follow, we vacate the order and remand for 

a hearing.

The facts derived from the motion record are summarized as 

follows. Vincenzo sustained injuries at Clementon Park when he 

fell off of "The Ladder Climbing Rope" attraction. After 

plaintiffs filed their complaint, the parties engaged in 

discovery including depositions. Later, according to Vincenzo, 

his attorney, Daniel B. Zonies, "told [him] we have to go to 

arbitration," which the lawyer explained was being "in one room 

with an arbitrator or retired judge" where "lawyers [and the 

arbitrator] were going to ask [him] questions . . . ." 

It was undisputed that plaintiffs never signed any 

agreement to arbitrate. The only document indicating that there 
4 A-3992-16T2

would be arbitration was the arbitrator's retainer letter that 

stated counsel "agreed to retain [the arbitrator] to conduct a 

binding arbitration . . . ." After setting forth the details 

about the location, cost, timing for a decision and payment by 

counsel, the letter concluded with a statement signed by counsel 

that read "We agree to the terms and conditions set forth above 

and understand that this agreement is made between and among the 

[a]rbitrator and the attorneys and not the [a]rbitrator and the 

parties." 

Although there was no written agreement, Clementon Park's

attorney, Kathi Peisner, certified that "[c]ounsel for all 

parties entered into a binding [a]rbitration [a]greement[.]" 

Additionally, counsel stated that many letters were exchanged 

"between and among counsel and [the arbitrator.]" Counsel 

averred, "[t]here [could] be NO doubt that plaintiffs' original 

attorney knew the arbitration was binding." 

Vincenzo claimed that he "never personally understood that 

[he was giving] up [his] right to go before judges or [a] 

jury[.]" Maria, too, asserted that Zonies never told her that 

she was giving up her rights by going to arbitration. 

Before the arbitration, counsel for the parties made 

submissions to the arbitrator. Plaintiffs and the parties' 

attorneys appeared for the arbitration on September 28, 2016 and 
5 A-3992-16T2

December 21, 2016. According to Peisner, on the first day of 

the arbitration hearing, "plaintiffs appeared with their 

attorney, . . . an interpreter, and [their] relatives[,]" and 

the arbitrator explained "to all that the arbitration was on 

consent and binding." Further, the arbitrator asked "plaintiffs 

through their counsel if they knew that arbitration was INSTEAD 

of a trial and that he would be deciding the case instead of a 

jury, and if they were ready to proceed." Peisner stated,

"[p]laintiffs expressed an understanding, and consent, and their 

attorney stated that plaintiffs understood the consequences." 

On January 4, 2017, the arbitrator entered an award in 

favor of defendants, finding no cause for the action. A week 

later, Zonies advised Vincenzo that "the arbitrator ruled 

against [him,] and that [he] was not going to receive any 

damages for [his] injuries," or be able to "continue with [his] 

claims in court . . . ." Vincenzo asserted that he was 

"shocked" as he "never agreed to such an arrangement[,]" or to 

"give up [his] right to [his] court case." 

After plaintiffs filed their motion to reinstate and the 

parties made written submissions, the motion judge considered 

counsels' oral argument on April 28, 2017, and denied 

plaintiffs' motion without a plenary hearing. In an oral 
6 A-3992-16T2

decision placed on the record on that date, the judge explained 

why he believed an evidentiary hearing was not necessary. 

In his decision, the judge stated that if he ordered a 

hearing he would "have to assume that [he] might actually 

believe the plaintiff[s] and believe that they truly didn't 

think they were waiving anything, Zonies didn't explain it to 

them[,] and they had no idea as to what was going on."

Regardless of his beliefs about the plaintiffs' assertions, the 

judge concluded that Zonies' agreement to arbitrate bound 

plaintiffs to the same agreement. The judge stated that if he 

questioned whether plaintiffs understood the agreement, it would 

"substantially undercut[] the efficient working of the [c]ourt 

system where when the attorney, on behalf of the client signs a 

document agreeing to go to binding arbitration, it's enforced." 

While the judge was satisfied that at a hearing, if the 

arbitrator testified in accordance with the facts stated in 

Peisner's certification, plaintiffs would lose, the judge made 

clear that his ruling was not based upon whether the arbitrator 

explained to plaintiffs anything about the arbitration before it 

began, but rather, upon his finding that the situation was 

similar to a litigant who was not happy with a result after a 

bench trial. The judge explained:
7 A-3992-16T2

The important thing here is that unlike the 

settlement that was not authorized, [where] 

a plaintiff who won't sign a release, it's a 

different plaintiff than a plaintiff that 

proceeded to binding arbitration, lost and 

now wants their case heard before a jury. 

Those are apples and oranges. 

And I think this case is closer to the . . .

bench trial situation . . . because no 

plaintiff could plausibly say in [c]ourt 

when their case is tried before a judge, 

gee, I thought we were [going to] get 

another trial a year later before a jury. 

The motion judge ultimately found that to allow a 

dissatisfied plaintiff to raise an objection to the arbitration 

after it was completed would cause havoc in litigation. He 

stated that at a hearing, "if I believe the plaintiffs and said 

basically their no-cause at binding arbitration is worthless, is 

meaningless, that [would be] the precedent I don't want to 

establish." This appeal followed. 

A trial court confronted with a motion to reinstate a

complaint must determine whether good cause has been shown

warranting that the "order dismissing [the] matter . . . be set

aside and the case restored[.]" ASHI-GTO Assocs. v. Irvington

Pediatrics, PA, 414 N.J. Super. 351, 359 (App. Div. 2010). 

"Whether to grant or deny a motion to reinstate a complaint lies

within the sound discretion of the trial court." Sullivan v.

Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App.
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Div. 2008). "We will 'decline to interfere with [such] matters

of discretion unless it appears that an injustice has been

done.'" Ibid. (quoting Cooper v. Consol. Rail Corp., 391 N.J.

Super. 17, 23 (App. Div. 2007)). While the "'abuse of

discretion' standard defies precise definition," we may find an

abuse of discretion "when a decision is 'made without a rational

explanation, . . . rest[s] on an impermissible basis[,]'" or was

"an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002) (citations omitted).

To the extent the trial court's decision involves, as here,

a decision regarding the validity of an arbitration agreement,

our review is de novo. Atalese v. U.S. Legal Servs. Grp., 219

N.J. 430, 445-46 (2014).

Applying these standards, we conclude that it was a 

mistaken exercise of the judge's discretion to decide 

plaintiff's motion without a plenary hearing in light of the 

conflicting certifications presented to the judge concerning 

plaintiffs' alleged agreement to waive their right to a trial in 

court.

At the outset, we acknowledge that our State's public 

policy favors the resolution of disputes through arbitration. 

Id. at 440. The strong "public policy of this State favors 
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arbitration as a means of settling disputes that otherwise would 

be litigated in a court." Badiali v. N.J. Mfrs. Ins. Grp., 220 

N.J. 544, 556 (2015). The preference for arbitration is not 

without limits. Atalese, 219 N.J. at 441. For example, "[a]n 

agreement to arbitrate, like any other contract, 'must be the 

product of mutual assent, as determined under customary 

principles of contract law.'" Id. at 442 (citation omitted). 

"Mutual assent requires that the parties have an understanding 

of the terms to which they have agreed." Ibid. 

"Our state-law jurisprudence makes clear 'that when a 

contract contains a waiver of rights - whether in an arbitration 

or other clause - the waiver "must be clearly and unmistakably 

established."'" Morgan v. Sanford Brown Inst., 225 N.J. 289, 

308-09 (2016) (quoting Atalese, 219 N.J. at 444). When the 

agreement is written, "[n]o magical language is required to 

accomplish a waiver of rights in an arbitration agreement." Id.

at 309. Because arbitration involves a waiver of the right to 

pursue a case in a judicial forum, courts take particular care 

"in assuring the knowing assent of both parties to arbitrate, 

and a clear mutual understanding of the ramifications of that 

assent." NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 

N.J. Super. 404, 425 (App. Div. 2011), appeal dismissed, 213 

N.J. 47 (2013).
10 A-3992-16T2

"This requirement of a 'consensual understanding' about the 

rights of access to the courts that are waived in the agreement 

has led our courts to hold that clarity is required." Moore v. 

Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J. Super. 30, 

37 (App. Div. 2010) (citation omitted). "By its very nature, an 

agreement to arbitrate involves a waiver of a party's right to 

have her claims and defenses litigated in court." Atalese, 219 

N.J. at 442 (citation omitted). Any contractual waiver-ofrights provision must reflect that the party has agreed "clearly 

and unambiguously" to its terms. Leodori v. Cigna Corp., 175 

N.J. 293, 302 (2003), cert. denied, 540 U.S. 938 (2003). "[A]n 

average member of the public may not know — without some 

explanatory comment — that arbitration is a substitute for the 

right to have one's claim adjudicated in a court of law." 

Atalese, 219 N.J. at 442. 

The need for clarity about the rights being waived in an 

arbitration agreement does not mean that it must be in writing. 

An agreement to arbitrate in lieu of litigation "do[es] not need 

to be in writing to be enforceable." Leodori, 175 N.J. at 305 

(addressing an employee's agreement to arbitrate absent a 

written agreement with his employer). There must be, however, 

evidence that "otherwise explicitly indicate his or her 

agreement to" arbitrate, id. at 306, including "some other 
11 A-3992-16T2

unmistakable indication that [a litigant] affirmatively had 

agreed to arbitrate his claims," id. at 307, and waived his 

right to trial, Atalese, 219 N.J. at 442.

Here, the only evidence of plaintiffs' decision to waive 

their right to a trial that was presented to the motion judge 

was the undisputed fact that the parties participated in the

arbitration and their conflicting certifications. Plaintiffs 

contended they did not understand that participating in the 

arbitration meant there would be no trial. Peisner's 

certification relied upon her hearsay statement about what the 

arbitrator allegedly explained to plaintiffs and her unqualified 

conclusion that plaintiffs understood what they were told. In 

addition, the one written agreement presented to the court – the 

arbitrator's retainer agreement was signed only by counsel, and 

did not mention a waiver of plaintiffs' right to trial. There 

was no certification from the arbitrator explaining what he said 

to plaintiffs or even from their former attorney refuting 

Vincenzo's description of what he was told. And, there was no 

certification from the interpreter who assisted at the 

arbitration. 

While we share the motion judge's concern about the need 

for courts to be able to rely on counsels' agreement to 

arbitrate, and the impact upon litigation of allowing 
12 A-3992-16T2

dissatisfied litigants to reopen cases after they participated 

in an arbitration that does not go well for them, we believe 

under the unique circumstances of this case, that there was 

insufficient evidence for the motion judge to have decided the 

issue presented, without a hearing. See Lederman v. Prudential 

Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 347 (App. Div. 

2006). 

The order under review is vacated and the matter remanded 

for a plenary hearing as to whether plaintiffs knowingly waived 

their right to trial by a judge or jury.

Vacated and remanded for further proceedings consistent 

with this opinion. We do not retain jurisdiction.