SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0682-20

MICHAEL TORRES,

Plaintiff-Appellant,

v.

T.U.C.S. CLEANING SERVICE

and KONE, INC.,

Defendants-Respondents,

and

T.U.C.S. CLEANING SERVICE,

Defendant/Third-Party

Plaintiff-Respondent,

v.

KONE, INC.,

Third-Party DefendantRespondent.

____________________________

Submitted September 13, 2022 – Decided September 19, 2022

Before Judges Geiger and Susswein.

NOT FOR PUBLICATION WITHOUT THE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.
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A-0682-20

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-4153-17.

Michael Torres, appellant pro se.

Law Office of Frank A. Viscomi, attorneys for 

respondent T.U.C.S. Cleaning Service (Clifford J. 

Giantonio, on the brief).

Ansa Assuncao LLP, attorneys for respondent Kone, 

Inc. (David A. Gonzalez, of counsel and on the brief).

PER CURIAM

Plaintiff Michael Torres appeals from Law Division orders that dismissed 

his action with prejudice pursuant to Rule 4:21A-6(b)(1), granted summary 

judgment to defendants T.U.C.S. Cleaning Service (TUCS) and Kone, Inc.

(Kone), and denied his motion for reconsideration. We affirm the dismissal of 

plaintiff's action due to his failure to file a timely demand for a trial de novo. 

We discern the facts from the summary judgment record, viewing them in 

the light most favorable to plaintiff. See Richter v. Oakland Bd. of Educ., 246 

N.J. 507, 515 (2021). 

On June 17, 2015, plaintiff was injured during a slip and fall accident that 

occurred as he was about to walk off an escalator at the Port Authority Bus 

Terminal in New York City. Plaintiff alleges there was "something wet" or 

"very slippery" on the escalator or floor that caused him to slip and fall 
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backwards, injuring his neck, shoulder, and lower back. He claims he suffered 

permanent injuries that included a herniated lumbar disc, lumbar radiculopathy, 

and post-traumatic lumbar facet arthropathy. Plaintiff alleges that the slip and 

fall was "caused or substantially contributed to by defendants' negligent 

maintenance and/or cleaning and/or care of the property." 

Plaintiff testified that he was making his way home via the Port Authority 

Bus Terminal, which he did approximately two to three times per week without 

issue. At the time of the accident, he was holding two suits in one hand and 

holding on to the railing with the other. 

Plaintiff admitted he did not notice anything wrong with the escalator or 

anything on it and it "seemed normal" to him "until [he] stepped on it." Plaintiff 

acknowledged that he did not see what he stepped or slipped on and stated: "It 

seemed normal to me until I stepped on it." He claimed that something liquid

and slippery made him lose his balance, causing him to fall backwards and hit 

his head, both shoulders, and back. 

Plaintiff was the only person on the escalator at the time. There were no 

other eyewitnesses to the accident. Two people helped him up and away from 

the escalator. He told them that he just wanted to go home despite his arms 

bleeding; in his opinion, he was in shock. Two police officers arrived at the 
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scene and asked plaintiff if he wanted to go to the hospital, but he declined. 

Plaintiff took the same escalator up to the platform, again stating that he believed 

he was in shock. After speaking to a bus dispatcher, plaintiff took a bus home. 

Plaintiff was not wearing his eyeglasses on the day of the accident because 

he forgot them and admitted that had he been wearing them, he may have seen 

the slippery substance. 

Plaintiff sought medical treatment two or three days after the accident 

from his primary care physician. He reported experiencing headaches and pain 

in his neck, shoulders, and back. Plaintiff also saw a chiropractor. 

Plaintiff subsequently saw an orthopedic surgeon, who sent him for MRIs 

of his neck, spine, and shoulders, and underwent physical therapy of his neck, 

spine, and shoulders. Plaintiff also saw a neurologist, who sent him for an MRI 

of his brain and prescribed medication for his headaches. Plaintiff was later 

evaluated and treated by a psychiatrist, who diagnosed him with post-traumatic 

stress disorder, depression, and anxiety. 

Plaintiff was previously injured in two motor vehicle accidents and an 

assault. Plaintiff suffered a disabling lower back injury in a 1995 motor vehicle 

accident, for which he underwent lower back surgery and receives SSI and SSA 

benefits. Plaintiff's upper and middle back and neck were injured in a second 
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motor vehicle accident in 2000. Plaintiff was physically assaulted in 2009 and 

underwent rotator cuff surgery for the injury suffered during the assault. 

TUCS was the cleaning service hired by the NY/NJ Port Authority (Port 

Authority) to clean the Port Authority Bus Terminal. Kone was the company 

hired by the Port Authority to maintain the escalators in the Port Authority Bus 

Terminal. 

In his complaint, plaintiff named TUCS as the sole defendant and asserted

causes of action for negligence, negligent supervision, and respondeat superior 

for failing to properly clean and maintain the Port Authority Terminal. Plaintiff 

filed an amended complaint adding Kone as an additional defendant and causes 

of action for breach of contract as an intended third-party beneficiary (arguing 

that plaintiff was an intended beneficiary of any contract between TUCS and 

Kone) and unjust enrichment (arguing that both defendants were unjustly 

enriched). Plaintiff did not name the Port Authority as a defendant. Thereafter, 

TUCS filed a third-party complaint against Kone seeking contribution under the 

Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 to -5, and the 

Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. 
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Plaintiff's attorney moved to be relieved as counsel. The trial court 

granted the motion on October 26, 2018, and ordered plaintiff to retain new 

counsel withing forty-five days. 

The court later granted plaintiff's motion to extend discovery and set a 

new deadline to retain counsel. After retaining new counsel, the new counsel 

moved to be relieved as counsel. The court denied the motion, further extended 

discovery, and ruled that plaintiff was "barred from asserting claims not 

supported by expert reports." 

In February 2020, plaintiff sent a letter to the court complaining about his 

new attorney. On notice to all counsel, the court advised plaintiff that it would 

not intervene and that any change of counsel would require a formal motion. 

The mandatory arbitration of this matter was scheduled for November 6, 

2019. Plaintiff failed to appear for the arbitration, and on November 8, 2019, 

the court dismissed the case for lack of prosecution. On November 26, 2019, 

plaintiff's counsel filed a motion to reinstate the complaint. The court granted 

reinstatement and the case was relisted for arbitration. 

The rescheduled arbitration was held on January 29, 2020. The defense's 

independent medical examiner testified that all of plaintiff's injuries were preexisting. The arbitrator assessed damages at $10,000 and found each defendant 
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A-0682-20

twenty-five percent liable and plaintiff fifty percent liable for the accident. 

Counsel acknowledged receipt of the award that day. 

On March 2, 2020, plaintiff's counsel filed and served a demand for a trial 

de novo. The next day, plaintiff's counsel filed a second motion to be relieved 

as counsel. In his supporting certification, counsel represented that another 

attorney had contacted him by telephone and told him to stop working on the 

case and to send the file to the new attorney. However, counsel further certified 

that the same attorney contacted him again and told him to keep the file as he 

would not be representing plaintiff. 

On March 12, 2020, Kone filed a motion for summary judgment based on 

a lack of evidence that Kone was liable and plaintiff's failure to obtain an expert 

report addressing such liability. Kone filed a separate motion to strike plaintiff's

demand for a trial de novo, stating it was not filed within thirty days of the filing 

of the arbitration award. See R. 4:21A-6(b)(1). 

On March 27, 2020, the unopposed motions filed by plaintiff and by 

counsel to be relieved were granted. The court noted that plaintiff had "ample 

time to secure new counsel prior to trial." The trial remained scheduled for May 

18, 2020. 
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A-0682-20

On March 30, 2020, TUCS filed a cross-motion for summary judgment. 

It too argued there was no evidence that it was liable, and that plaintiff failed to 

obtain an expert report addressing such liability. TUCS also filed a brief in 

support of granting Kone's motion to strike plaintiff's demand for a trial de novo 

and to dismiss the complaint. 

On April 17, 2020, plaintiff, now unrepresented, sent a letter to the court 

advising that he was seeking new counsel, having back surgery, and requesting 

an adjournment of the trial date until at least mid-August. Plaintiff represented 

that he was advised by the secretary of Kone's attorney that oral argument of the 

pending motions was adjourned to May 22, 2020. 

The court sent notice by regular mail advising plaintiff that the trial had 

been adjourned to July 13, 2020. On April 20, 2020, counsel for Kone provided 

the court with plaintiff's telephone number. On May 12, 2020, notice was sent 

by the court rescheduling oral argument of the motions to June 19, 2020. The 

judge advised plaintiff: 

I will carry oral argument of all three motions for 

9 [a.m.] June 19, 2020[,] at which time oral argument 

will be held telephonically. By the time oral argument 

is held on June 19, you will have had over [sixty] days 

to retain new counsel. In any event, nothing prohibits 

you from submitting opposition to the motions as a selfrepresented litigant, without legal counsel. On June 19, 

2020 at 9:00 a.m., oral argument is expected to proceed 
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A-0682-20

unless otherwise directed by the [c]ourt. Kindly reach 

out to defense counsel to arrange how the parties will 

all call in to the [c]ourt together to proceed with oral 

argument. Defense counsel are hereby directed to 

cooperate with plaintiff or plaintiff's new legal counsel 

in accessing the court remotely for oral argument on 

June 19, 2020 at 9 [a.m.]

On June 16, 2020, the court sent additional notice by regular mail 

reiterating that oral argument of the pending motions would be held on June 19, 

2020 at 9:00 am. That same day, Kone's counsel submitted the call-in 

information for oral argument via eCourts and by UPS 2d Day Mail to plaintiff. 

Plaintiff requested that the motion be rescheduled because he was scheduled for

surgery. The court rescheduled oral argument to June 25, 2020. 

Plaintiff failed to appear at oral argument. The motions to strike the 

demand for a trial de novo and for summary judgment were granted to both 

defendants. The judge found plaintiff had sufficient notice of the rescheduled 

oral argument and failed to appear. Due to the strict enforcement of the deadline 

for filing a demand for a trial de novo, the judge struck plaintiff's demand for 

lack of timeliness, noting that plaintiff did not demonstrate any extraordinary 

circumstances that warranted an extension of the deadline. 

Addressing the summary judgment motions, the judge found there were 

no facts alleged that supported plaintiff's claims of negligence against either 
10 A-0682-20

defendant. The judge found there was no evidence of a dangerous condition and 

no evidence that either defendant had actual or constructive notice of the liquid 

or slippery substance on the escalator. Plaintiff also failed to produce an expert 

report that opined there was a breach of duty or proximate causation of plaintiff's 

injuries. Finally, there was no evidence of unjust enrichment or breach of 

contract because plaintiff did not have a contract with either defendant. 

On August 5, 2020. plaintiff filed a motion for reconsideration of the three 

dispositive orders. Plaintiff indicated he had new evidence in the form of a 

photograph of the slippery substance that he allegedly slipped on. The 

photograph was not presented in discovery, submitted in opposition to 

defendants' summary judgment motions, or included in his motion for 

reconsideration. Moreover, the purported photograph is directly contradicted by 

his deposition testimony that he did not see the substance or know what it was. 

On September 18, 2020, the court denied reconsideration. In her oral 

decision, the judge recounted the dispositive motion history and noted that 

plaintiff did not state with specificity what judge overlooked or how she erred. 

Instead, he claimed he had a photograph and tried to introduce it as new 

evidence, which the judge noted is specifically barred from a motion for 

reconsideration. Even considering the photograph, the judge found there was 
11 A-0682-20

no genuine dispute of material fact, and plaintiff also could also not prove that 

either defendant had actual or constructive notice of a dangerous condition at 

the Port Authority. This appeal followed. 

Plaintiff raises the following points for our consideration:

POINT ONE

ON JUNE 19, 2020[, THE JUDGE'S] CHAMBERS[']

ASSISTANT . . . MADE A BIG MISTAKE ON THE 

PHONE CALL [TO] ME AND LIE[D] TO ME.

POINT TWO

ON JUNE 25, 2020 [AT] 9:27 A.M.[,] [THE JUDGE]

ERRED IN GRANTING SUMMARY JUDGMENT 

TO THE DEFENDANTS WITHOUT REALLY 

KNOWING THE FACTS AND DISMISS MY CASE 

WITH PREJUDICE AND ME WITHOUT BEING 

PRESENT. 

POINT THREE

ON SEPTEMBER 18, 2020, [THE JUDGE] DIDN'T 

REINSTATE MY CASE AND AGAIN MADE A 

MISTAKE SUPPORTING THIS NEGLIGENCE AND 

RECKLENESS OF THIS CLEANING CO. T.U.C.S. 

AND KONE CO. ESCALATOR CO. DEFENDANTS 

AND TOOK THEIR SIDE OF THE STORY AND [IN]

MY PERSONAL OPINION DEFENDANTS AND 

JUDGE TOOK ADVANTAGE OF ME [THAT] I 

DIDN'T HAVE AN ATTORNEY BY MY SIDE 

PRESENT REPRESENTING ME AND ACTING PRO 

SE ALONE. "NO JUSTICE AT ALL."
12 A-0682-20

We first address plaintiff's failure to file and serve a notice of rejection of 

the arbitration award and demand for a trial de novo within thirty days of the 

filing of the arbitration award, as required by Rule 4:21A-6(b)(1). Plaintiff filed 

and served the notice on March 2, 2020, two days after the thirty-day period 

expired. 

Because this appeal involves the interpretation of the court rules 

governing arbitration, our review is de novo. Vanderslice v. Stewart, 220 N.J. 

385, 389 (2015). Applying this standard, we discern no reason to disturb the 

trial court's ruling. 

We begin our analysis by reviewing the requirements imposed by statute 

and court rule and the case law interpreting those requirements. The timing for 

challenges to an arbitration award is mandated by statute as well as court rule. 

See N.J.S.A. 2A:23A-26; N.J.S.A. 39:6A-31; R. 4:21A-6. 

Rule 4:21A-6(b)(1) provides:

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 . . . .
13 A-0682-20

The purpose of Rule 4:21A-6(b)(1) "is to require a prompt demand for a 

trial de novo in cases subject to mandatory arbitration[.]" Corcoran v. St. Peter's 

Med. Ctr., 339 N.J. Super. 337, 344 (App. Div. 2001). The rule imposes "a short 

deadline for filing" a demand for trial de novo to "ensure[] that the court will 

promptly schedule trials in cases that cannot be resolved by arbitration." 

Vanderslice, 220 N.J. at 392 (alteration in original) (quoting Nascimento v. 

King, 381 N.J. Super. 593, 597 (App. Div. 2005)). The Legislature intended the 

deadline "to be strictly enforced." Hartsfield v. Fantini, 149 N.J. 611, 616 

(1997) (quoting Hart v. Prop. Mgmt. Sys., 280 N.J. Super. 145, 147 (App. Div. 

1995)). Thus, our courts have cautioned that when a timely demand for a trial 

de novo has not been filed, "the court's power to extend the time frame 'must be 

sparingly exercised with a view to implementing both the letter and the spirit of 

the compulsory arbitration statute and the rules promulgated pursuant thereto, 

to the end that the arbitration proceedings achieve finality.'" Martinelli v. FarmRite, Inc., 345 N.J. Super. 306, 310 (App. Div. 2001) (quoting Mazakas v. Wray, 

205 N.J. Super. 367, 372 (App. Div. 1985)).

Although courts "possess the power to enlarge" the thirty-day period to 

file a demand for a trial de novo, "such power should be exercised only in 

extraordinary circumstances." Mazakas, 205 N.J. Super. at 371. The 
14 A-0682-20

circumstances must not arise from "mere carelessness" or "lack of proper

diligence." Martinelli, 345 N.J. Super. at 310 (quoting Hartsfield, 149 N.J. at 

618). 

To determine if exceptional circumstances are present, the court conducts 

"a fact-sensitive analysis in each case." Hartsfield, 149 N.J. at 618. The attorney 

must prove that circumstances for missing the filing deadline were "exceptional 

and compelling." Id. at 619 (quoting Baumann v. Marinaro, 95 N.J. 380, 393 

(1984)). In Hartsfield, the Court held that an attorney's failure to check his 

calendar and supervise his secretary did not constitute the exceptional 

circumstances necessary to satisfy extending the thirty-day time limit, even 

though two of his associates, who handled over 1,000 cases for the firm, 

resigned. Id. at 614, 619-20; see also Sprowl v. Kitselman, 267 N.J. Super. 602, 

609 (App. Div. 1993) (explaining that "[f]ailure to supervise one's secretary does 

not ordinarily present such 'extraordinary circumstances' as will permit an 

attorney to make a late demand for a trial de novo"). Similarly, "the excuse of 

an attorney being too busy or of having too heavy a work load to properly handle 

litigation or to supervise staff must be rejected as insufficient to constitute 

extraordinary circumstances." Hart, 280 N.J. Super. at 149. 
15 A-0682-20

Here, neither plaintiff nor his then counsel asserted any circumstances for 

failing to file a timely demand for a trial de novo, much less any circumstances 

that were exceptional and compelling. Mere inadvertence, carelessness, or 

failure to supervise staff does not excuse the failure to meet the deadline or 

provide a basis to enlarge the thirty-day filing period. 

We first note that the thirty-day filing period has been in place for decades. 

See Hartsfield, 149 N.J. at 620 ("[T]he arbitration program has been wellestablished for several years, and attorneys are well-aware of the thirty-day 

rule."). Plaintiff's counsel participated in the arbitration. The Report and Award 

of Arbitrator form, which was uploaded on eCourts on the day of the arbitration, 

reminded counsel of the requirement to file a timely demand for trial de novo 

and the consequences of failure to do so. Plaintiff's counsel does not claim he 

was unaware of this requirement. 

Here, there was no attempt to file the demand for trial de novo within 

thirty days, much less substantial compliance. Plaintiff only moved for leave to 

file a demand for trial de novo out-of-time after being served with the motion to 

strike his demand for a trial de novo. Filing a timely demand for a trial de novo 

is not an arduous or time-consuming task. 
16 A-0682-20

Applying the strictly enforced thirty-day deadline to file a demand for trial 

de novo and mandatory dismissal of an action absent a showing of extraordinary 

circumstances, we affirm the dismissal of plaintiff's action with prejudice. 

We next address the denial of plaintiff's motion for reconsideration as it 

relates to the dismissal under Rule 4:21A-6(b)(1). We review a trial court's 

denial of a motion for reconsideration for abuse of discretion. Branch v. CreamO-Land Dairy, 244 N.J. 567, 582 (2021) (citing Kornbleuth v. Westover, 241 

N.J. 289, 301 (2020)). 

A motion for reconsideration "is primarily an opportunity to seek to 

convince the court that either 1) it has expressed its decision based upon a 

palpably incorrect or irrational basis, or 2) it is obvious that the court either did 

not consider, or failed to appreciate the significance of probative, competent 

evidence." Kornbleuth, 241 N.J. at 301 (quoting Guido v. Duane Morris LLP, 

202 N.J. 79, 87-88 (2010)). Motions for reconsideration "seek review of an 

order based on the evidence before the court on the initial motion, [they do] not 

to serve as a vehicle to introduce new evidence in order to cure an inadequacy 

in the motion record." Triffin v. SHS Grp., LLC, 466 N.J. Super. 460, 466 (App. 

Div. 2021) (alteration in original) (quoting Cap. Fin. Co. of Del. Valley, Inc. v. 

Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)). Appellate courts will
17 A-0682-20

not reverse a trial court's decision to grant or deny a motion for reconsideration 

absent a "clear abuse of discretion." Kornbleuth, 241 N.J. at 301 (citing Hous. 

Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). 

Abuse of discretion exists where "a decision is made without a rational 

explanation, inexplicably departed from established policies, or rested on an 

impermissible basis." Id. at 302 (quoting Pitney Bowes Bank, Inc. v. ABC 

Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)) (internal 

quotation marks omitted). "[T]he magnitude of the error cited must be a gamechanger for reconsideration to be appropriate." Triffin, 466 N.J. Super. at 466-

67 (quoting Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010)).

Rule 4:49-2 dictates that a motion for reconsideration "be served not later 

than 20 days after service of the judgment or order upon all parties by the party 

obtaining it." Similarly, the rule requires the motion "state with specificity the 

basis on which it is made, including a statement of the matters or controlling 

decisions that counsel believes the court has overlooked or as to which it has 

erred." Ibid. Unrepresented litigants have the same obligations to follow court 

rules and deadlines as litigants represented by attorneys. See Ridge at Back 

Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014) ("[P]ro se 

litigants are not entitled to greater rights that litigants represented by counsel."). 
18 A-0682-20

Here, all three dispositive orders dismissing plaintiff's claims with 

prejudice were entered on June 25, 2020. Plaintiff was required to file his 

motion for reconsideration within twenty days of the service of the orders. 

Plaintiff did not file his motion until August 5, 2020, well after the twenty-day 

period ended. Accordingly, the motion was untimely. 

Substantively, plaintiff failed to state with specificity what the trial court 

overlooked or how it erred. When asked by the court what he would have argued 

had he appeared at oral argument on June 25, he attempted to present new 

evidence of a photograph of the substance that he slipped on, evidence which 

had never previously been disclosed in discovery or the prior motion practice. 

For these reasons, we discern no abuse of discretion. Reconsideration was 

properly denied. 

Because this matter was properly dismissed pursuant to Rule 4:21A6(b)(1), we do not reach plaintiff's argument that the trial court erred by granting 

defendants summary judgment and by denying reconsideration of the summary 

judgment awarded to defendants. 

Affirmed.