AMERICAN FEDERATION OF TEACHERS VS. NEW JERSEY CITY UNIVERSITY (SC-00695-18, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-6012-17T2

AMERICAN FEDERATION OF
TEACHERS, LOCAL 1839, and
DR. JOSEPH MOSKOWITZ,

Plaintiffs-Appellants,

v.

NEW JERSEY CITY UNIVERSITY,

Defendant-Respondent.
_______________________________

Submitted June 4, 2019 – Decided June 19, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. SC-000695-18.

Mets Schiro & McGovern, LLP, attorneys for appellants
(Kevin P. McGovern, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Aimee Blenner, Deputy Attorney
General, on the brief).

PER CURIAM
 Plaintiffs American Federation of Teachers, Local 1839 (AFT) and union

member Dr. Joseph Moskowitz appeal from a June 22, 2018 Special Civil Part order

dismissing their small claims complaint for lack of subject matter jurisdiction and

an August 3, 2018 order denying reconsideration. For the reasons that follow, we

reverse and remand.

Plaintiffs allege defendant New Jersey City University (the University)

underpaid Moskowitz in his capacity as co-chairperson of the University Promotion

Committee (UPC) during 2016 and 2017. They claim a Locally Negotiated

Promotional Procedures Agreement (the agreement) entered into by the University

and the AFT states the co-chairs of the UPC shall receive two credits, and the

concomitant salary, during the Fall semester and two additional credits during the

Spring semester when they serve in that capacity. Plaintiffs contend the University

violated the agreement by not awarding Moskowitz the two credits for the Fall 2016

semester, which reduced his salary for that semester. Plaintiffs further contend the

University reduced the number of courses Moskowitz was permitted to teach during

the Spring 2017 semester when it placed all four credits in Moskowitz's Spring

schedule.

The governing statewide collective negotiations agreement (the contract)

contains a grievance procedure. If a grievance proceeds to arbitration, the

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"arbitrator's decision shall be binding" as to grievances claiming a breach,

misinterpretation, or improper application of the terms of the contract. The contract

states the grievance procedure "shall be the sole and exclusive means of seeking

adjustment and settling grievances."

In January 2017, the AFT grieved the alleged violation of the agreement and

sought compensation for the two credits. The grievance proceeded to arbitration.

The arbitrator conducted a testimonial arbitration hearing and issued a twenty-seven-

page opinion and award that concluded "[t]he University violated [the agreement]

when it failed to award Professor Joseph Moskowitz compensation for release time

of two (2) credits for the Fall 2016 semester for his service as co-chair of the [UPC]."

The award sustained the grievance in part, and directed the University "to promptly

provide Dr. Joseph Moskowitz with two credits of release time for the Fall 2016,

and provide monetary compensation for any credit overload which results from this

alteration in the records." The award denied any additional compensation for the

Spring 2017 semester.

The University did not accept the arbitrator's decision, taking the position that,

because the grievance did not allege a violation of the contract, but rather a violation

of the locally negotiated agreement, the arbitrator's decision was advisory and non-

binding.

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 Plaintiffs then filed a pro se small claims complaint against the University that

sought damages of $3000 for violating the agreement. The complaint conceded the

arbitration award was advisory.

On June 5, 2018, the University moved to dismiss the complaint for lack of

subject matter jurisdiction. The University contended the agreement supplemented

the contract between the State and the AFT for the period July 1, 2015 to June 30,

2019. The notice of motion did not comply with Rule 6:3-3(c)(2),1 because it did

not advise the non-moving party that it had ten days to respond to the motion in

writing in the form of a certification or affidavit.

Plaintiffs did not file opposition to the motion within ten days. On June 22,

2018, the trial court treated the motion as unopposed and granted dismissal of the

complaint for lack of subject matter jurisdiction despite the University's failure to

comply with Rules 6:3-3(c)(2).

1
Rule 6:3-3(c)(2) states:

The notice of motion shall also state the court's address
and that the order sought will be entered in the discretion
of the court unless the attorney or pro se party upon whom
it has been served notifies the clerk of the court and the
attorney for the moving party or the pro se party in writing
within ten days after the date of service of the motion that
the responding party objects to the entry of the order.

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 On June 29, 2018, plaintiffs moved for reconsideration, arguing the court

erred by ruling it lacked subject matter jurisdiction, and that any confusion over the

motion return date should not deprive plaintiffs of their legal rights. In his

supporting certification, counsel noted the University's notice of motion did not

contain a return date, his firm had only recently been retained, he assumed the

University's motion would be heard on the scheduled hearing date of July 13, 2018,

and he proceeded accordingly. Counsel also cited two Supreme Court decisions for

the proposition that the trial court had subject matter jurisdiction because a union

member's resort "to advisory arbitration does not operate as a waiver of any

substantive legal claims."

According to court records, Civil Case Management initially scheduled the

motion for August 3, 2018, then rescheduled it for August 17, 2018. The University

did not submit opposition. Nevertheless, on August 3, 2018, some fourteen days

before the rescheduled return date, the trial court denied reconsideration because the

notice of motion failed to comply with Rule 6:3-3(c)(3). The notice of motion did

not contain the language required by the rule. 2 Rather than file a corrected motion,

2
Rule 6:3-3(c)(3) states:

Every notice of motion shall include the following
language: "NOTICE. IF YOU WANT TO RESPOND TO

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plaintiffs filed this appeal. The trial court issued the following written amplification

of its two rulings pursuant to Rule 2:5-1(b):

The defendant filed a motion to dismiss for lack of
jurisdiction on June 7, 2018. It contained the appropriate
certification of service on the then pro-se plaintiff . . . .
More than ten days having gone by and no opposition
being received the court granted the motion by order
entered June 22, 2018, noting that the complaint was
dismissed for lack of jurisdiction and that the motion was
unopposed.

By letter dated June 20, 2018 counsel for the
plaintiff advised the court in writing of his appearance and
indicated that he anticipated that the then scheduled trial
date of June 29, 2018 was going to be adjourned at the
request of the defendant and that he consented to that
request. The trial was then adjourned until July 13, 2018.

Upon receiving the order entered on June 22, 2018
granting dismissal, counsel for the plaintiff filed a motion

THIS MOTION YOU MUST DO SO IN WRITING.
Your written response must be in the form of a
certification or affidavit. That means that the person
signing it swears to the truth of the statements in the
certification or affidavit and is aware that the court can
punish him or her if the statements are knowingly false.
You may ask for oral argument, which means you can ask
to appear before the court to explain your position. If the
court grants oral argument, you will be notified of the
time, date, and place. Your response, if any, must be in
writing even if you request oral argument. Any papers you
send to the court must also be sent to the opposing party's
attorney, or the opposing party if they are not represented
by an attorney."

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 for reconsideration on or about June 29, 2018. When the
motion to reconsider was filed the court noted that in
paragraphs 4, 5, 6 and 7 of the certification of plaintiff's
counsel dated June 29, 2018, he was unaware of R. 6:3-
3(c)(2) that mandated that opposition (or at least an
objection) to a motion in the Special Civil Part be
submitted in writing within ten (10) days of service of the
notice of motion. Plaintiff's counsel incorrectly assumed
that the motion would be heard on the trial date or more
likely the adjourned trial date of July 13, 2018.

The notice of motion to reconsider filed by
plaintiff's counsel failed to contain the language required
by R. 6:3-3(c)(2) advising the non-moving party that they
have ten (10) days to respond to the motion in writing or
it would be considered unopposed. This would be the
second time plaintiff's counsel demonstrated unawareness
of the "ten day rule" for opposing motions in the Special
Civil Part. It should be noted that the defendant's original
notice of motion also lacked the required ten (10) day
warning. This comedy of errors had gone on long enough,
the court was now insisting on compliance with R. 6:3-
3(c)(2) so that the opposing party would be aware of the
ten (10) day deadline.

Neither the motion decision nor the subsequent written amplification addressed the

merits of plaintiffs' motion.

Plaintiffs argue: (1) the trial court had subject matter jurisdiction because the

arbitration award was advisory, rendering Rule 2: 2-3(a)(2) inapplicable; (2) the trial

court abused its discretion by considering the University's motion to dismiss

unopposed; and (3) the court abused its discretion by denying plaintiffs' motion for

reconsideration due to technical non-compliance with Rule 6:3-3 two weeks before

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the scheduled date of the motion and after ignoring the same violation by the

University.

Plaintiffs argue the University is not a "state administrative agency" within

the meaning of Rule 2:2-3(a)(2). Rather, plaintiffs contend the University is a public

institution of higher learning that is accorded a high degree of self-government, with

decision-making rendered by its Board of Trustees. Plaintiffs also rely upon

N.J.S.A. 18A:3B-27, which provides that although State Colleges are allocated to

the Department of State, "such institutions shall be independent of any supervision

or control of the Department of State or any board, commission or officer thereof

and the allocation shall not in any way affect the principles of institutional autonomy

established in this act." Plaintiffs further contend the complaint seeks relief for a

breach of contract. The University contends State colleges are considered State

agencies and, therefore, the trial court lacked subject matter jurisdiction because

review of the action or inaction of a state administrative agency is by appeal to the

Appellate Division, citing Rule 2:2-3(a)(2).

We begin our analysis by noting the trial court's disparate treatment of the

parties for similar motion deficiencies. The University's motion was granted as

unopposed while plaintiff's unopposed motion was denied without considering its

substantive merit. It was inappropriate to treat the deficiencies in the motion for

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reconsideration as a second violation of Rule 6:3-3 when the first violation was

committed by an opposing party.

We also note the trial court did not state any factual findings or resulting

conclusions of law when it granted the University's motion to dismiss. A trial court

"shall, by an opinion or memorandum decision, either written or oral, find the facts

and state its conclusions of law thereon . . . on every motion decided by a written

order that is appealable as of right." R. 1:7-4(a). The court rules do not provide any

exception from this obligation when the motion is unopposed. R. 1:7-4(a); R. 4:6-

2(e).

Litigants are entitled to an explanation of the trial court's reasoning for a grant

or denial of relief, even if the litigant has not challenged a motion for summary

judgment or any other relief. Allstate Ins. v. Fisher, 408 N.J. Super. 289, 302 (App.

Div. 2009). Even when a motion goes uncontested, the judge must consider the

undisputed facts to determine if they entitle a party to relief. Ibid. The trial court's

lack of reasoning requires either a remand for a statement of reasons or a reversal

and remand for consideration of the motion to dismiss anew. Id. at 303. Although

a remand for a statement of reasons is appropriate if the judge was within his

discretion to treat the matter as unopposed, the notice deficiency in the University's

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notice of motion leads us to conclude that a reversal and remand for consideration

of the motion to dismiss anew is appropriate.

Even though the parties have argued the merits of the dismissal motion before

us, we are of the view that the jurisdictional issues raised in support and opposition

to dismissal "should be addressed in the first instance by the motion judge." Ibid.

To promote judicial economy, the motion can be heard and decided, with an

accompanying statement of reasons, on the same day as the small claims trial. We

take no position as to the merits.

Reversed and remanded. We do not retain jurisdiction.

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