Plaintiff, Lluydmila Asabina, a New York resident, and a New Jersey resident, were involved in a collision on the slopes at a ski resort in Pennsylvania. Plaintiff initially sued defendant in New York, but on defendant’s motion her complaint was dismissed for lack of jurisdiction. She then sued K/M’s client in New Jersey.
Following the completion of discovery, the parties participated in mandatory non-binding arbitration. The arbitrator found the defendant 85% liable for the accident. However, the arbitrator awarded the plaintiff no damages, finding that her claim was barred by Pennsylvania’s Skier’s Responsibility Act (the Ski Act), 42 Pa.C.S. Section 7102c. Plaintiff failed to file a timely trial de novo within the thirty day time limit set by Rule 4:21A-6(b). Instead she sought several adjournments of the summary judgment motion filed a few days before the arbitration.
Defendant filed a motion to confirm the arbitration award, and plaintiff filed a cross-motion to either file her de novo demand four months out of time, or to withdraw the case from arbitration nunc pro tunc. She argued that the case involved complex legal issues, warranting the relief she sought. Plaintiff also argued that the arbitrator lacked jurisdiction to render an award under New Jersey’s Constitution. The Trial Court found there were no complex issues or other extraordinary circumstances justifying the late filing. The Trial Court also declined to entertain the plaintiff’s constitution argument because the plaintiff failed to serve notice of the Attorney General. The Appellate Division affirmed the Trial Court’s decision based on the reasons set forth therein. The Court further held that even if it were to consider the constitutional argument, it was clearly without merit.
Finally, the Court correctly inferred that the plaintiff deliberately avoided suing K/M’s client in Pennsylvania because that state’s law is highly unfavorable to skiers. The court determined that Pennsylvania law would have applied. Unlike New Jersey law, Pennsylvania provides strict immunity to ski resorts against lawsuits by skiers injured on the ski slopes. Thus, the Court opined that even if the Trial Court had allowed the plaintiff to file a de novo demand four months late, the case would properly have been dismissed on summary judgment.
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