Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1859-25 ESTATE OF THOMAS HARASYM, through his Executor MAUREEN HARASYM, and MAUREEN HARASYM, individually, Plaintiffs-Appellants, v. CAMBRIDGE OPERATOR LLC, d/b/a CAMBRIDGE REHABILITATION AND HEALTHCARE CENTER, CEDARBRIDGE CARE SERVICES, LLC, MARQUIS HEALTH SERVICES, a/k/a MARQUIS HEALTH CONSULTING SERVICES, and DARREN FOX, LNHA, Defendants-Respondents. _______________________________ Submitted September 23, 2026 – Decided October 22, 2026 Before Judges Marczyk and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1211-24. Davis & Brusca, LLC, attorneys for appellants (Michael A. Brusca, of counsel and on the briefs). Burns White LLC, attorneys for respondents (Laura B. Garber and Ahsan A. Jafry, of counsel and on the brief). PER CURIAM Plaintiffs Maureen Harasym (Harasym), individually, and the estate of Thomas Harasym (decedent) appeal from the trial court's January 12, 2026 order denying their motion for reconsideration of the court's October 21, 2025 order granting defendants'1 motion to compel arbitration. I. In September 2022, Harasym signed an agreement during her husband, decedent's, admission at Cambridge Rehabilitation and Healthcare Center (Cambridge). She executed the agreement in decedent's room after a staff member reviewed it with her. 1 Defendants named in plaintiffs' complaint were: Cambridge Operator LLC, d/b/a Cambridge Rehabilitation and Healthcare Center; Cedarbridge Care Services, LLC; Marquis Health Services, a/k/a Marquis Health Consulting Services; and Darren Fox, LNHA. A-1859-25 2 The admission agreement contained the following alternative dispute resolution (ADR) clauses: i.) Voluntary Agreement to Mediate/Arbitrate Disputes. The undersigned parties understand and acknowledge that this is a voluntary agreement to submit any disputes, other than payment disputes, that may arise between them for resolution by mediation, and if mediation is unsuccessful, then by arbitration. Neither the Resident nor his or her Representative is required to sign this agreement as a condition of admissions to, or as a requirement to continue to receive care at, the Facility. The parties further understand and acknowledge that, with the exception of payment disputes, all other disputes are governed by this agreement, and each of the parties is giving up his/her/its right to resort to the courts, except to the extent that courts are empowered by law to enforce the decisions of an arbitrator who has been chosen by the parties to resolve their disputes. ii.) Scope of ADR Agreement. Any and all claims or controversies, with the exception of payment disputes, arising out of or in any way relating to this ADR Agreement ("Agreement") or the Resident's stay at the Facility including disputes regarding interpretation of this Agreement, whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of statutory duties (including, without limitation, any claim based on violation of rights, negligence, medical malpractice, any other departure from the accepted standards of health care or safety or violation of federal and/or state laws or regulations, including, but not limited, to those promulgated by the State Department of Health or the Code of Federal A-1859-25 3 Regulations, irrespective of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to ADR as described in this Agreement.[)] The parties understand that this Agreement contains provisions for both mediation and binding arbitration. If the parties are unable to reach settlement informally, or through mediation, the dispute shall proceed to binding arbitration. Binding arbitration means that the parties are waiving their right to a trial, including their right to a jury trial, their right to trial by a judge and their right to appeal the decision of the arbitrator(s) except as provided for under applicable state and/or federal laws governing the arbitration. This Agreement includes claims against the Facility, its employees, its medical director, agents, officers or directors of the parent corporations, affiliates or subsidiaries of the Facility, (hereafter, all referred to as "Facility"), to the extent that the Resident seeks to hold the Facility liable for any act or omission of the Medical Director in his/her capacity as Medical Director, as well as any claims against employees, agents, officers or directors of the parent corporations, affiliates or subsidiaries of the Facility. .... The Resident understands that (A) he/she has the right to seek legal counsel concerning this Agreement, (B) the execution of this Agreement is not a precondition to admission, [2] expedited admission or the furnishing of medical services to the Resident by the Facility, and (C) this ADR Agreement may be revoked by 2 The beginning arbitration clause also noted, "THIS AGREEMENT IS OPTIONAL FOR RESIDENTS AND FACILITY. ADMISSION TO THE FACILITY IS NOT CONDITIONAL UPON A RESIDENT'S WILLINGNESS TO ENTER INTO THIS AGREEMENT." A-1859-25 4 providing notice to the Facility from the Resident within thirty (30) days of signature. If not revoked within thirty (30) days, this Agreement shall remain in effect for all care and services rendered at the Facility, even if such care and services are rendered following the Resident's discharge and readmission to the Facility. (D) Nothing in this Agreement shall prevent Resident or any other person from reporting alleged violations of law or any other Resident grievance to the appropriate administrative, regulatory or law enforcement agency. [(Emphasis in original).] Harasym only signed the document once, and the nursing home used that signature in multiple places throughout the contract. Plaintiffs never sought to revoke the arbitration agreement. In accordance with the arbitration agreement, plaintiffs sent defendants a demand for arbitration in February 2023 following decedent's death. Defendants failed to respond, and there is no indication plaintiffs further pursued the arbitration. Plaintiffs subsequently filed a complaint in June 2024 alleging medical negligence, wrongful death, and violations of the Nursing Home Responsibilities and Rights of Residents Act, N.J.S.A. 30:13-1 to -19. Defendants answered the complaint and asserted the matter was subject to a binding arbitration agreement in its affirmative defenses. The trial court ordered the parties to attend mediation, and defendants moved to remove the A-1859-25 5 case from mediation. Following a Ferreira conference,3 the trial court issued a case management order. Thereafter, the parties exchanged interrogatories and medical records. Defendants also deposed Harasym. No dispositive motions were filed during the discovery period. A few months into discovery, plaintiffs moved to compel production of Cambridge's policies and procedures. Defendants cross-moved for a protective order regarding these documents, which the trial court granted. In September 2025, almost fifteen months after plaintiffs filed the complaint, defendants moved to compel arbitration. Plaintiffs opposed the motion, principally arguing defendants waived their right to arbitration by participating in litigation for over a year, and the court should not consider whether plaintiffs were prejudiced by the motion. Defendants argued the arbitration agreement was still valid, and the court should consider prejudice. Defense counsel advised the court he was unaware of the arbitration clause in this specific contract until late July 2025, and they filed the motion as soon as they became aware of it. 3 See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 147, 154 (2003) (requiring trial courts to have "an accelerated case management conference . . . within ninety days of the service of an answer in all malpractice actions " to "ensure compliance" with the Affidavit of Merit statute). A-1859-25 6 The trial court granted defendants' motion to compel arbitration because: (1) the arbitration agreement was valid when it was signed; (2) the arbitration demand was filed nine months in advance of trial; (3) no dispositive motions were filed; (4) defendants did not strategically delay filing the motion to compel arbitration; (5) the parties only conducted paper discovery and deposed Harasym; (6) defendants raised the arbitration defense in their answer; and (7) plaintiffs would not suffer prejudice by proceeding to arbitration. Plaintiffs further argued there was no meeting of the minds when the original arbitration agreement was signed because the contract did not specify which rules the arbitrator would use. The trial court found no merit to this argument and entered an order granting defendants' motion to compel arbitration. Thereafter, plaintiffs moved for reconsideration. At oral argument, plaintiffs again argued defendants waived their right to arbitration. Further, plaintiffs advanced a new theory, stating the arbitration agreement was a contract of adhesion. On January 12, 2026, the trial court denied the motion for reconsideration. This appeal ensued. A-1859-25 7 II. Plaintiffs argue the trial court's denial of the motion for reconsideration should be reversed for three reasons: (1) defendants waived their right to arbitration by participating in the litigation process for over one year before moving to compel arbitration; (2) the agreement was an improper contract of adhesion; and (3) there was no meeting of the minds because there was no agreement as to the applicable arbitration rules. "Motions for reconsideration are governed by Rule 4:49-2, which provides . . . the decision to grant or deny a motion for reconsideration rests within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration should be used only where '1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious . . . the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Therefore, an appellate court will not disturb a trial court's decision on a motion for reconsideration unless there is a clear abuse of discretion. Ibid. Furthermore, "[t]he issue of whether a party waived its arbitration right A-1859-25 8 is a legal determination subject to de novo review." Cole v. Jersey City Med. Ctr., 215 N.J. 265, 275 (2013). "Nonetheless, the factual findings underlying the waiver determination are entitled to deference and are subject to review for clear error." Ibid. (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). A. Plaintiffs argue the trial court's denial of the motion for reconsideration should be reversed because defendants waived their right to arbitrate this matter. They assert, under the totality of the circumstances, defendants engaged in affirmative conduct waiving their right to arbitration. Plaintiffs also contend the United States Supreme Court's decision in Morgan v. Sundance "moots" the prejudice factor of the Cole test, which further strengthens their argument the Cole factors weigh in their favor. See 596 U.S. 411, 417 (2022). Moreover, even if prejudice was a factor, plaintiffs maintain they suffered prejudice because they had to wait years to adjudicate their claims and unnecessarily spent money litigating in court. "Waiver is defined as 'the voluntary and intentional relinquishment of a known right.'" Marmo & Sons Gen. Contracting, LLC v. Biagi Farms, LLC, 478 N.J. Super. 593, 607 (App. Div. 2024) (quoting Knorr v. Smeal, 178 N.J. A-1859-25 9 169, 177 (2003)). In Cole, our Supreme Court enumerated the following seven factors courts should consider, in the "totality of the circumstances," when assessing whether a party has waived its right to arbitration: (1) the delay in making the arbitration request; (2) the filing of any motions, particularly dispositive motions, and their outcomes; (3) whether the delay in seeking arbitration was part of the party's litigation strategy; (4) the extent of discovery conducted; (5) whether the party raised the arbitration issue in its pleadings, particularly as an affirmative defense, or provided other notification of its intent to seek arbitration; (6) the proximity of the date on which the party sought arbitration to the date of trial; and (7) the resulting prejudice suffered by the other party, if any. [215 N.J. at 280-81.] As Cole further instructed, "[n]o one factor is dispositive." Id. at 281. We conclude defendants did not knowingly relinquish their arbitration rights. In Cole, the Court found the defendant waived its right to arbitrate. First, the Court analyzed the defendant's timing in invoking the arbitration clause. Ibid. The defendant did not reference the arbitration clause in its affirmative defenses, and it was a party to the lawsuit for twenty-one months before invoking the right to arbitrate three days before trial. Ibid.; see also id. at 269. Second, the Court noted both parties filed dispositive motions, which weighs strongly in favor of the defendant waiving the right. Id. at 282. A-1859-25 10 Moreover, the Court opined the defendant exhibited its commitment to try the case because it submitted a list of proposed witnesses and exhibits for trial, motions in limine, and discovery readings. Id. at 281-82. Third, the Court recognized that although any party would be prejudiced by prolonged litigation, the decision to assert the right to arbitrate on the eve of trial "hindered no one but [the plaintiff], who faced further delay and cost to resolve her case." Id. at 283. For these reasons, the Court held the defendant waived its right to arbitration. Ibid. Here, plaintiffs insist the Cole factors weigh in favor of finding defendants' waiving their right to arbitration, but their argument is unavailing. The first Cole factor is whether a party delayed making the arbitration request. Id. at 280. This factor indeed weighs in favor of plaintiffs because defendants did not move to compel arbitration until nearly fifteen months after the complaint was filed. The time lapse is significant, but ultimately, this factor alone is not dispositive to our analysis. Second, the court must consider whether the parties filed any motions, particularly dispositive motions. Id. at 280-81. Defendants did not file any dispositive motions, but they moved to remove the case from mandatory mediation and for a protective order regarding certain policies and procedures. A-1859-25 11 Although defendants' motion practice evidences some active participation in the litigation process, the Cole Court emphasized the filing of dispositive motions was the significant consideration for the second factor because it demonstrates a party's submission to the authority of a court to resolve a dispute. See id. at 282. Notably, all claims remain against defendants. Because no dispositive motions were filed, the second factor weighs in favor of defendants. Third, the court must contemplate whether the delay in seeking arbitration was a function of the party's litigation strategy. Id. at 281. There is no evidence in the record to suggest defendants purposely delayed litigation as part of some nefarious scheme. Rather, there appears to have been a delay in defendants' recognizing the existence of the arbitration clause. We are mindful plaintiffs sent a letter to demand arbitration in February 2023, which should have put defendants on notice of this defense. However, even given this fact, and although the better practice would have been for defendants to have more timely invoked the clause, the record still does not indicate defendants strategically delayed litigation. Thus, the third factor weighs in favor of defendants. A-1859-25 12 Fourth, the court must evaluate the extent of discovery conducted. Id. at 281. Relatively limited discovery was conducted. Paper discovery was exchanged, including requests for medical authorizations, and defendants took Harasym's deposition. No expert discovery was conducted, and plaintiffs had not taken any depositions. In contrast, in Cole, twelve depositions were taken, defendant filed its Rule 4:25-7 pre-trial information exchange, including its witness list and exhibits, in limine motions it intended to file, and proposed voir dire and jury charges. Id. at 272. This matter had not proceeded nearly as far. Accordingly, the fourth factor weighs in defendants' favor. The fifth factor asks whether the party raised arbitration in its pleadings, particularly as an affirmative defense. Id. at 281. Defendants included arbitration as an affirmative defense in their answer, which, again, weighs in defendants' favor. Sixth, the court must assess the proximity of the date on which the party sought arbitration to the date of trial. Ibid. Here, trial was set for June 22, 2026—nine months after defendants moved to compel arbitration. This is significant because the Court in Cole emphasized the problematic nature of the defendant's motion to compel arbitration three days before trial, as both parties expended significant resources by that point. Id. at 281-82. With a trial date A-1859-25 13 nine months out, defendants' motion to compel arbitration here is far afield from the eve of trial maneuver in Cole. Thus, this factor also weighs in defendants' favor. Seventh, the court must consider the resulting prejudice suffered by the non-moving party, if any. Although plaintiffs had to expend certain funds litigating in court, there was little demonstrable prejudice caused by the transfer of this case to arbitration. Unlike Cole, defendants did not use the discovery process to obtain substantial information against plaintiffs or engage in dispositive motion practice. Moreover, the parties likely would have engaged in similar paper discovery had they proceeded to arbitration earlier. Thus, the seventh factor weighs in defendants' favor. We are also unpersuaded by plaintiffs' argument the prejudice factor in Cole is "now moot" after Morgan. In Morgan, the Court reversed a decision, holding a defendant did not waive their right to arbitration under the Federal Arbitration Act because the Eighth Circuit Court of Appeals incorrectly required the party alleging waiver to show resulting prejudice. See Morgan, 596 U.S. at 417. We held in Marmo that Morgan and Cole can coexist. Marmo, 478 N.J. Super. at 609. We noted, "we construe Morgan to disallow consideration of prejudice only if that is used by a court as a necessary element A-1859-25 14 for waiver in the arbitration context." Id. at 607. Cole does not require a finding of prejudice, as it is only one of seven factors a court may consider when deciding whether a party waived its right to arbitration. Id. at 609. We observed, "Cole's inclusion of prejudice within its multifactor test as a non- dispositive and non-essential consideration does not unduly tilt the waiver analysis for or against arbitration. It is simply something the court should consider within the overall mix of factors. We do not believe that such an approach violates Morgan." Ibid. We ultimately rejected the "contention that Morgan requires the elimination of prejudice from Cole's multifactor test." Ibid. Thus, the prejudice prong, as originally stated in Cole, remains applicable to the present action. Having completed the foregoing de novo analysis, we conclude defendants did not waive their right to arbitration under the totality of the circumstances. We are mindful we found waivers in Spaeth v. Srinivasan, 403 N.J. Super. 508 (App. Div. 2008), and in Marmo—both involving about six- month intervals—but those cases both involved other strong grounds supportive of waiver not present here. We accordingly affirm the trial court's order compelling arbitration. A-1859-25 15 B. Plaintiffs contend the contract drafted by defendants is a contract of adhesion. They claim defendants chose which contract terms to follow and disregarded others. Specifically, the contract required mediation, and defendants moved to remove the case from mediation. Also, plaintiffs sent a demand for arbitration in February 2023, in accordance with the contract, and defendants ignored it. Plaintiffs argue this shows defendants only followed the terms they wished. Plaintiffs did not raise the contract of adhesion argument before the trial court in their initial motion to compel arbitration. It was only raised at argument on the reconsideration motion. New theories of liability or defense do not form the proper basis for motions for reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996) (concluding plaintiff improperly offered new theory of liability during motion for reconsideration); Lahue v. Pio Costa, 263 N.J. Super. 575, 598 (App. Div. 1993) (concluding defendant's attempt to raise new defense during motion for reconsideration was untimely). Likewise, it is axiomatic we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a A-1859-25 16 presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest. '" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)); see also J.K. v. N.J. State Parole Bd., 247 N.J. 120, 138 n.6 (2021). We do not address plaintiffs' contract of adhesion argument because it neither implicates the trial court's jurisdiction nor concerns a matter of great public interest. C. Plaintiffs claim there was no meeting of the minds when the arbitration agreement was signed because the agreement did not specify which rules applied in arbitration. The trial court determined the arbitrator would make that determination. New Jersey law follows a liberal arbitration enforcement policy. See Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020). Our Supreme Court has explained, while it may be useful for parties to determine what rules will apply during arbitration, if parties do not elect to do so, the arbitration agreement will still be enforceable. Id. at 140-41. The Court noted, "Parties who have expressed mutual assent to . . . arbitration . . . instead of a court proceeding may choose to defer the choice of an arbitrator to a later stage " at a A-1859-25 17 time "when they will be in a position to assess the scope and subject of the dispute, the complexity of the proposed arbitration, and considerations of timing and cost." Id. at 141. Since parties are not required to decide what rules an arbitrator will apply in their original agreement, an arbitration agreement cannot be invalidated because the parties omit a "designated arbitral institution." Id. at 140. The relevant inquiry is whether there was a meeting of the minds on the agreement to arbitrate. We conclude the trial court did not err in finding there was such an agreement. To the extent we have not specifically addressed any remaining arguments raised by plaintiffs, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-1859-25 18