MICHAEL PIETRONICO v. YANNA SANCHEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2143-04T12143-04T1

MICHAEL PIETRONICO,

Plaintiff-Appellant,

v.

YANNA SANCHEZ,

Defendant-Respondent.

__________________________________

 

Submitted: September 27, 2005 - Decided:

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-4767-01.

Mark Mulick, attorney for appellant.

Virginia E. Hughes, attorney for respondent.

PER CURIAM

Plaintiff, Michael Pietronico, through counsel, filed a complaint on September 25, 2001 alleging that he was injured in a motor vehicle accident on March 5, 2001, caused by the negligence of defendant, Yanna Sanchez. The police report listed Sanchez's address as 2016 Davidson Avenue, Bronx, New York. On October 19, 2001, Hanan Hayon signed an affidavit of service stating that he served defendant by personal service hand-delivered to her on October 18, 2001 at the Davidson Avenue address. Relying upon this proof of service, plaintiff moved for entry of default, and then requested a proof hearing, which was conducted on January 11, 2002. On the same date, the judge entered a judgment in plaintiff's favor against defendant in the amount of $33,600.

One year later, on January 11, 2003, plaintiff's attorney contacted defendant's insurance carrier for the first time, seeking to collect on the judgment. The insurance carrier assigned counsel who communicated with plaintiff's attorney. Plaintiff's attorney informed defendant's attorney that he had intentionally waited one year before attempting to execute on the judgment in order to preclude vacation of the default judgment on those grounds under Rule 4:50-1 which have a one year time limitation prescribed by Rule 4:50-2.

After some efforts, defense counsel located defendant, who was no longer living at the Davidson Avenue address. Defendant signed a certification stating that after the accident she moved to Orlando, Florida, after which in October 2001 she returned to a different address in Bronx, New York, namely 779 Crotona Park North, Apartment 5, where she lived until approximately June of 2002, when she moved to 111 Bruce Avenue, Yonkers, New York. Defendant further certified that at no time did she ever receive the complaint or any subsequent notices about plaintiff's case against her.

Relying upon defendant's certification, defense counsel moved to vacate the default judgment because of lack of service of process. Plaintiff opposed the motion. After hearing oral argument on June 6, 2003, Judge DeLuccia entered an order on that date vacating the default judgment and he set a discovery schedule. After a series of missteps by plaintiff in failing to comply with discovery obligations, an order was entered on November 5, 2004 dismissing the complaint pursuant to Rule 4:23-5(a)(2). On December 20, 2004, an order was entered denying plaintiff's motion for reconsideration.

Plaintiff then filed his notice of appeal, stating that he was appealing the orders of November 4 [sic], 2004 and December 20, 2004. However, when plaintiff filed his appellate brief he presented no legal arguments with respect to those orders, and we deem the appeal with respect to those orders abandoned. Plaintiff's appellate brief, on its cover, states that the appeal is from the order of June 6, 2003, vacating the default judgment. The only argument presented pertains to that order. We deem the filing of the appellate brief in that manner to constitute an amendment to the notice of appeal and we address that issue on its merits. Based upon our review of the record and our consideration of the controlling legal principles, we are satisfied that Judge DeLuccia did not err in ordering vacation of the default judgment. Accordingly, we affirm.

The proof of service was deficient on its face. No affidavit was filed, as required by Rule 4:4-4(b)(1)(A), attesting that despite a diligent effort and inquiry personal service could not be achieved in New Jersey. Further, the affidavit of service executed by Hayon on October 19, 2001 did not state that Hayon was a public official authorized to serve civil process in New York or that he was qualified to practice law in New Jersey or New York or that he was specifically appointed by the court for that purpose, as required by the provisions of Rule 4:4-4(b)(1)(A), which were in effect in 2001. In response to the motion to vacate the default judgment, plaintiff's counsel filed a new undated certification by Hayon, in which he stated he was a professional process server working for a firm in Union, New Jersey, that he was licensed to serve process through the State of New York, that his license #1072143 was issued in February 2001 from the State of New York, but he did not have a copy of his license and was presently awaiting a duplicate copy from the State of New York. Even if true, however, this submission does not cure the facial defect in the original proof of service.

Rule 4:50-1(d) authorizes relief from a final judgment where it is void. Of course, where there is lack of service of process, particularly where the defendant had no actual notice of the pendency of the action, and where the judgment is promptly challenged upon learning of its existence, the judgment is void. Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200 (App. Div. 1990); see also Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306 (App. Div. 1997) (requiring timely challenge); Rosa v. Araujo, 260 N.J. Super. 458 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993) (holding judgment voidable rather than void if the defendant had actual receipt of process and did not challenge the defect in service of process); Garza v. Paone, 44 N.J. Super. 553 (App. Div. 1957) (requiring challenge within a reasonable time of entry of judgment).

A return of service is part of the court record and raises a presumption of validity of service. Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981). The presumption can be rebutted by clear and convincing evidence that the return of service is false. Id. at 180-81. Judge DeLuccia applied this standard and concluded that the evidence was compelling and this was "a clear case that the defendant was not served." Therefore, he found that the presumption of validity was overcome by clear and convincing evidence. The record established that defendant did not have actual notice and that, upon learning of the judgment, she and her insurance carrier promptly challenged the validity of the judgment. Under these circumstances, we are satisfied there was no error and no mistaken exercise of discretion in the judge's order vacating the default judgment.

 
Affirmed.

(continued)

(continued)

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A-2143-04T1

October 11, 2005