CHONG WON CHOI v. MARK AN and RICHARD AN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3375-03T53375-03T5

CHONG WON CHOI,

Plaintiff-Appellant,

v.

MARK AN and RICHARD AN,

Defendants-Respondents.

_________________________________

FMI INSURANCE CO.,

Plaintiff-Respondent,

v.

CHONG WON CHOI, MARK AN

and RICHARD AN,

Defendants.

__________________________________

CHONG WON CHOI,

Plaintiff,

v.

CHO YANG CORP., YANG SOON CHO

and HEE YEONG YANG,

Defendants.

___________________________________

 
Submitted September 13, 2005 - Decided:

Before Judges Skillman and Kimmelman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BER-L-10673-01, 8290-02, 4021-02 (consolidated).

Michael S. Kimm, attorney for appellant.

Respondents did not file briefs.

PER CURIAM

Plaintiff, Chong Wong Choi, appeals from a judgment entered January 12, 2004 dismissing his case for damages against Ice Cream Club, a co-defendant which has defaulted and has not appeared. Ice Cream Club is a corporation which operated a tavern. Plaintiff was assaulted by defendants Mark An and Richard An in a municipal parking lot adjoining the tavern and sustained serious injuries. Mark An and Richard An, who were partners of the Ice Cream Club, settled the case against them for damages during the trial. Plaintiff proceeded against Ice Cream Club which had defaulted. The action against the Ice Cream Club was premised on the proposition that excessive amounts of alcohol were served to the defendant Mark An.

At the continued trial, plaintiff sought to rely upon the deposition testimony of Mark An who admitted he had consumed some beer but denied being intoxicated. The pertinent trial testimony was that five persons shared one pitcher of beer. There was no testimony or even deposition testimony as to how many beers Mark An consumed or that he was even intoxicated.

The default hearing against Ice Cream Club allowed the trial judge to require proof of liabliity. Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988). ". . . [P]roof of the allegations of the complaint will not be entertained" Id. at. 21.

When a trial court exercises its discretion to require proof of liability as a prerequisite to entering judgment against a defendant who has defaulted, what is required . . . is that plaintiff adduce proofs which show that the facts alleged 'might have been the case,' or, to say the same thing in different words, that they could conceivably be proved at trial, and that, if proved, they would establish the legally required elements of plaintiff's claim for relief.

[Id. at 23.]

 
Plaintiff could not adduce such proofs. Under the circumstances, plaintiff was not entitled to rely upon the Final Judgment by Default. R. 4:43-2(b). The trial judge did not abuse his discretion under Heimbach by requiring a proof hearing as to liability.

Affirmed.

(continued)

(continued)

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A-3375-03T5

September 30, 2005