LOUISE V. BARON v. RICK RICCIARDELLI, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3784-04T23784-04T2

LOUISE V. BARON and

JEFFREY I. BARON,

Plaintiffs-Respondents,

v.

RICK RICCIARDELLI,

Defendant-Appellant,

and

SPECIAL K ENTERPRISES

CORPORATION,

Defendant.

_______________________________________

 

Submitted: November 28, 2005 - Decided April 26, 2006

Before Judges A. A. Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1678-03.

Ginsberg & O'Connor, attorneys for appellant (Adam Raditz, on the brief).

Baron & Riefberg, attorneys for respondents (Barbara E. Riefberg, of counsel and on the brief).

PER CURIAM

Louise V. Baron and Jeffrey I. Baron (plaintiffs), sued Rick Ricciardelli and Special K Enterprise Corporation (defendants), alleging that Louise sustained personal injuries while on their premises (a liquor store), on April 13, 2003. According to Louise, she fell through a hole in the floor of the store. The fall resulted in serious injuries. Plaintiffs filed the complaint on June 9, 2003. Service was accomplished on Special K on June 23, 2003 and on Ricciardelli on August 16, 2003. Defendants did not answer. Therefore, plaintiffs moved for the entry of default followed by a request for a proof hearing pursuant to R. 4:43-2(b). Both defendants were notified of the proof hearing by regular and certified mail. They did not appear.

The proof hearing was held on December 19, 2003. Shortly thereafter, on January 13, 2004, the judge entered a $495,000 judgment against both defendants, "jointly and severally." Through the process of execution, plaintiffs received $516.56 and later $1,137.62 of defendants' assets in partial satisfaction of the judgment. On December 17, 2004, plaintiffs recovered $1,279.43 from a sheriff's sale.

On January 14, 2005, defendants moved to vacate the final judgment by default, contending that there was a meritorious defense to plaintiffs' claims and that there were reasons tending to excuse defendants' neglect in contesting this matter. The meritorious defense is that Louise fell in an area which was clearly marked to be off limits to business invitees. Defendants submitted photographs depicting a half door marked storage and bearing a sign with the words "Restricted Area. Authorized Personnel Only." The photographs also depicted the inside of the door showing a metal latch holding the door shut.

In support of the motion, Ricciardelli alleged that his failure to answer the complaint in a timely fashion was occasioned by being overwhelmed by personal problems, including a recent divorce and the need to care for his son, who had been contemporaneously diagnosed with a mental illness. Ricciardelli alleged that these personal crises justified a basis for setting aside the judgment.

Plaintiffs opposed the motion. Plaintiffs argued that the motion was time barred pursuant to R. 4:50-2. Plaintiffs also argued that defendants had not made a showing of excusable neglect or a meritorious defense. Plaintiffs did not allege prejudice due to the passage of time.

The judge denied the motion and found that the motion was time barred. The judge also found that defendants had not made a showing of excusable neglect or a meritorious defense.

On appeal, defendants contend that, "the trial court erred in taking a restrictive view of defendants' application to vacate judgment." R. 4:50-1. We agree.

First, we note that the motion to vacate the judgment was not time barred. It was made on the last day of the period set by R. 4:50-2, which requires that a motion pursuant to R. 4:50-1(a) shall be made "not more than one year after the judgment order or proceeding was entered or taken." Pursuant to the Computation of Time rule, January 14, 2005 is exactly one year after the judgment was entered. The rule provides:

Computation of Time

In computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday.

[R. 1:3-1.]

Second, defendants have made a showing of a meritorious defense, i.e., Louise, a business invitee, exceeded the scope of her invitation. See generally Hopkins v. Fox Lazo Realtors, 132 N.J. 426, 433 (1993). We also conclude that defendants' lack of a timely response to the complaint constituted "excusable neglect" within the meaning of R. 4:50-1(a).

We must be mindful to view with indulgence defendants' failure to respond to the complaint. Marder v. Realty Construction Co., 84 N.J. Super. 313, 318-19 (App. Div.), aff'd, 43 N.J. 508 (1964). Rule 4:50-1(a) contemplates that any doubt in evaluating a defaulting party's conduct should be resolved in favor of that party. Mancini v. EDs, 132 N.J. 330, 334 (1993). Lastly, we note that plaintiffs have made no showing that they will sustain prejudice if the default judgment is vacated.

In light of the excusable neglect presented by defendants and the strong public policy in favor of deciding controversies on their merits rather than on procedural deficiencies, Mancini, supra, 132 N.J. at 334, we reverse the February 18, 2005 order denying the motion to vacate the judgment by default. The matter is remanded to the Law Division, Burlington County for trial.

 
Reversed and remanded.

(continued)

(continued)

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A-3784-04T2

April 26, 2006