SHAZIA NIZAM v. AZHAR SHAHZAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4191-04T14191-04T1

SHAZIA NIZAM,

Plaintiff-Appellant,

v.

AZHAR SHAHZAD,

Defendant-Respondent.

___________________________________

 

Submitted December 21, 2005 - Decided May 1, 2006

Before Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Chancery Division, Hudson County,

C-104-04.

Mark Elliot Gold, attorney for appellant.

Greenberg, Walden & Grossman, attorneys

for respondent (Marvin R. Walden, Jr.,

on the brief).

PER CURIAM

Plaintiff, Shazia Nizam, appeals an order denying her motion to vacate a default judgment entered against her and in favor of her brother, defendant Azhar Shahzad. We now reverse and remand for trial on plaintiff's complaint and defendant's counterclaim.

Plaintiff originally filed a complaint in the Special Civil Part, seeking to evict defendant for non-payment of rent. The matter was transferred to the Chancery Division, and defendant filed a counterclaim seeking title to the property and an order of ejectment against plaintiff. The default judgment that plaintiff sought to vacate awarded title to the property to defendant and barred plaintiff's continued occupancy. Plaintiff has not resided on the property since that order.

We need not detail the contentions of the parties with respect to their family's history concerning the property in issue, where both parties lived for many years, and its financing. Suffice it to say that they have entirely inconsistent positions respecting (1) oral agreements and understandings between them and among other members of their family; (2) the legal and equitable status of certain written documents, including a deed to the property; and (3) inferences available from the conduct of the parties over their many years of residence on the property.

It is apparent from the record, and undisputed, that prior to the entry of default against plaintiff on defendant's counterclaim, plaintiff was represented by an attorney who failed to advise her of the default or its consequences, failed to act on her behalf to respond to the counterclaim, failed to act to vacate the default, failed to advise her of the proof hearing or her opportunity to participate, and also failed to inform her of the entry of judgment. Under these circumstances, plaintiff's motion to vacate the default judgment fell well within Rule 4:50-1(f) by virtue of those circumstances, and should have been granted.

In support of her motion for reconsideration, plaintiff submitted a certification of her prior attorney, who represented to the court that he had been retained to represent plaintiff only on her complaint in a landlord-tenant matter seeking to evict defendant. The attorney claimed that he had not been retained to represent plaintiff in defending the counterclaim for title. The record before us (and apparently before the motion judge) does not support the claim of limited representation, a circumstance which supported plaintiff's entitlement to relief under sub-section (f). Sub-section (f) has been described as "the elusive 'catchall' category" for relief from a judgment or order. See Pressler, Current N.J. Court Rules, comment 1.7 on R. 4:50-1 (2006). "[A]n applicant's right to relief depends on the totality of the circumstances and . . . the correctness or error of the original judgment is ordinarily an irrelevant consideration." Ibid. See, e.g., Community Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 236-38 (1998); Mancini v. EDS, 132 N.J. 330 (1993).

Our decision is guided not by any prediction of the merits of the dispute between the parties, but only by an overwhelming sense that plaintiff has not had a fair opportunity to present her side of the dispute, that her previous attorney's conduct deprived her of that opportunity, and that since defendant has remained and will (pending final disposition of the case) remain in possession of the residential real estate in dispute, he will suffer no undue prejudice by reopening the matter.

Reversed and remanded for such further proceedings, including discovery, as may be appropriate.

 

Plaintiff's motion for reconsideration also was denied, and plaintiff's notice of motion includes that order as well.

(continued)

(continued)

4

A-4191-04T1

May 1, 2006