CALO AGOSTINO, P.C. v. CHARLES CHREIN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4460-04T2004460-04T2

CALO AGOSTINO,

A Professional Corporation,

Plaintiff-Respondent,

v.

CHARLES CHREIN and 220 EAST

57th STREET ASSOCIATES,

Defendants-Appellants.

 

Submitted October 19, 2005 - Decided June 9, 2006

Before Judges Weissbard and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-13939-04.

Charles L. Chrein, appellant pro se.

Karen S. Edler, attorney for Respondent Calo Agostino, a Professional Corporation.

PER CURIAM

Plaintiff Calo Agostino, P.C. filed a complaint against defendant Charles Chrein and 220 East 57th Street Associates, a New York limited partnership, on December 1, 2004. On December 20, 2004, plaintiff filed an Affidavit of Service evidencing service of the summons and complaint upon an individual identifying himself as the managing agent at 200 East 61st Street, New York, and additionally filed an Affidavit of Service evidencing service upon defendant Charles Chrein personally at 1 Cardinal Drive in Hackettstown, New Jersey. On January 18, 2005, plaintiff filed a request to enter default which was entered on January 19, 2005. On January 31, 2005, plaintiff filed a Certification of Amount Due, Affidavit of Non-Military Service, and Final Judgment by Default and Taxing. On February 7, 2005, the clerk filed the final judgment by default and taxing against defendant and the same was docketed on February 22, 2005.

On March 4, 2005, defendant filed a motion to vacate the default judgment. On April 15, 2005, the motion was denied without prejudice by Judge Lawrence D. Smith in a letter opinion wherein he held that defendant had "not substantiated any of the pertinent criteria," that defendant was properly served by the constable in Hackettstown, New Jersey on December 14, 2004, and the business entity was similarly served in New York on December 10, 2004.

Defendant contends that the default judgment entered for failure to answer was excusable under the circumstances and should be reversed based on a demonstrated meritorious defense. Rule 4:50-1 provides that:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

Defendant relies on R. 4:50-1(d) and argues that service was improper and, therefore, the judgment is void. We disagree.

On December 8, 2004, plaintiff sent defendant a letter by regular and certified mail, return receipt requested, which included the Summons, Complaint with exhibits, Track Assignment Notice, Case Information Statement, and an Acknowledgment of Service. Defendant did not return the Acknowledgment of Service; however, in his Reply to Plaintiffs' Certification in Opposition to Defendants' Motion to Vacate Default Judgment, he admits to receiving the December 8, 2004 letter at both his New York and New Jersey addresses. The December 8th letter also provided that the cost of service could be avoided if the acknowledgments were received by plaintiff within thirty days of December 8, 2004. The motion judge expressly opined that plaintiff may not have waited for a reply to the December 8 letter before dispatching the constable because "plaintiff was having difficulty in serving Mr. Chrein and at that point did not ask the constable to defer efforts to effectuate service." We are convinced that defendant's contention that the December 8th letter in some way tends to disprove the presumption of service referred to in Judge Smith's decision is without merit.

Service must be made in accordance with the rules as to provide "'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004) (citing Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 97 (App. Div. 1998), certif. denied sub nom. Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J. 686 (1999)). In cases where a defendant asserts defects in service of process, due process may be implicated, and further showings, such as that of a meritorious defense, may not be required. Pressler, Current N.J. Court Rules, comment on R. 4:43-3 (2006) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988)).

"Generally, where a default judgment is taken in the face of defective personal service, the judgment is void. However, not every defect in the manner in which process is served renders the judgment upon which the action is brought void and unenforceable." Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993) (citation omitted). Where an individual's due process rights are not effected, "technical violations of the rule concerning service of process do not defeat the court's jurisdiction." Id. at 463. Defendant contends that there was a defect in the December 10, 2004 service by the constable at the New York address based on the person referred to as the managing agent not having the authority to accept service. We find this assertion specious based on defendant also having been personally served at the New Jersey address on December 14, 2004.

In Rosa, personal service was made at the defendant's home, however, the person receiving service was not a member of the defendant's "household" as required by R. 4:4(a)(1). The court in Rosa held that since the defendant conceded receiving the summons and complaint prior to entry of the default judgment, due process requirements were satisfied. Here, defendant also acknowledged receipt of the Summons and Complaint and, in his appellate brief, acknowledges that he is the sole owner of "220 (not a corporation)," thus, obviating the need for representation by an attorney.

We are satisfied that defendant's due process rights were not even minimally compromised regarding the manner in which service was perfected and, accordingly, affirm for the reasons set forth in Judge Smith's decision.

 

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A-4460-04T2

June 9, 2006