ROBERT FARRELL v. OREN SENDOWSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2347-07T32347-07T3

ROBERT FARRELL,

Plaintiff-Respondent,

v.

OREN SENDOWSKI,

Defendant-Appellant.

______________________________________________________________

 

Submitted September 16, 2008 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Monmouth

County, Docket No. DC-012404-06.

Levin, Shea & Pfeffer, attorneys for appellant

(Adam Pfeffer, on the brief).

Collins, Vella and Casello, LLC, attorneys for

respondent (Gregory W. Vella, of counsel;

Mr. Vella and Matthew K. Kalwinsky, on the

brief).

PER CURIAM

Defendant Oren Sendowski appeals from an order dated October 15, 2007, denying his motion to vacate a default judgment. On appeal, defendant argues that he was never served with the complaint, and he never received notice that the suit was filed or pending against him. In addition, defendant contends he "has a meritorious defense in that the parties had agreed to a resolution." After considering these contentions in light of the record and the applicable law, we affirm.

The parties are homeowners and neighbors with a common property line. Plaintiff's property is located at 32 Shrewsbury Avenue in the Borough of Highlands, in Monmouth County, and defendant is the owner of property known as 30 Shrewsbury Avenue.

This case commenced with the filing of plaintiff's complaint in September 2006. In his complaint, plaintiff alleged that defendant, "damaged and removed" a stockade fence and a chain link fence, which were on plaintiff's property. Plaintiff demanded damages for the cost to repair and replace the stockade fence and the chain link fence, together with lawful interest, attorney's fees, and costs of suit.

Pursuant to Rule 6:2-3(d)(1), the clerk of the Special Civil Part mailed the summons and complaint to defendant at 30 Shrewsbury Avenue, Highlands, New Jersey 07732, by certified mail, return receipt requested, and by ordinary mail. The certified mail was returned to the court with the postal service notation: "Unclaimed." The ordinary mail was not returned to the court.

When defendant failed to answer or respond to plaintiff's complaint, the matter was scheduled for a proof hearing in accordance with Rule 6:6-3(c). The hearing took place on March 20, 2007. After considering plaintiff's testimony and his evidence, the court entered a default judgment in plaintiff's favor for $8388.80.

In August 2007, plaintiff filed a notice of motion for an order enforcing litigant's rights, and defendant filed a motion to vacate default judgment. In a certification in support of his motion, defendant admitted he mistakenly removed plaintiff's chain link fence, and he stated he "agreed to replace the fence." But he also stated that he was never served with the summons and complaint. Defendant certified as follows:

1. I am the defendant in the above-captioned matter and make this Certification in support of my Motion to Vacate the Judgment entered against me.

2. There exists excusable neglect in not answering the original Complaint as I was not served with any copy of the Complaint. I did not receive notice that the Complaint was filed nor did I receive any notice that the action was subsequently reduced to a Judgment.

3. I purchased the property in question on October 28, 2005. Attached is a copy of the survey of the property. I acted within what I believed were the parameters of the survey. Plaintiff contacted me and advised that the chain link fence was, in fact, on plaintiff's property and not on my property. I agreed to replace the fence upon completion of renovating my home. I am currently awaiting approvals to obtain the building permits.

4. Based upon the foregoing, it is respectfully requested that my Cross Motion to Vacate the Judgment entered against me be granted and that this matter be set down for Trial.

In his proposed answer and in a letter brief to the trial court, defendant asserted that plaintiff's claims against him were barred by the doctrine of accord and satisfaction "based upon the agreement between the parties." On the other hand, plaintiff argued that defendant's motion should be denied because defendant had been properly served, and he did not have a meritorious defense. According to plaintiff, there was no accord and satisfaction because defendant admitted he had neither paid for nor replaced the chain link fence, which he admittedly removed from plaintiff's property. See Loizeaux Builders Supply Co. v. Donald B. Ludwig Co., 144 N.J. Super. 556, 564-65 (Law Div. 1976) (noting that an accord and satisfaction requires payment by a debtor in satisfaction of a disputed debt, and acceptance of the payment in satisfaction of the debt by the creditor).

On October 15, 2006, the trial court denied defendant's motion to vacate the default judgment. In accordance with Rule 2:5-1(b), the court provided counsel and this court with its findings of fact and conclusions of law in a letter dated January 28, 2008. The court found that service of process was effective under Rule 6:2-3(d)(4), and it also found that defendant failed to present a meritorious defense.

A trial court's decision to grant or deny an application to reopen a judgment will not be disturbed unless there is a clear abuse of discretion. Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994); Mancini v. EDS, 132 N.J. 330, 334 (1993). However, a judge should view such applications "with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." M & D Assocs. v. Mandara, 366 N.J. Super. 341, 350 (App. Div.), certif. denied, 180 N.J. 151 (2004) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Any doubts regarding the decision should be resolved in favor of the party seeking relief. Mancini, supra, 132 N.J. at 334.

The requirements for effective service of process in the Special Civil Part are set forth in Rule 6:2-3(d)(4), which provides as follows:

Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted -- Addressee Not Known," "No Such Number/Street," "Insufficient Address," "Not Deliverable as Addressed -- Unable to Forward," or the court has other reason to believe that service was not effected. However, if the certified mail is returned to the court marked "unclaimed" or "refused," service is effective provided that the ordinary mail has not been returned. Process served by mail may be addressed to a post office box. Service shall be effective when forwarded by the postal service to an address outside the county in which the action is instituted. Where process is addressed to the defendant at a place of business or employment, with postal instructions to deliver to addressee only, service will be deemed effective only if the signature on the return receipt appears to be that of the defendant to whom process was mailed.

[R. 6:2-3(d)(4).]

The trial court found that service of process was initiated by mail pursuant to the requirements of Rule 6:2-3(d) and that the certified mail was returned to the court marked "unclaimed," but service by ordinary mail had not been returned to the court. Accordingly, pursuant to the clear mandate of Rule 6:2-3(d)(4), the simultaneous mailings by the court clerk constituted effective service upon defendant. Moreover, defendant referred to his property at 30 Shrewsbury Avenue as his "home" in the certification he submitted to the court, and he never explained why his mail might not have been delivered to that address or why he may not have received mail sent to his home. Thus, there is no evidence in the record to support defendant's claim that he was never served.

The trial court concluded that defendant was properly served by mail, and it also found that defendant had failed to demonstrate a meritorious defense because there was no proof of accord and satisfaction. These determinations are amply supported by the record, and we find no abuse of discretion in the trial court's decision to deny defendant's motion to vacate default judgment.

 
Affirmed.

(continued)

(continued)

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A-2347-07T3

February 19, 2009