TELECENTER, INC v. STANLEY SIEBENBERG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2683-08T22683-08T2

TELECENTER, INC.,

Plaintiff-Respondent,

v.

STANLEY SIEBENBERG, THE PHONE CARD

COMPANY, THE GOLD CARD COMPANY,

Defendants,

and

KENNETH SIEBENBERG,

Defendant-Appellant.

___________________________________

 

Submitted October 15, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1803-02.

Maxwell X. Colby, attorney for appellant.

Vivino & Vivino, attorneys for respondent (Raymond S. Vivino, on the brief).

PER CURIAM

This matter arises out of a default judgment against defendant Kenneth Siebenberg. That judgment was entered on April 18, 2005. Although Siebenberg was aware of the judgment at the time it was entered, he did not file a motion seeking to vacate the judgment until May 8, 2008. That motion was denied by order dated July 15, 2008. Siebenberg filed a motion for reconsideration on August 4, 2008, but it was withdrawn. A second motion for reconsideration was filed on October 16, 2008, by which time the twenty-day period for filing such a motion pursuant to Rule 4:49-2 and the forty-five-day period for filing an appeal pursuant to Rule 2:4-1(a) had expired. The motion for reconsideration was denied by order dated December 9, 2008. Siebenberg appeals from that order.

We affirm the order on appeal essentially for the reasons stated by Judge Daniel M. Waldman in the statements of reasons that accompanied his orders dated July 15, 2008, and December 9, 2008. We add only the following.

As Judge Waldman correctly observed, Siebenberg waited three years before moving to vacate the default judgment. There is no question that he knew the judgment had been entered. There may have been a colorable defense and a miscommunication with the chambers of the judge who entered the default judgment as to whether there was to have been an adjournment of that motion to be heard with the cross-motion to vacate the default. However, Siebenberg offers absolutely no explanation for the fact that he did not pursue the issue for three years. We find no error in Judge Waldman's determination that Siebenberg waited too long to seek relief from the judgment. Furthermore, the motion for reconsideration did not provide any justification for that delay. Consequently, we find no error in Judge Waldman's denial of reconsideration.

With respect to the issue of payments made by co-defendants by way of restitution, we note that the judgment was entered against all of the defendants. Consequently, plaintiff is not entitled to collect more than the amount of the judgment, plus any applicable interest. In the event plaintiff attaches any assets belonging to Siebenberg, it would not be entitled to collect more than the remaining amount due under the judgment.

Affirmed.

 

(continued)

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A-2683-08T2

 

October 28, 2009