NORTH JERSEY CENTER FOR SURGERY v. JOSE ALFARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3852-08T33852-08T3

NORTH JERSEY CENTER FOR SURGERY,

Plaintiff-Respondent,

v.

JOSE ALFARO,

Defendant-Appellant.

________________________________

 

Argued March 23, 2010 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DC-15823-2007.

Richard H. Kotkin argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from the February 2, 2009 order of the trial court denying his motion to vacate a default judgment entered against him on November 21, 2007 in the amount of $5,324.80, and the March 20, 2009 order denying his motion for reconsideration. We reverse.

Defendant was injured in an automobile accident and was treated by plaintiff, North Jersey Center for Surgery, for personal injuries suffered as a result. He filed a personal injury lawsuit, which ultimately settled.

Defendant, whose primary language is Spanish, believed that all of his medical expenses had been paid either through his own automobile insurance policy or from the proceeds of the settlement. Plaintiff's bill was not paid, however, and plaintiff obtained a default judgment against defendant for the full amount of the bill.

When defendant received by mail documents connected to plaintiff's effort to collect on its default judgment, defendant retained a new attorney and had his trial attorney transfer his file; plaintiff's bill was not in defendant's file when his new attorney received it. It is unclear whether defendant's trial attorney ever received plaintiff's bill.

Defendant filed a motion to vacate default on November 21, 2008. He certified that he did not "remember being served with a [s]ummons and [c]omplaint in this matter." He did recall "receiving papers requesting that a [d]efault be entered against [him], although [he] did not understand what that meant, as Spanish is [his] primary language. . . . [He] never understood that a [d]efault [j]udgment was entered against [him] by . . . [p]laintiff . . . ." He remembered "next" receiving an "[i]nformation [s]ubpoena which apparently meant that a [d]efault [j]udgment had been entered against [him]." Defendant took that document to his trial attorney who then "gave" it to defendant's new attorney.

Defendant's new attorney also filed a certification in support of the motion, stating that "defendant . . . has a meritorious defense to the plaintiff's claims, particularly to the amount of damages claimed. The judgment amount is in excess of the fee schedule amount for these services. ([T]he actual amount allowed for the services in the plaintiff's bill is only $1,376.05)."

In his order denying defendant's motion, the trial judge noted: "Application is denied. Defendant not recalling whether he was served or whether a family member may have been served does not constitute excusable neglect. Defendant also admits receiving a notice that he was in default."

In defendant's motion for reconsideration, counsel submitted a certification asserting that denial of the motion was in error because "there was excusable neglect in not filing an [a]nswer and . . . . [d]efendant has a meritorious defense . . . ." Counsel reiterated that "Spanish is [defendant's] primary language[,]" and although defendant acknowledged receiving notice that entry of default had been requested, he did not "know what it meant" and "never understood that a [d]efault [j]udgment was entered against him . . . ."

The judge heard argument on defendant's motion for reconsideration on March 20, 2009; no appearance was made on behalf of plaintiff at that hearing. In denying the motion, the judge stated:

I believe [defendant] probably has a meritorious defense with the amount in question . . . . [F]or the reason I denied it initially is the same reason I'm going to deny your application for reconsideration, you haven't shown me where I erred when I held that the movant has not sustained his burden of showing that there's excusable neglect.

Now, was there justice? The bottom line is, . . . hopefully everybody gets an opportunity to defend themselves. If they don't avail themselves of that opportunity, then we can't . . . force people to answer complaints and come and defend themselves.

Defendant now appeals, claiming that he demonstrated sufficient excusable neglect and a meritorious defense, thereby warranting relief. We concur.

Rule 4:43-3 provides that "if a judgment by default has been entered, [the court] may . . . set it aside in accordance with [R]ule 4:50." Rule 4:50-1 provides that a court "may relieve a party . . . from a final judgment or order" on the basis of "mistake, inadvertence, surprise, or excusable neglect; . . . or . . . any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(a), (f). A motion seeking relief on the basis of excusable neglect must be brought "not more than one year after the judgment . . . was entered or taken." R. 4:50-2. A motion brought for "any other reason justifying relief" must be "made within a reasonable time . . . ." Ibid.

Here, defendant filed his motion to vacate default exactly one year from the date on which default judgment had been entered. Therefore we deem his motion to have been timely under Rule 4:50-1(a).

Under the circumstances present here, we are constrained to reverse the orders of the trial court, and remand this matter with instructions to vacate the default judgment entered against defendant, restore this matter to the plenary calendar and permit defendant to file an answer.

A court should view "the opening of default judgments . . . with great liberality," and should tolerate "every reasonable ground for indulgence . . . to the end that a just result is reached." The decision whether to grant such a motion is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion. All doubts, however, should be resolved in favor of the party seeking relief.

[Mancini v. EDS, 132 N.J. 330, 334 (1993) (citations omitted).]

We are satisfied that, in light of (1) the confusion as to whether defendant's trial attorney had received plaintiff's bill; (2) defendant's claim that he did not recall receiving plaintiff's summons and complaint, and (3) his belief that plaintiff's bill had been paid upon settlement of his personal injury matter, defendant's neglect was excusable. "Carelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Id. at 335. Here, defendant asserted that he did not receive service of plaintiff's summons and complaint. When he received what appeared to be a discovery subpoena in connection with the default judgment, he sought the help of counsel. In short, defendant's "neglect . . . was neither willful nor calculated." Id. at 336.

Moreover, as the trial judge noted, defendant asserted "a meritorious defense with the amount in question . . . ."

Reversed and remanded for further proceedings in conformity with this opinion.

 

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A-3852-08T3

August 12, 2010