ANDREW T. WEBER v. THOMAS BONFIGLIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5996-09T3

ANDREW T. WEBER,

Plaintiff-Respondent,

v,

THOMAS BONFIGLIO,

Defendant-Appellant.

_________________________________

Submitted May 3, 2011 Decided June 9, 2011

Before Judges Wefing and Baxter.

On appeal from Superior Court of New

Jersey, Law Division, Special Civil Part,

Monmouth County, Docket No. SC-4713-09.

Kevin Denaro (Bonfiglio and Asterita, LLC)

attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a trial court order denying his motion to set aside a default judgment entered against him. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The dispute between the parties revolves around a landlord-tenant relationship that had existed between the parties. Plaintiff sued for return of his security deposit. Defendant did not appear for trial. Following a hearing at which plaintiff testified and was cross-examined by the attorney for defendant who was present, the trial court entered a judgment against defendant for $3500.

Defendant appealed from that judgment, and we have affirmed it. Weber v. Bonfiglio, No. A-3410-09 (App. Div. Mar. 1, 2011). After defendant filed his notice of appeal in that matter, he filed a motion with the trial court to set aside the default that had been entered against him. In this appeal, defendant contends the trial court erroneously denied his motion.

We note first that defendant s motion was not properly before the trial court. By the time defendant had filed his motion, he had also filed a notice of appeal. Once defendant filed his notice of appeal, the trial court lost jurisdiction to entertain this motion. Fair Share Hous. Ctr., Inc. v. Twp. of Cherry Hill, 173 N.J.393, 401-02 n.8 (2002). Procedurally, defendant, having filed his notice of appeal, was required to file a motion with this court remanding the matter to the trial court for purposes of seeking to vacate the default.1

Further, defendant having elected to appeal the merits of the judgment, should not be permitted to pursue a second appeal involving that same judgment. If we were to allow such a technique, it would place unwarranted strain on judicial resources, to no purpose. Defendant was required to present all of his arguments involving this judgment in one appeal.

Finally, even if we were to disregard these procedural irregularities, there is no basis to conclude that the trial court abused its discretion when it denied defendant s motion. Nowosleska v. Steele, 400 N.J. Super. 297, 302 (App. Div. 2008) (recognizing that a trial court's order with respect to the vacation of a default judgment "will not be overturned on appeal absent a mistaken exercise of that discretion"). We have carefully reviewed the transcript of the proceedings and are satisfied that the trial court s order was appropriate.

1 We need not address the question whether the judgment entered against defendant was properly categorized as a default judgment. Defendant did file an answer, and an attorney appeared for him, cross-examining plaintiff and arguing the merits of the claim.