MANUEL ESCOBAR v. JANUSZ J. MOLENDA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0201-11T3

MANUEL ESCOBAR,

Plaintiff-Respondent,

v.

JANUSZ J. MOLENDA,

Defendant-Appellant.

_______________________________

August 24, 2012

Submitted May 23, 2012 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3482-06.

Zirulnik, Sherlock & DeMille, attorneys for appellant (Gerard P. Hermann, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant, Janusz J. Molenda, appeals from the trial court order denying his motion for relief from judgment pursuant Rule 4:50-1. Plaintiff, Manuel Escobar, filed a complaint against defendant on August 10, 2006, seeking to recover damages he sustained as a result of an August 12, 2004 motor vehicle accident. Defendant was served with a copy of the summons and complaint on June 29, 2007. Defendant failed to answer or otherwise plead to the complaint, resulting in the entry of default against him on September 20, 2007. The court conducted a proof hearing on April 25, 2008. At its conclusion, the court awarded plaintiff $65,000 as damages against defendant for the injuries he sustained in the accident. The court memorialized the award in an order dated May 27, 2008.

On July 18, 2011, defendant filed a motion to vacate the default judgment. In support of the motion, defendant's attorney submitted a certification in which counsel stated that defendant's delay was "due to the failure of Mr. Molenda to forward the suit papers to his insurance agent or to the Selective Insurance Company." Counsel also stated that none of the parties would be prejudiced by the setting aside of the default judgment and that defendant "has a meritorious defense because the plaintiff has the verbal tort threshold."

Judge Brogan denied defendant's motion, finding there was no basis upon which to vacate the three-year-old judgment under Rule 4:50-1(d), (e) or (f). The judge also stated that "[d]efendant's failure to provide his carrier with the summons and complaint, while unfortunate, does not provide a basis for relief." The present appeal followed.

On appeal, defendant contends the court erred in denying the motion because such motions should be granted with liberality when excusable neglect has been proven. We are satisfied defendant failed to meet the requirements for relief from judgment.

Applications to reopen default judgments "should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). A defendant seeking to reopen a default judgment must generally show excusable neglect in failing to answer the complaint or otherwise plead and, additionally, the existence of a meritorious defense. Id. at 318. Excusable neglect has been defined as carelessness, "attributable to an honest mistake that is compatible with due diligence and reasonable prudence." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335 (1993). The circumstances which constitute excusable neglect are fact sensitive. See Bergen Eastern Corp. v. Koss, 178 N.J. Super. 42, 46 (App. Div.), appeal dismissed, 88 N.J. 499 (1981).

The certification in support of defendant's motion was submitted by defendant's attorney, who was retained by defendant's insurer to defend plaintiff's claims against its insured. Counsel's certification fails to comply with Rule 1:6-6, which provides that "[i]f a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify[.]" Because counsel's certification is not based upon personal knowledge, it is not competent evidence upon which to determine whether there was excusable neglect in failing to respond to the summons and complaint in a timely manner. It is undisputed that defendant was properly served with the summons and complaint and was, therefore, aware of the litigation, and there is no specific explanation surrounding defendant's inaction after being timely served.

The certification states the meritorious defense to the action is the fact that plaintiff is subject to the verbal threshold, N.J.S.A. 39:6A-8. The fact that a party is subject to the verbal threshold does not automatically mean a party is not entitled to recover damages arising out of vehicular negligence. Rather, the verbal threshold permits the recovery of damages to those who fall within the prescribed categories. Ibid.; see also DiProspero v. Penn, 183 N.J. 477, 488 (2005). Thus, a claim that plaintiff is subject to the verbal threshold, without more, is not a proffer of a meritorious defense.

Whether to set aside a default judgment is committed to the sound discretion of the court and will not be disturbed on appeal absent a showing of an abuse of discretion. Mancini, supra, 132 N.J. at 334. Based upon the record before Judge Brogan, we discern no abuse of discretion in denying relief to defendant.

Affirmed.