M.M.U. OF NEW YORK INC. v. GARY GRIESER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3950-10T2

M.M.U. OF NEW YORK, INC., as

Assignee of 200 OCEAN BOULEVARD

ASSOCIATES, L.P.,

Plaintiff-Respondent,

v.

GARY GRIESER,

Defendant-Appellant.

_________________________________________________

February 6, 2012

Argued January 24, 2012 - Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-8130-91.

E. Carlton Kromer argued the cause for appellant (Jules L. Rossi, attorney; Mr. Rossi, on the brief).

Bonnie M. Wright argued the cause for respondents M.M.U. of New York, Inc., as Assignee of 200 Ocean Boulevard Associates, L.P., M.M.U. of New York, Ltd. and Warren Siderman (Hanlon Niemann, attorneys; Ms. Wright, on the brief).

PER CURIAM

In this appeal, defendant Gary Grieser argues that the trial judge erred in denying his motion to amend a judgment, which was entered in his favor and against M.M.U. of New York, Inc., so as to include Warren Siderman, a nonparty, as a judgment debtor. We agree with Judge Patricia Del Bueno Cleary's determination that Siderman's responsibility for the payment of the judgment may not be established through a motion to amend the judgment and affirm.

This suit has had a long history described in earlier proceedings in this court. See M.M.U. of New York, Inc. v. Grieser, 415 N.J. Super. 37, 40-43 (App. Div. 2010). In a nutshell, in 1990, plaintiff 200 Ocean Boulevard Associates obtained a default judgment against defendant Gary Grieser in the amount of $1,630,481.69. Id. at 41. In 2000, that judgment was assigned to M.M.U. of New York Inc., and was satisfied through a sheriff's sale of real property owned by Grieser. Ibid.

Starting in 2007, Grieser attempted to seek relief on the claim that the assignee collected more on the judgment than it was entitled. Id. at 42. Another judge denied relief, finding Grieser's conduct "demonstrated 'unclean hands' that precluded him from challenging the default judgment." Ibid. We reversed the denial of Grieser's motion by way of an unpublished opinion. M.M.U. of N.Y., Inc. v. Grieser, No. A-5904-06 (App. Div. May 21, 2008). Following remand, the judge at the time determined that M.M.U. of New York, Inc. had collected more than it should have and entered, on July 18, 2008, a judgment in favor of Grieser in the amount of $746,309.40. M.M.U. of New York, Inc. appealed, and we affirmed. M.M.U. of New York, Inc., supra, 415 N.J. Super. at 50.

Thereafter, on December 14, 2010, Grieser obtained entry of an order which required Siderman to show cause why the judgment entered in Grieser's favor should not be amended to include Siderman as a judgment debtor; by way of that application, Grieser also requested proof from Siderman as to "the formation and continued existence" of M.M.U. of New York, Inc. In support, Grieser provided the certification of his attorney, who asserted that a corporate search of New York and New Jersey records "failed to show a corporate registration" of M.M.U. of New York, Inc. Based on the alleged absence of proof of M.M.U. of New York, Inc.'s actual existence, Grieser argued that Siderman should be responsible for whatever was done in the name of M.M.U. of New York, Inc., and, consequently, he sought an amendment of the judgment to name Siderman as a judgment debtor. Siderman responded that the corporation obligated on the judgment was misnamed as M.M.U. of New York, Inc., that M.M.U. of New York, Ltd. was the correct name and a properly registered corporation, and that to obtain relief against him, Grieser would have to commence a new suit based on a theory that the corporate veil should be pierced. Judge Cleary agreed that the process adopted by Grieser for seeking relief against Siderman was improper and denied his application by order entered on March 4, 2011. We agree and affirm.

A party's ability to obtain an amendment of a judgment is limited. Once finality is achieved, a judgment creditor may obtain an amendment only if there has been a misnomer or clerical error. See R. 1:13-1. In this case, for example, there is no reason to believe that Grieser would not be entitled to an amendment to name M.M.U. of New York, Ltd. as a judgment debtor; respondents' counsel conceded as much at oral argument. Grieser, however, appears to eschew that relief. Instead, the theme of Grieser's appeal is his claimed entitlement to an amendment naming Siderman as a judgment debtor.

Not surprisingly, Grieser was able to marshal few legal authorities that he claims support his theory that the trial court could simply enter judgment against Siderman without the trappings of due process, without a hearing, and without proof that Siderman is the alter ego of either M.M.U. of New York, Inc., or M.M.U. of New York, Ltd., or both. He relies on Rule 4:50, which is plainly inapplicable because it offers a process by which a party may seek relief from an order or judgment and cannot be viewed as a basis for granting the judgment creditor additional relief.1

Grieser also mistakenly relies on Bussell v. DeWalt Products Corp., 259 N.J. Super. 499 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993), in which -- after a trial, entry of final judgment, and an appeal affirming the judgment entered against DeWalt Products Corp. (DeWalt)2 -- post-judgment proceedings led to the entry of judgment against Black & Decker (U.S.), Inc., which had not previously been a party to the suit, as DeWalt's successor. Id. at 503-04. Although Bussell uniquely stands for the proposition that post-judgment proceedings to add a new judgment debtor are permissible -- an approach the validity of which we need not further consider -- it still does not support Grieser's argument. Instead, that case's history reveals that discovery, id. at 505, and a full exploration of Black & Decker's liability as a successor to DeWalt, id. at 506-08, were permitted prior to the amendment of the judgment. Here, Grieser sought entry of a judgment against a new party by way of a process that would bypass: the filing of pleadings addressing that issue; service of process; discovery; and a trial at which Grieser would have the burden of introducing evidence and proving Siderman's liability for this debt.

The process urged by Grieser was flawed and, certainly, at best too fragile to support the relief he seeks. To obtain relief from Siderman, Grieser was required to commence a new action alleging the factual basis for his claim that the judgment debtor is Siderman's alter ego and that Siderman is not entitled to the protections afforded by the corporate veil.

T

1The Rule declares only that "[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order . . . ." R. 4:50-1 (emphasis added).

2See Bussell v. DeWalt Products Corp., 105 N.J. 223 (1987).