DONALD BUSH v. GEORGE TATOSIAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5796-10T3

DONALD BUSH d/b/a HBC,

Plaintiff-Respondent,

v.

GEORGE TATOSIAN, FRANK MORETTI

& PATRICIA MORETTI,

Defendants-Appellants.

___________________________________

August 27, 2012

Submitted August 22, 2012 - Decided

Before Judges Simonelli and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1655-10.

Walter P. Laufenberg, attorney for appellants.

Wiley, Malehorn Sirota & Raynes, attorneys for respondent (James M. McCreedy, of counsel and on the brief).

PER CURIAM

Defendants Frank and Patricia Moretti, and the Estate of George Tatosian, appeal from the Law Division's April 29, 2011 order denying their motion to set aside a default judgment, as well as the June 14 order denying reconsideration. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

During 2007 and 2008, Donald Bush performed construction work at a residential property in Whippany owned by the Morettis. According to Patricia,1 she and her husband Frank owned the property, but did not live there. They lived in New York City. The Whippany residence was occupied by Patricia's brothers George and Jack Tatosian. Patricia described George as an electrical contractor and Jack as "mentally challenged."

Although Bush claimed that he entered into a contract with the Morettis, Patricia claimed that neither she nor her husband had done so. However, Patricia conceded that she visited her brothers at their home and was aware that work was being done. She asserts that she assumed George had authorized the work.

According to the complaint, construction liens were filed against the property and served on the record owners, the Morettis, in June 2008 and January 2010. Bush certified that the Morettis had refinanced the Whippany property to pay for the work. He also certified that he had notified Patricia that George was not well and was not making the payments for the work. George died intestate in October 2009.

In May 2010, Bush filed a complaint seeking payment for the work he had performed. After he was unable to serve the defendants at the Whippany property, he arranged for substituted service in New York. Bush subsequently requested the court to enter default. A final default judgment for $31,995, the amount due under the construction liens, was entered in February 2011.

On February 25, defendants filed a motion to vacate the default judgment. The motion was supported by a certification and brief containing generalized factual allegations and legal argument, seeking to set aside the default judgment on the grounds of excusable neglect. See R. 4:50-1(a). Patricia argued that she and her husband had not entered into any contract with Bush. She further argued that her delay in responding to the litigation and default judgment was the result of excusable neglect, specifically her having been overwhelmed by George's death, taking care of numerous claims against him, and taking care of Jack. In opposition, Bush filed a certification detailing Patricia's approval of and involvement in the building project, including an assertion that Patricia had authorized George to act as her agent.

Following oral argument on April 29, the motion judge denied the motion, finding that Patricia's conclusory statements did not "support either the existence of excusable neglect or a meritorious defense." A subsequent motion for reconsideration was denied. This appeal followed.

II.

On appeal, the defendants argue that the motion judge abused his discretion in denying their motion to vacate the judgment. We disagree.

Rule 4:50-1 provides, in pertinent part, as follows:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order.

"A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "[T]he opening of 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). Further, any doubts should be decided in favor of the party seeking to vacate the judgment. Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993).

Nonetheless, a trial judge's decision to grant or deny an application to vacate a default judgment is accorded substantial deference and will not be disturbed absent a "clear abuse of discretion." Hous. Auth. of Morristown, supra, 135 N.J. at 283; see also Mancini, supra, 132 N.J. at 334.

A party seeking relief from a default judgment pursuant to Rule 4:50-1(a) must demonstrate both excusable neglect and a meritorious defense. Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005) (citing Marder, supra, 84 N.J. Super. at 318).

George died in October 2009. The complaint was served in July 2010, more than eight months later, at the Morettis' residence in New York. They do not deny service. The Morettis took no action until February 2011, when they moved to set the default judgment aside. While we do not doubt that Patricia was upset about George's death and the need to care for her surviving brother, we find no abuse of the motion judge's discretion in his determination that, under the circumstances, the Morettis had not demonstrated excusable neglect with respect to their failure to answer the complaint and defend the litigation.

With respect to a meritorious defense, we note that the Morettis are the owners of the residence at which the work was performed. Patricia admits that she was aware of the work as it was in progress. Her conclusory assertion that she and her husband did not benefit from the work does not amount to a meritorious defense. That the work may not have been completed, apparently because Bush was not being paid, does not justify failure to pay for work that was performed. We see no basis for a finding that enforcement of the judgment would result in an injustice.

Our review of the record convinces us that Judge Robert J. Brennan did not abuse his discretion in denying defendants' motions to vacate and for reconsideration.

Affirmed.

1 Because the Morettis and the Tatosians share the same last names, we refer to them by their first names for the sake of convenience.