STARK & STARK, A Professional Corporation v. J. DANIEL KANOFSKY, M.D., MPH et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1604-05T2

STARK & STARK, A Professional

Corporation,

Plaintiff-Respondent,

v.

J. DANIEL KANOFSKY, M.D.,

MPH and ALVIN S. KANOFSKY, PH.D.,

Defendants-Appellants.

_______________________________

 

Argued October 30, 2006 - Decided November 17, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-2806-03.

Alvin S. Kanofsky and Jacob Daniel Knaofsky, appellants, argued the cause pro se.

Amy Beth Dambeck argued the cause for respondents (Stark & Stark, attorneys; John E. MacDonald, of counsel; Ms. Dambeck, on the brief).

PER CURIAM

This is a dispute over legal fees between the law firm of Stark & Stark and its former clients, defendants J. Daniel Kanofsky, M.D. and Alvin Kanofsky, Ph.D. Defendants appeal from a trial court order dated October 12, 2005, denying their motion for reconsideration of the trial judge's prior order denying their motion to vacate a judgment in favor of plaintiff, Stark & Stark.

I

These are the most pertinent facts. Plaintiff represented defendants in a federal lawsuit. The parties had a dispute over plaintiff's legal fees and over its representation. After notifying defendants on September 22, 2003, of their right to demand fee arbitration pursuant to Rule 1:20A-6, plaintiff filed suit to collect its fees on October 29, 2003. On October 15, 2003, defendants filed an ethics grievance against the law firm, but they did not file a request for fee arbitration.

Defendants defaulted in the lawsuit, and plaintiff obtained a final judgment by default on September 24, 2004. In their brief, defendants claim that J. Daniel Kanofsky was not properly served with the complaint at his home in Pennsylvania, although they do not deny that they were both aware of the lawsuit and that he received a copy of the complaint. They contend that they "did not make an appearance because they believed it violated the confidentiality requirements of the ethics grievance procedures."

After executing on a Fidelity account in the name of J.D. Kanofsky, plaintiff obtained an order to turn over funds on August 19, 2005. Thereafter, on or about August 22, 2005, defendants filed a motion to vacate the default judgment. In their motion, defendants claimed, among other things, that J. Daniel Kanofsky was not properly served with the complaint and that he did not live at 229 East Church Street, Bethlehem, Pennsylvania, the address at which plaintiff had served him by certified mail. However, defendants provided no certifications or other legally competent evidence to support their contentions. Moreover, the record contains a certified mail receipt signed by Alvin Kanofsky, accepting the complaint for his brother at the 229 East Church Street address. Judge Innes denied the motion to vacate default judgment on September 9, 2005.

Defendants then filed a motion for reconsideration of the September 9, 2005 order, alleging that plaintiff followed "numerous improper procedures" in obtaining and collecting the judgment. They contended that "[t]hese have been described in detail in our previously filed brief and motion."

Judge Innes issued an oral opinion on October 12, 2005, stating his reasons for denying the reconsideration motion. After noting that he had considered defendants' prior motion to vacate the default judgment as well as the current motion, Judge Innes concluded that defendants had failed to establish good cause for the reconsideration motion and had "not provided any new information which could not have been provided previously, nor have they pointed the Court to any matter that the Court may have overlooked." R. 4:49-2.

II

Since defendants have only appealed from the October 12, 2005 order, the only issue properly before us is whether Judge Innes erred in denying their motion for reconsideration. Having reviewed the record, we conclude that Judge Innes correctly denied the reconsideration motion, and that defendants' appellate arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). Moreover, even if we were to consider defendant's underlying motion to vacate the default judgment, we would conclude that the motion did not establish lack of proper service, excusable neglect or any other grounds for relief under R. 4:50-1.

Affirmed.

 

The District Ethics Committee dismissed the ethics grievance on May 12, 2004, on the grounds that "the conduct complained of, even if proved, would not constitute ethical misconduct or incapacity."

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A-1604-05T2

 

November 17, 2006