RASHEED WEEKES et al. v. LAWRENCE C. SHEPPARD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6130-04T3

RASHEED WEEKES, Infant by his

Guardian ad Litem, Shakira

Metcalf, and Shakira Metcalf,

individually,

Plaintiff-Respondents,

v.

LAWRENCE C. SHEPPARD and HATTIE

SHEPPARD,

Defendants-Appellants.

_________________________________________________

 

Submitted March 7, 2006 - Decided March 22, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

L-9913-03.

Richard A. Greifinger, attorney for

appellants.

Respondents did not filed a brief.

PER CURIAM

Defendants Lawrence and Hattie Sheppard appeal from an order by the trial court denying their motion pursuant to R. 4:50-1 to vacate a default judgment in the amount of $750,000 that was entered against them on April 6, 2005 and in favor of their former tenants, plaintiffs Rasheed Weekes and his mother Shakira Metcalf, for injuries allegedly arising from Weekes' exposure to lead paint.

The Sheppards claim without opposition that service of the complaint upon them was ineffective, because it was not made upon a competent member of their household then residing therein, as specified by R. 4:4-4(a)(1). It was instead made upon the Sheppards' adult son, who was briefly visiting his parents during the Christmas holidays. The son did not live with them at the time, and has not for many years. The Sheppards also claim that the son did not inform them of suit.

Upon eventually learning of the action and of their potential liability, the Sheppards consulted a lawyer approximately one week before the default judgment was entered against them. Following a one-month investigation during which the recently-entered judgment was discovered to exist, counsel moved to vacate the judgment. The motion judge denied the application, finding lack of good cause or a defense to the claim.

We reverse, holding the default judgment to be void as the result of improper service, the motion to vacate the default judgment to have been timely filed, and a valid defense (assuming such to have been necessary) to have been offered as the result of the Sheppards' representations that they promptly cured any lead paint violations found by inspectors to exist on the premises. See Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 313 (App. Div. 1997) (recognizing that a void judgment should be set aside upon timely motion for such relief, and that when the judgment is void as the result of improper service, a demonstration of a valid defense is not required.) Plaintiffs do not object to the relief that the Sheppards seek.

 
Reversed.

(continued)

(continued)

3

A-6130-04T3

March 22, 2006