INFINITI BUSINESS PRODUCTS CORP. v. FRANCIS S. CUTRUZZULA, PA, and FRANCIS S. CUTRUZZULA, ESQ.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6469-05T26469-05T2

INFINITI BUSINESS PRODUCTS CORP.,

Plaintiff-Respondent,

v.

FRANCIS S. CUTRUZZULA, PA,

and FRANCIS S. CUTRUZZULA, ESQ.,

Defendants-Appellants,

and

CUTRUZZULA & WEIS, and

CRAIG WEIS, ESQ.,

Defendants.

__________________________

 

Submitted April 18, 2007 - Decided June 5, 2007

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. BER-L-7862-03.

Francis S. Cutruzzula, attorney for

appellants Francis S. Cutruzzula, PA and

Francis S. Cutruzzula, Esq.

Edwards & Caldwell, attorneys for

respondent (Charles Lee, on the brief).

PER CURIAM

Defendants Francis S. Cutruzzula, PA and Francis S. Cutruzzula, Esq. appeal from the order of the Law Division denying an application under Rule 4:50-1 to vacate a default judgment entered against them. Plaintiff Infiniti Business Products, Corp. filed a book account suit against defendants on October 29, 2003, seeking $17,000 in damages, representing the value of business cards and stationery. On April 29, 2005, the trial judge suppressed defendants' answer and dismissed a counterclaim without prejudice as a sanction for failing to abide by court orders enforcing plaintiff's discovery motion.

On July 8, 2005, the court continued the dismissal of the answer and counterclaim based on alleged ongoing noncompliance with court-ordered discovery. Default judgment was entered against defendants on September 28, 2005. Nine months after the imposition of this sanction, defendants moved to vacate the default judgment, arguing that they were not served with notice of the proof hearing.

In opposition to the motion, plaintiff proffered a copy of the September 16, 2005 application to enter default judgment, as evidence that it had properly served defendants via regular and certified mail. Plaintiff also submitted proof that defendants were served with a copy of the final judgment. After reviewing this evidence, the court found that defendants had been placed on notice of plaintiff's application for the entry of default. The court found that if defendants failed to open the certified mail notice, they did so at their own peril.

Based on this record, we discern no legal basis to disturb the findings made by the motion judge. Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). At the time the trial court entered the default judgment, no notice to the defaulting defendants was required, because no proof hearing was necessary; plaintiff was seeking a readily ascertainable amount of liquidated damages. R. 4:43-2(a), (b). The genesis of the default judgment was the initial suppression of defendants' pleadings, which was ordered by the trial court as a sanction for defendants' failure to abide by their discovery obligations. R. 4:23-5.

Affirmed.

 

Rule 4:43-2(b) was amended effective September 2006 to require notice to the defaulting party, even in cases where a proof hearing is not required. Here, no notice was required because the trial court entered default judgment prior to the effective date of the amendment.

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A-6469-05T2

June 5, 2007