DOUGLAS R. FEIGEL v. DTD ENTERPRISES, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1284-07T21284-07T2

DOUGLAS R. FEIGEL,

Plaintiff-Respondent,

v.

DTD ENTERPRISES, INC.,

Defendant-Appellant.

___________________________________________________

 

Argued May 5, 2008 - Decided

Before Judges Stern and Kestin.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Somerset County, Docket No. DC-4549-05.

Vano Haroutunian argued the cause for appellant

(Ballon Stoll Bader & Nadler, attorneys;

Will Levins and Yasmin T. Gonzalez, of counsel

and on the brief).

Alan R. Adler argued the cause for respondent.

PER CURIAM

Defendant appeals from an order of October 8, 2007, which denied its motion to enforce a settlement and denied its application to vacate a judgment in the amount of $9,999.95 entered on August 4, 2006. It was undisputed that defendant did not make the required $1,500 payment under a settlement reached at a mandatory Small Claims Mediation conducted on the scheduled day of trial, June 21, 2006. The payment was to be postmarked on or before July 21, 2006, and its non-payment resulted in entry of judgment for the total amount claimed. Defendant had no record that the check was mailed or processed, but in July 2007 filed the application to vacate the judgment and enforce the June 21, 2006 settlement.

Defendant asserts "excusable neglect" justifying relief under R. 4:50-1, and that it satisfied the "threshold requirements" of that Rule. Defendant argues the failure to make the payment was not "material." In other words, it claims that the fact it paid nothing was not a significant part of the settlement. It also says it made the payment although there is no record of mailing or receipt, and then "whether through its negligence in processing and/or mailing the check, it was not delivered to plaintiff." According to defendant, there would be no prejudice to plaintiff because he would still receive the settlement proceeds, and defendant sought relief within a year of its mistake or neglect by failing to make the payment. According to defendant's California-based house counsel, Michelle Gold:

A check for $1500.00 was sent for processing and mailing to plaintiff immediately after signing the Settlement Agreement. Unfortunately, due to oversight in either processing and/or mailing of the check, DTD does not have a record that the check was processed and/or mailed to plaintiff.

Plaintiff asserts that defendant was notified of the non-payment and entry of judgment and that defendant did nothing for almost a year. He also claims no support for the assertion a check was drawn but "inadvertently . . . not sent out."

In his October 8, 2007 order, the motion judge, Anthony F. Picheca, Jr., stated:

Here, the defendant clearly failed to fulfill the obligation of payment as negotiated in this settlement. The plaintiff had waived off many claims set forth in its Answer for the bargained Agreement. The defendant fails to set forth in this motion any real reasons for non-compliance that would amount to excusable neglect to weigh against the enforcement of the bargained Settlement Agreement. Judgment was entered herein on August 4, 2006[,] and only at this late date when a Court officer has an Execution to enforce the judgment[,] is this matter acted upon by defendant. The plaintiff has fulfilled [his] obligations under the Settlement Agreement mediated during the Court process, the defendant clearly has not. The threshold requirements under court rule 4:50-1 have not been met under the proofs provided with this motion.

The judge has also submitted a supplementary statement of reasons pursuant to R. 2:5-1(b). We affirm the judgment substantially for the reasons given by Judge Picheca in his order of October 8, 2007, as stated, corrected, and clarified in his supplementary letter opinion of November 30, 2007.

Affirmed.

 

A "first amended notice of motion" was filed in September 2007. It relied on the certification of Michelle Gold, defendant's California in-house counsel. The settlement provided for payment of "the full amount requested in the complaint" in the event of "failure to comply with the terms of [the settlement] agreement." The complaint sought $9,995.95 from this defendant and treble damages under the Consumer Fraud Act as well as other damages. There is no cross-appeal from the judgment entered.

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A-1284-07T2

July 15, 2008