ELDA CABRERA v. GINO FORMENTIN & FORMENTIN CONSTRUCTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5309-06T35309-06T3

ELDA CABRERA,

Plaintiff-Respondent,

v.

GINO FORMENTIN &

FORMENTIN CONSTRUCTION,

Defendants-Appellants.

____________________________

 

Submitted March 31, 2008 - Decided

Before Judges A. A. Rodr guez and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, DC-6812-06.

Paul Fernandez, attorney for appellants.

Paul F. O'Reilly, attorney for respondent.

PER CURIAM

Defendant Gino Formentin appeals from the denial of his motion to vacate a default judgment of the Special Civil Part. We reverse.

Plaintiff Elda Cabrera filed a pro se complaint seeking recovery of $7,800 she allegedly paid in cash to defendant in October 2004 to put a new roof on her home. She claims that a year after defendant and his helpers performed the work, she found leaks in the second and third floors. She said defendant did not respond when she contacted him to fix the problem. In March 2006, she contracted to sell her house, but the contract was voided after the home inspection revealed that there were three layers on the roof in violation of the building code. After she received an estimate of $9,200 to remove the three layers of roofing and put on a new roof, she filed her complaint against defendant.

The record contains a return of service by the Passaic County Sheriff's Office indicating service was effected on May 3, 2006, but the form does not reveal on whom the summons was served. No answer was filed to the complaint. Defendant later certified that he had separated from his wife and that she was not forwarding his mail to the new address.

Because no answer was filed, a proof hearing was scheduled for September 1, 2006. Defendant appeared, and the plaintiff's complaint was dismissed because she did not appear. Plaintiff then successfully moved for reinstatement of the complaint, but defendant contends he had no notice of plaintiff's motion and no knowledge that it was reinstated. Since no answer was filed, default was again entered, and a proof hearing was scheduled for November 30, 2006. On that date defendant appeared with his attorney while plaintiff was pro se. After mediation was unsuccessful, the proof hearing was rescheduled.

Defendant then moved to vacate the entry of the default. His application was denied on February 2, 2007. The proof hearing proceeded on February 23, 2007. Defendant claims he appeared but was not informed the matter was reassigned to a different judge. In defendant's absence default judgment was entered in favor of plaintiff for $8,305. When defendant discovered that judgment was entered, he moved for reconsideration of his prior motion to vacate. He alleged excusable neglect due to the lack of notice, and he asserted as a meritorious defense that he never entered into a contract with plaintiff to do the work, never performed the work, and never received $7,800. Defendant's motion to vacate the default judgment was heard by the same judge who denied his previous motion. Reconsideration was denied for the following reason:

I'm not going to take any action, Mr. Fernandez [defendant's attorney]. I'm not going to overturn the ruling. I think we have gone too far with this. I appreciate your arguments and I understand where you're coming from, but this matter has just dragged on too long.

Entry of a judgment by default may be set aside in accordance with R. 4:50. Defendant argues he was entitled to relief from judgment under R. 4:50-1(a) by reason of excusable neglect, which is a fact-sensitive determination defined as the result of "honest mistake, accident or any cause not incompatible with proper diligence. . . ." In re T, 95 N.J. Super. 228, 235 (App. Div. 1967). In cases where there is some doubt whether the defendant was served with process there is a greater likelihood that relief from a default will be granted. Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92 (App. Div. 1998) As we stated in Davis, "[e]ven though the neglect was inexcusable, the absence of evidence establishing willful disregard of the court's process is an important consideration." Ibid.

There is no evidence that the defendant was evading process, and he certified that he appeared in the matter on hearing dates. Moreover, he does set forth a meritorious defense, which if accepted would result in a dismissal of plaintiff's complaint. Therefore, we conclude that the trial judge erred in denying defendant's motion to vacate default. Defendant is entitled to his day in court and a trial on the merits.

Reversed.

(continued)

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A-5309-06T3

September 19, 2008