WESTCHESTER MEDICAL CENTER v. KARLA RAMOS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2268-17T1

WESTCHESTER MEDICAL
CENTER,

           Plaintiff-Respondent,

v.

KARLA RAMOS,

     Defendant-Appellant.
___________________________

                    Submitted December 11, 2018 – Decided December 28, 2018

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-7980-15.

                    Michael S. Kimm, attorney for appellant.

                    Michael J. Filippis, attorney for respondent.

PER CURIAM

           Defendant Karla Ramos appeals from a November 3, 2017 Law Division

order denying her motion to vacate the default judgment entered against her and
dismiss the complaint in this action to collect an unpaid medical bill owed to

plaintiff Westchester Medical Center, a hospital located in Valhalla, New York.

We reverse.

      Defendant underwent breast augmentation. When complications arose,

she underwent two removal procedures. The second procedure was performed

at Westchester Medical Center. Plaintiff billed $20,667.78 for the medical

services it rendered to defendant on December 28 to 29, 2012. On January 17,

2013, a New York outpatient surcharge of $1990.31 was assessed.

      At the time the medical services were rendered, defendant resided with

her mother in Englewood. In December 2013, defendant received an invoice

from plaintiff. The invoice listed the Englewood address. Defendant asserts

that upon receiving the invoice she advised plaintiff's billing office she resided

in North Carolina. A subsequent March 6, 2015 dunning letter was sent by

plaintiff's attorney to defendant at the Englewood address. It was not returned

as undeliverable by the postal service.

      On September 8, 2015, plaintiff filed suit against defendant in Bergen

County, claiming defendant owed $22,658.11 plus prejudgment interest and

costs. The summons and complaint were served on defendant's mother at the

Englewood address on October 14, 2015, by a sheriff's officer. Defendant did


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not file a responsive pleading. Plaintiff submitted a request to enter default to

the court but did not serve a copy of the default request to defendant. Default

was entered against defendant in November 2015.

        Plaintiff then applied for entry of default judgment on November 28,

2015.    A copy of the judgment application was sent to defendant at the

Englewood address. Defendant did not respond to the application. Accordingly,

default judgment was entered against defendant on December 2, 2015 for

$24,434.70, inclusive of costs. An information subpoena was sent to defendant

by plaintiff's attorney on January 25, 2017 to a Raleigh, North Carolina address.

A bank levy on defendant's Capital One Bank account resulted in plaintiff filing

a motion returnable on June 23, 2017, for a turnover order. Defendant was sent

a copy of the motion papers at the Raleigh, North Carolina address. Defendant

consulted with an attorney regarding the motion.       Counsel's request for a

postponement of the motion was denied and the motion was granted, resulting

in $4441.27 being withdrawn from defendant's checking account. In a written

statement of reasons, the motion judge stated:

                    Opposition to this motion was received by
             defendant, Karla Ramos, through counsel, Michael S.
             Kimm, of the Kimm Law Firm, by letter dated June 21,
             2017. The focus of this letter was to advise this court
             that the service of the summons and complaint on Ms.
             Ramos was improper and that it violated the defendant's

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basic due process. Mr. Kimm's letter indicated that,
"The Sheriff levied approximately $4,400 from the
Capital One Bank and the levy was the first notice
through which she became directly aware of the
lawsuit."

       Based upon the information provided to this court
by correspondence of Michael J. Filippis, counsel for
the plaintiff, dated June 22, 2017, this court learned that
the levy was not the first notice through which the
defendant became aware of this lawsuit. Specifically,
Mr. Filippis received a telephone call on November 2,
2015 which was shortly after he had been advised by
the Sheriff's office that the summons and complaint had
been served on the defendant from Martin S. Cedzidlo,
Esq. indicating that the defendant herself had recently
met with him in his office with a copy of the complaint,
that the defendant was experiencing difficult financial
circumstances, and there would be a settlement or
payment proposal. After not receiving any proposal
from Mr. Cedzidlo, Mr. Filippis faxed a letter to him on
November 18, 2015 requesting a response pertaining to
settlement.

       On March 29, 2017 and continuing to May 24,
2017, Mark S. Carter Esq. had been in contact with Mr.
[Filippis's] office in response to an information
subpoena served by his office on the defendant. In
letters to Mr. Carter on March 29 and April 19, 2017,
Mr. Filippis inquired as to how the defendant intended
to pay the judgment balance, but no payment proposal
was communicated to him, except in a telephone
conversation on May 24, 2017 when Mr. Carter called
and asked if the defendant would be able to have the
bank levy released in exchange for a credit card
payment in the amount of $5,000.00 to be used as a
credit towards the judgment balance because the levy
was causing the defendant issues with her bank

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            account. At no time did Mr. Carter state or argue that
            service of the summons or complaint was defective in
            any manner.

                  Based on the foregoing, this court finds there is
            no basis to defendant's claim that she was not served
            with the summons or complaint or has been denied due
            process.

      On October 16, 2017, defendant moved to vacate the default judgment and

restore the case to the active list. The motion was supported by defendant's

certification and a brief. Her moving papers certified she gave birth to her son

on June 27, 2017, and was unable to communicate with and assist her attorney

for several weeks "due to lack of sleep, erratic hours, and difficulty with focus."

At that time defendant did not have the case file other than the notice of levy.

      With regard to service of process, the moving papers certified defendant

had not resided with her mother at the Englewood address since August 2, 2013,

when she relocated to North Carolina. Annexed as exhibits to the motion were

defendant's North Carolina driver's license issued on June 29, 2015, an

apartment lease defendant entered into on August 2, 2013, to rent an apartment

in Raleigh, North Carolina, and defendant's Wake County voter registration card

issued on September 30, 2013. Defendant asserts that her mother told the

sheriff's officer that defendant had moved out two years earlier.



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      Defendant contends the service of process under Rule 4:4-4 was defective

because she was not a member of her mother's household at the time service was

made. She claims to have a meritorious defense to the action based on the

medical services being necessary due to a botched surgical procedure by her

plastic surgeon, resulting in the need to remove the breast implants he had

inserted.

      The record also demonstrates that defendant attempted to address the

lawsuit starting in 2015.   Attempts to retain counsel were difficult, some

miscommunication with counsel occurred, and a pro se motion was rejected due

to an insufficient filing fee and subsequent misplacement by the court of her

money order. Ultimately, her pro se motion was rejected because default had

already been entered against her.

      Defendant moved to vacate the default judgment on October 16, 2017.

The motion was denied on November 3, 2017. In a handwritten statement of

reasons, the motion judge stated: "The issue of due process and service was

decided by [a judge] by order of June 28, 2017. No motion for reconsideration

was timely filed and no appeal was taken." The June 28, 2017 order pertained

to plaintiff's turnover motion. This appeal followed.




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      Defendant argues the default judgment is void ab initio due to plaintiff's

failure to effectuate proper service. Defendant further argues that plaintiff's

failure to serve her with notice of entry of default violated due process and Rule

4:43-1. We agree.

      Defendant's moving papers demonstrated insufficient service of process.

The exhibits attached to her certification show that she had moved to North

Carolina in 2013 and no longer lived with her mother at the Englewood address

when service was made on October 14, 2015.

      "An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections." Mullane v.

Cent. Hanover Bank & Tr. Co.,  339 U.S. 306, 314 (1950). "Failure to give

notice violates 'the most rudimentary demands of due process of law.'" Peralta

v. Heights Med. Ctr., Inc.,  485 U.S. 80, 84 (1988) (quoting Armstrong v. Manzo,

 380 U.S. 545, 550 (1965)).

      Here, personal jurisdiction over the defendant was not achieved. "[O]nly

'wiping the slate clean'" will restore defendant "'to the position [she] would have

occupied had due process of law been accorded to [her] in the first place.'" Id.


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at 87 (quoting Armstrong,  380 U.S. at 552). The judgment was void ab initio.

The trial court erred by not vacating the default and judgment. We reverse and

remand to the trial court for entry of an order vacating the judgment and

dismissing the complaint without prejudice.

      Reversed and remanded.




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