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Damatta v. Marini

New Jersey Superior Court, Law Division


Decided: December 20, 1977.

JOAQUIN M. DAMATTA, PLAINTIFF,
v.
RAPHAEL J. MARINI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, DEFENDANT

DiBuono, A.j.s.c.

Dibuono

[155 NJSuper Page 32]

This action presents the novel question as to whether monies, paid in satisfaction of a judgment and deposited in court, should be returned to the Unsatisfied Claim and Judgment Fund by reason of the fact that plaintiff cannot be located.

Plaintiff asserted that he sustained personal injuries in a collision with an unknown motor vehicle on July 9, 1970. The complaint was dismissed with prejudice on January 20, 1975. The dismissal was based on the representation of counsel that the matter had been settled for $5,000, subject to the formalization and approval of the order directing payment out of the Unsatisfied Claim and Judgment Fund.

On April 13, 1976, upon notice of motion by plaintiff, this court signed an order approving the settlement of $5,000, to be paid out of the Unsatisfied Claim and Judgment Fund. Plaintiff's whereabouts being unknown, his funds were deposited with the Clerk of the Superior Court. This order, consented to as to form, recites:

Counsel for defendant further argued that "the information that this judgment is based on is, in fact, erroneous. It is our position that under [ R. ] 4:50-1(d) judgment is void." The attorney for plaintiff countered that "the time for appeal of this judgment is long since run, and the same firm that is now raising this issue had the opportunity to raise it then."

Counsel for the Fund asserted that the failure of plaintiff to submit a verified petition rendered the judgment defective under N.J.S.A. 39:6-82. In pertinent part, the statute recites that "[i]n any action brought against the director pursuant to an order by the court entered in accordance with the provisions of [ N.J.S.A. 39:6-78], the plaintiff may file a verified petition alleging that he has entered into an agreement with the board to settle all claims set forth in the complaint * * *". (Emphasis supplied).

There are no relevant reported decisions interpreting this section, so the general rules of statutory construction must be used. In Harvey v. Essex Cty. Bd. of Freeholders , 30 N.J. 381, 390 (1959), our Supreme Court held that the word "may" is ordinarily permissive or directory (whereas the words "must" and "shall" are mandatory). It seems clear that in N.J.S.A. 39:6-82, the word "may" is permissive and that the method of settlement by verified petition is only one of the available alternatives. In this case an

[155 NJSuper Page 34]

order entering judgment and directing the payment of the share of plaintiff into court was the result of a notice of motion by plaintiff. This procedure is a viable alternative under R. 4:42-1.

The question has arisen as to whether the money deposited into court should be returned to the State by escheat. N.J.S.A. 2A:37-13 provides in pertinent part:

In this action the 14-year period has not lapsed, and therefore this issue is premature.

This court has been requested by defendant to vacate the judgment because the judgment or order is void, R. 4:50-1(d). Defendant has not attacked the settlement, or the fact that a settlement was made. In fact, the Fund has presented no valid reason why the judgment should be vacated. Accordingly, the motion of the Unsatisfied Claim and Judgment Fund is denied.

19771220


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