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Rosenberg v. Bunce

Decided: December 18, 1986.

ALAN ROSENBERG, PLAINTIFF-RESPONDENT,
v.
BILL BUNCE, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hunterdon County.

Michels and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Plaintiff and defendant owned adjoining properties on Lambert Lane in Lambertville. Plaintiff also owned two motor vehicles which he would regularly park on the street in front of the properties.

In a complaint filed on or about November 1, 1985 plaintiff alleged that while he resided on Lambert Lane, "he sustained damages to his motor vehicle for which he believes defendant to be responsible." A summons was issued on November 19, 1985.

Defendant's counsel attempted to file an answer on December 17, 1985. However, the clerk of the Special Civil Part advised him a few days later that the answer had not been accepted for filing because it was out of time and that a default had been entered on December 12, 1985.

On December 31, 1985, defendant filed a motion to vacate the default and to permit the filing of a late answer. This motion was granted by order signed February 5, 1986, which extended defendant's time to answer an additional ten days. However, a copy of the order was not sent to defendant's counsel and he did not become aware it had been entered until after expiration

of the ten days. Defendant then filed an answer on February 27, 1986.

Prior to the filing of defendant's answer, a second default was entered on February 18, 1986. On March 3, 1986, plaintiff filed his own affidavit, which he captioned "affidavit of proof of damages," and served the affidavit directly upon defendant. A default judgment in the amount of $2,643 based on this affidavit was entered on March 11, 1986 and an "execution against goods and chattels" was entered on March 17, 1986.

By letter to the court dated March 19, 1986, defendant's counsel acknowledged receipt of plaintiff's affidavit and objected to the entry of a default judgment (apparently unaware that one already had been entered). The letter stated in part:

The Plaintiff has seen fit to correspond directly with the Defendant rather than with my office, even with his request for the Entry of Judgment. I would also point out that this case is not a Liquidated Damaged Action and Plaintiff is not entitled to proceed to Proof by way of Affidavit.

I would request that this matter be placed on your trial calendar and the Affidavit of the Plaintiff and ...


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