On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Pressler, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant Gerald Levinson (Levinson) appeals from the denial of his motion to set aside a default judgment against him pursuant to R. 4:50-1. We reverse.
On May 21, 1986, the Clerk of the Superior Court, pursuant to R. 4:43-2(a), entered a final judgment by default under Docket No. J-12035-86 in favor of plaintiff against Pocket Pick Products, Inc. (Pocket Pick) in the sum of $34,107.52 plus interest, or a total of $34,578.34. A writ of execution was issued on July 30, 1986, which was returned unsatisfied. Plaintiff's counsel prepared an instrument called a "Notice of Demand" dated August 1, 1986 which reads as follows:
DEMAND is hereby made by the undersigned, attorney for plaintiff, that you furnish to me a list of the names of the directors and officers of the defendant corporation, and a schedule of all its property including debts due or to become due to it insofar as you have knowledge thereof, evidence of such debts, statements of whether such debts are subject to liens, and if so who is the lienor and to what amount, and the date such lien was made.
DEMAND is further made of you that you deliver to me, with a transfer in writing, for the use of the plaintiff in the above entitled cause, all of the debts due and owing to the defendant corporation.
This demand is made in accordance with the Revised Statutes of New Jersey, 2A:17-74 and 2A:17-75.
TAKE NOTICE, that unless you comply with the above demands suit may be instituted against you personally for the amount due the plaintiff in the above entitled cause upon the execution, with costs.
The return filed by the deputy sheriff states that on September 20, 1986 he served a copy of this notice of demand on defendant, Pocket Pick, located at 27 Hardenberg Avenue, Demarest, New Jersey, by serving "John Doe," first and last name being fictitious.
On March 2, 1987, plaintiff obtained an order granting it leave to serve a notice of demand under N.J.S.A. 2A:17-74 and -75 upon Levinson, principal of Pocket Pick, pursuant to R. 4:4-4(e). In the interim, the sheriff had been attempting to levy on business assets of Pocket Pick on several occasions during the months of November and December 1986.
By letter of February 13, 1987, Warren B. Kahn, attorney for Pocket Pick, wrote to plaintiff's attorney advising that Pocket Pick was bankrupt with no remaining assets and had completely ceased operations. He requested that any further correspondence or further pleadings be sent to him as registered agent for the corporation. This was followed by another letter from Kahn to plaintiff's attorney dated April 10, 1987, containing the same information.
On May 22, 1987, plaintiff filed a complaint under Docket No. L-34775-87 against Levinson, alleging that Levinson had been served with a notice of demand pursuant to N.J.S.A. 2:17-74 and -75 and had not complied with the statute and seeking ...