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Berger v. Paterson Veterans Taxi Service

Decided: October 29, 1990.

SHELLY BERGER, PLAINTIFF-RESPONDENT,
v.
PATERSON VETERANS TAXI SERVICE, DEFENDANT, AND LOUIS ZARIFE, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Bergen County.

J.h. Coleman, Dreier and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

This is an appeal from the denial of a motion of defendant-appellant Louis Zarife, filed September 29, 1989, to reopen a default judgment entered against him on November 18, 1986 by plaintiff-respondent Shelly Berger. It raises questions respecting the vacating or enforcement of judgments void for want of in personam jurisdiction, which we re-examine today.

Berger's complaint had been filed on May 12, 1986 and the return purported to effect service upon Zarife at the offices of his employer, defendant Paterson Veterans Taxi Service (Paterson) on May 21, 1986. The return recites service upon Paterson "by leaving same with James Marmo, agent in charge, at its place of business, 8 Clark Street, Paterson, New Jersey." It goes on to recite service upon Zarife in the same manner, i.e., "by leaving the same with James Marmo, agent in charge, at defendants [sic] place of business, 8 Clark Street, Paterson, New Jersey."

It is conceded that Marmo was not a member of Zarife's household and that service was not made at his house or usual

place of abode. See R. 4:4-4(a)(1). Based upon the return of service, and absence of responsive pleading, default was entered as to Zarife on November 18, 1986. Thereafter, default judgment for $15,000 in compensatory damages and $20,000 in punitive damages*fn1 was entered against him on December 18, 1986.

Zarife asserts that he first became aware of the judgment in late 1987, although his motion to set aside the judgment was not filed until September 29, 1989. Aside from speculation as to probabilities, there is nothing of record to show that Zarife knew of the complaint or that he was a defendant prior to entry of judgment.

On December 6, 1989 the trial judge rendered an opinion which held, in reliance upon Garza v. Paone, 44 N.J. Super. 553, 131 A.2d 32 (App.Div.1957), that even a void judgment may not be vacated unless the motion to vacate is made within a reasonable time after the defendant learns of the judgment. As Zarife had delayed well over a year after learning of the judgment and of efforts to enforce it, the trial judge reasoned that the application was untimely, citing Jackson Constr. Co. v. Ocean Twp., 182 N.J. Super. 148, 3 N.J. Tax. 296, 440 A.2d 88 (1981), and declined to vacate the judgment. The opinion also suggested that Berger obtain a writ of execution under N.J.S.A. 2A:17-1, et seq., correctly declining to then enter the requested order for sale of Zarife's property.

Zarife's appeal brief attempts to distinguish Garza and urges only that we here apply the recognized rule that an application to vacate a default judgment should be viewed with great liberality toward the end of achieving a just result. See Stuchin v. Kasirer, 237 N.J. Super. 604, 609, 568 A.2d 907 (App.Div.1990); Marder v. Realty Construction Co., 84 N.J. Super. 313, 319, 202 A.2d 175 (App.Div.1964), aff'd, 43 N.J. 508, 205

A.2d 744 (1964). He argues that the highly fact sensitive nature of the necessary proofs, both as to sexual assault and as to the damages, warrants that he be afforded an opportunity for jury trial in the interests of justice.

The trial judge's reliance upon Garza was appropriate. It has been cited as authority as recently as our holding in Last v. Audubon Park Associates, 227 N.J. Super. 602, 606, 548 A.2d 236 (App.Div.1988), certif. den., 114 N.J. 491, 555 A.2d 613 (1989). See also Pressler, New Jersey Court Rules, R. 4:50-1(d) Comment (1991). We have no difficulty in recognizing that the trial judge reasonably ...


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