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Morristown Memorial Hospital v. Tureo

March 16, 2000

MORRISTOWN MEMORIAL HOSPITAL, PLAINTIFF-APPELLANT,
v.
MARC TUREO, DEFENDANT-RESPONDENT.



Before Judges Petrella and Coburn.

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2000

On appeal from Superior Court of New Jersey, Law Division, Morris County.

Plaintiff appeals from an order denying its motion for a wage execution.

The facts are not in dispute. Plaintiff obtained a default judgment against defendant for $397.50 plus interest. After learning that defendant was employed by the Township of Morris, plaintiff filed a notice of motion for wage execution. Plaintiff's proof of service certified that on December 29, 1998, the motion was sent to defendant's last known address by certified mail, return receipt requested, and by regular mail. Although defendant did not object in writing to entry of the order, on January 26, 1999, MarketsJudge Christine L. Miniman denied the motion sua sponte and without prejudice for the following reasons, expressed in a written opinion attached to the proposed order:

Your application for wage execution has been denied without prejudice to resubmission on the ground that proof of service of the notice is inadequate. R. 4:59-1(d) provides:

The notice of wage execution shall be served on the judgment debtor in accordance with R. 1:5-2. A copy of the notice of application for wage execution, together with proof of service in accordance with R. 1:5-3, shall be filed with the clerk at the time the form of order for wage execution is submitted. R. 4:59-1(d) (emphasis added).

R. 1:5-2 governs the manner of service and provides that service upon a party (as distinct from an attorney) "shall be made as provided in R. 4:4-4 or by registered or certified mail, return receipt requested, to the party's last known address . . . ." Service by ordinary mail is only effective "if the party refuses to claim or to accept delivery" of the registered or certified mail. R. 1:5-2. Although R. 1:5-2 does provide that "[w]here mailed service is made upon a party, the modes of service may be made simultaneously," that provision does not obviate the necessity of proving that ordinary mail service was permissible under the rule because the party refused to claim or to accept delivery of the registered or certified mail.

This interpretation of R. 1:5-2 is consistent with the comment to it:

Also following the 1967 amendment of the source rule, this rule permits service by ordinary mail on parties who refuse or fail to accept certified or registered mail. Ordinary mail service, when certified or registered mail service fails, is also provided for under these circumstances by all of the rules permitting service of papers, including original process, by registered or certified mail. See, e.g., R. 4:4-4, 4:4-5. And see R. l:5-4(a) and Comment thereon. This rule was amended, effective September, 1981, to permit ordinary mail service to be made simultaneously with registered or certified mail rather than after the failure of such mail service. The affidavit of service should, o[f] course, recite the details pertaining to all mail modes employed. Cf. R. 6:2-3 and Comment thereon.

Pressler, Current N.J. Court Rules, Comment R. 1:5-2 at 54-55 (Gann 1998).

R. 1:5-3 specifies the proof of service which must be filed:

Proof of service of every paper referred to in R. 1:5-1 may be made (1) by an acknowledgment of service, signed by the attorney for a party or signed and acknowledged by the party, or (2) by an affidavit of the person making service, or (3) by a certification of service appended to the paper to be filed and signed by the attorney for the party making service. If service has been made by mail the affidavit or certification shall state that the mailing was to the last known address of the person served. The proof shall be filed with the court promptly and in any event before action is to be taken on the matter by the court. Where service has been made by registered or certified mail, filing of the return receipt card with the court shall not be required. Failure to ...


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