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Krynick v. Leone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 29, 2007

GREGORY KRYNICK, AND SHERRILL A. KRYNICK, PLAINTIFFS-RESPONDENTS,
v.
PAUL LEONE, DEFENDANT-APPELLANT, AND PATRICIA LEONE, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4860-95.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2007

Before Judges Coburn and Gilroy.

On February 8, 1994, plaintiffs filed a complaint in the Superior Court of Cobb County, Georgia, against defendants Paul and Patricia Leone, his wife, for unpaid rent. Based on a proof of service showing that defendant Paul Leone*fn1 was personally served on March 2, 1995, in Naples, Florida, a default judgment was entered against him on July 3, 1995, in the amount of $7,825, together with interest, attorney fees, and cost of suit. No judgment was entered against Patricia Leone.

On or about August 16, 1995, plaintiffs filed a complaint in the Law Division, Union County, seeking to domesticate the Georgia judgment. After unsuccessfully attempting personal service of the New Jersey summons and complaint on defendant in Naples, Florida, plaintiffs obtained an order on July 18, 1996, permitting substituted service by regular and certified mail, return receipt requested. Based on purported substituted service by mail, plaintiffs obtained a default judgment against defendant on April 16, 1997, thereby domesticating the Georgia judgment.

On September 28, 2005, defendant forwarded a letter to the Civil Motions Clerk at the Union County Courthouse, stating that he had filed a motion seeking to vacate the New Jersey judgment. A copy of the cover letter was received by plaintiffs on October 2, 2005. On October 11, 2005, plaintiff Gregory Krynick sent a letter to the court advising that plaintiffs wanted to appear and oppose the motion. On October 17, 2005, the court returned plaintiffs' opposition papers, advising that no motion had ever been filed. On October 18, 2005, without further notice to plaintiffs, defendant filed his motion to vacate the New Jersey judgment, asserting that: 1) he was never served with the summons and complaint leading to the Georgia judgment; and 2) he was never served with substituted service of process in the New Jersey action and that he only learned of the New Jersey judgment when attempting to refinance property in 2005. Because the motion was unopposed, an order was entered on November 4, 2005, vacating the New Jersey judgment.

On January 9, 2006, plaintiffs moved to vacate the order of November 4, 2005. On February 3, 2006, an order was entered granting that motion nunc pro tunc as of November 4, 2005. On March 21, 2006, defendant filed a motion to again vacate the order of default judgment.*fn2 On April 28, 2006, an order was entered denying the motion to vacate, with the judge determining that defendant had neither moved within a reasonable period of time, nor demonstrated a meritorious defense. On May 16, 2006, defendant moved for reconsideration. On June 23, 2006, the motion was denied. On July 21, 2006, defendant filed his notice of appeal.

On appeal, defendant argues that the motion judge erred in:

1) determining that New Jersey had obtained personal jurisdiction over him through substituted service by mail; 2) determining that he was required to demonstrate a meritorious defense; and 3) determining that he had not acted within a reasonable time to vacate the default judgment. Plaintiffs counter that substituted service of process was proper and that the appeal was filed out of time. Because we agree that the notice of appeal was filed untimely, we dismiss the appeal.

Rule 2:4-1(a) provides that an appeal from a final judgment of the trial court "shall be taken within 45 days of [its] entry." A party may obtain an extension of time to file an appeal "only in accordance with the strict limitations of R. 2:4-4." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:4-1 (2007). The time to file a notice of appeal to the Appellate Division may only be extended upon the filing of a motion and "a showing of good cause and the absence of prejudice . . . for a period not exceeding thirty days . . . ." R. 2:4-4(a). Notwithstanding a party's obligation to strictly comply with the time period contained in R. 2:4-1(a), the time requirements shall be tolled "[i]n civil actions . . . by the timely filing and service of a motion to the trial court for . . . reconsideration seeking to alter . . . the judgment or order [appealed from] pursuant to R. 4:49-2. The time shall again begin to run from the date of the entry of an order disposing of such a motion." R. 2:4-3(e).

The order appealed from was entered on April 28, 2006. The motion for reconsideration was filed on May 16, 2006, eighteen days subsequent. On June 23, 2006, an order was entered denying the motion for reconsideration. The notice of appeal was filed July 21, 2006, twenty-eight days later. Accordingly, considering the tolling period, the notice of appeal was filed forty-six days post-entry of the order of April 28, 2006, and therefore, is untimely. Because no motion was filed seeking to extend the time for filing the notice of appeal, R. 2:4-4(a), the appeal is dismissed.

Dismissed.


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