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Larchmont-Ark Associates v. Mt. Laurel Sandwich Co.

November 7, 2007

LARCHMONT-ARK ASSOCIATES, A DELAWARE GENERAL PARTNERSHIP, PLAINTIFF-RESPONDENT,
v.
MT. LAUREL SANDWICH CO., KULWANT SINGH, AND MOHAMMAD SHAHID, DEFENDANTS, AND SUKHTEJ SINGH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2670-91.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 29, 2007

Before Judges Graves and Sabatino.

This appeal arises out of an application to the Law Division by Sukhtej Singh ("appellant"), to obtain relief under R. 4:50-1 from a money judgment entered against him in favor of respondent, Larchmont-Ark Associates ("Larchmont"). After reviewing the motion and opposition papers and hearing oral argument, the Law Division denied the application on September 8, 2005.

Because appellant's sworn assertions and several of the related documents raise troubling factual matters that, if proven credible, could rise to the level of exceptional circumstances under R. 4:50-1(f), we vacate the September 8, 2005 order and remand the matter for a plenary hearing. We do so without prejudice to the Law Division's ultimate disposition of appellant's motion on the merits after such a hearing.

Subject to further amplification of the facts on remand, the record provides the following chronology relevant to our analysis. In the late 1980s appellant and two other men, Mohammad Shahid and Kulwant Singh,*fn1 decided to go into the restaurant business together. The three men identified for that purpose a retail establishment in a Mount Laurel strip mall known as the Mount Laurel Sandwich Company ("Mt. Laurel Sandwich"). Appellant and his two colleagues thereafter acquired the business from Mt. Laurel Sandwich.

Concurrently, Mt. Laurel Sandwich's landlord, Larchmont, agreed to assign the lease to Shahid, Kulwant Singh and appellant. As part of the assignment, the three men each signed a "Memorandum of Assurance Concerning Additional Rent" for the premises, through which they all personally guaranteed payment of the rent through the lease's scheduled expiration in August 1989. The restaurant was renamed Dingledorf's King of Asia, and, for a time, appellant and the other two men worked there.

In February 1989, Larchmont's property manager inquired whether the restaurant operators wanted the lease renewed. The property manager received back a handwritten letter, dated February 11, 1989, requesting that the lease be renewed another three years. The letter purports to bear the signatures of Shahid, Kulwant Singh and appellant. Larchmont accordingly renewed the lease, as requested, for another three years.

In two certifications he filed in support of his R. 4:50-1 motion, appellant flatly denied signing the February 11, 1989 letter or otherwise authorizing the lease renewal. As corroborating proof, appellant attached copies of his passport, showing that he was in India from January 18, 1989 through March 13, 1989. Moreover, as Larchmont's attorney candidly acknowledged at oral argument before us, appellant's purported signature on the February 11, 1989 renewal letter does not match his other signatures on several other documents in the record.

Appellant stated that disagreements emerged with the two other investors, which led him to transfer all of his interests in the business to Kulwant Singh. That alleged transfer is memorialized in a corporate*fn2 resolution, prepared with the assistance of a lawyer named Rosenberg, in December 1990. Appellant stopped working at the restaurant and thereafter earned a living in unskilled or semi-skilled jobs at a gas station, a local warehouse and with other employers. He claims that he has not seen Shahid or Kulwant Singh since that time. Their present whereabouts are apparently unknown.

During the course of the renewed lease, the restaurant fell behind in the rent. Those mounting rent arrears prompted Larchmont to file an action in the Law Division in 1991 against its former tenant, Mt. Laurel Sandwich, as well as Shahid, Kulwant Singh and appellant. Attorney Rosenberg filed an answer to the complaint, purportedly on behalf of Shahid and appellant. The case was tried before a judge in October 1994, resulting in a judgment against Shahid and appellant in the sum of $59,766.17, plus costs. Appellant did not testify or otherwise appear at the trial. It also does not appear that he was deposed or participated in discovery.

Appellant certifies that he had no notice of Larchmont's rent action while it was pending. He contends that he was not served with process, and that he never spoke about the case with Rosenberg before the case was tried. To the contrary, appellant maintains that he first learned of Larchmont's judgment eleven years later in 2005, when it surfaced in a title search as appellant was selling his home.

In support of his lack-of-notice contentions, appellant points out that the Sheriff's return of service for the summons and complaint, ostensibly reflecting that he was served at his apartment unit on August 8, 1991, contains no physical description of him. He also notes that the return of service misstates the case's docket number, ...


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