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Bedia v. Musillo

December 20, 2007


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-32989-04.

Per curiam.


Submitted December 5, 2007

Before Judges Lisa and Simonelli.

Defendants, Arnaldo Musillo and Graziella Musillo, appeal from an order denying their motion to vacate a default judgment. They argue that they were not served with process, thus depriving the court of jurisdiction over them and rendering the judgment void, as a result of which it should have been vacated pursuant to Rule 4:50-1(d). We reject defendants' argument and affirm.

On August 2, 2004, plaintiff sued defendants for injuries she suffered when she slipped and fell on defendants' commercial premises. Plaintiff alleged that her fall was caused by the defective condition of the property. Plaintiff filed proof of service reflecting that Arnaldo was personally served on August 11, 2004 and Graziella was personally served on March 3, 2005. Defendants did not file a response, as a result of which default was entered, a proof hearing was conducted, and judgment was entered on September 23, 2005 against defendants in the amount of $38,000.

On July 10, 2006, defendants moved to vacate the default judgment. They contended they were not served with process. Because material facts regarding service were in dispute, Judge Riva conducted an evidentiary hearing, at which he received the testimony of both defendants, their daughter, and the process server.

At all relevant times, defendants lived at 243 Burlington Avenue in Paterson. At the hearing, both defendants denied that they were ever served with the summons and complaint in this action. Tracy Grabley Gerwatowski, a private process server acting as the agent for plaintiff's counsel, see R. 4:4-3(a), testified that, consistent with the return of service documents she produced, she personally served each of the defendants.

Defendants are natives of Italy and speak little or no English, although Arnaldo has a better command of the English language than his wife. Gerwatowski said she went to the Musillo residence on August 11, 2004. A man answered the door. She observed him through the screen door and inquired whether he was Arnaldo, to which he responded in the affirmative. She told him she had papers that were for him. He opened the screen door and took the papers. With respect to Graziella, Gerwatowski said she went to the Musillo home on March 3, 2005 and observed a woman getting out of her vehicle in the driveway. Gerwatowski approached the woman and inquired whether she was Graziella and told her she had papers to give her. The woman "indicated that was her, but she didn't want to be bothered with the papers." As a result, Gerwatowski dropped the papers at the woman's feet and told her she should "consider herself served." Gerwatowski identified defendants in court as the individuals she served.

The evidence further revealed that for six consecutive years Arnaldo's brother, who lived in Italy, stayed with defendants for four months each year, from April through August, including 2004. Defendants produced a photograph of Arnaldo and his brother that was taken in about 2000. When Gerwatowski was confronted with the photograph, she acknowledged that the person she served in August 2004 was Arnaldo's brother. The brother was eighty years old, and there was no indication that he was not competent. During his annual four-month stays with defendants, he was provided with a separate bedroom in the home.

Judge Riva found Gerwatowski very credible in every respect, and found defendants much less credible. He found that Gerwatowski personally served Graziella in the manner described by Gerwatowski. With respect to Arnaldo, the judge found that Gerwatowski served his brother, which constituted good service on Arnaldo because, under the facts presented, the brother was a competent member of the household, fourteen years of age or older, then residing in the household. Accordingly, the judge denied defendants' motion to vacate the default judgment.

Judge Riva's factual findings are well supported by substantial credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), and we have no occasion to disturb them on appeal. We are also in agreement with the judge's legal conclusions. Service on Graziella was effective because a copy of the summons and complaint were delivered to her personally. R. 4:4-4(a)(1). Personal service may also be accomplished "by leaving a copy [of the summons and complaint] at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein." Ibid. Arnaldo's brother lived in the Musillo household for four consecutive months each year over a six-year period. This was not a transient or casual attachment. It is apparent that the brother, who was provided with his own personal bedroom, had the run of the house which, combined with his close relationship with defendants, rendered him a member of the household during those stays. Thus, service upon Arnaldo was complete with delivery of process to his brother made at Arnaldo's residence. See, e.g., Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 342-43 (App. Div.), certif. denied, 134 N.J. 480 (1993) (service on resident housekeeper deemed effective service); M&D Assocs. v. Mandara, 366 N.J. Super. 341, 356 (App. Div.), certif. denied, 180 N.J. 151 (2004) (service on seventeen-year-old step-daughter constituted effective service).

To the extent defendants suggest the judgment should have been vacated because of excusable neglect and the presence of a meritorious defense, see R. 4:50-1(a), the argument lacks sufficient ...

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