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Alpert Goldberg Butler Norton & Weiss, P.C. v. Feldman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 24, 2008

ALPERT GOLDBERG BUTLER NORTON & WEISS, P.C., F/K/A ALPERT BUTLER SANDERS NORTON & BEARG, P.C., PLAINTIFF-APPELLANT,
v.
MARJORIE R. FELDMAN, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-011428-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Skillman and Winkelstein.

Plaintiff, a law firm, obtained a default judgment against defendant in an action in the Special Civil Part for $15,000 of unpaid legal fees. Defendant failed to pay the judgment.

Plaintiff served an information subpoena upon defendant in aid of enforcement of the judgment, to which she failed to respond. Plaintiff filed a motion for enforcement of the subpoena, which was granted. However, defendant still failed to respond to the subpoena. Plaintiff filed a motion for issuance of a bench warrant for defendant's arrest, following which she finally responded to the information subpoena. Defendant's response asserted that she has no driver's license or telephone number, is not presently employed, does not have a bank account, has no income from any source, does not have personal property exceeding $1,000 and owns no real estate.

Plaintiff then filed a motion to take the deposition of defendant's son, Joshua Feldman. The supporting certification of Clark E. Alpert, a partner in the plaintiff law firm, alleged that "prior communications with defendant indicated that she certainly has been in the work-force[,]" and that "[m]ost of her other answers defy common sense." The certification also alleged that defendant has a close relationship with her son and that "[b]ased on my prior personal contacts with both Joshua and his mother, . . . Joshua is far more likely to 'respect the oath' than his mother, at least in the setting of live testimony." The certification further alleged that "[w]ere plaintiff to merely send an Information Subpoena to Joshua at the same address, either (a) the package would be 'intercepted' or (b) it would be too easy for Joshua to parrot the mother's written answers, and plaintiff's efforts will be similarly foiled." Defendant did not respond to the motion.

On June 15, 2007, the trial court entered an order denying the motion, which simply stated: "request for post-judgment deposition of a non party--his answers wouldn't bind the defendant."

Plaintiff filed a motion for reconsideration in which it pointed out that a person with relevant information may be deposed even though the answers he or she gives would not bind the opposing party. The trial court denied the motion, noting on the order: "No proper basis for this motion under these circumstances--[n]othing new presented[.]"

Discovery in aid of enforcement of a judgment in a Special Civil Part action is governed by Rule 6:7-2(a), which provides in pertinent part:

The court may, upon the filing by the judgment creditor . . . of a petition verified by the judgment creditor or the creditor's . . . attorney stating the amount due on the judgment, make an order, upon good cause shown, requiring any person who may possess information concerning property of the judgment debtor to appear before the attorney for the judgment creditor or any other person authorized to administer an oath and make discovery under oath concerning that property at a time and place therein specified.

See also R. 4:59-1(e).

The previously quoted allegations of Mr. Alpert's certification provided the requisite showing of "good cause" for the taking of Joshua Feldman's deposition. That certification indicated that defendant was evasive and perhaps deceitful in responding to plaintiff's information subpoena and that her son is more likely to give truthful and reliable information regarding her income and assets. It also indicates that the taking of a deposition is required to obtain that information.

Accordingly, the orders denying plaintiff's motions are reversed, and plaintiff may proceed with the taking of Joshua Feldman's deposition in aid of enforcement of the judgment against defendant.

20080324

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