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Perno, Inc. v. Mathew


March 26, 2008


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-6375-06.

Per curiam.


Submitted March 4, 2008

Before Judges Coburn and Grall.

Defendant Thomas Mathew appeals from orders of the Special Civil Part denying his motion to vacate a default judgment and his motion for reconsideration. The default judgment was entered in favor of plaintiff Perno Inc., t/a A Rent-All Center, on its complaint alleging that defendant owed $5560.43 on a book account for rental of and damage to equipment leased to defendant by plaintiff. Because defendant did not assert a meritorious defense on his motion to vacate and did not establish that his failure to respond to the complaint was excusable, we affirm.

Service of the complaint was by regular and certified mail sent on August 2, 2006. Defendant did not answer or appear as required by Rule 6:3-1. Default judgment was entered on November 2, 2006.

Defendant first took action on November 24, 2006. By motion of that date and without obtaining the consent of his adversary, defendant moved to vacate the default judgment. See R. 6:6-2 (providing for automatic removal of default upon the filing of a written application within thirty days, with the consent of the adversary). In support of his motion, defendant asserted that he left for India on July 28, 2006, and returned on August 26, 2006. He further asserted that his sister-in-law took ill on the return trip and that her illness put "extra pressure" on him and his wife because he was his brother's only family member. With his motion, defendant provided an answer that consisted of nothing other than a general denial of the allegations in plaintiff's complaint. He did not assert any defense. On January 16, 2007, the court denied the motion on the ground that defendant failed to set forth a viable defense.

On January 26, 2007, defendant filed a motion for reconsideration. Claiming that he believed that he could present the facts relevant to his defense in court, defendant included a certification disputing the amount due, including an amount charged for damage to the equipment he rented. On March 29, 2007, the court denied the motion for reconsideration.

On appeal defendant argues that the trial judge abused his discretion in concluding that he failed to establish grounds for an order vacating the default judgment. "Generally, a defendant seeking to reopen a default judgment must show that the neglect to answer was excusable under the circumstances and that he has a meritorious defense." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508, 511 (1964). Excusable neglect warranting relief from judgment pursuant to R. 4:50-1 is conduct explained by an "honest mistake" compatible with "due diligence" and "reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993). Defendant's explanation for his delay does not satisfy the standard. Defendant's motion to vacate, which included nothing about the merits other than a general denial, also was insufficient to establish a meritorious defense. The "failure to plead the details of what the meritorious defense is [normally] fatal to an application for reopening of a judgment." Marder, supra, 84 N.J. Super. 318-19. Accordingly, we cannot conclude that the judge abused his broad discretion in denying defendant's motion to vacate. See Mancini, supra, 132 N.J. at 334; Greenberg v. Owens, 31 N.J. 402, 405 (1960).

We also reject defendant's claim that the judge erred in denying his motion for reconsideration. The question whether reconsideration is warranted in the interest of justice is left to the sound discretion of the trial judge. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Reconsideration based on evidence or claims that were not presented on a previous application for relief is appropriate only when the litigant could not have provided the information on the first application. See id. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). In this case, nothing in the record suggests that the information relevant to defendant's alleged defense was unavailable to him at the time of his initial motion to vacate the default judgment.



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