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Great Seneca Financial Corp. v. Dwek

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 10, 2008

GREAT SENECA FINANCIAL CORP., PLAINTIFF-RESPONDENT,
v.
MARGARET DWEK, DEFENDANT, AND JOE DWEK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, DC-16328-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2008

Before Judges Lintner and Alvarez.

Defendant, Joe Dwek appeals pro se from a Law Division Order entered on April 27, 2007, denying his motion to vacate a summary judgment previously entered on March 8, 2004, in the amount of $9,729.50 for money owed plaintiff, Great Seneca Financial Corp.*fn1 At the hearing, Joe explained that although he previously admitted to owing money, "[he] didn't say that [he] owed that kind of money . . . [and plaintiff] can't prove that [he] owe[d] them that kind of money." When the judge pointed out to Joe that he had filed opposition to plaintiff's 2004 summary judgment motion and that he was not entitled to a "redo," Joe responded that he was sick with cancer.

On appeal, Joe argues that he had fallen sick with colon cancer and was not able to fulfill his financial obligations for a period of eighteen months. According to Joe, his wife, Margaret, wrote to various creditors and the original creditor/lender sold the debt owed by Joe to plaintiff, who obtained a judgment for $8,944.41 but later sought repayment in the amount of $9,729.50. He claims that plaintiff "constant[ly] change[s]" the amounts and that he does not owe that amount. He has constantly asked for proof of the amount owed and plaintiff has never produced documentation. He argues that plaintiff's failure to respond to his request for documentation establishes that plaintiff "trumped up a sum to satisfy everyone's pocket" and "the court should have asked to see proof of the debt." He maintains that he was entitled to have the judgment vacated under R. 4:50-1(a), excusable neglect.

R. 4:50-2 requires that a motion for relief from a judgment under R. 4:50-1 must be filed "within a reasonable time, and for reasons (a), (b), and (c) of R. 4:50-1 not more than one year after the judgment . . . was entered." Accordingly, Joe's motion, filed approximately three years after entry of the judgment, was out of time. Beyond that, relief under Rule 4:50-1(f) for "any other reason justifying relief from operation of the judgment" is sparingly granted and is available only in truly exceptional situations. Housing Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). "What constitutes a reasonable time is, of course, dependent on the totality of the circumstances." Pressler, Current N.J. Court Rules, comment 3 on R. 4:50-2 (2008). Joe's eighteen-month incapacity does not provide an adequate explanation for the three-year delay in filing for relief. While we do not deprecate the seriousness of plaintiff's illness, we are not persuaded that it provided sufficient reason for affording relief from the 2004 judgment under R. 4:50-1(f).

Affirmed.


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