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J & M Land Co. v. Pak


May 6, 2008


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC-645-06.

Per curiam.


Submitted April 16, 2008

Before Judges Cuff and Simonelli.

Defendants Yong Te Pak and Jung Ok Pak appeal from the order of May 30, 2007, denying their motion to vacate default judgment. We affirm.

On October 13, 2003, defendant entered into a lease agreement with plaintiff J & M Land Company to rent property located at 54 S. New York Road, Galloway (the rental property). In July 2005, plaintiff served upon defendants a notice to cease, a notice to quit and a demand for possession of the rental property resulting from defendants' failure to pay rent, violation of the lease regarding pets, failure to maintain the property, and habitual late rent payments. On or about October 20, 2005, plaintiff filed a summary dispossess action. After defendants voluntarily vacated the rental property, plaintiff advised them of the nature and amount of damage defendants caused to the rental property in excess of the security deposit. Defendants did not respond to plaintiff's request to amicably resolve the matter.

On or about January 19, 2006, plaintiff filed a complaint in the Special Civil Part. The summons and complaint were served on each of the defendants on January 26, 2006, by certified mail at property owned by them located at 619 Atlantic Avenue, Atlantic City (the Atlantic City property). The certified mail return receipts were signed on or about January 30, 2006, and returned to the court.

Defendants failed to file an answer or otherwise move with respect to the complaint. After entry of default, plaintiff moved for default judgment, which was entered on June 5, 2006, in the amount of $2,594.14.

On May 3, 2007, defendants moved to vacate the default judgment, contending they were never served with the summons and complaint, and that they became aware of the judgment when they refinanced the property.*fn1 Judge Kane denied the motion, finding that defendants failed to show excusable neglect or a meritorious defense. Defendants contend Judge Kane abused his discretion.

A decision to vacate a judgment lies within the sound discretion of the trial judge, guided by principles of equity. Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994) (citing Hodgson v. Applegate, 31 N.J. 29, 37 (1959)). We will reverse only where that discretion has been abused. Ibid. (citing Mancini v E.D.S., 132 N.J. 330, 334 (1993)). It is with this standard in mind we review defendants' contention.

Defendants sought relief under Rules 4:50-1(a) and (f) based on mistake or excusable neglect relating to the alleged lack of service of the summons and complaint. To obtain relief, defendants must establish both that their failure to answer or otherwise appear and defend was somehow excusable, and there exists a meritorious defense to the cause of action or the amount of the judgment. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.) (citing Tradesman Nat'l Bank & Trust Co. v. Cummings, 38 N.J. Super. 1, 4-5 (App. Div. 1955)), aff'd, 43 N.J. 508 (1964).

Defendants argue that their failure to file an answer was excusable because they were never served with the summons and complaint. This contention is without merit. Defendants were properly served at the Atlantic City property. R. 6:2-3(d)(4). Also, there is no indication of a meritorious defense other than defendants' general denial of the amount owed and their unsupported threat of a counterclaim. Judge Kane properly denied defendants' motion to vacate.


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