On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2750-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2008
Before Judges A. A. Rodríguez and Lihotz.
Defendant All American Moving & Storage, Inc. (All American) appeals from the November 16, 2007 order, denying its motion to vacate the August 23, 2007 final judgment by default in the amount of $26,480.70 in favor of plaintiff Minuteman Towing and Repairs, Inc. (Minuteman).
It is undisputed that on June 9, 2006, All American's 2005 Ford truck was disabled in Pennsylvania. Minuteman towed the truck, repaired it and stored it at its facility. An officer of All American sent a check for $4,000 to Minuteman in the belief that this was the total amount due. However, this check was returned for insufficient funds. Eventually, All American removed the cargo but the truck storage charges continued to accrue.
On April 17, 2007, ten months after the truck was towed, Minuteman sued All American on a breach of contract theory. The summons and complaint were served on All American, via certified and regular mail on June 6, 2007. No answer was filed. Minuteman sought entry of default. At this point, All American sought consent to vacate the default. Minuteman's counsel refused to do so. Then, Minuteman moved for entry of final judgment by default. Upon the filing of an affidavit of proof, the Law Division entered the judgment under appeal. Seven weeks later, All American moved to vacate the judgment. In support of the motion, Abraham Ismirly, the President of All American, submitted a certification to the following:
I received a letter with regard to this matter advising that a lawsuit was filed on or about June 6, 2007 with regard to a 2005 Ford truck that was towed in Pennsylvania after an accident.
Upon receipt of the letter I immediately called the attorney for [Minuteman], Edward Zizmor, and spoke to his secretary.
I believe it was the next day that I again called and spoke directly with Mr. Zizmor and advised him that this matter was previously settled for $4,000.00 and the truck will be taken by [Minuteman].
A check was previously mailed to [Minuteman] in the amount of $4,000.00 signed by Sam, who was the officer of [All American] at the time and this matter was considered closed. On or about July 5, 2007, I again called Mr. Zizmor's office and advised that I could not locate the agreement and he suggested that I fax over whatever documents I did have and retain a lawyer for this case.
I called a lawyer by the name of Mr. Michael Garcia, located in California who is dealing with transportation and he called Mr. Zizmor's office on Monday, July 16, 2007. He was told by Mr. Zizmor that this case is in judgment ...