Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Minuteman Towing & Repairs, Inc. v. All American Moving & Storage


September 18, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2750-07.

Per curiam.


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).

We affirm.

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 and Mr. Garcis suggested that I retain a New Jersey lawyer.

When speaking with Mr. Zizmor, he never advised that there was a danger of a default being entered.

I was mistakenly led to believe that All American would be able to file the Answer.

Notably, Ismirly's certification did not allege that All American had a meritorious defense or that the failure to file a timely answer was due to excusable neglect. Despite this failure, All American's counsel submitted a certification stating that "[a]s is set forth in the annexed [c]ertification,

[All American] has a good faith defense as well as an excusable reason for the default." No other certifications were submitted in support of All American's motion. Judge Robert C. Wilson denied the motion.

All American appeals, arguing that the judgment should be vacated. We disagree.

A trial court's decision to grant or deny an application to vacate a judgment will not be disturbed unless there is a clear abuse of discretion. Housing Authority of Morristown v. Little, 135 N.J. 274, 283 (1994); Mancini v. EDS, 132 N.J. 330, 334 (1993). A judge should view "the opening of default judgments . . . with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Construction Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). Any doubts regarding the decision should be resolved in favor of the party seeking relief. Mancini, supra, 132 N.J. at 334; Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989). Relief from a judgment or order is covered by Rule 4:50- 1(a), which provides:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect . . . .

Our Supreme Court has stated that Rule 4:50-1(a) "'is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Baumann v. Marinaro, 95 N.J. 380, 392 (1984) (quoting Manning Eng'g, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 120 (1977)). The trial court's discretion should be guided by equitable principles in determining whether the requested relief should be granted or denied. Housing Authority, supra, 135 N.J. at 283; Hodgson v. Applegate, 31 N.J. 29, 37 (1959).

A defendant seeking to reopen a default judgment due to excusable neglect must show (1) that the failure to answer was excusable under the circumstances, and (2) that there is an available meritorious defense. Housing Authority, supra, 135 N.J. at 284; Marder, supra, 84 N.J. Super. at 318. A careless but honest, mistake may be excusable if compatible with due diligence or reasonable prudence. Mancini, supra, 132 N.J. at 335.

Here, however, All American has failed to meet its burden. It presented Judge Wilson with no allegation, let alone proof of a meritorious defense. Any misunderstanding that Minuteman was settling for $4,000 evaporated upon service of the summons and complaint. Moreover, All American does not refute that its check for $4,000 was dishonored for insufficient funds. There is also no showing of excusable neglect.



© 1992-2008 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.