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Barrett v. Steele

December 10, 2008

ALSON AND MURIEL BARRETT, BY THEIR SUBROGEE, THE CUMBERLAND INSURANCE GROUP, PLAINTIFF-RESPONDENT,
v.
AMY STEELE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1804-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 19, 2008

Before Judges Cuff and Fisher.

In this appeal, we hold that the trial judge mistakenly determined that plaintiff had substantially complied with our service of process rules and that defendant unreasonably delayed in seeking relief, when he denied defendant's motion to vacate the default judgment. Accordingly, we vacate the order under review and remand for additional proceedings designed to explore the factual disputes regarding service and the timeliness of defendant's motion for relief from the default judgment.

The record reveals that, on February 8, 2003, a fire caused damage to a residence owned by Alson and Muriel Barrett. Their homeowners insurance carrier, plaintiff Cumberland Insurance Group, paid their claim and, pursuant to its subrogation rights, brought this action against defendant Amy Steele, alleging that the faulty furnace in defendant's neighboring property caused the fire. No answer was filed and a default judgment was entered on November 19, 2004, in favor of plaintiff and against defendant, in the amount of $136,976.36.

Defendant moved to vacate the default judgment; we assume the motion was filed in January 2008.*fn1 Defendant asserted by way of her supporting certification that she had "recently learned" of the default judgment and that her attorney discovered from a review of the trial court's file that plaintiff claimed to have successfully served defendant on April 22, 2004 by "affixing" true copies of the summons and complaint "to a door" at what plaintiff claimed was defendant's "last known address," 93 Cooper Street, Lake George, New York. In her certification, defendant asserted that this Lake George address was her "mother's old address," that defendant had only lived there "for four months in 2000," and that she had resided in New Jersey from 2000 to 2007.

The judge denied the motion; the only reasons given for that determination were written in the margin of the February 15, 2008 order:

[T]he motion to vacate default judgment is denied because there was no substantial deviation from service of process rules, and said motion was not made within a reasonable time (R. 4:50-2).

After carefully examining the record on appeal, we conclude that the judge erred in denying defendant's motion. The record engenders considerable doubt whether plaintiff complied with our service of process rules and whether defendant unreasonably delayed in moving for relief from the default judgment. We, thus, vacate the order under review and remand for a further inquiry, and, if necessary, an evidentiary hearing into the issues raised.

In examining the record on appeal, we observe that there was a legitimate dispute about whether plaintiff properly effected service of process. In serving an individual defendant within this State, Rule 4:4-4(a)(1) requires that a plaintiff must deliver "a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein." Because plaintiff concededly did not effect service of process within the State, we must consider whether plaintiff complied with Rule 4:4-4(b)(1), which permits service on an individual outside the State "[i]f it appears by affidavit . . . that despite diligent effort and inquiry personal service cannot be made in accordance" with Rule 4:4-4(a)(1).

In considering the sufficiency of service on defendant outside the State, we note that the record on appeal contains no affidavit of diligent inquiry. If no such affidavit was filed in the trial court, then plaintiff was not entitled to effect service of process outside our boundaries as the means for securing personal jurisdiction over defendant. The requirement that a plaintiff file an affidavit of diligent inquiry in order to present a factual basis for an alternate mode of service is not a mere formality. As we held in M & D Associates v. Mandara, 366 N.J. Super. 341, 353 (App. Div.), certif. denied, 180 N.J. 151 (2004), diligent inquiry is a predicate to a determination of whether the requirements of due process have been satisfied. Accordingly, in ascertaining the sufficiency of service outside this State, a judge must "carefully scrutinize[]" the affidavit required to ascertain whether plaintiff undertook a diligent inquiry. M & D Assocs., supra, 366 N.J. Super. at 353.

Assuming a sufficient affidavit of diligent inquiry was filed, then plaintiff was entitled, pursuant to Rule 4:4-4(b)(1)(A), to effect service of process on defendant outside the State so long as the procedure was conducted "in the same manner as if service were made within this State." Because plaintiff does not assert that personal service was made on defendant in New York in the manner permitted by Rule 4:4-4(a)(1), the sufficiency of service turns on whether plaintiff complied with Rule 4:4-4(b)(1)(C), which allows personal service on an individual outside the State by "mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail" to the individual's "dwelling house or usual place of abode."

Here, if we assume the truth of the facts asserted in the affidavit of service filed by plaintiff on May 11, 2004, it is readily apparent that plaintiff failed to comply with our service rules. The affidavit states that true copies of the summons and complaint were "affix[ed] to [a] door" of a residence on Cooper Street, Lake George, New York,*fn2 and mailed to the same address in a sealed envelope with "first class postage." The problem for plaintiff is that our rules do not authorize "nail and mail" process. Accordingly, it is irrelevant to our inquiry to consider whether the "nail and mail" service that allegedly occurred in Lake George complied with New York's service of process rules.*fn3 Plaintiff was required to effect service by mail, if permitted in these circumstances, in the manner required by our ...


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