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Farrell v. Sendowski

February 19, 2009

ROBERT FARRELL, PLAINTIFF-RESPONDENT,
v.
OREN SENDOWSKI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-012404-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Collester and Graves.

Defendant Oren Sendowski appeals from an order dated October 15, 2007, denying his motion to vacate a default judgment. On appeal, defendant argues that he was never served with the complaint, and he never received notice that the suit was filed or pending against him. In addition, defendant contends he "has a meritorious defense in that the parties had agreed to a resolution." After considering these contentions in light of the record and the applicable law, we affirm.

The parties are homeowners and neighbors with a common property line. Plaintiff's property is located at 32 Shrewsbury Avenue in the Borough of Highlands, in Monmouth County, and defendant is the owner of property known as 30 Shrewsbury Avenue.

This case commenced with the filing of plaintiff's complaint in September 2006. In his complaint, plaintiff alleged that defendant, "damaged and removed" a stockade fence and a chain link fence, which were on plaintiff's property. Plaintiff demanded damages for the cost to repair and replace the stockade fence and the chain link fence, together with lawful interest, attorney's fees, and costs of suit.

Pursuant to Rule 6:2-3(d)(1), the clerk of the Special Civil Part mailed the summons and complaint to defendant at 30 Shrewsbury Avenue, Highlands, New Jersey 07732, by certified mail, return receipt requested, and by ordinary mail. The certified mail was returned to the court with the postal service notation: "Unclaimed." The ordinary mail was not returned to the court.

When defendant failed to answer or respond to plaintiff's complaint, the matter was scheduled for a proof hearing in accordance with Rule 6:6-3(c). The hearing took place on March 20, 2007. After considering plaintiff's testimony and his evidence, the court entered a default judgment in plaintiff's favor for $8388.80.

In August 2007, plaintiff filed a notice of motion for an order enforcing litigant's rights, and defendant filed a motion to vacate default judgment. In a certification in support of his motion, defendant admitted he mistakenly removed plaintiff's chain link fence, and he stated he "agreed to replace the fence." But he also stated that he was never served with the summons and complaint. Defendant certified as follows:

1. I am the defendant in the above-captioned matter and make this Certification in support of my Motion to Vacate the Judgment entered against me.

2. There exists excusable neglect in not answering the original Complaint as I was not served with any copy of the Complaint. I did not receive notice that the Complaint was filed nor did I receive any notice that the action was subsequently reduced to a Judgment.

3. I purchased the property in question on October 28, 2005. Attached is a copy of the survey of the property. I acted within what I believed were the parameters of the survey. Plaintiff contacted me and advised that the chain link fence was, in fact, on plaintiff's property and not on my property.

I agreed to replace the fence upon completion of renovating my home. I am currently awaiting approvals to ...


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