March 19, 2009
NATIONAL CONTINENTAL INSURANCE, PLAINTIFF-RESPONDENT,
PASSAIC TRANSPORT CO., INC. AND MAREK LESZCZYNSKI, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4077-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Parrillo and Lihotz.
Defendants Passaic Transport Co. (PTC) and Marek Leszczynski appeal from a May 23, 2008 Law Division order denying their motion to vacate default judgment entered on January 30, 2007, in favor of plaintiff National Continental Insurance (NCI). We affirm, as defendants failed to present exceptional circumstances to justify relief from the judgment.
On October 11, 2006, NCI filed this matter to recover the unpaid insurance premiums pursuant to its contract with PTC and Leszczynski, the owner and president of PTC. On October 19, 2006, the complaint was served upon Leszczynski's wife, who accepted service on defendants' behalf. See Rule 4:4-4(a)(1) (personal service achieved by leaving a copy of the summons and complaint at the individual's usual place of abode with a competent member of the household age fourteen or older). Defendants did not file an answer or otherwise defend the action. Consequently, on January 30, 2007, the court entered a final default judgment against defendants in the amount of $107,368.06.
NCI pursued collection of its judgment. Leszczynski responded to interrogatories sent in aid of execution and submitted a money order in the amount of $135.*fn1 The Clerk's Office returned the submission and money order on February 2, 2007. The accompanying correspondence stated "default judgment has been entered against both defts" and provided a contact person with her telephone number if questions arose. Defendants took no further action.
On January 9, 2008, NCI attached defendants' bank account. More than three months later, defendants filed their motion to vacate the judgment and set aside the execution. The motion judge denied the request, determining defendants were properly served and failed to set forth a basis for relief pursuant to Rule 4:50-1(d), (e) or (f).
On appeal, defendants' argument suggests excusable neglect allowed the untimely application. Leszczynski states he and his wife are Polish immigrants whose language barrier precluded appreciation for the significance of the legal process. Leszczynski states he has no individual liability to NCI, therefore, entry of judgment against him was unjust. He further suggests he acted with promptness once his asset was attached.
A party may establish facts warranting relief from a final judgment, pursuant to the six specified grounds enumerated in Rule 4:50-1. Subsection (a) allows the court to relieve a party from a final judgment if the party demonstrates the judgment was entered due to "mistake, inadvertence, surprise, or excusable neglect[.]" Additionally, subsection (f) allows a judgment to be set aside for "any other reason justifying relief." R. 4:50-1(a) and (f); F.B. v. A.L.G., 176 N.J. 201, 207 (2003).
"[W]hether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." A.L.G., supra, 176 N.J. at 207 (citing Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994)). "The decision . . . denying an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion." Little, supra, 135 N.J. at 283; Mancini v. EDS, 132 N.J. 330, 334, (1993).
Rule 4:50-2 requires an application for relief under subsection (a) be brought within one year of the entry of the judgment. Relief under subsection (f) must be presented within a reasonable time and, more importantly, must present exceptional circumstances suggesting the judgment must be set aside to achieve equity and justice. Little, supra, 135 N.J. at 286. Due to the importance ascribed to the finality of judgments, exceptional circumstances must be present in order to justify relief. Ibid.
Whether exceptional circumstances exist is determined on a case by case basis according to the specific facts presented . . . . Among the factors to be taken into account on a Rule 4:50 motion are the "extent of the delay in making the application for relief, the underlying reason or cause, fault or blamelessness of the litigant, and any prejudice that would accrue to the other party." [IMO Guardianship of J.N.H., 172 N.J. 440, 474 (2002) (quoting C.R. v. J.G., 306 N.J. Super. 214, 241 (1997)).]
Defendants' motion to vacate, filed fifteen months from the entry of final judgment, broadly asserted Leszczynski's "lack of knowledge of legal matters and procedures" and his failure to understand he was sued personally. Such alleged "unawareness" does not constitute excusable neglect, Ditrolio v. Antiles, 142 N.J. 253, 275-276 (1995), or persuasively demonstrate the type of truly exceptional situations necessary for relief under Rule 4:50-1(f). A.B. v. S.E.W., 175 N.J. 588, 593 (2003).
Moreover, the factual record belies Leszczynski's claimed unfamiliarity with legal procedures or the English language. Documents in the record including correspondence he sent to the court, his prepared interrogatory answers and the certification sent in support of vacating the judgment, evince fluency with the English language. The pleadings show Leszczynski was the president of two incorporated entities and he recognized the necessity of employing counsel to incorporate PTC.
For reasons not explained, defendants were unwilling to obtain legal representation to respond to the complaint or to contact the Clerk's Office when advised a default was entered against both defendants. Leszczynski actually participated in the post-judgment collection process by answering interrogatories and corresponding with the court and counsel, but objected only when NCI successfully located and attached a bank account.
Finally, following our review of the record, we conclude defendants have failed to demonstrate that enforcement of the order or judgment "would be 'unjust, oppressive and inequitable.'" City of E. Orange v. Kynor, 383 N.J. Super. 639, 646 (App. Div. 2006) (quoting Pressler, Current N.J. Court Rules, comment 1.7 on R. 4:50-1 (2006), certif. denied, 188 N.J. 352 (2006)). Accordingly, we are satisfied the trial court did not err when it denied defendants' motion and declined to reopen the judgment.