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Pedro & Sons Construction v. Uribe

April 8, 2009

PEDRO & SONS CONSTRUCTION AND PEDRO ORTIZ, PLAINTIFFS-RESPONDENTS,
v.
SANTOS URIBE AND LEONARDA URIBE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5308-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 17, 2009

Before Judges Winkelstein and Gilroy.

Defendants Santos Uribe and Leonarda Uribe*fn1 appeal from the July 3, 2008 order that denied their motion to vacate the December 19, 2005 judgment entered against them in the amount of $20,000. We reverse.

We briefly state the combined facts and procedural history as adduced from defendants' appendix. Defendants own a three-unit building at 137 Butler Street in the City of Paterson. In December 2002, the building caught fire and damaged the units. In February 2003, defendants contacted a local contractor, plaintiff Pedro Ortiz of plaintiff Pedro & Sons Construction, for an estimate to repair the building.

Ortiz estimated the cost of repairs at $48,500. Leonarda Uribe advised Ortiz to draft a contract and send it to Citi Mortgage (Citi), defendants' mortgagee, for approval. Citi was in possession of the fire insurance proceeds and consented to release those proceeds in increments, "depending on the percentage of the work that was completed." Ortiz agreed to draft a contract and present it to defendants and Citi for review.

By April 2003, no contract had been presented to defendants. However, without obtaining the necessary permits from the City, Ortiz placed a dumpster in front of defendants' property. Santos Uribe received a summons because of the illegally-parked dumpster. Defendants requested Ortiz to obtain the necessary permit so that they could have the summons dismissed. However, because of his failure to produce the permit and timely present defendants with a contract, defendants paid the summons and informed Ortiz that his services were no longer required. As such, plaintiffs never conducted any repairs on defendants' building.

Thereafter, defendants contacted another contractor to complete the necessary repairs and received an estimate of $120,000. A contract was presented to Citi for the work, and by May 2003, the new contractor commenced the repairs.

On December 21, 2004, plaintiffs filed a complaint in the Law Division against defendants, demanding $20,000 for goods and services rendered. On February 2, 2005, defendants filed an answer pro se. The parties were ordered to submit to non-binding arbitration on September 7, 2005. As a result of defendants' failure to appear at the arbitration proceeding, the court entered an order striking their answer pursuant to Rule 4:21A-4(f). Based on the proofs submitted at the arbitration hearing, the arbitrator entered an award that day against defendants in the amount of $20,000.

On November 1, 2005, the court entered an order dismissing the action because the parties failed to either confirm the arbitration award or demand a trial de novo within fifty days of its entry. R. 4:21A-6. After both parties received notice of the November 1, 2005 dismissal, plaintiffs filed a motion on November 30, 2005, seeking to vacate the dismissal and confirm the arbitration award. On December 19, 2005, the court granted plaintiffs' motion and entered judgment, confirming the arbitration award.*fn2

On May 8, 2008, plaintiffs sent defendants a copy of the December 19, 2005 order, together with an information subpoena. Although defendants had not received plaintiffs' mailing of May 8, 2008, they received notification of the judgment when served with plaintiffs' June 5, 2008 motion seeking to enforce litigant's rights for failure to answer the information subpoena.

On June 26, 2008, defendants filed a cross-motion to vacate the December 2005 judgment. Although they acknowledged that they were properly served with the complaint and the November 2005 order of dismissal, defendants denied receiving the arbitration notice, the order suppressing their answer for failure to appear at the arbitration proceeding, a copy of the arbitration award, and plaintiffs' motion to vacate dismissal and confirm the arbitration award.

On July 3, 2008, the court granted plaintiffs' motion to enforce litigant's rights, and denied defendants' motion to vacate the judgment. Although the court did not express its reasons for denying defendants' motion in an oral or written opinion, it did note on the order the following ...


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