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Staton v. Theta Holding Co.

November 25, 2009

JODI K. STATON, PLAINTIFF-RESPONDENT,
v.
THETA HOLDING CO., L.P. AT OVERLOOK GREAT NOTCH AND/OR THETA HOLDING CO., L.P. AND/OR THETA HOLDING CO., AND F.K.C. CONSTRUCTION, DEFENDANTS, AND CHIMENTO CONSTRUCTION AND FRANK CHIMENTO, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5064-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2009

Before Judges Fuentes and Simonelli.

Defendants Chimento Construction and Frank Chimento (Chimento) appeal from the October 10, 2008 Law Division order denying their motion to vacate default judgment, and from the November 21, 2008 Law Division order denying their motion for reconsideration. We affirm.

The following facts are undisputed. Defendant Theta Holding Co. (Theta), owns property located in Little Falls known as Overlook at Great Notch. Chimento is the principal of Chimento Construction and defendant F.K.C. Construction Co. (FKC), both New Jersey close corporations with the same business office located in Belleville.*fn1 Chimento is responsible for the operation of both companies. On November 15, 2003, FKC and Chimento entered into a contract with Theta to provide snow and ice removal services at the property.

On December 5, 2003, plaintiff Jodi K. Staton suffered injuries as a result of a slip and fall on accumulated snow and ice on the property. On March 18, 2005, plaintiff's attorney, Michael Burakoff (Burakoff), wrote to Theta about the accident. Theta's insurance carrier wrote to FKC and Chimento advising them of the accident and seeking indemnification pursuant to the contract.

On April 8, 2005, Chimento called Burakoff, advised him that he owned FKC and Chimento Construction, and confirmed that he was the snow removal contractor Theta had hired. Chimento also gave Burakoff the same Clifton office address and telephone and facsimile numbers for both companies and assured counsel that his attorney and insurance company would contact counsel shortly.

On November 30, 2005, plaintiff filed a complaint against Theta, FKC, Chimento Construction and Chimento.*fn2 In January 2006, the Passaic County Sheriff unsuccessfully attempted to serve defendants at the Clifton address Chimento had provided to Burakoff. Thereafter, on January 17, 2006, Burakoff mailed copies of the summons and complaint to defendants at the Clifton address.

On January 31, 2006, a woman identifying herself as "Heather" called Burakoff, stating that she was defendants' office manager and was calling at Chimento's request. In a letter dated that same day, sent by facsimile and regular mail, Chimento acknowledged receipt of the summons and complaint. Chimento Construction appears on the facsimile letterhead, as does a Belleville address.

On February 28, 2006, an Essex County Sheriff's Officer served defendants at the Belleville address by serving a copy of the summons and complaint on Heather McCaster (McCaster), identified in the proof of service as the "Manager in Charge." On April 5, 2006, plaintiff filed and served on defendants a request to enter default, which was granted on April 6, 2006.

On May 25, 2006, Theta served on Chimento its answer and cross-claim for indemnification against FKC. On September 11, 2006, the court entered default against FKC for failure to file an answer to the cross-claim.

On November 29, 2006, Theta filed and served on FKC a motion to enter default judgment on liability. On January 19, 2007, the court granted the motion. Theta served the default judgment on Chimento. In response, Chimento advised Theta's attorney that "he was on the way to his insurance agent."

On July 27, 2007, Chimento attended a mandatory arbitration in this matter, at which he advised the arbitrator, Burakoff and Theta's attorney that he was well aware of the lawsuit and would instruct his lawyers to take appropriate action. Chimento mentioned nothing about having sent the summons and complaint to his insurance carrier. Upon conclusion of the arbitration hearing, the arbitrator entered an award of $325,000 in favor of Staton, with liability ...


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