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Epos, Inc. v. Pantelopoulos

December 1, 2009

EPOS, INC., MICHAEL VASILAKIS AND STEFANOS S. GERAZOUNIS, PLAINTIFFS-RESPONDENTS,
v.
EVAN PANTELOPOULOS, NIJAAL, L.L.C. AND/OR NEWTON FOOD MANAGEMENT, INC., DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-009724-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Lyons and J. N. Harris.

Defendant, Newton Food Management, Inc. (Newton), appeals a trial court's order dated December 1, 2008, denying its motion to vacate a default judgment against it, as well as a subsequent order denying its motion for reconsideration. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiffs, Epos, Inc., Michael Vasilakis, and Stefanos S. Gerazounis were the owners of a diner in Oaklyn, New Jersey. In the summer of 2006, they entered into a contract to sell the diner to defendant, Evan Pantelopoulos (Pantelopoulos), "or his corporate or limited liability company nominee." The sale was finalized on August 8, 2006. The diner had a camera/security system, which plaintiffs had leased from a third-party.

Plaintiffs assert that defendant Pantelopoulos agreed, in connection with the purchase of the diner, to use and pay for the system. Evidently, at some time after the closing, defendant Pantelopoulos ceased paying for the camera/security system and the third-party owner of that system successfully sued plaintiffs for the amount owed under its contract with plaintiffs. Defendant Pantelopoulos was not a party to that action.

Following that action, plaintiffs filed suit in this case against defendants Pantelopoulos, Newton, and NIJAAL, L.L.C., seeking damages for an alleged breach of the purchase agreement, particularly with respect to the lease payments for the camera/security system.

Plaintiffs' complaint was filed on April 16, 2008. As this matter was filed in the Special Civil Part, service of process was attempted under Rule 6:2-3(b). The Special Civil Part summons was mailed, by certified and regular mail, to each of the defendants at 931 White Horse Pike, Oaklyn, New Jersey, the address of the diner. The return receipt card indicated it was signed by a person named "Christine," but her last name was illegible. Defendant Pantelopoulos, however, had sold the diner on July 30, 2007, to an unrelated party almost a full year before the service of the summons and complaint was attempted.

Defendant Pantelopoulos asserted and defendant Newton now asserts that at the time service was attempted, they neither owned the diner any longer nor had any employees there. Defendant Pantelopoulos did, however, learn of the complaint when "Christine" somehow contacted him. Accordingly, Pantelopoulos filed a pro se answer in June 2008. The answer, however, was filed solely on his behalf.

Later, on September 8, 2008, defendant Pantelopoulos filed a motion to amend his answer and to file a counterclaim against plaintiffs. On September 24, 2008, defendants Pantelopoulos and Newton filed a motion to permit Nicholas Pantelopoulos, a New York attorney and Pantelopoulos's son, to appear pro hac vice in the matter.

The trial was held on September 30, 2008. At that time, defendant Pantelopoulos appeared without counsel and plaintiffs appeared through counsel. The trial court initially addressed the outstanding motions. Because pro hac vice counsel and local counsel were not present, the trial court did not entertain the pro hac vice motion. The trial court also heard argument about the lack of service on defendants, but did not directly rule on that.

After hearing argument, the trial court noted that:

I am going to make it very simple. Anybody unhappy with the [c]court's ruling, after the case is over, ...


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