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Fox Rothschild, LLP v. Lestician

December 10, 2009

FOX ROTHSCHILD, LLP, PLAINTIFF,
v.
GUY LESTICIAN, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
SAL CARFARO, JR., THIRD-PARTY DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2147-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2009

Before Judges Cuff and Waugh.

Third-party defendant Salvatore F. Carfaro, Jr., appeals the denial of his motion to vacate a default judgment entered against him on the third-party complaint filed by defendant/third-party plaintiff Guy Lestician. We affirm.

I.

Lestician was the defendant in a suit for unpaid legal fees brought by plaintiff Fox Rothschild, LLP. He filed the third-party complaint seeking contribution and indemnification, alleging that Carfaro was the beneficiary of the legal services rendered by Fox Rothschild and had agreed to be financially responsible for the resulting legal fees. Lestician's counsel engaged the services of a professional process server, whose agent completed an affidavit of service to the effect that he personally served Carfaro at his address in Plainfield on April 22, 2007.

Lestician subsequently sought and obtained entry of default against Carfaro. R. 4:43-1. Lestician then sought entry of a default judgment, giving Carfaro notice of the application as required by Rule 4:43-2. The application was not opposed, and a default judgment against Carfaro in the amount of $292,956.85, the amount sought by Fox Rothschild,*fn1 was entered on September 10, 2007.

In February 2008, Lestician's attorney sent Carfaro an information subpoena. On March 13, 2008, Carfaro sent a "letter brief" and two certifications, but no notice of motion, to one of the Law Division judges in Mercer County. In his letter Carfaro sought to have the default judgment vacated, contending that he had not been served with the summons and third-party complaint. In support of his contention, Carfaro submitted certifications, his own and that of a "personal friend," to the effect that the date of service was a Sunday and that Carfaro was not in Plainfield on that date.

In response, Lestician submitted a certification from the process server stating that the server knew Carfaro from having served him on prior occasions and that the actual date of service was April 20, 2007. In the certification, it was explained that the affidavit of service had the wrong date because the process server did not electronically register the service with his office until Sunday, April 22. The process server further certified that he did not notice the incorrect date of service when he signed the affidavit of service on April 23.

Following several adjournments, the application was initially heard during July or August 2008.*fn2 A plenary hearing was scheduled for October 31, 2008. On that date, Lestician appeared with counsel and the process server. Carfaro did not appear, having requested an adjournment by letter faxed at 4:35 the preceding evening. The basis of the request was that he wanted to take discovery and had just located an expert on the electronic device used by the process server. The motion judge attempted to contact Carfaro prior to the hearing on October 31, but was unsuccessful.

The motion judge denied the application for an adjournment, setting forth his reasons as follows:

Well, this is shocking, frankly, to receive something like this at this point in time after we were here in July and the plan of how to proceed was certainly set. Three months -- over three months have passed and after work hours on a Thursday to get a request for an adjournment for a Friday morning. I am not going to grant that, it is impossible. He has not appeared. As far as the Court is concerned, the matter must come to an end. We can only schedule these things so often. He should have done something, certainly, if he wanted time, well before this.

And, it does not even make sense to me, because the issue is one of testimony. I did not take testimony last time. He said he was some place else and there were witnesses who could support that and service of process did not occur. And service of process is important. Often it will rely upon credibility. I have seen situations in 44 years where process servers lied, just filled out forms that were absolutely falsifications, did not want to come back, probably wanted to be done with it. There is always a few of those, just like you will find a few . . . ...


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