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RP Leasing Associates v. Kennedy

August 3, 2010

RP LEASING ASSOCIATES, PLAINTIFF-RESPONDENT,
v.
JOSEPH KENNEDY, VICTOR SILVA, EACH INDIVIDUALLY AND D/B/A FRONT ROW LIMOUSINE; FRONT ROW LIMOUSINE, INC., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2025-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 16, 2010

Before Judges Cuff and Fasciale.

Defendants, Joseph Kennedy, Victor Silva, each individually, d/b/a Front Row Limousine, and Front Row Limousine, Inc., appeal from a July 17, 2009, order denying their motion to vacate a default judgment. We affirm.

While Kennedy and Silva knew about the judgment, they waited between four and five years before they moved to vacate it. Since both responded differently to the judgment, we will address Kennedy and Silva in turn. Although they chose different ways to respond, one thing is similar: Kennedy and Silva delayed filing their motion to vacate. As a result of the delay, plaintiff was prejudiced.

I.

Plaintiff is a New York leasing company that leased vehicles to defendants for use in their livery company. Kennedy owned Front Row Limousine from 1994 to March 2003.*fn1 Both Silva and Kennedy personally guaranteed several of the lease agreements.

On July 18, 2003, plaintiff filed a lawsuit seeking money damages caused by defendants' failure to make payments pursuant to leasing agreements. Plaintiff sought to recover the deficiency balance, after credits and charges were applied, on the vehicles.

Default was filed on September 24, 2003. Default judgment was entered, pursuant to Rule 4:43-2(a), on October 7, 2003, in the amount of $180,884.53.*fn2 Plaintiff spent several years attempting to collect from defendants.

A. Silva

On January 4, 2004, Silva was served with a December 31, 2003, information subpoena and he ignored it. After learning about plaintiff's default judgment, Silva consulted four lawyers between April 23, 2004, and the filing of the appeal. Silva's motion to vacate was not filed until he retained the fourth lawyer. Silva's delay in filing the motion to vacate was inexcusable.

First, Silva retained Terrance L. Turnbach on April 23, 2004, to oppose plaintiff's motion to enforce litigants rights. On April 30, 2004, Silva appeared in court and filled out the information subpoena submitted to him following entry of plaintiff's default judgment. On June 14, 2004, Silva was served with a personal property levy. At that time, neither Turnbach nor defendant filed a motion to vacate the October 7, 2003 default judgment.

Second, Silva consulted Dennis Salerno to negotiate a settlement of plaintiff's default judgment after Silva was served with a wage execution on November 17, 2005, and after he learned that he was denied a line of credit due to plaintiff's default judgment. Unsuccessful settlement negotiations occurred between Salerno and plaintiff's counsel. At that time, neither Salerno nor defendant filed a motion to vacate the default judgment.

Third, Silva consulted Diane Ault Cullen sometime after September 12, 2007, when plaintiff successfully levied on Silva's PNC bank account in the amount of $2,211.08. Cullen unsuccessfully opposed plaintiff's turnover motion. On June 5, 2008, plaintiff served a subpoena duces tecum on PNC to produce documents on July 9, 2008, regarding Silva's line of credit. On June 6, 2008, a turnover order was filed. On July 2, 2008, Cullen also filed, on behalf of Silva's son and significant other, a motion to intervene and return monies levied on an alleged joint bank account and to quash the subpoena. On August 1, 2008, the court denied the motion to intervene and return monies. Neither Cullen nor Silva filed a motion to vacate the default judgment.

Fourth, Silva retained James F. Brady who filed a motion to vacate default judgment on December 23, 2008. The motion was filed almost four years after Silva learned about the judgment against him. On December 12, 2008, plaintiff successfully ...


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