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North Jersey Center for Surgery v. Alfaro

August 12, 2010

NORTH JERSEY CENTER FOR SURGERY, PLAINTIFF-RESPONDENT,
v.
JOSE ALFARO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DC-15823-2007.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2010

Before Judges Grall and LeWinn.

Defendant appeals from the February 2, 2009 order of the trial court denying his motion to vacate a default judgment entered against him on November 21, 2007 in the amount of $5,324.80, and the March 20, 2009 order denying his motion for reconsideration. We reverse.

Defendant was injured in an automobile accident and was treated by plaintiff, North Jersey Center for Surgery, for personal injuries suffered as a result. He filed a personal injury lawsuit, which ultimately settled.

Defendant, whose primary language is Spanish, believed that all of his medical expenses had been paid either through his own automobile insurance policy or from the proceeds of the settlement. Plaintiff's bill was not paid, however, and plaintiff obtained a default judgment against defendant for the full amount of the bill.

When defendant received by mail documents connected to plaintiff's effort to collect on its default judgment, defendant retained a new attorney and had his trial attorney transfer his file; plaintiff's bill was not in defendant's file when his new attorney received it. It is unclear whether defendant's trial attorney ever received plaintiff's bill.

Defendant filed a motion to vacate default on November 21, 2008. He certified that he did not "remember being served with a [s]ummons and [c]omplaint in this matter." He did recall "receiving papers requesting that a [d]efault be entered against [him], although [he] did not understand what that meant, as Spanish is [his] primary language. . . . [He] never understood that a [d]efault [j]udgment was entered against [him] by . . . [p]laintiff . . . ." He remembered "next" receiving an "[i]nformation [s]ubpoena which apparently meant that a [d]efault [j]udgment had been entered against [him]." Defendant took that document to his trial attorney who then "gave" it to defendant's new attorney.

Defendant's new attorney also filed a certification in support of the motion, stating that "defendant . . . has a meritorious defense to the plaintiff's claims, particularly to the amount of damages claimed. The judgment amount is in excess of the fee schedule amount for these services. ([T]he actual amount allowed for the services in the plaintiff's bill is only $1,376.05)."

In his order denying defendant's motion, the trial judge noted: "Application is denied. Defendant not recalling whether he was served or whether a family member may have been served does not constitute excusable neglect. Defendant also admits receiving a notice that he was in default."

In defendant's motion for reconsideration, counsel submitted a certification asserting that denial of the motion was in error because "there was excusable neglect in not filing an [a]nswer and . . . . [d]efendant has a meritorious defense . . . ." Counsel reiterated that "Spanish is [defendant's] primary language[,]" and although defendant acknowledged receiving notice that entry of default had been requested, he did not "know what it meant" and "never understood that a [d]efault [j]udgment was entered against him . . . ."

The judge heard argument on defendant's motion for reconsideration on March 20, 2009; no appearance was made on behalf of plaintiff at that hearing. In denying the motion, the judge stated:

I believe [defendant] probably has a meritorious defense with the amount in question . . . . [F]or the reason I denied it initially is the same reason I'm going to deny your application for reconsideration, you haven't shown me where I erred when I held that the movant ...


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