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Coles v. Ah-Ping

September 1, 2010

MARION COLES, PLAINTIFF-APPELLANT,
v.
MITI AH-PING, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1846-08.

The opinion of the court was delivered by: Per Curium

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 23, 2010

Before Judges Chambers and Kestin.

Plaintiff, Marion Coles, appeals from an order dismissing her personal injury claim and entering judgment for defendant, Miti Ah-Ping. Defendant has not participated in the appeal. We reverse and remand.

The complaint, filed on November 5, 2008, alleged that plaintiff experienced a fall and resulting injury because of a "dangerous condition" on property owned by defendant. Plaintiff was an employee of a shop in a strip of stores on the property. There were no restrooms in the store where plaintiff worked; a restroom facility serving the entire building was accessible only from the outside through the paved parking area for the building. At about 5:30 p.m. on December 7, 2006, in the dark, plaintiff walked to the restroom, used the facility, and began to walk back to the store through the paved parking area. The parking area was unlit; a lighting fixture for the area had not been working for some time. Plaintiff fell because of "a crater/hole in the pavement that was not visible in the dark." The complaint alleged further that "[d]efendant[] had actual and/or constructive knowledge of the defect in the pavement."

The cause of action pleaded in the complaint was negligence, with twenty-five particulars. The complaint alleged that, as a result of the fall, plaintiff "sustain[ed] serious injuries and damages, including, but not limited to aggravation of lumbar stenosis, multilevel cervical disc herniation, aggravation of cervical degenerative disc disease, facet syndrome, sacroiliac dysfunction, [radiculitis], and right foot injury."

Defendant filed no answer to the complaint and, on April 24, 2009, the court ordered the entry of default pursuant to Rule 4:43-1. A handwritten addition to the form of order stated:

Defendant's late answer is rejected. Defendant should file motion to vacate entry of default & for permission to file late answer within a prescribed time. Defendant cannot request discovery until answer is filed & accepted for filing.

A typewritten addendum to the order set out the procedural considerations that led to the entry of the order with its handwritten addition, which encompassed the rejection of defendant's "objection to notice of motion" and his request to "dismiss complaint for failure to answer interrogatories."

An order entered on September 11, 2009, provided that a "proof hearing shall be set... as to both liability and damages." A typewritten addendum to that order recited the legal basis for requiring proof of both liability and damages in this default matter. A handwritten entry on that addendum stated:

Defendant sent in objection to motion for relief & requested permission to file answer & counterclaim. The latter was not filed by cross-motion, merely by objection, and did not include any basis for the relief showing excusable neglect/meritorious defense. Since no cross-motion filed & since no basis for the relief set forth[,] the request has to be denied.

On October 9, 2009, an order was entered denying an unopposed motion by defendant to vacate the entry of default and allow the filing of an answer out of time. The typewritten addendum to that order and a handwritten addition explained the court's reasons for the denial, that the standards for granting such relief had not been met. See R. 4:50-1.

The proof hearing was held on October 16, 2009, before a judge other than the one who had entered the orders we have described. The court permitted defendant to participate in the proof hearing on an entirely correct limited basis: "you can ask questions of the plaintiff or make comments on the proofs but other than that, you really don't ...


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