On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-13035-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 4, 2011 - Decided Before Judges Graves and Messano.
Defendants Joe Oyekunle and Realtex Professional Group, Inc. (defendants) appeal from orders of the Law Division, Special Civil Part, denying 1) their motion to vacate a default judgment against them; and 2) their subsequent motion for reconsideration. We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand.
Plaintiff, 1982 Springfield Avenue, L.L.C., entered into a commercial lease with defendants in 2005 and subsequently secured a judgment for possession for non-payment of rent in February 2009. Plaintiff then commenced this action in the Special Civil Part seeking to recoup monies defendants allegedly owed from the breach of the lease agreement. Defendants initially answered pro se, and plaintiff successfully moved to strike the answer because it was not filed by an attorney.
Defendants, now represented by counsel, moved to reinstate their pleading. That motion was unopposed and was granted. Defendants then filed an amended answer and counterclaim in which they alleged that plaintiff had breached the lease and had refused to return their security deposit. The parties dispute whether plaintiff filed an answer to the counterclaim, but resolution of that dispute is not relevant to our decision. The matter was originally listed for trial on January 19, 2010. Both sides appeared but the court adjourned the matter and set a new trial date of March 9.*fn1
On March 4, defense counsel requested an adjournment in a letter sent by express mail to the trial judge. Defense counsel noted he was presently on trial in a criminal matter in Passaic County and expected the case to continue through the following week. Defense counsel advised us at oral argument that he did not contact the clerk or the judge thereafter because he believed his request would be granted pursuant to the Rules of Court since he was on trial elsewhere.
On March 9, plaintiff appeared and was ready to proceed to trial despite the fact that discovery requests had apparently gone unanswered. Neither defendants nor defense counsel appeared, and the judge entered default. We are advised by plaintiff's counsel that an 1affidavit of proof was submitted shortly thereafter and default judgment was entered. See R. 6:6-3(a) (permitting entry of default judgment by the clerk upon request of plaintiff if the claim is for a sum certain).
Defendants moved to vacate the default judgment on April 17.*fn2 Defendant Oyekunle certified that he became aware of the judgment while in the courthouse on another matter, believed that the case had been adjourned based upon defense counsel's request, and that he had a meritorious defense to plaintiff's claims. Defense counsel certified that he believed the case had been adjourned based upon his March 4 correspondence with the judge. Defendants sought oral argument of their motion. Plaintiff opposed the request.
No oral argument was granted, however, and on May 14, the trial judge entered an order denying the motion to vacate the default judgment. The only reason stated in the order was that the "Court denied [the] adjournment request."
On June 2, defendants moved for reconsideration of the May 14 order
and again sought oral argument. It suffices to say that the supporting
certifications of Oyekunle and defense counsel reiterated the claims
made in support of the original motion. Plaintiff opposed the motion
claiming there was no showing of "excusable neglect," and defendants
failed to demonstrate any meritorious defense. Once again, without
oral argument, the judge denied the motion for reconsideration by
order dated June 25, noting it was "the third motion made . . . to set
aside default; none have shown excusable neglect." *fn3
This appeal ensued.
Rule 4:50 applies to final judgments obtained in the Special Civil Part. See R. 6:6-1. Rule 4:50-1(a) provides relief from a final judgment because of "mistake, inadvertence, . . . or excusable neglect." Subsection (f) of that Rule permits a final judgment to be vacated for "any other reason justifying relief." In particular, "[a]n application to vacate a default judgment is 'viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:50-1 (2011) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd 43 N.J. 508 (1964)).
In this case, plaintiff's default judgment flowed solely from defendants' non-appearance on the trial date. We presume in this regard that the judge relied upon the discretionary powers afforded him by Rule 1:2-4(a), which provides in relevant part:
If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party . . . on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to "Treasurer, State of New Jersey," or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; ...