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Brothers Landscaping, Inc v. Lakme Kota

March 8, 2011

BROTHERS LANDSCAPING, INC., PLAINTIFF-RESPONDENT,
v.
LAKME KOTA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-0970-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2011 - Decided

Before Judges Kestin and Newman.

Defendant Lakme Kota appeals from a March 29, 2010, order denying a motion for reconsideration of an earlier order entered on January 11, 2010, which denied defendant's motion to vacate default judgment. We affirm.

The relevant history of this matter may be summarized as follows. Plaintiff, Brothers Landscaping, Inc., agreed to do certain landscaping work for defendant in the spring of 2005. According to the proposal, it involved removal of the front porch, the entire front and side wall, installation of drains around the house, installation of circuit drains across front of driveway, and excavation of the area. The proposal called for eight days of labor at $900 per day for $7,200, and $1,500 for material, for a total price of $8,700. Plaintiff certifies that the work was performed, but not paid by defendant. Attempts were made to collect on the debt, without success, and the matter was referred to attorneys for collection.

In a letter from plaintiff's attorney dated January 31, 2007 to defendant, counsel advised defendant that plaintiff would accept payment and would even make "any necessary payment arrangements to accommodate you in that regard." However, if there was a failure to contact the attorney's office, it would be considered a refusal to pay and suit would be filed in the Superior Court. No payment was forthcoming.

Plaintiff's complaint was filed on January 22, 2008, alleging non-payment on a book account. Defendant filed her answer on February 28, 2008, along with a counterclaim. Plaintiff filed an answer to the counterclaim on March 11, 2008.

On March 14, 2008, plaintiff propounded a first set of interrogatories and notice to produce on defendant, which was received by defendant on March 20, 2008.

Plaintiff advised defendant on April 15, 2008 that defendant's answers to interrogatories still had not been received. Notwithstanding, defendant still did not respond with answers to the interrogatories.

On April 29, 2008, plaintiff filed a motion to strike/dismiss defendant's answer and counterclaim for failure to answer interrogatories. On May 15, 2008, defendant failed to appear before the court in opposition to plaintiff's motion. The court granted the motion and entered default against defendant.

On June 2, 2008, defendant filed a motion to vacate dismissal and reinstate the counterclaim. That motion was denied on June 23, 2008.

On December 16, 2009, plaintiff's motion to enter a final judgment by default was granted, and a judgment in the amount of $8,700 was entered. On December 24, 2009, defendant filed a motion to vacate the default judgment, which was denied on January 11, 2010. In denying relief, the court stated:

The second request to vacate default is denied. The answer and counterclaim was stricken for failure to provide discovery, and defendant has not fulfilled the requirements of the [R]ules to reinstate the pleadings. Judgment has ...


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