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Karl Kocian v. Kenneth Nagrod

June 30, 2011

KARL KOCIAN, PLAINTIFF-APPELLANT,
v.
KENNETH NAGROD, DEFENDANT-RESPONDENT.
KENNETH NAGROD, PLAINTIFF,
v.
KARL KOCIAN AND JENNIFER CHAMBERS, DEFENDANTS.



On appeal from Superior Court, Law Division, Burlington County, Docket Nos. L-2394-08 and L-1309-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 1, 2010

Before Judges Grall and C.L. Miniman.

Plaintiff Karl Kocian appeals from a February 19, 2010, order denying his application to vacate an earlier default judgment entered on defendant Kenneth Nagrod's counterclaim because plaintiff failed to appear for a proof hearing. Because we are satisfied that the judge mistakenly exercised his discretion in denying the motion to vacate the default judgment on the counterclaim, we reverse and remand for further proceedings consistent with this opinion.

On August 7, 2008, Kocian filed a complaint in Burlington County under Docket No. L-2394-08 against Nagrod. That complaint alleged that Nagrod attacked Kocian on August 12, 2006, stabbing him eight times in his chest, groin, and back. As a result of the knife attack, Kocian suffered permanent physical and psychological injuries for which he sought damages.

On August 14, 2008, Nagrod filed a complaint in Monmouth County under Docket No. L-3830-08 against Kocian and co-defendant Jennifer Chambers. Nagrod alleged that on August 14, 2006, Kocian trespassed on Nagrod's property, broke into his home, and assaulted Nagrod. He, too, alleged permanent physical injuries as a result of the attack.*fn1

Nagrod filed an answer and counterclaim against Kocian in the Burlington County action on October 6, 2008. Nagrod made the same allegations in his counterclaim that he did in his Monmouth County action, but this time alleged the trespass and assault took place on August 12, 2006. Chambers was not added as a third-party defendant in this pleading. On April 3, 2009, a Monmouth County judge consolidated Nagrod's complaint with Kocian's Burlington County action; a new docket number, L-1309-09, was assigned to Nagrod's complaint; and the matter proceeded thereafter in Burlington County.

On May 28, 2009, the Burlington County judge, on motion of Nagrod, dismissed Kocian's complaint and struck his answer to Nagrod's counterclaim due to Kocian's failure to provide discovery. Then, on October 29, the judge dismissed Kocian's complaint with prejudice, denying Kocian's cross-motion to dismiss Nagrod's counterclaim.

A proof hearing was scheduled on Nagrod's counterclaim for January 4, 2010. Kocian and Chambers contacted the court to advise it that they would be out of town on January 4 and asked for a new date. One was not assigned at the time. However, the court sent a notice to Kocian dated December 28, 2009, which was mailed on December 31, advising him that the hearing had been rescheduled for January 11, 2010, at 9:00 a.m.

Unaware of the new date, Kocian boarded a Continental Airlines flight on December 31, 2009, and did not return from the Dominican Republic until late in the evening of January 10, 2010. As a consequence, Kocian did not receive the notice of trial until he received his mail late in the day on January 11. By that time, the Burlington County judge had entered a judgment on January 11, finding that Kocian did not appear and his complaint had been dismissed with prejudice on October 29, 2009. Accordingly, the judge entered judgment in favor of Nagrod on the counterclaim for $35,000 in compensatory damages, and $15,000 in punitive damages, for a total award of $50,000.

Upon learning of the entry of judgment, Kocian filed a motion to vacate the January 11 order, making the motion returnable on February 19. In his certification, Kocian set forth the facts surrounding his request for an adjournment of the trial and his trip to the Dominican Republic and complained that Nagrod's counsel did not telephone him to apprise him of the new date. He assured the court that he had not been trying to avoid his responsibility in the matter and that his failure to appear was a simple mistake.

Kocian further asserted that Nagrod's claims were baseless and false. He certified that the altercation on August 12, 2006, did not occur on Nagrod's property, as Nagrod alleged, but rather at Chambers's home. Further, he asserted that the claims against him were subject to a one-year statute of limitations, which had expired long before Nagrod had filed his claims. In conclusion, he asked that the judgment be vacated and a new date scheduled. While Kocian's motion was pending, and after securing a judgment on his counterclaim, Nagrod voluntarily dismissed his complaint against Kocian and Chambers.

In opposing the motion to vacate the default, counsel for Nagrod argued, "Kocian's failure to appear is not excusable, but rather consistent with his actions throughout this litigation." Further, he urged that Kocian could not demonstrate a meritorious defense because his complaint and answer to the counterclaim had been dismissed. He opined that it was "difficult to accept that Kocian was surprised by the entry of the judgment as he acknowledges receipt of the trial notice." Counsel for Nagrod argued that an error in the proceedings did not entitle Kocian to vacate the judgment because "[t]he issue is not the rightness o[r] wrongness of the original determination at the time it was made, but what has transpired or been learned to ...


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