On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-16259-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
Defendant Ying Wang appeals orders denying her motions to vacate default judgment against her and for dismissal of plaintiff West Cliff House Associates' complaint. Because Wang has established excusable neglect and a potentially meritorious defense warranting consideration of her claims on the merits, we reverse.
Wang leased a commercial storefront in Fort Lee from plaintiff through an assignment of lease dated October 8, 2007. The lease was to run through October 31, 2010. Wang abandoned the property in late March 2009 and returned the keys to plaintiff. Plaintiff sued Wang on October 15, 2009 for the unpaid rent that had accrued since Wang's abandonment of the property. Wang claimed that she had been constructively evicted from the property, but the trial judge found for plaintiff and entered judgment, which Wang satisfied.
Plaintiff sued Wang again on May 21, 2010, alleging that despite its
attempts to relet the storefront, it has been unable to do so. It
therefore sought the rent it believed had accrued since the judgment
in the first lawsuit. Wang answered, asserting that plaintiff had
failed to adequately mitigate its damages, and she moved for dismissal
of the complaint under the entire controversy doctrine.*fn1
Plaintiff sought summary judgment,
claiming that its unsuccessful efforts to relet the storefront -
listing it with a broker and placing an ad in the local newspaper -
were sufficient attempts at mitigation as a matter of law. The trial
court denied both motions on September 16 and scheduled trial for
September 27, 2010.
Plaintiff did not appear at the trial call and default was entered against her. She filed a motion to vacate default the same day. She certified that she had a flat tire on her way to court, that she had attempted to call the court to advise of her situation, and that she had arrived at court at 9:40 a.m., at which point she was told of the default and filed her motion. The trial court denied the motion on October 12 with the notation "NO EXCUSABLE NEGLECT and/or NO MERITORIOUS DEFENSE." No other reasons were provided, either orally on the record or in a written statement of reasons. Wang moved for reconsideration on November 4, and the trial judge denied that motion on November 18 without providing a statement of reasons. Wang filed a notice of appeal on December 30.
Plaintiff argues that Wang's appeal from the September 18 order is untimely and we lack jurisdiction to hear it because it was taken more than seventy-five days after the order was entered. Plaintiff is incorrect. The September 18 order denying Wang's motion to dismiss was interlocutory; it could not have been appealed at that time and had to instead be appealed together with the October 12 final order denying Wang's motion to vacate default. See Syntex Corp. v. ADT Security, 394 N.J. Super. 577, 587-88 (App. Div. 2007).
Wang's appeal is untimely in another sense. Her notice of appeal was due forty-five days after the October 12 order, R. 2:4-1(a), and that time was tolled while her motion for reconsideration was pending. R. 2:4-3(e). Thus, she should have filed her notice of appeal on December 8. Nonetheless, her notice of appeal on December 30 was within the thirty days that we may extend the time to appeal. R. 2:4-4(a). As plaintiff has suffered no prejudice from Wang's late filing, we grant her leave to file her notice of appeal as within time nunc pro tunc and turn to the substance of her arguments.
Plaintiff concedes that the trial judge's decision denying Wang's motion to vacate default must be reversed, and we agree. A motion to vacate default under Rule 4:50-1 "is addressed to the sound discretion of the trial court," Morristown Hous. Auth. v. Little, 135 N.J. 274, 283 (1994), but "should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318-19 (App. Div.), aff'd, 43 N.J. 508 (1964). Wang's flat tire on the way to court is certainly good cause for her nonappearance at the trial call, and her entire-controversy-doctrine and failure-to-mitigate defenses are potentially meritorious. See Fanarjian v. Moskowitz, 237 N.J. Super. 395, 399 n.1 (App. Div. 1989) (questioning, but not deciding, whether the entire controversy doctrine barred successive complaints for rent in circumstances similar to these); see also McGuire v. City of Jersey City, 125 N.J. 310, 321, 323 (1991) (holding that the duty to mitigate damages from lessee's breach of lease applies to commercial properties and that landlord bears burden of proving reasonable attempts to mitigate); Sommer v. Kridel, 74 N.J. 446, 458-59 (1977) (holding that there is "no standard formula for measuring whether the landlord has utilized satisfactory efforts in attempting to mitigate damages, and each case must be judged upon its own facts"). We do not pass on the ultimate merits of Wang's defenses, but hold only that both sides should be heard on them in the trial court in the first instance.
Reversed and remanded. We do not retain ...