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Joseph D. Demaio, D.D.S v. Edward Karmin

September 30, 2011

JOSEPH D. DEMAIO, D.D.S., PLAINTIFF-RESPONDENT,
v.
EDWARD KARMIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-010249-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2011

Before Judges Graves and J. N. Harris.

The matter on appeal involves the entry of a default judgment for unpaid emergency dental services in favor of plaintiff Joseph D. DeMaio, D.D.S. Defendant Edward Karmin appeals from the June 30, 2010 order denying his motion to vacate the default judgment and the September 15, 2010 order denying his motion for reconsideration. We affirm.

I.

In April 2005, defendant, then age nineteen, underwent an emergency dental procedure performed by Dr. DeMaio. Defendant's father, Alan Karmin, signed Dr. DeMaio's necessary forms, which designated the father as the responsible party for his son's bills that were incurred at the time of treatment.*fn1 Defendant does not dispute the necessity of the treatment or the reasonableness of the amount charged.

Plaintiff billed $2,550 for the emergency services. According to plaintiff's brief, over the next twenty-eight months, he received a total of $1,175 in payments. The unpaid balance was referred to a collection agent, after which a payment of $375 was made.*fn2

On May 9, 2008, plaintiff filed a civil action -- against defendant only, and not against the father*fn3 -- in the Law Division's Special Civil Part seeking to recover $1,085.99 in unpaid dental fees, interest, and costs. Defendant was served with process on May 19, 2008, at his home address in Westfield. On June 30, 2008, defendant sent a letter to the court in lieu of an answer asking it to dismiss plaintiff's entire complaint and order plaintiff to accept a payment plan of fifty dollars per month for the next eighteen months to satisfy the outstanding debt.

On July 29, 2008, a default judgment was entered against defendant. A notice of entry of default judgment was sent to defendant on August 8, 2008, advising him of the opportunity to negotiate a payment plan with plaintiff. Defendant did not avail himself of this opportunity.

Approximately one year later, in August 2009, defendant purportedly filed a motion to vacate the default judgment. The disposition of this motion is not revealed by the record. On May 25, 2010, defendant filed a second motion to vacate the default judgment. In it, he asserted that his father was the "responsible party of record" and as such, plaintiff and his attorney were "actually committing an act of wrongful prosecution" against him.

Plaintiff opposed the motion on the ground that it was untimely under Rule 4:50-2 and otherwise without merit. On June 30, 2010, the court denied the motion to vacate.

On July 22, 2010, defendant moved for reconsideration. By order dated September 15, 2010, the court denied defendant's motion, noting that his application to vacate the default judgment "fail[ed] to factually establish any basis for relief under Rule 4:50-1 . . . [and that] good cause has not been shown."

On October 25, 2010, defendant appealed the June 30, 2010 and September 15, 2010 orders. Plaintiff moved to dismiss defendant's appeal of the June 30, 2010 order as untimely under Rule 2:4-1, which provides that appeals from final judgments shall be taken within forty-five days of their entry. On December 9, 2010, we granted the motion to dismiss the appeal of the June ...


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