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Francisco Paredes and Holly C. Bakke v. Awais Chaudhary

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 15, 2012

FRANCISCO PAREDES AND HOLLY C. BAKKE, PLAINTIFFS,
v.
AWAIS CHAUDHARY, A/K/A AWAIS A. CHAUDHARY, DEFENDANT-APPELLANT.
MARVIN MONT, PLAINTIFF,
v.
AWAIS CHAUDHARY, A/K/A AWAIS A. CHAUDHARY, DEFENDANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-11776-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 2, 2011

Before Judges Fuentes and Harris.

Defendant Awais Chaudhary appeals from the order of the Law Division denying his Rule 4:50-1(f) motion to vacate a default judgment entered against him in 2002. We affirm.

On October 5, 1998, an Acura Legend collided with a Jeep Cherokee driven plaintiff Francisco Paredes. The driver of the Acura was identified as defendant Awais Chaudhary. On December 10, 1999, plaintiff filed a civil complaint in the Law Division Middlesex County against Chaudhary, seeking damages for injuries plaintiff sustained as a result of the accident. The complaint was amended on June 9, 2000, to include Marvin Mont, the passenger in Paredes's vehicle, as a plaintiff.

Service of process of the original complaint was effectuated upon Chaudhary by a Middlesex County Sheriff's Officer on April 29, 2000, by serving Chaudhary's sister, who was a member of his household and over the age of fourteen. The affidavit of service also shows that the amended complaint was served personally upon Chaudhary at his place of residence by a Middlesex County Sheriff's Officer on June 13, 2000. Chaudhary did not answer the complaint and a final default judgment was entered against him on May 14, 2002.

Because Chaudhary's automobile policy with State Farm had been canceled before the accident due to nonpayment of premium, Paredes and Monte amended their complaint to add a claim for uninsured motorist benefits; the Unsatisfied Claim and Judgment Fund was ordered to pay each plaintiff $15,000 in damages. A final stipulation of dismissal as to all claims was filed on February 5, 2003.

On October 29, 2010, Chaudhary filed a motion before the Law Division under Rule 4:50-1(f) seeking to vacate the default judgment entered against him more than seven years earlier. Chaudhary averred that he had not been the driver of the vehicle that collided with plaintiff's car. He also claimed that he was not properly served with process because his wife concealed the summons and complaint from him to protect her paramour, the person who actually drove the car at the time of the accident. Finally, although he discovered these facts in 2003, he chose not to take action to remedy the problem to avoid upsetting his children. He decided to act in 2010 after he and his wife divorced in 2009.

Chaudhary also argues that he was denied due process of law when the summons and complaint were served upon his sister. According to Chaudhary, although his sister was a member of his household and over the age of fourteen at the time of service, this kind of service is ineffective because the summons and complaint were not "delivered to the proper defendant," i.e., the person who actually drove the car. Finally, Chaudhary argues that the default judgment against him was fraudulently obtained because his former wife kept this matter hidden from him.

We are required to view defendant's application for relief from a default judgment with great liberality, giving him all reasonable grounds for indulgence. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). Defendant must show that he has a meritorious defense and that his failure to file a responsive pleading was due to excusable neglect. Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div. 2007).

Giving defendant all reasonable indulgence, he became aware of his wife's alleged misconduct in hiding the existence of this lawsuit as early as 2003, but deliberately decided not to take any action until seven years later. Defendant may consider his motive for failing to act to be morally justifiable, but it does not constitute excusable neglect. We are also satisfied that defendant was afforded constitutionally valid service of process. By defendant's own admission, his sister accepted service of process on his behalf consistent with the requirements of Rule 4:4-4(a)(1). The arguments raised by defendant lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20120615

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