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Donald Bush D/B/A Hbc v. George Tatosian

August 27, 2012

DONALD BUSH D/B/A HBC, PLAINTIFF-RESPONDENT,
v.
GEORGE TATOSIAN, FRANK MORETTI & PATRICIA MORETTI, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1655-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges Simonelli and Waugh.

Defendants Frank and Patricia Moretti, and the Estate of George Tatosian, appeal from the Law Division's April 29, 2011 order denying their motion to set aside a default judgment, as well as the June 14 order denying reconsideration. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

During 2007 and 2008, Donald Bush performed construction work at a residential property in Whippany owned by the Morettis. According to Patricia,*fn1 she and her husband Frank owned the property, but did not live there. They lived in New York City. The Whippany residence was occupied by Patricia's brothers George and Jack Tatosian. Patricia described George as an electrical contractor and Jack as "mentally challenged."

Although Bush claimed that he entered into a contract with the Morettis, Patricia claimed that neither she nor her husband had done so. However, Patricia conceded that she visited her brothers at their home and was aware that work was being done. She asserts that she assumed George had authorized the work.

According to the complaint, construction liens were filed against the property and served on the record owners, the Morettis, in June 2008 and January 2010. Bush certified that the Morettis had refinanced the Whippany property to pay for the work. He also certified that he had notified Patricia that George was not well and was not making the payments for the work. George died intestate in October 2009.

In May 2010, Bush filed a complaint seeking payment for the work he had performed. After he was unable to serve the defendants at the Whippany property, he arranged for substituted service in New York. Bush subsequently requested the court to enter default. A final default judgment for $31,995, the amount due under the construction liens, was entered in February 2011.

On February 25, defendants filed a motion to vacate the default judgment. The motion was supported by a certification and brief containing generalized factual allegations and legal argument, seeking to set aside the default judgment on the grounds of excusable neglect. See R. 4:50-1(a). Patricia argued that she and her husband had not entered into any contract with Bush. She further argued that her delay in responding to the litigation and default judgment was the result of excusable neglect, specifically her having been overwhelmed by George's death, taking care of numerous claims against him, and taking care of Jack. In opposition, Bush filed a certification detailing Patricia's approval of and involvement in the building project, including an assertion that Patricia had authorized George to act as her agent.

Following oral argument on April 29, the motion judge denied the motion, finding that Patricia's conclusory statements did not "support either the existence of excusable neglect or a meritorious defense." A subsequent ...


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