On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. LT-23917-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Messano and Kennedy.
Defendant appeals from the Special Civil Part's denial of his application to vacate a default judgment removing him from his apartment at plaintiff's federally subsidized premises in Newark. For reasons set forth hereinafter, we reverse the court's order denying his application to vacate, and we remand this matter to the trial court for a hearing on the application.
We discern the facts from the record provided to us. Defendant had been a tenant in plaintiff's apartment building since July 1, 2005, under a written lease. On August 1, 2011, plaintiff filed a complaint to evict defendant for non-payment of rent in the amount of $881 due on July 1, 2011. The summons was apparently served on defendant on August 23, 2011, and the summons explicitly stated that the matter would be heard by the court on September 1, 2011.
Defendant failed to appear on September 1, 2011, and a default was entered against him. Plaintiff thereafter filed a certification, and a judgment for possession and a warrant of removal were issued on September 8, 2011. On September 30, 2011, defendant, acting pro se, made application to vacate the default judgment and the court issued an "order to show cause" returnable October 12, 2011. No copy or description of the terms of this order have been provided by the parties and no transcript of any hearing, which may have preceded the issuance of the order, has been provided.
The parties appeared in court on October 12, 2011, and the judge, at that time, expressed concern about plaintiff's calculation of the rent allegedly due.*fn1 The judge then adjourned the matter to October 20, 2011, at 9:00 a.m., and gave defendant a written notice of the time, date and place of the continued hearing.
Plaintiff appeared with counsel and witnesses on October 20, 2011, at 9:00 a.m. Defendant failed to appear and, at 11:30 a.m., the judge vacated the order to show cause, which allowed plaintiff to proceed with the warrant for removal. However, at 4:00 p.m., defendant appeared before the judge and stated he "was sick" due to his kidney disease and "just came from hospital." The judge then called plaintiff's counsel and advised him of defendant's presence in court.
The judge thereafter allowed defendant and plaintiff's counsel to put their positions on the record, with plaintiff's counsel on speaker phone. Defendant reiterated that he had been ill with a "medical condition", and that he had tried "last week" to speak with plaintiff's agent to explain why he did not owe the claimed rent, but the agent "doesn't want to help."
Plaintiff's counsel stated that he had been in court earlier that day with two of plaintiff's representatives, and that plaintiff "denied that there was ever such a meeting [with defendant]." He further represented that his witnesses "would have explained" to the court that defendant's rent was $881 per month because defendant's father was an "ineligible alien" living in the apartment and federal regulations required payment of a "pro rata rent" in such a circumstance.
The judge then declared that, "I think at this time, at this posture of the case . . . I simply have to go with the eight eighty-one [.]" When defendant stated that he did not have money to pay that sum, and that, in any event, his father had left the apartment in May, the judge denied defendant's application. The judge added that defendant had not appeared that morning and "I'm not going to let you come in several hours later."
Defendant thereafter appeared before the court on several occasions through November 4, 2011, but was unable to secure any relief except for an order for "orderly removal" allowing plaintiff to remain on the property through November 14, 2011, and to remove his belongings by that time. This appeal followed.
Motions to vacate default judgments "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, 319 (App. Div.), aff'd 43 N.J. 508 (1964); see also Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009). The court "should be guided by equitable principles in ...