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Ejdys v. Estate of Herrsche

Superior Court of New Jersey, Appellate Division

July 10, 2013

KIRK EJDYS, Plaintiff-Respondent,
v.
ESTATE OF JOHN HERRSCHE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2013

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. SC-1336-11.

Allen Hantman argued the cause for appellant (Morris & Hantman, attorneys; Mr. Hantman, on the brief).

Kirk Ejdys, respondent, argued the cause pro se.

Before Judges Lihotz and Kennedy.

PER CURIAM

Defendant appeals from the denial by the Special Civil Part of its motion to vacate default judgment. We agree and reverse the February 8, 2012 order.

On November 27, 2011, plaintiff filed a complaint against defendant, the estate of John Herrsche, asserting that defendant "unlawfully withheld" $1295 of plaintiff's $1600 security deposit at the conclusion of a residential lease. The complaint was served upon Jennie Mathesius, the administrator of the defendant estate, and the trial date set forth in the summons was December 22, 2011.

On December 21, Mathesius wrote to the court for an adjournment, stating that her husband had recently died, and she had contracted the flu. She added that she had counsel, and "proof" that plaintiff had damaged the apartment and had received back the balance of his security deposit, after the damages were subtracted from the sum otherwise due. The adjournment was granted.

Apparently, the Special Civil Part set a new trial date for January 5, 2012, and mailed notice to the parties.[1] On that date, no one appeared on behalf of defendant. Consequently, the trial court entered default judgment against defendant for twice the amount "wrongfully withheld" and costs for a total of $2612.[2]

The judgment recites, in part, that, "[s]ufficient proofs [were] submitted under oath by plaintiff. [He] testified that defendant's spouse [was] not in military service."

On January 18, defendant, represented by counsel, filed a motion to vacate the default judgment. The motion was supported by a certification from Mathesius, stating she was never informed "either by telephone or in writing" of the new trial date, and that trial was apparently held on January 5 "without notice" to her. She also stated in her certification that she had a "valid defense" and had returned the security deposit to plaintiff, after subtracting money for the "damages [he] caused" to the apartment.

On February 8, the court denied the motion. On the order, the motion judge wrote "this motion ...


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