Malgorzata Barlik v. Dr. Arthur Szabela

• Court: New Jersey Superior Court Appellate Division
• Decided: September 30, 2024
• Docket: A-0488-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0488-23

MALGORZATA BARLIK,

Plaintiff-Respondent,

v.

DR. ARTHUR SZABELA and GARDEN STATE DENTAL DESIGN,

Defendants-Appellants. ___________________________

Argued June 3, 2024 – Decided September 30, 2024

Before Judges DeAlmeida and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3379-20.

Douglas F. Ciolek argued the cause for appellants (Rosenberg Jacobs Heller & Fleming, PC, attorneys; Sam Rosenberg, of counsel; Brian Brenner and Douglas F. Ciolek, on the briefs).

Steven P. Lombardi argued the cause for respondent.

PER CURIAM Defendants Dr. Arthur Szabela and Garden State Dental Design appeal

from the Law Division's September 8, 2023 order denying their motion to vacate

a 2021 final default judgment pursuant to Rule 4:50-1(d) and Rule 4:50-2. We

conclude defendants claims on appeal are without merit and affirm.

We glean from the sparse motion record provided that on October 13,

2020, plaintiff Malgorzata Barlik filed a complaint against defendants alleging

multiple theories of negligence, dental professional malpractice, and a lack of

informed consent. Defendants did not timely answer or otherwise respond.

On January 11, 2021, plaintiff requested the entry of default against

defendants pursuant to Rule 4:43-1. In that regard, plaintiff's counsel certified

defendants were served with a letter and a copy of counsel's certification by

regular mail at the same address where personal service was made. Plaintiff's

counsel also certified that personal service of the complaint was effectuated on

defendants on October 20, 2020, at defendants' business address in Clark, which

was supported by affidavits of service.

Default was entered and the trial court scheduled a proof hearing for April

20, 2021. Plaintiff's counsel notified defendants of the virtual hearing date with

Zoom instructions by regular mail again at the same address. Defendants failed

to appear, and the court entered final default judgment in the amount of $325,000

A-0488-23 2 and a memorializing order on April 27, 2021. In an April 29, 2021 letter,

plaintiff's counsel served defendants with a copy of the order entering final

judgment by default by regular mail. In contrast, defendants claim neither a

notice of motion for default judgment nor the order entering final judgment by

default was served. Thereafter, a writ of execution was entered on July 13, 2022.

The county sheriff's affidavit of service dated October 25, 2022 shows

defendants were again served at the same business address and noted "defendant

will contact attorney."

On August 9, 2023, defendants moved to vacate the default judgment.

Plaintiff opposed. Following oral argument on September 8, 2023, the motion

court denied defendants' motion, finding plaintiff established defendants had

been served with the complaint and failed to answer. The court also found no

procedural or substantive due process basis to vacate the default judgment to be

vacated. Lastly, the motion court found no "demonstration of [a] meritorious

defense" and no "excusable neglect" when defendants were served with the

complaint and did nothing since 2020.

On appeal, defendants contend they were not properly served with the

request for entry of default, notice of motion for a default judgment, notice of

the scheduled proof hearing, and the order of entry of final judgment until the

A-0488-23 3 writ of execution was served by the county sheriff's officer. Defendants argue

that plaintiff "made no attempts to communicate with" them after the complaint

was served, and therefore "believed" plaintiff's complaint had been dismissed or

abandoned. Defendants focus on the language in the April 27 1 entry of final

judgment order directing plaintiff's counsel to service the order by regular and

certified mail and argues improper service because defendants did not receive a

copy of that order by certified mail. Defendants further contend their motion to

vacate was both proper and timely pursuant to Rule 4:50-1(d) and Rule 4:50-2.

We are not persuaded by defendants' contentions and find them wholly without

merit. R. 2:11-3(e)(1)(E).

We review the trial court's decision on a motion to vacate a default

judgment for abuse of discretion. US Bank Nat'l Ass'n v. Guillaume, 209 N.J.

449, 467 (2012). "The trial court's determination under [Rule 4:50-1] warrants

substantial deference," and the abuse of discretion must be clear to warrant

reversal. Ibid.

Rule 4:50-1(d) permits a party to vacate a default judgment by

demonstrating the judgment or order is void. In such cases, the movant has "the

1 In defendants' merits brief, defendants cite the April 27, 2021 order as April 23, 2021. The order however contains a typographical error, and we take judicial notice of the filing date as April 27, 2021. A-0488-23 4 overall burden of demonstrating that its failure to answer or otherwise appear

and defend should be excused." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J.

Super. 419, 425-26 (App. Div. 2003). A motion brought under this rule "shall

be made within a reasonable time, . . . after the judgment, order[,] or proceeding

was entered or taken." R. 4:50-2.

The trial court denied defendants' motion to vacate the default judgment

because of defendants' inaction after the complaint was filed. The court found

plaintiff's service of notice of default, entry of default and the proof hearing by

mail was proper. The court reasoned that a "reasonable time" of defendants to

respond had "long passed" because defendants moved to vacate almost a year

after the writ of execution had been served. During oral argument, defendants

offered no explanation regarding the ten-month delay in moving to vacate the

default judgment after the writ of execution was served. Instead, defendants

argued that at the time, they were unrepresented and more attention to the court

rules were required regarding the filing of any notices and motions. The lack of

explanation regarding the passage of time provided no factual predicate to

establish defendants delay in filing the motion was reasonable and because

defendants failed to satisfy their burden, defendants were not entitled to the

requested relief.

A-0488-23 5 We conclude the trial court's ruling is supported by sufficient evidence in

the motion record. We, however, depart with the court's reasoning that

defendants were required to show a meritorious defense. In a motion to vacate

pursuant to Rule 4:50-1(d), a movant is not required to demonstrate a

meritorious defense to obtain relief. Jameson, 363 N.J. Super. at 425.

Nonetheless, the court properly denied defendant's motion to vacate given the

fatal flaws, and we discern no abuse of discretion.

Affirmed.

A-0488-23 6