STATE OF NEW JERSEY v. CHRISTOPHER FIGUEROA (07-09-3171

• Court: New Jersey Superior Court Appellate Division
• Decided: June 20, 2017
• Docket: A-2450-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2540-15T1

NEW BANK,

Plaintiff-Respondent,

v.

GREEN BAMBOO, LLC, HYUN S. KIM, GONG JOO KIM, JOKER BILLIARDS, LLC, and CHAI HONG, LLC,

Defendants,

and

CHANG D. KIM,

Defendant-Appellant. ________________________________________________

Submitted February 7, 2017 – Decided February 28, 2017

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-20088-14.

Matthew Jeon, attorney for appellant.

Rotolo, Bozanian & Yi, LLC, attorneys for respondent (P. Cliff Rotolo, on the brief).

PER CURIAM After closely examining the record in this appeal from the

denial of a Rule 4:50 motion, we find no merit in the argument

that appellant was not properly served with the summons and

complaint.

Plaintiff New Bank commenced this action against defendant

Green Bamboo, LLC, which, on January 17, 2014, executed a

promissory note to repay a $500,000 loan; the note's repayment was

guaranteed by a number of individuals, including defendant Chang

D. Kim. The complaint was filed on December 8, 2014, and service

of process was promptly effected on all defendants except Kim.

The served defendants defaulted and plaintiff obtained a default

judgment against them; when it could not effect personal service

on Kim, plaintiff moved for and obtained the right to serve him

by certified and regular mail at three locations. When Kim did not

timely respond to the summons and complaint received by him by way

of substituted service, default judgment was entered against him

on July 7, 2015.

On October 22, 2015 – the day before the return date of

plaintiff's motion for a turnover of funds – Kim moved pursuant

to Rule 4:50 for relief from the default judgment. His motion was

denied on December 4, 2015, and a subsequent motion for

reconsideration was denied on January 22, 2016. Kim appealed both

orders, arguing the motion judge erred in denying his Rule 4:50

2 A-2540-15T1 motion because: (1) the default judgment is void; (2) he was not

required to assert a meritorious defense; and (3) he established

excusable neglect. We find insufficient merit in these three

arguments to warrant further discussion in a written opinion. R.

2:11-3(e)(1)(E). We add only the following brief comments.

Kim's Rule 4:50-1(d) argument that the judgment is void is

based on his contention that plaintiff was not entitled to

substituted service. The record indisputably shows, however, that

plaintiff attempted to serve Kim personally – as required by Rule

4:4-4(a)(1) – at his "dwelling place or usual place of abode" –

on three separate days in December 2014. As explained in the

process server's affidavit, Kim's Alpine residence is "gated

. . . with a[n] intercom system" and, on his last attempt, the

process server was told by a voice over the intercom, before that

person disconnected, that he should "not . . . come back." Based

on this and other information, the judge granted plaintiff's motion

for substituted service by way of certified and regular mail at

the Alpine residence, at Green Bamboo's principal place of

business, and the location of Bamboo's business. Plaintiff later

received return receipts that were signed by Kim for the mail sent

to all three locations.

In seeking relief from the default judgment, Kim did not

argue he did not receive the summons and complaint, and he provides

3 A-2540-15T1 nothing of merit to suggest the judge erred in ordering substituted

service.1 Instead, Kim argues that the papers served did not

include the motion and order for substituted service.2 Because

service of a summons and complaint was all that was necessary, we

reject Kim's contention that the default judgment is void pursuant

to Rule 4:50-1(d) because of his mistaken claim that service of

process was defective due to plaintiff's alleged failure to also

serve the substituted-service motion papers.3

We also reject Kim's third and last argument that the default

judgment should be vacated pursuant to Rule 4:50-1(a) based on his

assertion that excusable neglect was the cause of his failure to

1 Plaintiff's motion in support of substituted service was properly granted. The sworn statements provided to the judge at that time demonstrated, as required by Rule 4:4-4(b)(1), that plaintiff made a diligent effort to effect personal service at Kim's residence. 2 We would also observe that Kim's moving certification confirmed he resided at the Alpine address where the process server attempted service three times and where certified and regular mail were sent and actually received. And, while denying "any association with Green Bamboo," Kim confirmed in his certification that he was a guarantor of the note. 3 We agree with Kim that he was not obligated to present a meritorious defense insofar as his motion was based on faulty service of process. In that circumstance, due process principles do not obligate a movant to present a meritorious defense. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S. Ct. 896, 899-900, 99 L. Ed. 2d 75, 81-82 (1988); Midland Funding LLC v. Albern, 433 N.J. Super. 494, 501 (App. Div. 2013).

4 A-2540-15T1 timely respond to the complaint.4 In moving for relief on this

ground, however, Kim relied only on his attorney's sworn assertion

that Kim "did not disregard the judicial procedure but mistakenly

or carelessly failed to appreciate the significance of proper

response to the legal action against him." Even assuming the

truth and reliability of this conclusory allegation – an allegation

that actually supports plaintiff's position because it presupposes

Kim's actual receipt and knowledge of the complaint filed against

him5 – the attorney's hearsay assertions are insufficient to

provide a factual basis for the claim of excusable neglect. See

Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358

(App. Div. 2004), aff’d, 184 N.J. 415 (2005), cert. denied, 546

U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006); see also

Higgins v. Thurber, 413 N.J. Super. 1, 21 (App. Div. 2010), aff’d,

205 N.J. 227 (2011). Interestingly, Kim's own certification did

not assert or provide any facts to support his attorney's claim

that Kim was "mistaken[]" or "careless[]" in addressing the summons

4 In asserting this theory, Kim was obligated – and failed – to show a meritorious defense. 5 In his own certification, Kim revealed his actual awareness of plaintiff's lawsuit by referring to the fact that even before plaintiff moved for substituted service, his attorney had corresponded with plaintiff's counsel about the case.

5 A-2540-15T1 and complaint; Kim personally offered no explanation for his

failure to file a responsive pleading.

Affirmed.

6 A-2540-15T1