Zachary L. Kramer v. B&C Towing

• Court: New Jersey Superior Court Appellate Division
• Decided: December 10, 2025
• Docket: A-2122-24
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2122-24

ZACHARY L. KRAMER,

Plaintiff-Respondent,

v.

B&C TOWING,

Defendant-Appellant. _______________________

Submitted December 2, 2025 – Decided December 10, 2025

Before Judges Susswein and Chase.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SC-001453-24.

PinilisHalpern, LLP, attorneys for appellant (Gabriel H. Halpern, of counsel and on the briefs).

Zachary L. Kramer, self-represented respondent.

PER CURIAM Defendant B&C Towing appeals from the Special Civil Part March 13,

2025 order denying its motion to vacate a default judgment. We vacate and

remand.

I.

On August 14, 2024, defendant towed plaintiff's car at the request of

Newark Police due to illegal parking. Plaintiff alleges defendant damaged his

car, causing $4,416.01 in losses. He filed a claim in the Small Claims Section

of the Special Civil Part.

On October 24, 2024, the court entered a default judgment because

defendant failed to appear at trial. That same day, the court held a proof hearing

and awarded plaintiff $4,416.01 in damages.1

In December, defendant moved to vacate the default judgment. The court

denied that motion to vacate, finding that defendant had not provided proof of

service. Defendant then filed for reconsideration, attaching two certifications

regarding service of the original motion on plaintiff.

On March 13, 2025, the court granted reconsideration, reviewed the

merits, but again denied defendant's motion to vacate. The court concluded that

1 Defendant has not provided a transcript from the default or the proof hearing. A-2122-24 2 defendant failed to show the existence of a meritorious defense under Rule 4:50-

1(a).

This appeal follows.

II.

We recognize that a decision to vacate a default final judgment under Rule

4:50-1 lies within "the sound discretion of the trial court, guided by principles

of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). Hence, we review a motion

to vacate final judgment under Rule 4:50-1 for an abuse of discretion. 257-261

20th Ave. v. Roberto, 259 N.J. 417, 436 (2025). "A court abuses its discretion

'when a decision is made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" Parke Bank v.

Voorhees Diner Corp., 480 N.J. Super. 254, 262 (App. Div. 2024) (quoting

Mims v. City of Gloucester, 479 N.J. Super. 1, 5 (App. Div. 2024)). We need

not defer to "a decision based upon a misconception of the law." State v. S.N.,

231 N.J. 497, 515 (2018) (quoting State v. C.W., 449 N.J. Super. 231, 255 (App.

Div. 2017)).

Rule 4:50-1 offers litigants a broad opportunity for relief from a final

judgment or order:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal

A-2122-24 3 representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

[Ibid.]

"A default judgment will be considered void when a substantial deviation

from service of process rules has occurred, casting reasonable doubt on proper

notice." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App.

Div. 2003). Therefore, a motion to vacate a default judgment for lack of service

is governed by Rule 4:50-1(d), which authorizes a court to relieve a party from

a final judgment if "the judgment or order is void." Ibid. "If a judgment is void

in this fashion, a meritorious defense is not required to vacate under the rule."

M & D Associates v. Mandara, 366 N.J. Super. 341, 353 (App. Div. 2004) (citing

Jameson, 363 N.J. Super. at 425).

A-2122-24 4 In contrast, Rule 4:50-1(a) "requir[es] a showing of excusable neglect and

a meritorious defense." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 468

(2012). We have found that there is a meritorious defense where a party

provides a proper defense with legal justification to the opposing party 's claim.

T & S Painting & Maint. v. Baker Residential, 333 N.J. Super. 189 (App. Div.

2000). "Normally, [the] failure to plead the details of what the meritorious

defense is would be fatal to an application for reopening of a judgment." Marder

v. Realty Constr. Co., 84 N.J. Super. 313, 318-19 (App. Div. 1964).

In applying Rule 4:50-1(a) instead of Rule 4:50-1(d) to the motion to

vacate default judgment for lack of service, the court mistakenly exercised its

discretion. Therefore, we vacate and remand.

On remand, the court should determine the sufficiency of service of

process. Rule 6:2-3(b) governs the manner of service in the Special Civil Part.

The clerk of the court is permitted to serve process by mail, if the process is

mailed simultaneously by both certified and ordinary mail. R. 6:2-3(d)(1).

Moreover, under Rule 6:2-3(d)(4), such service is effective "if the certified mail

is returned to the court marked 'unclaimed' or 'refused,' . . . provided that the

ordinary mail has not been returned," and is based on the recognized

presumption that "mail properly addressed, stamped, and posted was received

A-2122-24 5 by the party to whom it was addressed." SSI Med. Servs., Inc. v. HHS, Div. of

Med. Assistance & Health Servs., 146 N.J. 614, 621 (1996).

Defendant also contends the default should be set aside because the

judgment was never served on them as required by Rule 6:6-3(e). In any event,

the argument is clearly "without sufficient merit to warrant discussion in a

written opinion," Rule 2:11-3(e)(1)(E), as this was not a judgment entered by

the clerk in an application for default judgment but an order after a proof

hearing. See R. 6:6-3(a) and (b).

Vacated and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

A-2122-24 6