DOCKET NO.

A-4231-16T3
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Gomez v. Liberty Mut. Fire Ins. Co.

Decided Dec 7, 2018

DOCKET NO. A-4231-16T3 $16,641.79. Liberty argues the court erred in

denying its motion to vacate the judgment
12-07-2018
pursuant to Rule 4:50-1(a), because it established
ROSANNA GOMEZ, Plaintiff-Respondent, v. excusable neglect for its failure to file a timely
LIBERTY MUTUAL FIRE INSURANCE responsive pleading and has a meritorious defense
COMPANY, Defendant-Appellant. to the underlying action. Plaintiff argues the court
properly exercised its discretionary authority to
Law Offices of Viscomi & Lyons, attorney for
deny Liberty's motion. We reverse. The record
appellant (Emily S. Barnett, on the brief).
developed before the Special Civil Part shows the
Bramnick, Rodriguez, Grabas, Arnold & Mangan,
motion judge did not apply the correct legal
attorneys for respondent (Brian J. Trembley, on
standard in his decision to deny Liberty's motion
the brief).
to vacate the default judgment.

FUENTES, P.J.A.D. This case arises from a motor vehicle accident. On

June 6, 2012, a Queen City Yellow Taxi driven by
NOT FOR PUBLICATION Jacinjo Morela collided with the car directly in
WITHOUT THE APPROVAL OF front of it, causing a chain-reaction that ultimately
THE APPELLATE DIVISION involved three other vehicles. Plaintiff Rosanna
This opinion shall not "constitute precedent or be Gomez was a passenger in one of the three
binding upon any court." Although it is posted on vehicles involved in the accident. The car she was
the internet, this opinion is binding only on the in was driven by Jorge Vilacis and owned by
parties in the case and its use in other cases is Bertha Garces.
limited. R. 1:36-3. Before Judges Fuentes and On September 19, 2013, plaintiff filed a personal
Koblitz. On appeal from Superior Court of New injury suit against all of the tortfeasors involved in
Jersey, Law Division, Union County, Docket No. the accident. She alleged the accident injured her
DC-008662-16. Law Offices of Viscomi & Lyons, 3 *3 neck, back, and shoulders. Liberty insured
attorney for appellant (Emily S. Barnett, on the Garces's car. Pinelands Insurance Company
brief). Bramnick, Rodriguez, Grabas, Arnold & insured Jacinjo Morela. Plaintiff's counsel did not
Mangan, attorneys for respondent (Brian J. serve Liberty with a copy of the complaint at the
Trembley, on the brief). The opinion of the court commencement of the action.
2 was delivered by FUENTES, P.J.A.D. *2
At a settlement conference held on June 8, 2015,
Defendant Liberty Mutual Fire Insurance plaintiff reached an agreement with the tortfeasors
Company (Liberty) appeals from an order of the to settle the case for $22,500. On August 25, 2015,
Special Civil Part denying its motion to vacate a Pinelands Insurance Company went into
default judgment entered against it, in favor of liquidation and did not pay the $22,500 settlement.
plaintiff Rosanna Gomez, in the amount of The Liberty insurance policy that covered

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 Gomez v. Liberty Mut. Fire Ins. Co. DOCKET NO. A-4231-16T3 (N.J. Super. Dec. 7, 2018)

plaintiff's host vehicle provided $15,000 of The matter came on for oral argument on February
uninsured motorist (UM) benefits. On September 27, 2017. Liberty's counsel argued the clerical
19, 2016, plaintiff filed a complaint against error made by the Special Civil Part Manager
Liberty in the Special Civil Part seeking UM caused the original motion to be viewed as
benefits under Garce's Liberty policy. The untimely. Despite the indisputable evidence
following day, Liberty received a copy of supporting Liberty's position, the motion judge
plaintiff's summons and complaint without a found Liberty did not submit a proposed answer
court-assigned docket number. 5 with the original motion to vacate. *5

Court records show the Special Civil Part It is well-established that "the opening of default
Manager attempted to serve Liberty with the judgments should be viewed with great liberality,
summons and complaint on two separate and every reasonable ground for indulgence is
occasions. The process documents were returned tolerated to the end that a just result is reached."
marked "unserved" on October 17, 2016. The Hous. Auth. of Morristown v. Little, 135 N.J. 274,
Case Manager mailed the summons and complaint 283-84 (1994) (quoting Marder v. Realty Constr.
to Liberty on November 19, 2016. Court records Co., 84 N.J. Super. 313, 319, (App. Div. 1964)).
show the Case Manager received proof of service Under Rule 4:50-1(a), a party seeking to vacate a
from the United States Postal Service on default judgment must show: (1) excusable neglect
December 9, 2016. Pursuant to Rule 6:3-1, a under the circumstances; and (2) a meritorious
defendant has thirty-five days to file a responsive defense, either refuting liability to the cause of
4 pleading. Court records show, *4 however, that the action itself or to the quantum of damages
Special Civil Part Manager entered default against assessed. Franzblau Dratch, PC v. Martin, 452 N.J.
Liberty on December 30, 2016, only twenty-one Super. 486, 491 (App. Div. 2017). A decision to
days after service by mail. grant or deny a motion to vacate default is left to
the sound discretion of the motion judge. Mancini
In a transmittal letter dated January 17, 2017
v. EDS ex rel. N.J. Auto. Full Ins. Underwriting
addressed to the Special Civil Part motions clerk,
Ass'n, 132 N.J. 330, 334 (1993). A judge abuses
the firm retained by Liberty moved to vacate the
this discretionary authority when the judge applies
entry of default and extend the time to file an
an incorrect legal standard or intentionally or
answer. Defense counsel simultaneously served
mistakenly ignores the material facts of a case.
plaintiff with interrogatories, demand for
New Jersey Div. of Youth & Family Servs. v.
production of documents, including a release for
M.G., 427 N.J. Super. 154, 171-72 (App. Div.
medical records, notice of deposition, and a
2012).
demand for plaintiff to submit to an independent
medical examination. These documents were date Here, the motion judge incorrectly found Liberty
stamped received by the court on January 18, filed an untimely motion to vacate, unsupported
2017. However, Special Civil Part records show by a responsive pleading, in violation of the
they were not uploaded to the court's database requirements of Rule 4:43-3. The record shows,
until February 15, 2017. Plaintiff filed opposition however, that the Special Civil Part Manager
to the motion to vacate. Liberty claims the court incorrectly declared Liberty in default on
mistakenly separated the motion papers and 6 December 30, 2016, merely twenty- *6 one days
returned the answer as untimely. This required after it was served with process by mail. Pursuant
counsel to refile the original motion to vacate to Rule 6:3-1, a defendant in a Special Civil Part
default on February 2, 2107. action has thirty-five days to file a responsive

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 Gomez v. Liberty Mut. Fire Ins. Co. DOCKET NO. A-4231-16T3 (N.J. Super. Dec. 7, 2018)

pleading. This threshold clerical error is sufficient, Here, a default judgment had not been entered at
as a matter of law, to establish excusable neglect the time Liberty filed its timely motion to vacate
by Liberty. the default the Special Civil Part precipitously
entered fourteen days before it was due, in
The Special Civil Part compounded this error
7 violation of Rule 6:3-1. The record also *7 shows
when it misplaced Liberty's original motion to
that notwithstanding the motion judge's
vacate default filed on January 17, 2017. At this
unsupported factual findings, defense counsel's
juncture of the litigation, the applicable standard is
January 17, 2017 motion to vacate default was in
codified in Rule 4:43-3, which only requires a
full compliance with the requirements of Rule
"mere showing of good cause . . . for setting aside
4:43-3. In this light, we vacate the default
an entry of default." N.J. Mfrs. Ins. Co. v. Prestige
judgment entered against Liberty and remand this
Health Grp., LLC, 406 N.J. Super. 354, 360 (App.
matter for such further proceedings as may be
Div. 2009). Specifically:
warranted.
A party's motion for the vacation of an
Reversed and remanded. We do not retain
entry of default shall be accompanied by
jurisdiction. I hereby certify that the foregoing is a
(1) either an answer to the complaint and
true copy of the original on file in my office.
Case Information Statement or a
dispositive motion pursuant to Rule 4:6-2, CLERK OF THE APPELLATE DIVISION
and (2) the filing fee for an answer or
dispositive motion, which shall be returned
if the motion to vacate the entry of default
is denied. For good cause shown, the court
may set aside an entry of default and, if a
judgment by default has been entered, may
likewise set it aside in accordance with
Rule 4:50.

[Rule 4:43-3 (emphasis added).]