Opinion
DOCKET NO. A-4634-11T4
02-05-2013
CHELSEA VIEW CONDOMINIUM ASSOCIATION, INC., a non-profit corporation of New Jersey, Plaintiff-Appellant, v. JAMIE BEYER, Defendant-Respondent.
McGovern Legal Services, LLC, attorneys for appellant (Francis J. McGovern, of counsel; Marc Friedman, on the brief). Jamie Beyer, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC-15471-10.
McGovern Legal Services, LLC, attorneys for appellant (Francis J. McGovern, of counsel; Marc Friedman, on the brief).
Jamie Beyer, respondent pro se. PER CURIAM
Plaintiff, Chelsea View Condominium Association, Inc., appeals from orders that denied its motion to permit the sale of defendant's real property to satisfy its docketed judgment against defendant, Jamie Beyer, and its motion for reconsideration. We reverse and remand.
Plaintiff filed suit against defendant in the Special Civil Part to recover defendant's unpaid assessments for a residential condominium unit in Atlantic City. A default judgment for $13,015.40 was obtained on March 31, 2011. On November 7, 2011, plaintiff docketed the judgment with the Superior Court. With added costs, the docketed judgment amounted to $13,354.71.
Plaintiff engaged in supplementary proceedings to identify defendant's assets and income for the purpose of satisfying the judgment. On January 13, 2012, plaintiff filed a motion pursuant to Rule 4:59-1(c) to obtain an order permitting the sale of defendant's real property to satisfy the judgment. The court denied the motion by order dated February 21, 2012, relying upon N.J.S.A. 2A:17-17, which states, in pertinent part:
All real estate shall be liable to be levied upon and sold by executions to be issued on judgments obtained in any court of record in this State, except the Superior Court, Law Division, Special Civil Part, for the payment and satisfaction of the debt, damages, sum of money and costs so recovered or to be recovered . . . .
[(Emphasis added).]
Plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2, arguing that, because its judgment had been docketed in Superior Court, the exception to N.J.S.A. 2A:17-17 did not apply. The trial court denied the motion.
In this appeal, plaintiff argues that the trial court erred in denying its motions to obtain an order permitting the sale of defendant's real property and for reconsideration because its judgment was docketed in Superior Court. We agree.
N.J.S.A. 2A:18-38 states:
A judgment docketed in the Superior Court in the manner herein provided shall, from the time of its docketing, operate as though it were a judgment obtained in an action originally commenced in the Superior Court other than in the Special Civil Part.
Because the judgment here was so docketed, this statutory provision negates the exception in N.J.S.A. 2A:17-17 relied upon by the court. Accordingly, the court erred in denying plaintiff's motion to obtain an order pursuant to Rule 4:59-1(c).
Plaintiff's motion for reconsideration is governed by Rule 4:49-2 and is a matter to be exercised in the trial court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)), certif. denied, 195 N.J. 521 (2008). In denying the motion, the trial court observed that the "information" relied upon by plaintiff was available at the time of the original motion and, citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the court concluded that it need not consider "information" that could have been provided in the initial motion.
Rule 4:49-2 requires that a motion for reconsideration "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." Therefore, it was entirely appropriate for plaintiff to identify the legal authorities it believed the court had overlooked. Because the court's denial of the initial motion was based upon a "palpably incorrect" legal basis, reconsideration was appropriate, Cummings v. Bahr, 2 95 N.J. Super. 374, 384 (App. Div. 1996); D'Atria, supra, 242 N.J. Super. at 401, and should have been granted.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION