Opinion
DOCKET NO. A-0137-13T4
06-18-2014
MARY MAURO, Plaintiff-Respondent, v. WAYNE MAURO, Defendant-Appellant.
William T. Anastasio argued the cause for appellant. John T. Grogan, Jr., argued the cause for respondent (Bubb, Grogan & Cocca, L.L.P., attorneys; Mr. Grogan, of counsel; Nicholas F. Spindler, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Fasciale and Haas.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2725-12.
William T. Anastasio argued the cause for appellant.
John T. Grogan, Jr., argued the cause for respondent (Bubb, Grogan & Cocca, L.L.P., attorneys; Mr. Grogan, of counsel; Nicholas F. Spindler, on the brief). PER CURIAM
Defendant Wayne Mauro appeals from a May 6, 2013 final judgment of default entered by the Law Division ejecting him from a property located on Greenwood Avenue in the Borough of Florham Park. He also appeals the court's order denying his motion for reconsideration. The property is owned by defendant's mother, plaintiff Mary Mauro. Defendant argues he presented sufficient evidence establishing "good cause" to vacate default under Rule 4:43-3. We disagree and affirm substantially for the reasons expressed by Judge Stephen C. Hansbury.
Defendant had at one point a fifty percent ownership interest in the property. In a separate action filed by plaintiff in the Chancery Division, Judge Deanne M. Wilson entered an order dated June 24, 2011, voiding the deed that conveyed defendant's ownership interest, and restored "100% ownership of the Property" to plaintiff Mary Mauro.
The following procedural history is not disputed. Plaintiff filed the complaint in this matter against defendant on November 7, 2012. Defendant acknowledges he was served with process on November 29, 2012. After defendant failed to file a timely responsive pleading, plaintiff moved on January 17, 2013, for the court to enter default against him. The clerk of the court entered default on January 23, 2013. Plaintiff filed a notice of motion to enter final judgment of possession by default on February 19, 2013.
Two days later, on February 21, 2013, defendant filed a motion to vacate default accompanied by a proposed answer and a counterclaim. The only document submitted in support of the defendant's motion to vacate default was a certification prepared and signed by defense counsel, containing six individually numbered paragraphs. Paragraphs four to six of defense counsel's certification contained the only information ostensibly relevant to the question of whether defendant established "good cause" to vacate default under Rule 4:43-3. We quote these paragraphs verbatim:
4. The Defendant did not file an Answer and this Court entered a default in the matter.
5. However, the Defendant, during this time period, underwent a surgical procedure on his heart at Morristown Memorial Hospital. This procedure and his recovery prevented him from properly responding to the Plaintiff's filing.
6. The Defendant has now recovered and has filed an Answer and Counter Complaint [sic] which have accompanied this Motion to the Court.
On May 6, 2013, Judge Hansbury entered an order denying defendant's motion and entered final judgment in favor of plaintiff. Judge Hansbury attached to the order a statement of reasons which we incorporate by reference here. As Judge Hansbury emphasized:
[T]he Defendant asserts that his surgical procedure and subsequent recovery are sufficient to establish good cause for his failure to timely answer the Plaintiff's Complaint in the ejectment action.
. . . .
First, the Court finds that defense counsel's certification that Defendant underwent heart surgery is not based on
defense counsel's personal knowledge and thereby cannot be considered by the Court pursuant to R[ule] 1:6-6 of the New Jersey Court Rules. R[ule] 1:6-6 mandates, "If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made of personal knowledge . . . ." . . . New Jersey Courts have specifically held that "affidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay." See Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (citing Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986). In the instant case, Defendant's counsel fails to establish that he had personal knowledge of Defendant's surgical procedure. Accordingly, defense counsel's statement that the surgical procedure caused the delay is based on hearsay and cannot support a finding that "good cause" exists to vacate default.
. . . .
[T]he Defendant presents no grounds besides his counsel's certification of Defendant's surgical procedure to establish good cause to vacate default. Moreover, in light of the procedural history in this case, which Defendant does not dispute, it can be inferred that the Plaintiff will suffer prejudice if the Court vacates default, as the vacation of default will permit the Defendant to further delay litigation that Plaintiff has apparently been trying to move forward for several years with little, if any, cooperation from the Defendant.
We review a trial court's decision to deny a motion to vacate default under Rule 4:43-3 pursuant to an abuse of discretion standard of review. Mancini v. EDS, 132 N.J. 330, 334 (1993). We will reverse the trial court's decision in this context only "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (internal quotations and citations omitted).
Here, Judge Hansbury correctly applied the legal principles governing a motion to vacate default under Rule 4:43-3. Defendant did not present competent evidence explaining or justifying his failure to file a timely answer to plaintiff's complaint. His counsel's certification is not competent to meet this burden because it is not based on his own personal knowledge as required by Rule 1:6-6. We also adopt and incorporate by reference Judge Hansbury's statement of reasons for denying defendant's motion for reconsideration.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION