Malgorzata Barlik v. Dr. Arthur Szabela ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0488-23
MALGORZATA BARLIK,
Plaintiff-Respondent,
v.
DR. ARTHUR SZABELA and
GARDEN STATE DENTAL
DESIGN,
Defendants-Appellants.
___________________________
Argued June 3, 2024 – Decided September 30, 2024
Before Judges DeAlmeida and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3379-20.
Douglas F. Ciolek argued the cause for appellants
(Rosenberg Jacobs Heller & Fleming, PC, attorneys;
Sam Rosenberg, of counsel; Brian Brenner and Douglas
F. Ciolek, on the briefs).
Steven P. Lombardi argued the cause for respondent.
PER CURIAM
Defendants Dr. Arthur Szabela and Garden State Dental Design appeal
from the Law Division's September 8, 2023 order denying their motion to vacate
a 2021 final default judgment pursuant to Rule 4:50-1(d) and Rule 4:50-2. We
conclude defendants claims on appeal are without merit and affirm.
We glean from the sparse motion record provided that on October 13,
2020, plaintiff Malgorzata Barlik filed a complaint against defendants alleging
multiple theories of negligence, dental professional malpractice, and a lack of
informed consent. Defendants did not timely answer or otherwise respond.
On January 11, 2021, plaintiff requested the entry of default against
defendants pursuant to Rule 4:43-1. In that regard, plaintiff's counsel certified
defendants were served with a letter and a copy of counsel's certification by
regular mail at the same address where personal service was made. Plaintiff's
counsel also certified that personal service of the complaint was effectuated on
defendants on October 20, 2020, at defendants' business address in Clark, which
was supported by affidavits of service.
Default was entered and the trial court scheduled a proof hearing for April
20, 2021. Plaintiff's counsel notified defendants of the virtual hearing date with
Zoom instructions by regular mail again at the same address. Defendants failed
to appear, and the court entered final default judgment in the amount of $325,000
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and a memorializing order on April 27, 2021. In an April 29, 2021 letter,
plaintiff's counsel served defendants with a copy of the order entering final
judgment by default by regular mail. In contrast, defendants claim neither a
notice of motion for default judgment nor the order entering final judgment by
default was served. Thereafter, a writ of execution was entered on July 13, 2022.
The county sheriff's affidavit of service dated October 25, 2022 shows
defendants were again served at the same business address and noted "defendant
will contact attorney."
On August 9, 2023, defendants moved to vacate the default judgment.
Plaintiff opposed. Following oral argument on September 8, 2023, the motion
court denied defendants' motion, finding plaintiff established defendants had
been served with the complaint and failed to answer. The court also found no
procedural or substantive due process basis to vacate the default judgment to be
vacated. Lastly, the motion court found no "demonstration of [a] meritorious
defense" and no "excusable neglect" when defendants were served with the
complaint and did nothing since 2020.
On appeal, defendants contend they were not properly served with the
request for entry of default, notice of motion for a default judgment, notice of
the scheduled proof hearing, and the order of entry of final judgment until the
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writ of execution was served by the county sheriff's officer. Defendants argue
that plaintiff "made no attempts to communicate with" them after the complaint
was served, and therefore "believed" plaintiff's complaint had been dismissed or
abandoned. Defendants focus on the language in the April 27 1 entry of final
judgment order directing plaintiff's counsel to service the order by regular and
certified mail and argues improper service because defendants did not receive a
copy of that order by certified mail. Defendants further contend their motion to
vacate was both proper and timely pursuant to Rule 4:50-1(d) and Rule 4:50-2.
We are not persuaded by defendants' contentions and find them wholly without
merit. R. 2:11-3(e)(1)(E).
We review the trial court's decision on a motion to vacate a default
judgment for abuse of discretion. US Bank Nat'l Ass'n v. Guillaume, 209 N.J.
449, 467 (2012). "The trial court's determination under [Rule 4:50-1] warrants
substantial deference," and the abuse of discretion must be clear to warrant
reversal. Ibid.Rule 4:50-1(d) permits a party to vacate a default judgment by
demonstrating the judgment or order is void. In such cases, the movant has "the
1
In defendants' merits brief, defendants cite the April 27, 2021 order as April
23, 2021. The order however contains a typographical error, and we take
judicial notice of the filing date as April 27, 2021.
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overall burden of demonstrating that its failure to answer or otherwise appear
and defend should be excused." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J.
Super. 419, 425-26 (App. Div. 2003). A motion brought under this rule "shall
be made within a reasonable time, . . . after the judgment, order[,] or proceeding
was entered or taken." R. 4:50-2.
The trial court denied defendants' motion to vacate the default judgment
because of defendants' inaction after the complaint was filed. The court found
plaintiff's service of notice of default, entry of default and the proof hearing by
mail was proper. The court reasoned that a "reasonable time" of defendants to
respond had "long passed" because defendants moved to vacate almost a year
after the writ of execution had been served. During oral argument, defendants
offered no explanation regarding the ten-month delay in moving to vacate the
default judgment after the writ of execution was served. Instead, defendants
argued that at the time, they were unrepresented and more attention to the court
rules were required regarding the filing of any notices and motions. The lack of
explanation regarding the passage of time provided no factual predicate to
establish defendants delay in filing the motion was reasonable and because
defendants failed to satisfy their burden, defendants were not entitled to the
requested relief.
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We conclude the trial court's ruling is supported by sufficient evidence in
the motion record. We, however, depart with the court's reasoning that
defendants were required to show a meritorious defense. In a motion to vacate
pursuant to Rule 4:50-1(d), a movant is not required to demonstrate a
meritorious defense to obtain relief. Jameson, 363 N.J. Super. at 425.
Nonetheless, the court properly denied defendant's motion to vacate given the
fatal flaws, and we discern no abuse of discretion.
Affirmed.
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