NOT FOR PUBLICATION WITHOUT THE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-3291-16T2
THE RIDGE CONDOMINIUM
ASSOCIATION,
Plaintiff-Respondent,
v.
LORI BUCCOLO,
Defendant-Appellant.
__________________________________
Submitted May 15, 2018 – Decided June 14, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No.
F-024062-15.
William J. Jeffrey, attorney for appellant.
Griffin Alexander, PC, attorneys for
respondent (David L. Dockery, on the brief).
PER CURIAM
Defendant Lori Buccolo appeals from a March 3, 20171 Chancery
Division order denying her motion to vacate default judgment. The
matter stems from defendant's failure to pay condominium fees and
attorneys' fees owed to plaintiff, The Ridge Condominium
Association. We affirm.
I
In September 2014, plaintiff filed a complaint against
defendant for failure to pay common expenses and attorneys' fees.
The parties settled that suit, which resulted in the entry of a
money judgment in favor of plaintiff; however, defendant defaulted
on the settlement terms. Eventually, plaintiff received payment
of most of the judgment via wage garnishment.
In April 2016, plaintiff filed a foreclosure complaint
against defendant alleging she failed to pay maintenance fees,
special assessment fees, late fees, fines, and counsel fees.
Defendant filed an answer and counterclaim, alleging plaintiff
1
Although defendant's brief asserts she appeals from the court's
August 5, 2016 order granting plaintiff's motion for summary
judgment, her amended notice of appeal fails to include this order.
Moreover, defendant's case information statement, which directed
her to give the date and summary of judgment, order, or decision
being appealed and attach a copy, lists only the March 3, 2017
order denying her motion to vacate default judgment. Accordingly,
we decline to address defendant's arguments regarding the summary
judgment motion. See W.H. Indus., Inc. v. Fundicao Balancins,
Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that
it is only the orders designated in the notice of appeal that are
subject to the appeal process and review.").
2 A-3291-16T2
committed breach of contract by failing to repair and maintain her
condominium unit in violation of the master deed and condominium
association's by-laws, as well as asserting plaintiff's pleadings
were frivolous.
Subsequently, plaintiff filed a motion for summary judgment,
and on August 5, 2016, the court granted that motion and struck
defendant's answer and counterclaims as non-contesting. However,
the court denied plaintiff's motion for an entry of final judgment,
and instead directed plaintiff to file its motion with the Office
of Foreclosure. Defendant filed a motion for reconsideration,
which the court denied.
On November 7, 2016, plaintiff filed a motion requesting the
entry of a final judgment of foreclosure. Defendant failed to
oppose the motion. According to plaintiff, the Office of
Foreclosure granted its motion, and defendant does not contest
that assertion. Defendant then filed a "motion to vacate default
and for leave to file an amended answer." On March 3, 2017, the
trial court denied the motion, finding "neither excusable neglect
nor a meritorious defense is present." This appeal followed.
II
On appeal, defendant argues the trial court impermissibly
granted summary judgment even though there exist disputed issues
of material fact. She further argues that, in granting summary
3 A-3291-16T2
judgment, the court erroneously relied upon an improper
certification. Specifically, she asserts David L. Dockery, an
attorney with the law firm representing plaintiff, certified to
facts absent personal knowledge, thereby committing fraud upon the
court.
Rule 4:50-1 sets forth the standard for vacating a default
judgment, and provides that a default judgment may be set aside
due to, among other things, "mistake, inadvertence, surprise, or
excusable neglect . . . or newly discovered evidence . . . ." Our
Supreme Court has explained that the rule is "designed to reconcile
the strong interests in finality of judgments and judicial
efficiency with the equitable notion that courts should have
authority to avoid an unjust result in any given case." U.S. Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini
v. EDS, 132 N.J. 330, 334 (1993)). Moreover, it held, "The trial
court's determination under the rule warrants substantial
deference, and should not be reversed unless it results in a clear
abuse of discretion." Ibid. (citation omitted). We find an
abuse of discretion "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
4 A-3291-16T2
Because the record fails to demonstrate excusable neglect or
a meritorious defense, the trial judge did not abuse her discretion
in denying defendant's motion to vacate the judgment entered
against her. Although defendant argues a genuine dispute of
material facts precludes summary judgment, we again note she failed
to appeal from the order granting summary judgment, but rather
appealed from the court's order denying her motion to vacate
default judgment. Accordingly, as previously noted, we decline
to address her arguments regarding the summary judgment motion.
The "new" evidence defendant presented in support of her
motion to vacate the default judgment was available and in her
possession when plaintiff's summary judgment motion and
defendant's reconsideration motion were pending. Moreover, the
trial judge concluded that if defendant "is entitled to set offs
for sums paid or collected," such evidence bears relevance only
to the issues of when and whether the court should consider the
judgment satisfied.
Additionally, we note defendant's arguments regarding the
Dockery certification provide no basis for granting defendant
relief. The court granted plaintiff's summary judgment motion
based upon the certification of plaintiff's property manager, Adam
McCallum, not the Dockery certification. The trial court properly
relied upon McCallum's certification as it clearly states he is
5 A-3291-16T2
familiar with the action and "testifying as to [his] personal
knowledge . . . ." See N.J.R.E. 901; R. 1:6-6. Accordingly,
defendant's unsupported argument that Dockery committed fraud upon
the court lacks persuasion, particularly in light of the
certification's lack of bearing on the trial court's ultimate
disposition.
Affirmed.
6 A-3291-16T2