NOT FOR PUBLICATION WITHOUT THE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-1368-19T2
TRAXI LLC,
Plaintiff-Respondent,
v.
EDISON LITHOGRAPHING &
PRINTING CORP., a/k/a EDISON
LITHOGRAPHIC SOLUTIONS
& PRINTING CORP. and
EDISON SOLUTIONS LLC,
Defendants-Appellants.
_______________________________
Argued November 12, 2020 – Decided December 7, 2020
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0432-19.
Daniel F. Sahin argued the cause for appellants (Sahin
& Watson, PC, attorneys; Daniel F. Sahin, on the brief).
Christopher J. Kellar argued the cause for respondent
(Rothbard, Rothbard, Kohn & Kellar, attorneys;
Christopher J. Kellar, on the brief).
PER CURIAM
Defendants Edison Lithographing & Printing Corp. and Edison Solutions
LLC1 appeal from a November 22, 2019 order denying their motion to vacate a
March 21, 2019 default judgment pursuant to Rule 4:50-1(a) and (f). On appeal,
defendants argue that the trial court abused its discretion when it found no
excusable neglect or exceptional circumstances that justified relief. Defendants
also argue that the court erred in finding their motion was untimely pursuant to
Rule 4:50-2. Based on the record, and considering the applicable law, we affirm.
We discern the following facts from the record. On January 30, 2019,
plaintiff filed a complaint on a book account seeking $124,541.32 in unpaid
invoices from defendants. The summons and complaint were successfully
served on February 6, 2019. On March 14, 2019, because defendants had failed
to file an answer, plaintiff requested the clerk enter default. On March 19, 2019,
plaintiff filed a request for default judgment, and two days later the clerk entered
default judgment.
On May 23, 2019, the sheriff's office levied on defendants' office
equipment. On June 7, 2019, the sheriff's office levied upon defendants' bank
1
The term "defendants" will be used to refer collectively to both Edison
Lithographing & Printing Corp. and Edison Solutions LLC.
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2
account. On July 12, 2019, the court issued an Order for Turnover of funds in
the amount of $62,132.83 as partial satisfaction of the judgment. On July 16,
2019, defendants were mailed a copy of the executed Order for Turnover .
On September 13, 2019, the court issued an Order to Enforce Litigant's
Rights due to the defendants' failure to comply with an information subpoena
that was mailed on July 30, 2019. On September 27, 2019, defendants provided
uncertified answers to the information subpoena. On October 23, 2019, civil
arrest warrants were issued due to defendants' failure to provide certified
responses to the information subpoena. On October 25, 2019, defendants served
certified answers to the information subpoena.
On November 6, 2019, roughly six months after the initial levy, and seven
months after entry of default judgment, defendants filed the motion to vacate.
In opposing the motion, Abraham Biller, defendant's CEO, certified that
defendants were "basically hand-cuffed at the time [plaintiff] filed its
complaint" and that defendants were "so financially strapped that [they] were
unable to pay a lawyer to defend" against the complaint.
On November 22, 2019, the trial judge denied the motion. The judge
noted the "substantial amount of time" that passed between default judgment
and defendants' motion. The judge observed that even though defendants were
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3
personally served with the summons and complaint, were served with the final
judgment and had their goods and bank account levied upon, defendant
inexplicably took no action to enter an appearance or file the motion earlier.
The judge held that "[c]hoosing not to participate in the lawsuit, even in light of
financial difficulties, does not constitute excusable neglect nor exceptional
circumstances."
On appeal, defendants raise the following arguments for our
consideration:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING DEFENDANTS' MOTION TO VACATE
DEFAULT JUDGMENT.
POINT II
DEFENDANT[S'] MOTION TO VACATE WAS
FILED IN A TIMELY MANNER.
POINT III
[DEFENDANTS] WOULD HAVE LIKED TO
DEFEND THE LAWSUIT AND WOULD HAVE
PREFERRED TO FILE THE PRESENT MOTION
SOONER, BUT FINANCIAL CIRCUMSTANCES
PREVENTED IT FROM DOING SO.
Decisions whether to vacate a default judgment are left to the sound
discretion of the trial court. Mancini v. EDS, 132 N.J. 330, 334 (1993). Courts
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4
should view "the opening of default judgments . . . with great liberality," and
should tolerate "every reasonable ground for indulgence . . . to the end that a
just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319
(App. Div. 1964). Nevertheless, a trial court's decision, pursuant to Rule 4:50-
1, "warrants substantial deference, and should not be reversed unless it results
in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.
449, 467 (2012) (citations omitted).
We affirm the trial court's conclusion that defendants failed to establish
either excusable neglect under Rule 4:50-1(a) or exceptional circumstances
pursuant to Rule 4:50-1(f). In support of both grounds for relief, defendants
exclusively rely on unspecified and unsubstantiated financial difficulties which
allegedly precluded them from retaining counsel.
Financial straits cannot establish that the default was "attributable to an
honest mistake that is compatible with due diligence or reasonable prudence."
Mancini, 132 N.J. at 335. In that regard, defendants indisputably knew of the
action from its inception as they were properly served with the summons and
complaint, as well as the final judgment by default. Months later, the sheriff's
office conducted two levies, one on defendants' office equipment and one on
defendants' bank account. Defendants responded to the information subpoena,
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and only filed the motion to vacate after civil arrest warrants were issued. Under
these circumstances, defendants' cavalier disregard of the court's process cannot
equate to excusable neglect. See Davis v. DND/Fidoreo, Inc., 317 N.J. Super.
92, 100 (App. Div. 1998) ("the absence of evidence establishing willful
disregard of the court's process is an important consideration.") (citing Mancini,
132 N.J. at 336).
Equally without merit is defendants' unsupported argument that they
should be relieved from the judgment because they could not afford counsel.
Generally, the inability to afford a lawyer does not satisfy exceptional
circumstances under Rule 4:50-1(f). See In re Estate of Schifftner, 385 N.J.
Super. 37, 44 (App. Div. 2006). Even according credence to the argument that
defendants, as corporate entities, could not have represented themselves in court,
see R. 1:21-1(c), there is simply no basis in the record to support their claim that
they had insufficient resources to retain counsel. Apart from unsupported and
bald assertions that they were "strapped," defendants presented no documentary
evidence such as financial statements or balance sheets to establish that
defendants were "in the red." In fact, the record shows that more than $60,000
was levied from defendants' bank account, and that they owned equipment and
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machinery valued in the millions, only a fraction of which has been levied upon
in partial satisfaction of the judgment.
For similar reasons, we agree with the trial court that defendants' motion
was untimely. R. 4:50-2. Defendants claim the motion was timely because it
was filed less than a year after the entry of default judgment. Contrary to
defendant's belief, parties do not necessarily have one year to file a motion to
vacate. See Orner v. Liu, 419 N.J. Super. 431, 438 (App. Div. 2011) ("[D]elays
of less than one year may be unreasonable."); N.B. v. S.K., 435 N.J. Super 298,
310 (App. Div. 2014) ("what constitutes a reasonable time to seek relief is
dependent on the totality of the circumstances."). We see no reason to disturb
the trial judge finding that defendants' deliberate delay rendered their motion
untimely.
We conclude the remaining arguments – to the extent we have not
addressed them – lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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