SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4348-15T2

LARRY WELENC, on behalf 

of ANGELINE T. WELENC

(Deceased),

Plaintiff-Appellant,

v.

STATE-WIDE INSURANCE CO.,

Defendant-Respondent.

————————————————————————————-

Submitted June 8, 2017 – Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Docket No. L10692-60.

Larry Welenc, appellant pro se.

Harwood Lloyd, LLC, attorneys for respondent 

(Jeanne O. Marino, of counsel and on the 

brief).

PER CURIAM

Plaintiff Larry Welenc (appellant) appeals from the Law 

Division's October 13, 2015 order denying his motion to reopen an 

action filed over fifty years ago in the Superior Court in Camden 

NOT FOR PUBLICATION WITHOUT THE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.

August 2, 2017
2 A-4348-15T2

County. Appellant also appeals from a November 23, 2015 order 

denying reconsideration and a January 15, 2016 order denying 

clarification. We affirm. 

We derive the following facts from the appellate record. This 

case arose from the tragic death of appellant's father, New Jersey 

State Trooper Hilary Welenc, on November 20, 1959. On that date, 

a tractor-trailer, operated by Frederick Cidone, collided with

Trooper Welenc or his patrol car while he rendered aid to a 

motorist on the shoulder of the New Jersey Turnpike.

In September 1960, Angeline Welenc (Angeline), Trooper 

Welenc's widow and appellant's mother, filed a wrongful death 

complaint in Camden County, under Docket No. L-1427-60, against 

Cidone, R.W. Isherwood, Inc., and Robert I. Isherwood, Sr. 

Angeline alleged that Isherwood or his corporation owned the 

trailer, which Cidone was operating on their behalf. On February 

8, 1961, after Cidone failed to respond to the complaint, the 

court entered default and then a final judgment against him for 

$100,000, in favor of Angeline as "Administratrix ad Prosequendum" 

of her husband's estate.

 In March 1961, Angeline filed a new complaint in Camden 

County, under Docket No. L-10692-60,1 against State-Wide Insurance 

 

1 The docket number and date are not listed on this complaint. 

However, State-Wide's petition for removal to federal court lists 

the referenced docket number. 
3 A-4348-15T2

Company, to enforce payment of the $100,000 default judgment 

against Cidone. State-Wide was a New York corporation that 

allegedly carried a liability policy for Cidone. 

On March 21, 1961, State-Wide filed a petition to remove the 

case to the United States District Court for the District of New 

Jersey. The case was then listed in federal court under Civil 

Docket No. 238-61. Angeline filed an amended complaint in the 

federal court on November 8, 1961, adding American Fidelity & 

Casualty Co., Inc., as an additional defendant. Angeline alleged 

that American Fidelity was the insurer for Isherwood. 

On November 15, 1961, Angeline entered into a stipulation of 

dismissal with the Isherwood defendants for the New Jersey case 

at Docket No. L-1427-60. On November 24, 1961, Angeline entered 

into a similar stipulation of dismissal with defendants State-Wide 

and American Fidelity in the federal case, Civil Docket No. 238-

61. The parties agreed to dismiss the matter "with prejudice and 

without costs." 

In a letter dated August 1, 1962, Herman Belopolsky, an 

attorney, wrote to Angeline, requesting she come to his office to 

execute various forms relating to the settlement of the wrongful 

death claim. According to this letter, Trooper Welenc's estate 
4 A-4348-15T2

received $85,000, "in settlement from insurance company," plus 

$1,361 in interest.

2

According to his brief, in August 2014, appellant filed a 

motion to reopen the case against Cidone, Docket No. L-1427-60, 

to determine whether the entire $100,000 default judgment had been 

paid to Angeline; the court denied this motion in September 2014 

and denied reconsideration in December 2014. 

In August 2015, appellant moved to reopen the case against 

State-Wide, Docket No. L-10692-60, which is the subject of this 

appeal. MAPFRE Insurance Company of New York, formerly StateWide, opposed this motion. 

On October 9, 2015, Judge Robert G. Millenky heard oral 

argument on appellant's motion. Appellant acknowledged he filed 

the motion to determine "where the $85,000 came from that 

constitut[ed] a payment that was made" and why the amount was 

$85,000 rather than $100,000. Appellant further claimed he learned 

from Captain Francis Wright, the former personnel chief of the New 

Jersey State police, that his family received the $85,000 from the 

State Police and not from an insurance company. 

 

2 An attached disbursement sheet shows a deduction of $21,590.25 

for attorney's fees "at 25 per cent," along with 1,287.50 in 

attorney's costs, resulting in a net balance of $63,483.25.
5 A-4348-15T2

Following oral argument, Judge Millenky rendered an opinion

on the record, fully explaining his reasons for denying appellant's 

motion:

So, the only way that we reopen judgments 

occur in two distinct ways: 

One. If [there is] a judgment and 

someone [has not] collect[ed] on the judgment, 

we allow for a party to revive a judgment. 

And there's a statute, N.J.S.A. 2A:14-5, and 

it provides that if, in fact, someone has a 

judgment and they [have not] collected on it, 

that judgment would expire after [twenty] 

years, unless someone takes action to revive 

the judgment.

Your actions here now, assuming that in 

some way they were construed as suggesting 

that there was not a full payment of monies 

due, is not an application to revive a

judgment [that is] within that [twenty]-year 

statutory period. So we [cannot] proceed 

under that section, if your objection here or 

your position here was that you sought to, in 

some way, collect monies that were due and

owing on a judgment and remained unpaid. 

The second thing that someone could do 

is . . . make an application under Rule 4:50-

1, and [that is] the rule that provides a 

mechanism by which a party can seek relief 

from a final judgment or order. And when one 

evaluates claims that are brought under that 

section, there are a number of underlying 

principles that are at play, but two are 

essentially critical. 

One is that a dismissal with prejudice, 

which is what occurred in the underlying 

litigation here, constitutes a final judgment, 

so that the hurdle for relief under Rule 4:50-

1 becomes substantial. 
6 A-4348-15T2

And then the second principle at play is 

that the dismissal with prejudice concludes 

the rights of the parties, and because it 

represents a final adjudication, the process 

of reopening that judgment requires that there 

be a showing that is in conformance with the 

provisions of Rule 4:50-1, a showing that 

there is either: (a) mistake, inadvertent 

surprise, or excusable neglect; (b) newly 

discovered evidence; . . . . (c) fraud; and 

(d) the judgment or order is void. 

As to the first three, we have another 

rule, Rule 4:50-2, which requires that when 

one seeks relief under any of those three 

criteria, that relief has to be sought within 

one year. Obviously, [we are] past the one 

year mark here by a substantial measure. 

. . . .

As to the last two, "the judgment or 

order has been satisfied, released or 

discharged," [that is] not applicable here, 

and there is [a] catchall, "any other reason 

justifying relief from the operation of the 

judgment or order."

And here, what [you have] suggested is 

that you simply [do not] know where the money 

went. [That is] an inquiry that may be 

directed at family members, [it is] an inquiry 

that may be directed towards other people who 

may have knowledge, but [it is] not something 

that suggests a reason that justifies opening 

a judgment. We [do not] have a provision, in 

other words, that says, because I [do not]

understand what happened in a particular case, 

I therefore have a right to some relief that 

entitles me to open the judgment.

And here, the right to relief that you 

assert is simply a lack of knowledge about 

what occurred some [fifty] years ago. And 

where [that is] the assertion, this [c]ourt, 

under subsection [(f)], [cannot] find a basis 
7 A-4348-15T2

to reopen the judgment. There are a number 

of cases that deal with that subsection, but 

I believe that most of them, if not all of 

them, indicate that there must be some showing 

of circumstances that are exceptional and that 

the enforcement of the underlying order would 

be unjust or inequitable, and that ordinarily 

the correctness or the error of the original 

judgment is irrelevant. In other words, we 

focus on justice, on something [that is]

oppressive, on something that is inequitable. 

So, here, the question is, is there 

anything in the pleadings that you have 

submitted which reflects that there is an 

exceptional circumstance applicable to this 

situation? And I think that you have been 

frank and forthright in actually saying I [do 

not] know anything about what really occurred 

then. 

. . . .

So . . . someone says that money came 

from some other source and that, you find, is 

not something that is acceptable to you . . . 

but that [does not] create an exceptional 

circumstance, . . . it [does not] create a 

situation which would warrant reopening a case 

after some [fifty-three] years following its 

conclusion. 

. . . .

So, here, the [c]ourt finds that, given 

the position of the defendant that it has no 

records, that it would be patently unfair to 

reopen this matter, ask a party to defend, 

when there has been such inaction for such a 

long period of time. 

. . . .

One final thing . . . . Here, the 

reasoning that you have advanced for purposes 

of reopening this matter [does not] describe 
8 A-4348-15T2

any fact which would suggest, for example, an

exceptional circumstance pertaining to what 

occurred. What [you have] instead described 

is really only that you want to find out what 

happened. Finding out what happened is not 

an exceptional circumstance. 

. . . And I would just draw your 

attention to a case, it's [Manning 

Engineering, Inc. v. Hudson County Park 

Commission, 74 N.J. 113 (1977)]. That 

describes that the purpose of Rule 4:50-1 is 

to reconcile the strong interests in finality 

of judgments and judicial efficiency with the 

equitable notion that the courts should have 

the authority to avoid an unjust result in any 

given case. 

Here, there is nothing that would suggest 

that there was an unjust result. And after 

[fifty-three] years, the concept of repose is 

critical, because of the prejudice generated 

by revisiting something that has so long been 

dormant. 

Judge Millenky formalized his decision in an order on October 

13, 2015. Appellant then moved for reconsideration, and defendant 

filed opposition. Appellant prepared a response to this opposition 

and notified the court by fax, dated November 18, 2015, that he 

would send his reply "in the next few days." However, the return 

date of the motion was scheduled for November 20, 2015; on that 

date, Judge Millenky denied appellant's motion in a brief decision 

on the record. Appellant's reply arrived at the judge's chambers 

on November 23, 2015. On that same date, Judge Millenky entered 

an order denying reconsideration. 
9 A-4348-15T2

Appellant then filed a motion for clarification, seeking to

determine whether the judge considered his late submission. Judge 

Millenky addressed appellant's motion on the record on January 12, 

2016, noting he had not considered appellant's additional 

documents in denying reconsideration. However, the judge stated 

he reviewed the materials and found they did not warrant altering 

his decision. Therefore, on January 15, 2016, he entered a formal 

order denying appellant's motion for clarification. The judge

also sent appellant a short letter decision, dated January 15, 

reaffirming that the additional filing did not warrant modifying

his prior decisions. 

This appeal followed. In his briefs, appellant essentially 

challenges Judge Millenky's decision not to grant relief under 

Rule 4:50-1, asserting the judge committed both substantive and 

procedural errors. "The trial court's determination under [Rule

4:50-1] warrants substantial deference, and should not be reversed 

unless it results in a clear abuse of discretion." US Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of 

discretion occurs when the judge's decision is "made without a 

rational explanation, inexplicably departed from established 

policies, or rested on an impermissible basis." Ibid. (quoting 

Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). 
10 A-4348-15T2

Applying this standard, we affirm the Law Division orders 

under review substantially for the reasons set forth in Judge 

Millenky's comprehensive and well-reasoned oral opinion. We 

further find the judge appropriately denied appellant's motions 

for reconsideration and clarification, for the reasons stated on 

the record and in his January 15, 2016 letter. 

Appellant's remaining arguments lack sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Nonetheless, we briefly address appellant's claim that the court 

failed to notify him of the dates for the reconsideration and 

clarification "hearing[s]," and as a result, he was unable to 

request oral argument on the reconsideration motion. The record 

shows Judge Millenky did not hold "hearings"; instead, he briefly 

rendered decisions on the record. Appellant also has not shown 

that he requested oral argument in his motion papers. See R. 1:6-

2(d) ("[N]o motion shall be listed for oral argument unless a 

party requests oral argument in the moving papers or in timelyfiled answering or reply papers, or unless the court directs."). 

Moreover, because Judge Millenky's underlying decision was

correct, appellant's absence from the subsequent decisions did not 

create an unjust result. R. 2:10-2. 

Affirmed.