SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4888-15T1

MLC REMODELING,

Plaintiff-Respondent,

v.

LOADED BURGERS & BBQ,

Defendant-Appellant.

_______________________________

Submitted June 8, 2017 – Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Docket No. 

DC-437-16.

DiRienzo, DiRienzo & Dulinski, P.A., attorneys 

for appellant (Joseph DiRienzo, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Loaded NJ, LLC, improperly designated as Burgers & 

BBQ, appeals from a June 16, 2016 Special Civil Part order denying 

its motion to vacate a default judgment, entered in favor of 

NOT FOR PUBLICATION WITHOUT THE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.

July 14, 2017
2 A-4888-15T1

plaintiff MLC Remodeling.

1 Judgment for plaintiff was entered on 

March 4, 2016, after defendant failed to timely respond to 

plaintiff's complaint seeking payment alleging breach of contract. 

Through counsel, defendant offered to settle the differences 

between the parties, but took no steps to extend the time to file 

an answer or file an appearance to contest the action. 

On appeal, defendant argues the trial judge abused his 

discretion when denying its motion to vacate the default judgment, 

see R. 4:50-1, and seeks an order allowing the parties to litigate 

the controversy. We are unpersuaded and affirm. 

On March 1, 2015, plaintiff executed an agreement to furnish 

remodeling services for defendant's Garwood restaurant. 

Primarily, plaintiff agreed to remove and replace floor and ceiling 

tiles, hang doors, install floor molding, and provide sheet rock 

repair. Defendant refused to provide payment, asserting the work 

was substandard, improperly performed, and defective.

 Plaintiff filed notice of intent to record a construction 

lien, followed, thereafter, by its complaint seeking payment of 

the outstanding contract balance of $11,085. Defendant received 

the complaint, which included the standard summons listing the 

date to file an answer as February 29, 2016. Defendant employed 

 

1 The body of the order is dated June 16, 2016, but the document 

is file-stamped May 12, 2016, which we presume was an error. 
3 A-4888-15T1

counsel, who sent correspondence offering to resolve all claims 

for $1000. The letter stated defendant's offer was good for seven 

days and expired on March 4, 2016, at which time defendant would 

file an answer and counterclaim. 

Counsel asserts neither plaintiff nor its representative 

responded to defendant's proposal. Nevertheless, defendant took 

no steps to submit responsive pleadings. Plaintiff's counsel 

states she sent a facsimile transmission on behalf of plaintiff 

rejecting the proposal on March 2, 2016. 

Because the deadline to respond to plaintiff's complaint 

passed, the court entered default and plaintiff apparently sought 

entry of default judgment. Final judgment was filed on March 4, 

2016.2 On April 28, 2016, defendant received plaintiff's 

information subpoena and defendant moved to vacate the default 

judgment. Following argument on the motion and plaintiff's 

opposition, the judge denied defendant's motion on June 16, 2016. 

The trial judge rejected defendant's claims of 

miscommunication with his client as justification to vacate the 

judgment. He determined the facts did not meet the excusable 

 

2 Defendant has chosen not to provide us with copies of 

plaintiff's application for default judgment, with any attached 

proofs. The documents are available in the Special Part File, and 

should have been included in appellant's appendix. R. 2:6-1(a)(1). 

Siwiec v. Fin. Res., Inc., 375 N.J. Super. 212, 217 (App. Div. 

2005). 
4 A-4888-15T1

neglect standard required by Rule 4:50-1. Further, concluding 

defendant was legally incorrect, the judge rejected defendant's 

procedural challenge, which suggested default judgment may not be 

entered unless preceded by service of a filed notice of request 

to enter default. Rather, relying on Rule 6:6-3, the judge noted 

Special Civil Part procedures allow the court to automatically 

enter default when a timely answer is not submitted, as stated in 

the court issued summons. Thereafter, plaintiff properly 

requested entry of final judgment.

On appeal, defendant argues the trial judge abused his 

discretion by refusing to recognize "a series of 

miscommunications" between client and counsel as sufficient 

grounds to vacate a default judgment, which must be granted 

liberally. Further, defendant contends the judge misapplied Rule

4:50-1, by not considering defendant's meritorious defenses and 

counterclaim. 

Rule 4:50-1 "governs an applicant's motion for relief from 

default when the case has proceeded to judgment." US Bank Nat. 

Ass'n v. Guillaume, 209 N.J. 449, 466 (2012). Once the court has 

entered a default judgment, relief from the judge must satisfy one 

of the following reasons: 

(a) mistake, inadvertence, surprise, or 

excusable neglect; (b) newly discovered 

evidence which would probably alter the 
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judgment or order and for which by due 

diligence could not have been discovered in 

time to move for a new trial under R. 4:49; 

(c) fraud (whether heretofore denominated 

intrinsic or extrinsic), misrepresentation, 

or other misconduct of an adverse party; (d) 

the judgment or order is void; (e) the 

judgment or order has been satisfied, released 

or discharged, or a prior judgment or order 

upon which it is based has been reversed or 

otherwise vacated, or it is no longer 

equitable that the judgment or order should 

have prospective application; or (f) any other 

reason justifying relief from the operation 

of the judgment or order.

[R. 4:50-1.]

The Court has instructed 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." Guillaume, 

supra, 209 N.J. at 467 (quoting Mancini v. EDS, 132 N.J. 330, 334 

(1993)).

We defer to a trial court's decision, which will not be 

reversed unless it results in a clear abuse of discretion. See

DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). An abuse 

of discretion results "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)).
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Entry of judgment in a Special Civil Part matter is governed 

by Rule 6:6-3(a), which provides, in pertinent part:

If the plaintiff's claim against a defendant 

is for a sum certain or for a sum that can by 

computation be made certain, the clerk on 

request of the plaintiff and on affidavit 

setting forth a particular statement of the 

items of the claim, the amounts and dates, the 

calculated amount of interest, the payments 

or credits, if any, the net amount due, and 

the name of the original creditor if the claim 

was acquired by assignment, shall enter 

judgment for the net amount and costs against 

the defendant . . . .

"Unlike the rules governing default judgments in other civil 

cases, R. 4:43-2, the rules governing default judgments in the 

Special Civil Part, R. 6:6-3(c), do not specifically require that 

a defendant receive notice of a proof hearing." Siwiec, supra,

375 N.J. Super. at 218.3 Accordingly, we reject defendant's claim 

of procedural error. 

We turn to the question of whether the judge properly 

exercised discretion in denying defendant's motion to vacate the 

default judgment, which requires a defendant seeking to reopen a 

default judgment to show excusable neglect; that is, "the neglect 

to answer was excusable under the circumstances and . . . a 

 

3 "The rule provides that, other than notice to the guardians 

of minors and incapacitated persons, which is mandated, notice to 

the defendant of an application for default judgment is only 

required if the judge so directs." Ibid. (citing R. 6:6-3(c)). 
7 A-4888-15T1

meritorious defense." Morales v. Santiago, 217 N.J. Super. 496, 

501 (App. Div. 1987) (quoting Marder v. Realty Const. Co., 84 N.J. 

Super. 313, 318 (App. Div. 1964), aff'd, 43 N.J. 508 (1964)). 

Trial courts are instructed to "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[,]'" Mancini, supra, 132 N.J. at 334 (quoting 

Marder, supra, 84 N.J. Super. at 319). However, it is wellestablished a defendant seeking relief under R. 4:50-1, must show 

the court something more than mere good cause. Id. at 334-35. 

Excusable neglect is carelessness "attributable to an honest 

mistake that is compatible with due diligence or reasonable 

prudence." Id. at 335. We find both lacking here.

The notion postulated on behalf of defendant suggests counsel 

expected to hear from his adversary before he needed to act. 

Defense counsel asserts "mistake, inadvertence, surprise, and 

excusable neglect are read together under [Rule] 4:50-1, as 

encompassing situations where a party, through no fault of its 

own, engages in erroneous conduct on a material point in the 

litigation." The statement is factually unsupported and legally 

erroneous. 

Here, plaintiff sought payment beginning in March 2015. 

Correspondence between counsel and the parties shows neither was 
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interested in walking away from their respective claims. Even the 

letter sent offering to resolve all disputes for $1000, clearly 

advised the offer was extended for one week, after which the matter

would be contested. We find no support for the claim plaintiff 

acted to mislead defendant or suggest defendant need not respond 

to the complaint because plaintiff was considering the offer. 

Counsel's utter failure to advance his client's cause 

resulted in entry of a final judgment. Counsel did not secure an 

extension to file an answer, despite the streamlined procedures 

employed by the Special Civil Part. Rather, he allowed the 

deadline to respond to plaintiff's complaint to come and go without 

even a phone call to his adversary to protect defendant's rights 

to challenge the demands by plaintiff. In viewing the record 

liberally, we discern the absence of even an arguably valid excuse 

for missing the date to respond to plaintiff's complaint. See

Ballurio v. Campanaro, 30 N.J. Super. 548, 551 (App. Div. 1954) 

("[A] default judgment will not be reopened on the mere ground of 

neglect or inadvertence. To justify the vacation of a default 

judgment, there must be factual proof that the neglect or 

inadvertence is actually excusable.").

We remain mindful "[w]here either the defendant's application 

to re-open the judgment or the plaintiff['s] proofs presented at 

the proof hearing raise sufficient question as to the merits of 
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plaintiffs' case, courts may grant the application even where 

defendant's proof of excusable neglect is weak." Siwiec, supra,

375 N.J. Super. at 220. Yet, these facts at hand do not support 

evidence suggesting default judgment be vacated pursuant to Rule

4:50-1 (a) through (e). Turning to the final reason, stated in 

Rule 4:50-1(f), which allows consideration, in the interests of 

justice, of "any other reason justifying relief from the operation 

of the judgment or order[,]" we also conclude defendant's position 

is not supported. 

Essentially, defendant challenges the amount due; there is 

no dispute plaintiff was hired to provide designated services. On 

this issue, counsel failed to provide this court with all evidence 

considered by the trial judge. Without plaintiff's proofs filed 

to secure the judgment, we are unable to review their sufficiency 

to support a finding of the amount due. R. 2:6-1(a)(1). Also, 

defendant's certification and the accompanying unexplained 

photographs, filed to vacate the default judgment, do not allow 

us to weigh defendant's claim of a colorable defense. 

Balancing "the broad parameters of a court's discretion to 

grant relief . . . under subsection (f)" with "the importance of 

the finality of judgments," we cannot conclude defendant has 

presented the required "truly exceptional circumstances" to allow 

the final judgment be set aside, despite the absence of excusable 
10 A-4888-15T1

neglect. Baumann v. Marinaro, 95 N.J. 380, 395 (1984). We 

conclude the judge did not abuse his discretion in denying 

defendant's motion. 

Affirmed.