SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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SAMSON ELECTRICAL SUPPLY CO., Plaintiff

- Respondent ,

v. FAMULARO ELECTRIC, LLC ; SHI

- II HILLSBOROUGH, LLC ; CONGRESS BUILDING CORP. ; ARCH INSURANCE COMPANY ; and COOPER ELECTRIC SUPPLY CO., Defendants, and CONGRESS BUILDING CORP., Third

- Party Plaintiff

/ Respondent

.

v. JAMES R. FAMULARO, Third

- Party Defendant/ Appellant, NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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and DAVID APRICENO, Third

- Party Defendant.

_____________________________

Argued March 4, 2020

– Decided September 15, 2020 Before Judges Suter and DeAlmeida. On appeal fro m the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L

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- 18. Michael Confus ione argued the ca use for appellant (Hegge & Confusion e , LLC , attorneys; Michael Confusion e , of counsel and on the brief). Jonathan T

. Guldin argued the cause for respondent Congress Building Corp. (Clark Guldin , Attorneys at Law , attorneys; Jonathan T

. Guldin and Damien L. Bevelle, of counsel and on the brief).
R espondent Samson Electrical Supply Co. ha s not filed a brief.
PER CURIAM Third

- party defendant James R. Famularo (Famularo) appeals the May 7, 2019 order that denied his motion to vacate a final judgment by default entered against him by third

- party plaintiff Congress Building Corporation (Congress) for $ 294,666.64 . We affirm.3 A

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- 18T2 I. Congress was the general contractor of a n assisted living facility construction p roject in Hillsborough . It hired Famularo Electric, LLC (the LLC)

as the electrical s ubcontractor on the project. Ibid. Famularo is the president and a managing memb er of the LLC. The LLC subcontracted with pl aintiff Samson Electrical Supply Company ( Samson ) to supply materials for use in the project.
Samson claimed it was not paid for materials it supplied for the project

. It filed a construction lien claim against the construction project

. In March 2018, it s ued the LLC , Congress and other entities involved in the construction project in an action in the Law Division , seeking payment

. On May 15, 2018, Congress and defenda nt Arch Insurance Company filed

a n answer , denying the claims , which also included a crossclaim by Congress against the LLC and a third

- party complaint against Famularo and third

- party defendant David Apriceno , Vice

- President of the LLC, individually

. The crossclaim s alleged claims for breach of contract, promissory estoppel, unjust enrichment, contribution, indemnification and fraud against the LLC. Ibid. The fraud count also alleged that Famularo and Apriceno

— in their individual capacities

— made knowing misrepresentations to Congress that the LLC had4 A

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paid the material suppliers when they had not, that they intended Congress to rely on these representations and that Congress reasonably relied to its detriment and suffered damages. Famularo did not answer the third

- party complaint by Co ngress. 1 Congress requested entry of a default . The certification in support of the motion stated the pleading was served on Famularo on May 21, 2018 , at Famularo's place of business and accepted by Apriceno as "custodian of records." Famularo later ack nowledged that the pleadings were served on him. On June 26, 2018, a default was entered against the LLC, Famularo and Apriceno. A notice of default was served on Famularo at his business address on June 29, 2018

. On July 17, 2018, Congress requested en try of a default judgment against all three parties

— the LLC, Famularo and Apriceno

— certifying in support of the motion that the summons and pleading s w ere properly served Joshua Roccapriore , Congress' s project manager , certified the LLC submitted multiple affidavits of debts and claims seeking progress payments from Congress. These were prepared by Apriceno and signed and certified to

1 The LLC also did not answer Samson's complaint. A final judgment by default was entered on June 18, 2018 against the LLC in favor of Samson for $148,027.20 plus taxed costs that included attorney's fees.5 A

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by Famularo. Those affidavits provided that "payment has been made in full

an d all obligations have . . . been sa tisfied for all material , and equipment furnished , for all work, labor , and services performed . . . ." Also, what purported to be lien waivers by the material suppliers were attached to the affidavits . Roccapriore certified that in reliance on these, Co ngress paid the
LLC $1,402,667.05 . However, the material suppliers contacted Congress and filed liens because they had not been paid. Congress alleged it then made additional payments to the material suppliers of $294,666.64, including a bond premium. Congress certified that "documents upon which Congress relied in making certain payments to [the LLC] were forged by Mr. Famular o and Mr. Apriceno." On August 31, 2018, a default judgment was entered against the LLC, Famularo and Apriceno, but there was an error in the amount

. An amended final default judgment was entered on September 7, 2018 for $309,183.54 , 2 of which $294,666.64 was entered jointly and severally against the LLC and the individual defendants, Famularo and Ap r iceno.

2 This included attorney's fees and costs of $ 14,516.90 but not prejudgment interest of $5226.62.6 A

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While the default j udgment application was pending, Congress filed an amended answer, crossclaim and third

- party complaint against the LLC, Famularo and Apriceno, which was granted on August 31, 2018. This added a counterclaim against Samson. Famularo filed a motion to vac ate the default judgment to permit him to file an answer to the third

- party complaint. F amularo certified in support of the motion that h e was served with the s ummons, answer and third

- party complaint on May 21, 2 01 8 . He attached the affidavit of service as an exhibit. Famularo alleged he did not answer the third

- party complaint because of "excusable neglect," arguing h is health problems

— diabetes and arthritis

— required his "full attention." He claimed he was hospitalized for three weeks in October 2017 for sepsis. He claimed he had to go to the podiatrist a number of times between October 6, 2017 and February 26, 2019. In June 2017, he said he had toes amputated and was "unavailable for about [six] weeks ." He argued he was being treated by another doctor for "end

- stage degenerative arthritis." He claimed he had knee replacements on April 10 and 14, 2018 , and "was bedridden for approximately [six] weeks." He certified he had a number of follow

- up doctors ' visits.7 A

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Congress opposed the motion. Congress noted that Famularo had a number of opportunities to respond to the third

- party complaint or make contact with Congress but did not. Famularo's motion to vacate was denied on May 7, 2019. In its written
sta tement of reasons, the trial court said it was "not persuaded by [Famularo's] excusable neglect nor ha[d] [he] set forth a meritorious defense." Famularo did not claim he was not served with the third

- party complaint. Although his proposed answer denied the allegations in the third

- party complaint, the trial court found this was "nothing more than a general denial" and he did "not certify to any specific facts to support his general defenses to the fraud claims asserted against him." Famularo alleged tha t Congress made "misrepresentations" about him but "fail[ed] to provide any certification or proof in support of same." On appeal, Famularo raises the single issue that the trial court abused its discretion by denying his motion to vacate the default judg ment. II. Rule 4:50

- 1 "governs an applicant's motion for relief from default when the case has proceeded to judgment." U.S. Bank Nat'l Ass'n v. Guillaume , 209 N.J. 449, 466 (2012). Once the court has entered a default judgment, relief from the judgment must satisfy one of the following reasons:8 A

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- 1 is to be "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co. , 84 N.J. Super. 313, 319 (App. Div. 1964). The defendant must also show that he has a meritorious defense. Id. at 318. We review the order denying a motion to vacate a default judgment under an abuse of discretion standard. See Mancini v. EDS , 132 N.J. 330, 334 (1993);

see Guillaume , 209 N.J. at 467 (requiring "a clear abuse of discretion" to vacate). An abuse of discretion occurs when the trial court's decision, "without a rational explanation, inexplicably departed from established policies , or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor , 171 N.J. 561, 571 (2002)9 A

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(quoting Achacoso

- Sanchez v. Immigration and Naturalization Serv. , 779 F.2d 1260, 1265 (7th Cir. 1985)). Under Rule 4:50

- 1(a), the judge must find that the de fendant's failure to appear resulted from neglect excusable under the circumstances. Mancini , 132 N.J. at 334 (citation omitted). The judge may find excusable neglect when the defendant's conduct was "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Id. at 335 (citations omitted). Subsection "f" should be used "sparingly," First Morris Bank & Tr. v. Roland Offset Serv., Inc. , 357 N.J. Super. 68, 71 (App. Div. 2003), and relief is available only when "truly exceptional circumstances are present." Hous. Auth. of Morristown v. Little , 135 N.J. 274, 286 (1994) (quoting Baumann v. Marinaro , 95 N.J. 380, 395 (1984)). "[This] rule is limited to 'situations in which, were it not applied, a grave injustice would oc cur.'" Guillaume , 209 N.J. at 484 (quoting Little , 135 N.J. at 289). Famularo argues for the first time on appeal that he was not properly served with the third

- party complaint. The affidavit of service indicates that service for Famularo was made on Apr iceno as "custodian of records." Famularo argues there is nothing in the record to show Apriceno was authorized to accept service for Famularo.10 A

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We decline to address what the trial court did not have the opportunity to address. See State v. Galicia , 210 N.J. 364, 383 (2012) (observing that "[g]enerally, an appellate court will not consider issues . . . which were not raised below."). If we were to consider the issue, we note that Famularo acknowledged in his certification that he received the summons, an swer and
third

- party complaint on May 21, 2018, and never raised the issue in any other stage of the proceedings. Thus, not only does the argument contradict his certification, but he did not raise it when he had the opportunity and does not explain why h e did not raise it earlier. We disagree with Famularo's argument that he should be able to vacate the default judgment because Congress had permission to file an amended answer, crossclaim and third

- party complaint. The subsequent amended pleading was f or the purpose of asserting a counterclaim against Samson. Famularo was in default and could not respond. We perceive no abuse of discretion by the trial judge by denying the motion to vacate because Famularo did not show excusable neglect or a meritorio us defense. The trial court was not persuaded by Famularo's excusable neglect argument. The record showed that Famularo's hospitalization in October 2017 was several months before the third

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his knee surgery and conv alescence was in early April 2018, extending into May, but he did not explain why he could not answer the complaint in June 2018 , or provide any medical records. Famularo took no responsive action when notified of the default or default judgment, which wa s after the hospitalizations. He did not provide any verification that his health prevented him from responding. The trial court did not abuse its discretion in determining Famularo did not show a meritorious defense. The unrebutted proofs were that it w as Famularo who certified the documents that said the material suppliers had been paid when they were not. Famularo did not dispute that Congress made payments to the material suppliers of $294,666.64 , that he knew about this or that Congress relied on th ese financial documents to its detriment. Famularo's argument about the lack of a personal guarantee did not address these claims. Thus, the trial court's findings on fraud were supported by the certifications as was the amount of the final judgment.
A fter carefully reviewing the record and the applicable legal principles, we conclude that Famularo's further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.