STATE OF NEW JERSEY v. CHRISTOPHER FIGUEROA (07-09-3171 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2540-15T1
NEW BANK,
Plaintiff-Respondent,
v.
GREEN BAMBOO, LLC, HYUN S.
KIM, GONG JOO KIM, JOKER
BILLIARDS, LLC, and CHAI HONG,
LLC,
Defendants,
and
CHANG D. KIM,
Defendant-Appellant.
________________________________________________
Submitted February 7, 2017 – Decided February 28, 2017
Before Judges Fisher and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-20088-14.
Matthew Jeon, attorney for appellant.
Rotolo, Bozanian & Yi, LLC, attorneys for
respondent (P. Cliff Rotolo, on the brief).
PER CURIAM
After closely examining the record in this appeal from the
denial of a Rule 4:50 motion, we find no merit in the argument
that appellant was not properly served with the summons and
complaint.
Plaintiff New Bank commenced this action against defendant
Green Bamboo, LLC, which, on January 17, 2014, executed a
promissory note to repay a $500,000 loan; the note's repayment was
guaranteed by a number of individuals, including defendant Chang
D. Kim. The complaint was filed on December 8, 2014, and service
of process was promptly effected on all defendants except Kim.
The served defendants defaulted and plaintiff obtained a default
judgment against them; when it could not effect personal service
on Kim, plaintiff moved for and obtained the right to serve him
by certified and regular mail at three locations. When Kim did not
timely respond to the summons and complaint received by him by way
of substituted service, default judgment was entered against him
on July 7, 2015.
On October 22, 2015 – the day before the return date of
plaintiff's motion for a turnover of funds – Kim moved pursuant
to Rule 4:50 for relief from the default judgment. His motion was
denied on December 4, 2015, and a subsequent motion for
reconsideration was denied on January 22, 2016. Kim appealed both
orders, arguing the motion judge erred in denying his Rule 4:50
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motion because: (1) the default judgment is void; (2) he was not
required to assert a meritorious defense; and (3) he established
excusable neglect. We find insufficient merit in these three
arguments to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only the following brief comments.
Kim's Rule 4:50-1(d) argument that the judgment is void is
based on his contention that plaintiff was not entitled to
substituted service. The record indisputably shows, however, that
plaintiff attempted to serve Kim personally – as required by Rule
4:4-4(a)(1) – at his "dwelling place or usual place of abode" –
on three separate days in December 2014. As explained in the
process server's affidavit, Kim's Alpine residence is "gated
. . . with a[n] intercom system" and, on his last attempt, the
process server was told by a voice over the intercom, before that
person disconnected, that he should "not . . . come back." Based
on this and other information, the judge granted plaintiff's motion
for substituted service by way of certified and regular mail at
the Alpine residence, at Green Bamboo's principal place of
business, and the location of Bamboo's business. Plaintiff later
received return receipts that were signed by Kim for the mail sent
to all three locations.
In seeking relief from the default judgment, Kim did not
argue he did not receive the summons and complaint, and he provides
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nothing of merit to suggest the judge erred in ordering substituted
service.1 Instead, Kim argues that the papers served did not
include the motion and order for substituted service.2 Because
service of a summons and complaint was all that was necessary, we
reject Kim's contention that the default judgment is void pursuant
to Rule 4:50-1(d) because of his mistaken claim that service of
process was defective due to plaintiff's alleged failure to also
serve the substituted-service motion papers.3
We also reject Kim's third and last argument that the default
judgment should be vacated pursuant to Rule 4:50-1(a) based on his
assertion that excusable neglect was the cause of his failure to
1
Plaintiff's motion in support of substituted service was properly
granted. The sworn statements provided to the judge at that time
demonstrated, as required by Rule 4:4-4(b)(1), that plaintiff made
a diligent effort to effect personal service at Kim's residence.
2
We would also observe that Kim's moving certification confirmed
he resided at the Alpine address where the process server attempted
service three times and where certified and regular mail were sent
and actually received. And, while denying "any association with
Green Bamboo," Kim confirmed in his certification that he was a
guarantor of the note.
3
We agree with Kim that he was not obligated to present a
meritorious defense insofar as his motion was based on faulty
service of process. In that circumstance, due process principles
do not obligate a movant to present a meritorious defense. See
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S. Ct.
896, 899-900, 99 L. Ed. 2d 75, 81-82 (1988); Midland Funding LLC
v. Albern, 433 N.J. Super. 494, 501 (App. Div. 2013).
4 A-2540-15T1
timely respond to the complaint.4 In moving for relief on this
ground, however, Kim relied only on his attorney's sworn assertion
that Kim "did not disregard the judicial procedure but mistakenly
or carelessly failed to appreciate the significance of proper
response to the legal action against him." Even assuming the
truth and reliability of this conclusory allegation – an allegation
that actually supports plaintiff's position because it presupposes
Kim's actual receipt and knowledge of the complaint filed against
him5 – the attorney's hearsay assertions are insufficient to
provide a factual basis for the claim of excusable neglect. See
Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358
(App. Div. 2004), aff’d, 184 N.J. 415 (2005), cert. denied, 546
U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006); see also
Higgins v. Thurber, 413 N.J. Super. 1, 21 (App. Div. 2010), aff’d,
205 N.J. 227 (2011). Interestingly, Kim's own certification did
not assert or provide any facts to support his attorney's claim
that Kim was "mistaken[]" or "careless[]" in addressing the summons
4
In asserting this theory, Kim was obligated – and failed – to
show a meritorious defense.
5
In his own certification, Kim revealed his actual awareness of
plaintiff's lawsuit by referring to the fact that even before
plaintiff moved for substituted service, his attorney had
corresponded with plaintiff's counsel about the case.
5 A-2540-15T1
and complaint; Kim personally offered no explanation for his
failure to file a responsive pleading.
Affirmed.
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