Preview
SSX-L-000052-23 12/08/2023 Pg 1 of 7 Trans ID: LCV20233583599
PREPARED BY THE COURT
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: SUPERIOR COURT OF NEW JERSEY
GO PURVEYORS CORP. : SUSSEX COUNTY
: LAW DIVISION
Plaintiff, :
: Docket No. SSX-L-52-23
vs. :
:
HOMESTEAD RESTAURANT, INC. and :
JASON N. COFRANCESCO, :
: ORDER
Defendants. :
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THIS MATTER having been opened to the Court by Celli, Schlossberg, De Meo, and Giusti, P.C.,
Alfonse A. De Meo, Esq. appearing for Plaintiff, Go Purveyors Corp. (hereinafter “Plaintiff”) by way of a
motion to enter judgment, and also having been opened to the Court by Matthew M. Fredericks, Esq., LLC,
attorney for Defendants Homestead Restaurant Inc. and Jason Cofrancesco (hereinafter “Defendants”) by way of
a cross-motion to vacate default; and the Court having considered the papers submitted and having heard oral
argument, and the Statement of Reasons attached and for good cause having been shown;
IT IS on this 8th day of December, 2023
ORDERED as follows:
1. Defendants’ Cross-Motion to Vacate Default is hereby GRANTED;
2. Default previously entered against Defendants is hereby VACATED; and
3. Plaintiff’s Motion for Entry of Judgment by Default is hereby DENIED.
4. Parties are to continue Discovery and are to report back to the court on January 12, 2024 for
Case Management and to determine if a testimonial hearing will be necessary; and it is
FURTHER ORDERED that service of this Order shall be deemed effectuated upon all parties upon its
upload to eCourts. Pursuant to R.1:5-1(a), movant shall serve a copy of this Order on all parties not served
electronically within seven (7) days of this Order.
______________________________
The Hon. Louis S. Sceusi, J.S.C.
Retired T/A on Recall
[ X ] Opposed
[ ] Unopposed
SSX-L-000052-23 12/08/2023 Pg 2 of 7 Trans ID: LCV20233583599
Go Purveyors Corp v. Homestead Restaurant Inc, et al.
SSX-L-52-23
STATEMENT OF REASONS
I. Background
By way of background, Plaintiff, Go Purveyors Corp. (“Plaintiff”), filed its Complaint on
February 8, 2023, alleging the following. Plaintiff is a corporation engaged in the sale of provisions
including, but not limited to, beef, chicken, and pork to retail and commercial entities. Defendant,
Homestead Restaurant Inc. (“Homestead”) is a restaurant doing business at 294 N. Church Road,
Sparta, New Jersey. Co-Defendant, Jason N. Cofrancesco (“Mr. Cofrancesco”) is the personal
guarantor for an account between Plaintiff and Homestead. Plaintiff allegedly provided goods and
services to Defendants pursuant to an oral agreement between the parties which was guaranteed
personally by Mr. Cofrancesco in a written guarantee. Defendants allegedly failed to pay the
balance owed to Plaintiff despite repeated demands for payment. According to Plaintiffs, the
agreement between the parties, as encompassed in the bills of lading executed by the Defendants,
required the payment of interest and attorneys’ fees. Plaintiff alleges that it provided goods and
services valued at $25,117.26 to the Defendants as set forth in invoices between the parties.
According to Plaintiff, Mr. Cofrancesco executed a personal guarantee in order to induce Plaintiff
to extend credit to Homestead. Both Homestead and Mr. Francesco have allegedly failed to make
payment despite demands from Plaintiff. Plaintiff, through its Complaint, sought damages in the
amount of $25,117.26 plus reasonable counsel fees, costs of suit and interest.
On April 10, 2023, a stipulation extending the time for Defendants to answer was entered.
That same day, Defendants filed their Answer, wherein they denied the allegations in Plaintiff’s
Complaint. On August 24, 2023 Plaintiff filed a motion to strike the Defendants’ Answer for
failure to provide discovery and sought an entry of default. In that motion, Plaintiff alleged that it
propounded a Demand for Production of Documents and a Demand for Interrogatory Answers on
counsel for the Defendants on June 9, 2023 which went unanswered. On September 22, 2023, The
Honorable Vijayant Pawar, J.S.C. entered an Order granting Plaintiff’s motion to strike and entered
default against the Defendants. On September 28, 2023, Plaintiff filed a motion to enter default
judgment, which is presently before the Court. Plaintiff asks this Court to enter judgment against
Defendants. In response to Plaintiff’s motion, Defendants filed a cross-motion to vacate default
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judgment. In their cross-motion, Defendants allege that on October 26, 2023, they provided
responses to Plaintiff’s discovery demands, including responses to Plaintiff’s Notice to Produce
Documents and Interrogatories. Defendants allege in their Answers to Interrogatories that Plaintiff
has never provided any documentary proof to support its claim for a “balance forward” in the
amount of $23,309.13. Defendants allege that they made payments to the prior owner of Plaintiff—
who has since passed away—and that such payments are not reflected in Plaintiff’s account
statements. Defendants allege that they were never more than two deliveries behind in their
payments to Plaintiff and that the Plaintiff’s account statements reflects this.
Defendants argue that the “good cause” standard under Rule 4:43-3 should be applied to
their cross-motion to vacate default because default was entered due to their failure to provide
discovery rather than the failure to answer Plaintiff’s Complaint. Defendants deny the amounts
demanded by Plaintiff and assert that Plaintiff cannot account for the “balance forward” amount
of $23,309.13, thereby creating a dispute which Defendants argue is ripe for adjudication on the
merits. Defendants therefore ask this Court to vacate default judgment. In opposition to
Defendants’ cross-motion, Plaintiff argues that Defendants have failed to make a showing that the
judgment should be disturbed. Plaintiff contends that Defendant’s reliance on Rule 4:50-1 is
incorrect. Plaintiff argues that Rule 4:23-5 should apply because default was applied after
Defendants’ pleadings were struck for failure to provide discovery. Rule 4:23-5(a) states:
If a demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19 is
not complied with and no timely motion for an extension or a
protective order has been made, the party entitled to discovery may,
except as otherwise provided by paragraph (c) of this rule, move, on
notice, for an order dismissing or suppressing the pleading of the
delinquent party. The motion shall be supported by an affidavit
reciting the facts of the delinquent party’s default and stating that
the moving party is not in default in any discovery obligations owed
to the delinquent party. Unless good cause for other relief is shown,
the court shall enter an order of dismissal or suppression without
prejudice. Upon being served with the order of dismissal or
suppression without prejudice, counsel for the delinquent party shall
forthwith serve a copy of the order on the client by regular and
certified mail, return receipt requested, accompanied by a notice in
the form prescribed by Appendix II-A of these rules, specifically
explaining the consequences of failure to comply with the discovery
obligation and to file and serve a timely motion to restore. If the
delinquent party is appearing pro se, service of the order and notice
hereby required shall be made by counsel for the moving party. The
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delinquent party may move on notice for vacation of the
dismissal or suppression order at any time before the entry of
an order of dismissal or suppression with prejudice. The motion
shall be supported by affidavit reciting that the discovery
asserted to have been withheld has been fully and responsively
provided and shall be accompanied by payment of a $100
restoration fee to the Clerk of the Superior Court, made payable
to the “Treasurer, State of New Jersey,” if the motion to vacate
is made within 30 days after entry of the order of dismissal or
suppression, or a $300 restoration fee if the motion is made
thereafter. If, however, the motion is not made within 90 days after
entry of the order of dismissal or suppression, the court may also
order the delinquent party to pay sanctions or attorney’s fees and
costs, or both, as a condition of restoration. [emphasis added.]
Plaintiff alleges that Defendants have not submitted an affidavit that the outstanding discovery has
been fully and responsively provided as required by R. 4:50-1. Plaintiff also contends that
Defendants’ discovery responses are deficient because they merely indicate that documents are “to
be provided” without actually having been provided. Plaintiff further argues that Defendants are
required to pay the requisite fees to restore their pleadings since they did not file within thirty days
of the entry of the order entered by Judge Pawar.
Plaintiff then argues that, even if Rule 4:50-1 governs this matter, relief is not appropriate
because Defendants have not given any legitimate reason for failing to respond to discovery.
Plaintiff contends that although Defendants dispute the balance owed, they offer no proof to
dispute that a debt exists such that a meritorious defense has been shown. Plaintiff therefore argues
that, in the absence of excusable neglect, the showing of a meritorious defense, or good cause
shown, Defendants’ cross-motion to vacate should be denied. Defendants replied to Plaintiff’s
opposition, essentially arguing that Rule 4:23-5 does not apply because Judge Pawar’s order
entered default judgment after striking Defendant’s Answer, thereby making Rule 4:43-3 the
governing standard. Plaintiff’s motion and Defendants’ cross-motion are both currently before the
Court.
II. Legal Standards
Rule 4:43-3 provides that for good cause shown, the court may set aside entry of default
against a defendant who has failed to answer the complaint or otherwise plead. R. 4:43-3.
Additionally, R. 4:43-3 requires that “[a] party’s motion for the vacation of an entry of default
shall be accompanied by (1) either an answer to the complaint and Case Information Statement or
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a dispositive motion pursuant to Rule 4:6-2, and (2) the filing fee for an answer or dispositive
motion….” Id. The circumstances considered sufficient to constitute “good cause” are less
stringent than those set forth in the Rules for setting aside a default judgment. R. 4:43-3, cmts.
An application to vacate default is required to be viewed with liberality. Id. (citing e.g., DYFS v.
P.W.R., 410 N.J. Super. 501, 508 (App. Div. 2009), rev’d on other grounds 205 N.J. 17 (2011)).
Nevertheless, it has been held that before entry of default will be set aside, the defendant must at
the very least show the presence of a meritorious defense worthy of judicial consideration. See
Local 478 v. Baron Holding Corp., 224 N.J. Super. 485, 489 (App. Div. 1988).
Once default judgment has been entered against a defaulting defendant, the more stringent
rules to set aside judgments apply. R. 4:43-3 (citing R. 4:50-1). The court must first determine if
the motion is timely. R. 4:50-2 requires that a motion filed pursuant to R. 4:50-1 to vacate a
default judgment must “be made within a reasonable time, and for reasons (a), (b), and (c) of R.
4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.” R.
4:50-2. Assuming the motion to set aside default judgment is timely, pursuant to R. 4:50-1, the
court may relieve a defendant from a final judgment for the following reasons: (a) mistake,
inadvertence, surprise, or excusable neglect; (b) newly discovered evidence; (c) fraud,
misrepresentation, or other misconduct of an adverse party; (d) voidness of the judgment; (e)
satisfaction, release, or discharge of the judgment; or (f) any other reason justifying relief from the
judgment. R. 4:50-1. Additionally, The decision to grant or deny a motion to set aside a default
judgment “rests in the sound discretion of the court with equitable principles in mind, and will not
be overturned in the absence of an abuse of that discretion.” Marder v. Realty Constr. Co., 84 N.J.
Super. 313, 318 (App. Div. 1964). It has been held that a motion to vacate a default judgment
should be reviewed with great liberality and that every reasonable ground for indulgence should
be tolerated so that justice is achieved. Id. at 319.
In order to vacate default judgment under R. 4:50-1(a), the defendant must establish both
that their “failure to answer was due to excusable neglect and that [there is] a meritorious defense.”
Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div. 2007); Marder v. Realty Const.
Co., 84 N.J. Super. 313, 318 (App. Div.) aff’d 43 N.J. 508 (1964). To determine if a meritorious
defense exists the court “must examine defendant’s proposed defense to determine its merit.” Bank
of New Jersey v. Pulinni, 194 N.J. Super. 163, 166 (App. Div. 1984). The standard for such a
meritorious defense is one that is not so high that it need be significant competent evidence. So
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long that if proven it would constitute a valid defense, the defense may be meritorious. T&S
Painting & Maint., Inc. v. Baker Residential, 333 N.J. Super. 189, 193 (App. Div. 2000).
III. Analysis
As an initial matter, the Court finds that Plaintiff’s motion and Defendants’ cross-motion
are timely. Rule 4:43-4 allows four months for a party entitled to a judgment by default to apply
therefor. Rule 4:50-2 allows a motion to vacate default to be made within a reasonable time, not
more than one year after the judgment, order, or proceeding was entered or taken. Judge Pawar’s
order entering default was signed on September 22, 2023. Plaintiff filed its motion to enter
judgement on September 28, 2023 and Defendants filed their cross-motion to vacate judgment on
October 26, 2023. The filing dates fall within the time allowed by the applicable rules.
Because default has been entered against Defendants, Rule 4:50-1 applies. Pursuant to Rule
4:50-1, an entry of default may be vacated for the following reasons: (a) mistake, inadvertence,
surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the
judgment or order and 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. Here, the Defendants have not demonstrated
excusable neglect. Defendants do not offer any legitimate reason for their failure to provide
discovery responses. In an email exchange provided by Plaintiff in its opposition to Defendants’
cross-motion, defense counsel attached responses to discovery requests and apologized for the
delay. Defense counsel, however, does not explain the delay either in the email or in the motion
papers. The Court therefore cannot find excusable neglect in this matter.
However, even in the absence of excusable neglect, Rule 4:50-1(f) allows the court to
vacate default judgment for “any other reason justifying relief from the operation of the judgment
or order.” R. 4:50-1(f). Although a judgment may be vacated on such only in exceptional cases,
the boundaries of that subsection of the rule "are as expansive as the need to achieve equity and
justice." Morales v. Santiago, 217 N.J. Super. 496, 504 (App. Div. 1987). In Morales, the
defendants appealed from an order denying their motion to vacate a default judgment entered
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against them in the amount of $36,050. Id. at 488. The appellate court found that the defendants
were ill-served by their attorneys. Id. at 504 One attorney failed to confirm that a proof hearing
had been adjourned and the other failed to present the defendants’ case adequately on the motion
to vacate. Id. The appellate court concluded that “[a]lthough buyers' evidence at the proof hearing
fell short of proving a contract, we will afford them an opportunity to present their evidence in
full, as to liability and damages, at a trial after both sides have had the benefit of discovery.” Id. at
505.
Here, like in Morales, the Defendants should be given a chance to present their evidence
after both sides exchange discovery. Defendants claim that cash payments have been made to
Plaintiff that have not been accounted for, and that Defendants are not in default as Plaintiff alleges
in its Complaint. Although Defendants have not offered a significant amount of proof for their
position, they should be given a chance to defend it on the merits. Therefore, pursuant to R. 4:50-
1(f), the Court will vacate the entry of default judgment.
IV. Conclusion
Based on the foregoing, Plaintiff’s motion for judgment is hereby denied. Defendants’
cross-motion to vacate default judgment is hereby granted. Parties are to continue discovery, a
Case Management is scheduled for January 12, 2024 to determine if a testimonial hearing will be
necessary.
A conforming Order accompanies this Statement of Reasons.
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Preview
SSX-L-000052-23 12/08/2023 Pg 1 of 7 Trans ID: LCV20233583599 PREPARED BY THE COURT ----------------------------------------------------------------- : SUPERIOR COURT OF NEW JERSEY GO PURVEYORS CORP. : SUSSEX COUNTY : LAW DIVISION Plaintiff, : : Docket No. SSX-L-52-23 vs. : : HOMESTEAD RESTAURANT, INC. and : JASON N. COFRANCESCO, : : ORDER Defendants. : ---------------------------------------------------------------- THIS MATTER having been opened to the Court by Celli, Schlossberg, De Meo, and Giusti, P.C., Alfonse A. De Meo, Esq. appearing for Plaintiff, Go Purveyors Corp. (hereinafter “Plaintiff”) by way of a motion to enter judgment, and also having been opened to the Court by Matthew M. Fredericks, Esq., LLC, attorney for Defendants Homestead Restaurant Inc. and Jason Cofrancesco (hereinafter “Defendants”) by way of a cross-motion to vacate default; and the Court having considered the papers submitted and having heard oral argument, and the Statement of Reasons attached and for good cause having been shown; IT IS on this 8th day of December, 2023 ORDERED as follows: 1. Defendants’ Cross-Motion to Vacate Default is hereby GRANTED; 2. Default previously entered against Defendants is hereby VACATED; and 3. Plaintiff’s Motion for Entry of Judgment by Default is hereby DENIED. 4. Parties are to continue Discovery and are to report back to the court on January 12, 2024 for Case Management and to determine if a testimonial hearing will be necessary; and it is FURTHER ORDERED that service of this Order shall be deemed effectuated upon all parties upon its upload to eCourts. Pursuant to R.1:5-1(a), movant shall serve a copy of this Order on all parties not served electronically within seven (7) days of this Order. ______________________________ The Hon. Louis S. Sceusi, J.S.C. Retired T/A on Recall [ X ] Opposed [ ] Unopposed SSX-L-000052-23 12/08/2023 Pg 2 of 7 Trans ID: LCV20233583599 Go Purveyors Corp v. Homestead Restaurant Inc, et al. SSX-L-52-23 STATEMENT OF REASONS I. Background By way of background, Plaintiff, Go Purveyors Corp. (“Plaintiff”), filed its Complaint on February 8, 2023, alleging the following. Plaintiff is a corporation engaged in the sale of provisions including, but not limited to, beef, chicken, and pork to retail and commercial entities. Defendant, Homestead Restaurant Inc. (“Homestead”) is a restaurant doing business at 294 N. Church Road, Sparta, New Jersey. Co-Defendant, Jason N. Cofrancesco (“Mr. Cofrancesco”) is the personal guarantor for an account between Plaintiff and Homestead. Plaintiff allegedly provided goods and services to Defendants pursuant to an oral agreement between the parties which was guaranteed personally by Mr. Cofrancesco in a written guarantee. Defendants allegedly failed to pay the balance owed to Plaintiff despite repeated demands for payment. According to Plaintiffs, the agreement between the parties, as encompassed in the bills of lading executed by the Defendants, required the payment of interest and attorneys’ fees. Plaintiff alleges that it provided goods and services valued at $25,117.26 to the Defendants as set forth in invoices between the parties. According to Plaintiff, Mr. Cofrancesco executed a personal guarantee in order to induce Plaintiff to extend credit to Homestead. Both Homestead and Mr. Francesco have allegedly failed to make payment despite demands from Plaintiff. Plaintiff, through its Complaint, sought damages in the amount of $25,117.26 plus reasonable counsel fees, costs of suit and interest. On April 10, 2023, a stipulation extending the time for Defendants to answer was entered. That same day, Defendants filed their Answer, wherein they denied the allegations in Plaintiff’s Complaint. On August 24, 2023 Plaintiff filed a motion to strike the Defendants’ Answer for failure to provide discovery and sought an entry of default. In that motion, Plaintiff alleged that it propounded a Demand for Production of Documents and a Demand for Interrogatory Answers on counsel for the Defendants on June 9, 2023 which went unanswered. On September 22, 2023, The Honorable Vijayant Pawar, J.S.C. entered an Order granting Plaintiff’s motion to strike and entered default against the Defendants. On September 28, 2023, Plaintiff filed a motion to enter default judgment, which is presently before the Court. Plaintiff asks this Court to enter judgment against Defendants. In response to Plaintiff’s motion, Defendants filed a cross-motion to vacate default 1 SSX-L-000052-23 12/08/2023 Pg 3 of 7 Trans ID: LCV20233583599 judgment. In their cross-motion, Defendants allege that on October 26, 2023, they provided responses to Plaintiff’s discovery demands, including responses to Plaintiff’s Notice to Produce Documents and Interrogatories. Defendants allege in their Answers to Interrogatories that Plaintiff has never provided any documentary proof to support its claim for a “balance forward” in the amount of $23,309.13. Defendants allege that they made payments to the prior owner of Plaintiff— who has since passed away—and that such payments are not reflected in Plaintiff’s account statements. Defendants allege that they were never more than two deliveries behind in their payments to Plaintiff and that the Plaintiff’s account statements reflects this. Defendants argue that the “good cause” standard under Rule 4:43-3 should be applied to their cross-motion to vacate default because default was entered due to their failure to provide discovery rather than the failure to answer Plaintiff’s Complaint. Defendants deny the amounts demanded by Plaintiff and assert that Plaintiff cannot account for the “balance forward” amount of $23,309.13, thereby creating a dispute which Defendants argue is ripe for adjudication on the merits. Defendants therefore ask this Court to vacate default judgment. In opposition to Defendants’ cross-motion, Plaintiff argues that Defendants have failed to make a showing that the judgment should be disturbed. Plaintiff contends that Defendant’s reliance on Rule 4:50-1 is incorrect. Plaintiff argues that Rule 4:23-5 should apply because default was applied after Defendants’ pleadings were struck for failure to provide discovery. Rule 4:23-5(a) states: If a demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party’s default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. If the delinquent party is appearing pro se, service of the order and notice hereby required shall be made by counsel for the moving party. The 2 SSX-L-000052-23 12/08/2023 Pg 4 of 7 Trans ID: LCV20233583599 delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice. The motion shall be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, made payable to the “Treasurer, State of New Jersey,” if the motion to vacate is made within 30 days after entry of the order of dismissal or suppression, or a $300 restoration fee if the motion is made thereafter. If, however, the motion is not made within 90 days after entry of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or attorney’s fees and costs, or both, as a condition of restoration. [emphasis added.] Plaintiff alleges that Defendants have not submitted an affidavit that the outstanding discovery has been fully and responsively provided as required by R. 4:50-1. Plaintiff also contends that Defendants’ discovery responses are deficient because they merely indicate that documents are “to be provided” without actually having been provided. Plaintiff further argues that Defendants are required to pay the requisite fees to restore their pleadings since they did not file within thirty days of the entry of the order entered by Judge Pawar. Plaintiff then argues that, even if Rule 4:50-1 governs this matter, relief is not appropriate because Defendants have not given any legitimate reason for failing to respond to discovery. Plaintiff contends that although Defendants dispute the balance owed, they offer no proof to dispute that a debt exists such that a meritorious defense has been shown. Plaintiff therefore argues that, in the absence of excusable neglect, the showing of a meritorious defense, or good cause shown, Defendants’ cross-motion to vacate should be denied. Defendants replied to Plaintiff’s opposition, essentially arguing that Rule 4:23-5 does not apply because Judge Pawar’s order entered default judgment after striking Defendant’s Answer, thereby making Rule 4:43-3 the governing standard. Plaintiff’s motion and Defendants’ cross-motion are both currently before the Court. II. Legal Standards Rule 4:43-3 provides that for good cause shown, the court may set aside entry of default against a defendant who has failed to answer the complaint or otherwise plead. R. 4:43-3. Additionally, R. 4:43-3 requires that “[a] party’s motion for the vacation of an entry of default shall be accompanied by (1) either an answer to the complaint and Case Information Statement or 3 SSX-L-000052-23 12/08/2023 Pg 5 of 7 Trans ID: LCV20233583599 a dispositive motion pursuant to Rule 4:6-2, and (2) the filing fee for an answer or dispositive motion….” Id. The circumstances considered sufficient to constitute “good cause” are less stringent than those set forth in the Rules for setting aside a default judgment. R. 4:43-3, cmts. An application to vacate default is required to be viewed with liberality. Id. (citing e.g., DYFS v. P.W.R., 410 N.J. Super. 501, 508 (App. Div. 2009), rev’d on other grounds 205 N.J. 17 (2011)). Nevertheless, it has been held that before entry of default will be set aside, the defendant must at the very least show the presence of a meritorious defense worthy of judicial consideration. See Local 478 v. Baron Holding Corp., 224 N.J. Super. 485, 489 (App. Div. 1988). Once default judgment has been entered against a defaulting defendant, the more stringent rules to set aside judgments apply. R. 4:43-3 (citing R. 4:50-1). The court must first determine if the motion is timely. R. 4:50-2 requires that a motion filed pursuant to R. 4:50-1 to vacate a default judgment must “be made within a reasonable time, and for reasons (a), (b), and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.” R. 4:50-2. Assuming the motion to set aside default judgment is timely, pursuant to R. 4:50-1, the court may relieve a defendant from a final judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence; (c) fraud, misrepresentation, or other misconduct of an adverse party; (d) voidness of the judgment; (e) satisfaction, release, or discharge of the judgment; or (f) any other reason justifying relief from the judgment. R. 4:50-1. Additionally, The decision to grant or deny a motion to set aside a default judgment “rests in the sound discretion of the court with equitable principles in mind, and will not be overturned in the absence of an abuse of that discretion.” Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div. 1964). It has been held that a motion to vacate a default judgment should be reviewed with great liberality and that every reasonable ground for indulgence should be tolerated so that justice is achieved. Id. at 319. In order to vacate default judgment under R. 4:50-1(a), the defendant must establish both that their “failure to answer was due to excusable neglect and that [there is] a meritorious defense.” Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div. 2007); Marder v. Realty Const. Co., 84 N.J. Super. 313, 318 (App. Div.) aff’d 43 N.J. 508 (1964). To determine if a meritorious defense exists the court “must examine defendant’s proposed defense to determine its merit.” Bank of New Jersey v. Pulinni, 194 N.J. Super. 163, 166 (App. Div. 1984). The standard for such a meritorious defense is one that is not so high that it need be significant competent evidence. So 4 SSX-L-000052-23 12/08/2023 Pg 6 of 7 Trans ID: LCV20233583599 long that if proven it would constitute a valid defense, the defense may be meritorious. T&S Painting & Maint., Inc. v. Baker Residential, 333 N.J. Super. 189, 193 (App. Div. 2000). III. Analysis As an initial matter, the Court finds that Plaintiff’s motion and Defendants’ cross-motion are timely. Rule 4:43-4 allows four months for a party entitled to a judgment by default to apply therefor. Rule 4:50-2 allows a motion to vacate default to be made within a reasonable time, not more than one year after the judgment, order, or proceeding was entered or taken. Judge Pawar’s order entering default was signed on September 22, 2023. Plaintiff filed its motion to enter judgement on September 28, 2023 and Defendants filed their cross-motion to vacate judgment on October 26, 2023. The filing dates fall within the time allowed by the applicable rules. Because default has been entered against Defendants, Rule 4:50-1 applies. Pursuant to Rule 4:50-1, an entry of default may be vacated for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and 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. Here, the Defendants have not demonstrated excusable neglect. Defendants do not offer any legitimate reason for their failure to provide discovery responses. In an email exchange provided by Plaintiff in its opposition to Defendants’ cross-motion, defense counsel attached responses to discovery requests and apologized for the delay. Defense counsel, however, does not explain the delay either in the email or in the motion papers. The Court therefore cannot find excusable neglect in this matter. However, even in the absence of excusable neglect, Rule 4:50-1(f) allows the court to vacate default judgment for “any other reason justifying relief from the operation of the judgment or order.” R. 4:50-1(f). Although a judgment may be vacated on such only in exceptional cases, the boundaries of that subsection of the rule "are as expansive as the need to achieve equity and justice." Morales v. Santiago, 217 N.J. Super. 496, 504 (App. Div. 1987). In Morales, the defendants appealed from an order denying their motion to vacate a default judgment entered 5 SSX-L-000052-23 12/08/2023 Pg 7 of 7 Trans ID: LCV20233583599 against them in the amount of $36,050. Id. at 488. The appellate court found that the defendants were ill-served by their attorneys. Id. at 504 One attorney failed to confirm that a proof hearing had been adjourned and the other failed to present the defendants’ case adequately on the motion to vacate. Id. The appellate court concluded that “[a]lthough buyers' evidence at the proof hearing fell short of proving a contract, we will afford them an opportunity to present their evidence in full, as to liability and damages, at a trial after both sides have had the benefit of discovery.” Id. at 505. Here, like in Morales, the Defendants should be given a chance to present their evidence after both sides exchange discovery. Defendants claim that cash payments have been made to Plaintiff that have not been accounted for, and that Defendants are not in default as Plaintiff alleges in its Complaint. Although Defendants have not offered a significant amount of proof for their position, they should be given a chance to defend it on the merits. Therefore, pursuant to R. 4:50- 1(f), the Court will vacate the entry of default judgment. IV. Conclusion Based on the foregoing, Plaintiff’s motion for judgment is hereby denied. Defendants’ cross-motion to vacate default judgment is hereby granted. Parties are to continue discovery, a Case Management is scheduled for January 12, 2024 to determine if a testimonial hearing will be necessary. A conforming Order accompanies this Statement of Reasons. 6