                        NOT FOR PUBLICATION WITHOUT THE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-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 August 2, 2017

              Before Judges Lihotz and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No. L-
              10692-60.

              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
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.
                            2                             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




                             3                              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 State-

Wide, 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.

                                4                                   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.

                            5                              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
                  6                              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
                  7                              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.


                              8                              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)).



                                  9                                   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 timely-

filed 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.



                                10                                A-4348-15T2
