                                NOT FOR PUBLICATION WITHOUT THE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-3504-17T1

ARCHON DISTRIBUTION,
INC.,

          Plaintiff-Respondent,

v.

AMJAD SAIYED,

          Defendant-Appellant,

and

AZAMSS DISTRIBUTION
CORPORATION,

     Defendant-Respondent.
________________________

                   Submitted February 3, 2020 – Decided July 21, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Essex County, Docket No. C-
                   000150-14.

                   Amjad Saiyed, appellant pro se.
             Respondents have not filed a brief.

PER CURIAM

      In this pro se appeal, defendant Amjad Saiyed challenges a March 5, 2018

order denying his third motion to reconsider the court's order that he reimburse

$5000 of plaintiff's counsel's fees as a condition of vacating a $232,000 default

judgment entered against him after a proof hearing.        Then-represented by

counsel, Saiyed argued he could not afford to pay the $5000. Although the trial

court noted that the motion was untimely, it nonetheless addressed the merits

and found that Saiyed had failed to demonstrate that the court overlooked

evidence, or to present evidence that was unavailable to him before. We discern

no abuse of discretion and affirm. See Cummings v. Bahr, 295 N.J. Super. 374,

384 (App. Div. 1996) (stating that reconsideration decisions are vested in the

trial court's sound discretion).

                                       I.

      We note that in Saiyed's merits brief, he inappropriately seeks our review

of prior orders. Specifically, he challenges the April 5, 2016 default judgment,

entered after a March 21, 2016 proof hearing, which the court conducted after

he left the courthouse before trial. He also challenges the court's March 31,

2017 order vacating the default judgment, conditioned on his paying $5000 of


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plaintiff's fees. We previously denied Saiyed's motion to consider his June 2018

appeal of those orders as within time; and we denied defendant's motion to

reconsider.   Nonetheless, some background about those orders will put in

context the order that is properly before us.

      Plaintiff sued Saiyed, who was a former employee, and his alleged

employer, Azamss Distribution Corp., for breach of a non-competition

agreement. After a period of discovery, the case was scheduled for trial on

March 21, 2016. Saiyed appeared in the courthouse that morning and met with

defense counsel, but left before the matter was heard. Defense counsel informed

the court that his client simply walked out, stating that Saiyed did not wish to

contest the case.     Defense counsel had previously informed the court that

Azamss also no longer wished to defend. The court excused defense counsel

and proceeded to conduct a proof hearing, and ultimately entered judgment

against defendants.

      Saiyed promptly moved for reconsideration under Rule 4:49-2, or to

vacate under Rule 4:50-1. Represented by new counsel, Saiyed alleged that his

prior defense counsel had misrepresented the circumstances surrounding

Saiyed's departure from the courthouse. Saiyed alleged that his defense counsel

threatened to withdraw after Azamss ceased paying his fee, and Saiyed resisted.


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                                        3
Saiyed said he left the courthouse only after defense counsel assured him that

he would secure an adjournment.

      On February 8, 2017, the court held a plenary hearing at which defense

counsel and Saiyed presented opposing versions of why Saiyed absented himself

from the trial. In findings issued immediately following the hearing, the court

implicitly rejected defendant's contention that he left the courthouse based on

defense counsel's alleged assurance that he would secure a trial adjournment.

Nonetheless, the court found that defendant did not fully understand the

consequences of leaving the courthouse that day, and defense counsel was not

completely forthcoming to the court regarding the circumstances surrounding

defendant's departure. In particular, the court found that defense counsel was

aware that Saiyed had vigorously opposed plaintiff's claims for a year-and-a-

half and his apparent willingness to allow a judgment against him was

inexplicable.

      The court stated that had defense counsel candidly stated that he believed

his client must have misunderstood the consequences of his actions – as opposed

to stating unqualifiedly that his client had decided to cease contesting the lawsuit

– the court would have handled the matter differently, by which we infer, the

court would not have proceeded to a proof hearing. In short, the court found


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that Saiyed's departure was excusable, and it decided to vacate the default

judgment, subject to consideration of plaintiff's application for fees.

      On March 24, 2017, the court considered plaintiff's request to condition

vacatur of the judgment upon the award of $30,000 in fees. The court did not

calculate a lodestar fee for plaintiff's counsel's services. But, the court found

that, under the circumstances, an award against Saiyed of $5000 was equitable.

Without recounting defense counsel's role, the court found that plaintiff’s fees

"were incurred in large part because of Mr. Saiyed's conduct," and "Mr. Saiyed's

conduct caused the . . . default hearing to be heard . . . ."

      The court entered a March 31, 2017 order to implement its decisions on

February 8 and March 24, 2017. Saiyed was required to pay $5000 to plaintiff

by April 28, 2017, as a condition of vacating the default judgment, which would

otherwise remain in effect. The court allowed Saiyed until April 28, 2017 to

file a motion to seek an extension of time for payment.

      Saiyed filed a motion to reconsider the March 31, 2017 order – as opposed

to a motion to extend time for payment. The court denied that motion on May

26, 2017. The record includes only the first page of the notice of motion for

reconsideration. It does not include the order, the court's statement of reasons,

or a transcript (if oral argument was heard).


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      After three months, plaintiff filed a motion seeking compliance with a

subpoena duces tecum, returnable September 15, 2017. In response, Saiyed filed

a cross-motion for reconsideration – his second attempt – of the order to pay

$5000. In support of that motion, Saiyed certified that he was unemployed

despite diligent efforts to find work as an accountant; he and his wife suffered

from medical issues; he had no income in 2017; he had no bank accounts; and

he had substantial credit card debt. He stated he attached a matrimonial case

information statement, with supporting documents, but they are omitted from

the record before us. The court denied the cross-motion in a December 15, 2017

order. The record includes neither the order, the court's statement of reasons,

nor the transcript, if any.

      On January 3, 2018, Saiyed filed his third motion for reconsideration. He

reiterated his description of his dire financial circumstances, and proposed that

the court assess the $5000 against his recovery in a pending federal lawsuit

against Archon and two individuals. In oral argument, his counsel proposed, as

an alternative, that the court break the $5000 payment up into two installments.

      On March 5, 2018, the court denied the motion. It noted the motion was

untimely, but held, on the merits, that Saiyed had not provided sufficient

documentary proof that he was unable to pay the $5000. The court noted that


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                                       6
Saiyed had not explained how he was able to pay $1200 a month rent, plus living

expenses. The court observed that the CIS did not prove Saiyed's income or

expenses. It was incumbent upon Saiyed to present "underlying information."

                                       II.

      In his merits brief, Saiyed does not directly address whether the court

abused its discretion in declining to waive the $5000 fee in response to the third

reconsideration motion. Rather, Saiyed challenges the order entering default

judgment; and the order vacating the default judgment on the condition he pay

$5000 of plaintiff's fee.

      Those arguments are not properly before us. The sole issue before the

court on the reconsideration motion leading to the March 5, 2018 order was

Saiyed's ability to pay.     Saiyed may not, in the guise of an appeal of

reconsideration denial, avoid the time bar otherwise precluding appeal of the

April 5, 2016 default judgment, and the March 31, 2017 vacatur order.

      We addressed a similar issue in Fusco v. Board of Education of City of

Newark, 349 N.J. Super. 455 (App. Div. 2002). The plaintiff attempted to secure

review of an underlying order granting summary judgment dismissing his

constructive discharge and age and disability discrimination complaint, by

appealing the order denying his motion for reconsideration. However, the sole


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                                        7
issue in the motion for reconsideration was whether the court erred in refusing

to consider an unemployment compensation document that stated plaintiff quit

because no job was offered to him after he returned from a sick leave.

      We recognized that "in some cases a motion for reconsideration may

implicate the substantive issues in the case and the basis for the motion judge's

ruling on the summary judgment and reconsideration motions may be the same."

Id. at 461.    In those cases, "an appeal solely from . . . the denial of

reconsideration may be sufficient for an appellate review of the merits of the

case . . . ." Ibid. However, we found that was not true in Fusco. The "motion

for reconsideration was limited to the single issue of whether the Unemployment

Determination provided a valid basis as 'newly discovered evidence' for [the

judge] to reconsider his ruling." Ibid.

      Likewise here, the motion to reconsider the award of the $5000 fee was

limited to the single issue of Saiyed's ability to pay. It did not implicate the

correctness of the court's April 5, 2016 or March 31, 2017 orders. In any event,

a motion to reconsider the merits of those orders would have been seriously out

of time. See R. 4:49-2. In sum, the only order subject to appeal before us is the

March 5, 2018 order, denying Saiyed's motion to reconsider the denial of his

previous motion to waive the $5000 fee payment.


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                                          8
                                          III.

      We need not even reach the merits of the March 5, 2018 order because (1)

Saiyed does not address the order under any point heading, see Almog v. Israel

Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997) (refusing

to consider arguments that are not made under appropriate point headings as

Rule 2:6-2(a)(5) requires); and (2) he does not provide us with a sufficient record

of the December 15, 2017 order, which he asked the court to reconsider, see

Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte,

P.C., 381 N.J. Super. 119, 127 (App. Div. 2005) (stating the court is not "obliged

to attempt review of an issue when the relevant portions of the record are not

included"). Nonetheless, we acknowledge that throughout his pro se brief,

Saiyed refers to his allegedly dire financial circumstances.

      That is not enough to persuade us to disturb the trial court's order.

"Motions    for   reconsideration   are        granted   only    under   very   narrow

circumstances."    Fusco, 349 N.J. Super. at 462.               Saiyed was obliged to

demonstrate that the trial court based its December 15, order on a "palpably

incorrect or irrational basis" or the court overlooked or failed to properly

consider the evidence. Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,

401 (Ch. Div. 1990)). The court reasonably concluded that Saiyed did not


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                                           9
present to the court any evidence that was unavailable to him before the prior

order. Id. at 463 (rejecting plaintiff's effort to bring a "document in under the

guise of reconsideration" that was available previously). The court reasonably

found that Saiyed failed to provide sufficient documentary proof of his financial

circumstances, in order to justify a waiver of the $5000 award. In sum, the trial

court did not abuse its discretion in denying Saiyed's third motion for

reconsideration.

      Affirmed.




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