                            NOT FOR PUBLICATION WITHOUT THE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-2223-17T2

IN THE MATTER OF
PROCEEDINGS BY THE
COMMISSIONER OF BANKING
AND INSURANCE, STATE OF
NEW JERSEY TO FINE CHARLES
BOAS PURSUANT TO THE NEW
JERSEY INSURANCE FRAUD
PREVENTION ACT, N.J.S.A.
17:33A-1 to -30.
______________________________

                Submitted January 30, 2019 – Decided February 22, 2019

                Before Judges Accurso, Vernoia and Moynihan.

                On appeal from the New Jersey Department of Banking
                and Insurance.

                Brach Eichler LLC, attorneys for appellant Charles
                Boas (Keith J. Roberts, of counsel and on the briefs;
                Shannon M. Carroll, on the briefs).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Commissioner of Banking & Insurance
                (Melissa H. Raksa, Assistant Attorney General, of
                counsel; Adam B. Masef, Deputy Attorney General, on
                the brief).

PER CURIAM
      Appellant Charles Boas appeals from New Jersey Department of Banking

and Insurance (Department) orders denying his motion to vacate a final order

directing that he pay $500,000 in civil and administrative penalties for his

submission of 1011 fraudulent insurance claims, a $1000 statutory insurance

fraud surcharge, $53,384.52 in restitution and $3459 in attorneys' fees, and

denying his motion for reconsideration. Based on our review of the record in

light of the applicable law, we are convinced the Department's orders are

supported by substantial credible evidence and are not arbitrary, capricious or

unreasonable, and affirm.

                                      I.

      Boas is a licensed chiropractor in the State of New Jersey. In 2012, he

was charged in an indictment with sixty counts of second-degree health care

claims fraud, N.J.S.A. 2C:21-4.3(a), and one count of third-degree theft by

deception, N.J.S.A. 2C:20-4, for allegedly billing Horizon Blue Cross Blue

Shield (Horizon) for services he did not render. In April 2014, Boas pleaded

guilty to third-degree health care claims fraud and was sentenced in July 2014

to a two-year term of probation.




                                                                       A-2223-17T2
                                      2
A. The Order To Show Cause

        In September 2014, the Department's Commissioner commenced an

administrative proceeding by filing an order to show cause alleging Boas

violated N.J.S.A. 17:33A-4(a)(1), which in pertinent part provides that a person

violates the New Jersey Insurance Fraud Protection Act (Act)1 by "[p]resent[ing]

or caus[ing] to be presented any written or oral statement as part of, or in support

of . . . a claim for payment or other benefit pursuant to an insurance policy . . .

knowing that the statement contains any false or misleading info rmation

concerning any fact or thing material to the claim."

        The order to show cause alleged that from 2003 to 2007 Boas submitted

claims for insurance payments to Horizon for chiropractic services he did not

provide. More particularly, count one of the order to show cause alleged Boas

submitted claims for payment for 498 dates of service for patient A.O. 2 from

2003 through 2007 and received $28,962.40 in payments from Horizon, but A.O.

had only seen Boas a total of seven to fourteen times and had not seen Boas

since 2004. Count two alleged Boas submitted claims to Horizon for 531 dates

of service between June 2003 and January 2007 for patient A.O., Jr., and


1
    N.J.S.A. 17:33A-1 to -30.
2
    We identify the putative patients by use of initials to protect their privacy.
                                                                             A-2223-17T2
                                           3
received $16,759 from Horizon, but Boas provided treatment to A.O., Jr., during

only two to three months in 2003. In count three, it was alleged Boas submitted

seventy-two claims to Horizon for dates of service between October 2005 and

July 2006 for E.M. and received $4650 in payments from Horizon, but Boas

only saw E.M. for an initial consultation and never saw E.M. again. Count four

alleged Boas submitted claims for providing services to E.M., Jr., on fifty-eight

separate dates and received $3013.12 from Horizon, but E.M., Jr., "had never

been treated by Boas."

       The order to show cause set forth the statutory penalties and surcharge

that could be imposed for the alleged violations, and explained Boas was liable

for the Department's attorneys' fees and restitution of the sums he received from

Horizon for services he did not provide. The order to show cause further

explained that Boas had twenty days from his receipt of the order to show cause

to request a hearing and that, if he failed to do so, his right to a hearing would

be deemed waived and the allegations would be deemed admitted.

       The Department served, and Boas received, the order to show cause in

September 2014. 3 The Department again served Boas with the order to show


3
    The order was served on Boas by certified mail on September 26, 2014.



                                                                          A-2223-17T2
                                        4
cause in December 2014, 4 and at that time informed Boas that if he did not

respond within seven days, his right to a hearing would be deemed waived and

the Commissioner would dispose of the matter.

       Boas failed to respond to the order to show cause. On November 16, 2015,

the Commissioner rendered a final agency decision, entering a detailed final

order finding Boas violated the Act by submitting at least 1011 fraudulent claims

for payment to Horizon for services he did not provide. The final order also

directed that Boas pay $500,000 in civil and administrative penalties pursuant

to N.J.S.A. 17:33A-5 and N.J.A.C. 11:16-7.6, a $1000 statutory insurance fraud

surcharge in accordance with N.J.S.A. 17:33A-5.1, $3459 in attorneys' fees

pursuant to N.J.S.A. 17:33A-5(c) and N.J.A.C. 11:16-7.9(c), and $53,384.52 in

restitution pursuant to N.J.S.A. 17:33A-5(c) and N.J.A.C. 11:16-7.9(c).

B. Boas's Motion To Vacate The Final Order

       Four months later, in March 2016, Boas filed a motion to vacate the final

order. In support of the motion, Boas submitted a certification asserting that

upon his receipt of the order to show cause on September 26, 2014, he called the

attorney who represented him in the criminal proceeding, forwarded the order

to show cause to the attorney by telefax, and was assured by the attorney that he


4
    The order was served on Boas by certified mail on December 14, 2014.
                                                                          A-2223-17T2
                                       5
"would handle the matter." Boas also certified that he received the December

2014 "second notice" concerning the order to show cause and forwarded it by

telefax to the attorney. Boas annexed to his certification telefax transmission

receipts he claimed confirmed that he forwarded the order to show cause to the

attorney in September and December 2014.

      Boas also certified that, "[o]ver time, [he] received assurances from [the

attorney] that [the administrative] matter would be handled."         He said the

attorney "eventually requested an additional retainer" to represent Boas in the

matter and that he paid the attorney $2000 "to represent [him] on this matter and

a matter before the Board of Chiropractic Examiners." Boas annexed to his

certification a July 6, 2015 check in the amount of $2000 that is payable to the

attorney.

      Boas further certified that when he learned of the November 2015 final

order, he "was shocked to learn that the application was unopposed" because he

had the attorney's "assurances that [he] was being represented on this matter."

Boas stated that he "reached out to" the attorney but "did not receive a response."

According to Boas, he then retained different counsel.

      Boas's certification offered the conclusory assertion that he "had a clear

defense to this case." He did not identify the putative defense or provide any


                                                                           A-2223-17T2
                                        6
facts supporting a defense to the allegations contained in the order to show

cause.

      The Department opposed Boas's motion, arguing he failed to make any

showing, beyond his bald assertion, that he had a meritorious defense to the

allegations in the order to show cause. The Department also argued Boas did

not demonstrate excusable neglect for his failure to respond to the order to show

cause because the telefax reports he supplied do not identify the documents sent

to the attorney and Boas did not exercise reasonable diligence by following up

with his attorney after service of the order to show cause in September and

December 2014 and prior to entry of the final order in November 2015. The

Department claimed Boas did not provide a retainer agreement showing the

attorney was retained to represent him in the Department's proceeding and there

was no evidence corroborating Boas's claim the $2000 check was for his

retention of the attorney for the Department's proceeding.

      In a detailed and comprehensive November 7, 2016 written order, the

Commissioner denied Boas's motion to vacate the final order.                 The

Commissioner noted that although the New Jersey Court Rules do not govern

administrative agency proceedings, agencies have used the principles in the

Rules as a guide to determine requests for relief from final orders. In his


                                                                         A-2223-17T2
                                       7
consideration of Boas's motion to vacate the final order, the Commissioner

utilized Rule 4:50-1 as a guide. Indeed, in support of his motion to vacate, Boas

argued he was entitled to relief from the final order under the principles in Rule

4:50-1(a), which allows relief from a final order due to "mistake, inadvertence,

surprise, or excusable neglect." To obtain relief from a default judgment under

Rule 4:50-1(a), a moving party must demonstrate "that the neglect to answer

was excusable under the circumstances and that he [or she] has a meritorious

defense." Bernhardt v. Alden Café, 374 N.J. Super. 271, 277 (App. Div. 2005)

(quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)).

      The Commissioner determined that "a default judgment will not be

disturbed unless the failure to answer or otherwise appear and defend was

excusable under the circumstances and unless the defendant has a meritorious

defense[,] either to the cause of action itself, or . . . to the quantum of damages."

The Commissioner noted that in his motion to vacate the final order, Boas did

not challenge the penalties imposed and failed to present any evidence

establishing a meritorious defense to the charges in the order to show cause. The

Commissioner further determined Boas did not establish excusable neglect for

his failure to timely respond to the order to show cause because he did not

indicate when his purported conversations with the attorney occurred or what


                                                                             A-2223-17T2
                                         8
"assurances" the attorney provided, the $2000 check to the attorney is dated

eight months after Boas received the December 2014 second notice concerning

the order to show cause, and there is no evidence the check was a retainer for

the attorney's services in this matter because Boas did not provide a retainer

agreement. The Commissioner also found Boas did not provide an "adequate

explanation as to what happened during the [fourteen] months or so in between

September 26, 2014, when Boas certifie[d] . . . he first sent the [order to show

cause] to [the attorney], and November[] 2015, when the [f]inal [o]rder was

issued," made no showing he followed up with the attorney or inquired

concerning the status of the matter, and offered no evidence showing he took

any affirmative action to ensure that a defense to the charges in the order to

show cause was timely presented. The Commissioner concluded Boas "fail[ed]

to satisfy the standard" for relief from the final order "set forth in [Rule] 4:50-

1(a)"5 and denied Boas's motion.

C. Boas's Motion For Reconsideration

      Boas subsequently filed a motion for reconsideration. In support of the

motion, Boas submitted a certification from counsel he retained following his


5
   The Commissioner also found that Boas did not establish an entitlement to
relief under Rule 4:50-1(f). Boas does not argue on appeal that finding was in
error.
                                                                           A-2223-17T2
                                        9
receipt of the November 2015 final order. Counsel certified that upon his

retention, the motion to vacate the final order was filed "expeditiously" after he

unsuccessfully attempted to obtain the Department's agreement to a consent

order vacating the final order.

      Boas also submitted a certification supporting his reconsideration motion.

He asserted for the first time that he had the following meritorious defense to

the charges in the order to show cause: "[he] never intentionally billed for

treatment, which was not rendered," and he did not "wrongfully bill[] for

treatment to" the four individuals identified in the order to show cause. He also

noted that the patients identified in the order to show cause are different from

those patients listed in the charges in the indictment against him.

      In his reconsideration motion, Boas also challenged for the first time the

penalties and reimbursement the Department required. Boas further asserted

that he and his wife had already paid Horizon $146,000, 6 and that the civil and

administrative penalties "have no relation to the amount allegedly paid" to him

by Horizon for the services the Department asserts he did not provide.




6
  Boas stated he "was audited by Horizon and as a result of irregularities in [his]
notes, [he] . . . return[ed] $82,000 to Horizon." In addition, Boas claimed his
wife "overpaid Horizon $64,000, which was never returned."
                                                                           A-2223-17T2
                                       10
      The Commissioner issued a lengthy and detailed order denying Boas's

motion for reconsideration, finding Boas "failed to demonstrate that there is

good cause to reopen or reconsider the default [f]inal [o]rder."                 The

Commissioner found Boas did "not establish[] the necessary grounds for

reconsideration" and "failed to demonstrate that [the order denying his motion

to vacate the final order] was based upon a palpably incorrect or irrational basis

or that there was a failure to consider, or appreciate the significance of probative,

competent evidence."        The Commissioner further observed that "Boas

improperly raise[d] additional arguments that were ascertainable at the time that

Boas originally moved to vacate." The Commissioner found that, although Boas

claimed he "billed in accordance with the treatment provided" and "would never

have intentionally submitted false claims," Boas again offered "no legal or

substantive response, other than this bald refutation without any evidentiary

support" demonstrating a meritorious defense to the charges in the order to show

cause.

      Boas argued, for the first time, he could not properly defend himself and

provide a meritorious defense because he could not review the applicable patient

charts and bills. The Commissioner found these arguments "inadequate and

unpersuasive" because "Boas had adequate information and a substantial period


                                                                             A-2223-17T2
                                        11
of time to attempt to at least formulate a response," and "Boas had control over

the records of the claims that he submitted and could have attempted to answer

based upon the [patient] initials" in the order to show cause. The Commissioner

also found Boas could have "requested further information from [the

Department] at any time, but he did not do so."

      The Commissioner determined Boas "failed to demonstrate that he has a

meritorious defense," and rejected his assertion that the Commissioner

improperly relied on his criminal conviction in denying his motion to vacate the

final order. The Commissioner explained that although the order denying the

motion to vacate stated "that Boas pleaded guilty to committing [t]hird[-d]egree

[i]nsurance [f]raud and admitted to engaging in similar conduct as he did in the

underlying allegations [of the order to show cause]," the order also noted that

the factual circumstances alleged in the indictment and the order to show cause

involved different time frames and alleged patients. Thus, the Commissioner

found that the reference to Boas's guilty plea was "afforded no weight" and was

irrelevant to the denial of Boas's motion to vacate the final order.

      In support of his reconsideration motion, Boas also argued for the first

time that the Act requires a demonstration of intent, which he claimed was not

proven. The Commissioner found Boas improperly raised the argument for the


                                                                        A-2223-17T2
                                       12
first time in his reconsideration motion because it could have been asserted in

support of his motion to vacate the final judgment. The Commissioner also

found that the evidence supporting the order to show cause showed Boas sought

payment from Horizon on at least 1011 claims for treatment that was not

rendered, and those circumstances present "objective facts within his

knowledge, and therefore a demonstration of intent need not be demonstr ated."

      The Commissioner also noted that Boas argued for the first time on his

reconsideration motion that the $500,000 in civil and administrative penalties

was "inequitable and without basis in the record" because he was paid only a

total of $53,384.52 by Horizon on the 1011 false claims submitted.             The

Commissioner explained that Boas "was exposed to a substantially higher fine"

under the statute with a maximum exceeding $15,000,000.

      The Commissioner also analyzed the seven factors that must be considered

in determining the reasonableness of civil penalties under the Act pursuant to

Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 137-39 (1987): (1) the

defendant's good or bad faith; (2) defendant's ability to pay; (3) the amount of

profits defendant obtained from the illegal activity; (4) the injury to the public;

(5) duration of the conspiracy; (6) the existence of criminal or treble damages

actions; and (7) past violations. In particular, the Commissioner noted the


                                                                           A-2223-17T2
                                       13
severe harm to the public resulting from a medical professional committing

fraud; that Boas acted in bad faith because, with the number of claims submitted,

he could not have reasonably thought his actions were lawful; an inability to pay

can be outweighed by the other factors; the fraudulent conduct spanned a four-

year period and resulted in over $50,000 in payments for false claims; Boas has

a conviction for insurance fraud, though unrelated to this matter; and a $500,000

penalty was well below the maximum potential penalty authorized by the Act.

The Commissioner concluded the civil and administrative penalty imposed "was

reasonable and necessary for Boas'[s] repeated acts of insurance fraud. Such a

significant penalty demonstrates the appropriate level of opprobrium for such

illegal conduct and serves to deter future acts of insurance fraud by Boas and

[the] public at large."

      The Commissioner denied the motion for reconsideration, entered an

order and this appeal followed.

                                        II.

      Our review of the Commissioner's final agency decision is limited. In re

Herrmann, 192 N.J. 19, 27 (2007). We will not upset an agency's final quasi-

judicial decision absent a "clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." Id. at 27-28. This same


                                                                           A-2223-17T2
                                       14
deferential standard applies to our review of the agency's choice of a disciplinary

sanction. Id. at 28. We "accord substantial deference to an agency head's choice

of remedy or sanction." Id. at 34-35 (quoting Div. of State Police v. Jiras, 305

N.J. Super. 476, 482 (App. Div. 1997)).

      We review discipline only to determine whether the "punishment is so

disproportionate to the offense, in the light of all of the circumstances, as to be

shocking to one's sense of fairness." In re Stallworth, 208 N.J. 182, 195 (2011)

(citation omitted). Moreover, as our Supreme Court has "cautioned, courts

should take care not to substitute their own views of whether a particular penalty

is correct for those of the body charged with making that decision." In re Carter,

191 N.J. 474, 486 (2007). Measured against these standards, we find no basis

to reverse the Commissioner's orders denying Boas's motions to vacate the final

order and for reconsideration.

      In the first instance, it is necessary to observe that the arguments Boas

presented to the Commissioner in support of his motion to vacate the final order

were limited. He argued only that there was excusable neglect for his failure to

respond to the order to show cause because he spoke to an attorney and received

"assurances" the attorney would "handle" the matter. Boas did not provide any




                                                                           A-2223-17T2
                                       15
facts supporting a meritorious defense to the allegations in the order to show

cause other than a conclusory assertion that he had a "clear defense."

      Since the entry of the Commissioner's order denying his motion to vacate

the final order, Boas has engaged in a consistent and gradual effort to ignore the

record he presented in support of his motion by adding arguments and

contentions in his motion for reconsideration and now on appeal that were

simply never presented to the Commissioner in the first instance. For example,

in support of his reconsideration motion he argued the civil and administrative

penalty imposed was excessive, 7 and that he had a defense to the allegations in

the order to show cause because he did not intend to overbill the patients. But

those arguments were never presented in support of his motion to vacate the

final order. Similarly, on appeal, he adds claims never asserted before the

motion court, including that the final order should have been vacated because

the allegations in the order to show cause were based on a faulty investigation.

      Our consideration of the Commissioner's order on Boas's motion to vacate

the final order is, however, limited to the record presented to the Commissioner

when the motion was made and decided. See, e.g., Capital Fin. Co. of Del.



7
 In the order denying Boas's motion to vacate the final order, the Commissioner
noted "Boas does not challenge the quantum of the sanctions imposed."
                                                                          A-2223-17T2
                                       16
Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (explaining the

validity of a court or agency's determination on a motion for reconsideration is

limited to the record presented at the time of the initial motion); see also Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (explaining that reviewing

courts "will decline to consider questions or issues not properly presented

[below] . . . when [the] opportunity for such a presentation is available 'unless

the questions so raised on appeal go to the jurisdiction of the [proceeding] or

concern matters of great public interest'" (quoting Reynolds Offset Co. v.

Summer, 58 N.J. Super. 542, 548 (App. Div. 1959))); In re Stream

Encroachment Permit, Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587,

602 (App. Div. 2008) (noting we will not consider issues that were not raised

before an administrative agency unless they are of public importance). Thus, in

our analysis of the Commissioner's order denying Boas's motion to vacate the

final order, we do not consider information or arguments Boas first presented in

support of his reconsideration motion or which he attempts to inject in the record

for the first time on appeal.

      Boas argues the Commissioner's denial of his motion to vacate the final

judgment was arbitrary, capricious and unreasonable and lacks support in the

record. Boas asserts he has meritorious defenses to the allegations in the order


                                                                           A-2223-17T2
                                       17
to show cause based on the purported Department errors and miscalculations

and there was otherwise good cause to vacate the final order. As noted, however,

we do not consider his claims there were errors in the Department's investigation

supporting meritorious defenses to the allegations in the order to show cause

because he failed to present those claims to the Commissioner in support of his

motion to vacate the final order and they do not go to the Commissioner 's

jurisdiction or raise issues of public importance. Nieder, 62 N.J. at 234; see also

Abbott v. Burke, 119 N.J. 287, 390 (1990) (finding it "unfair" to consider a claim

on appeal that "was apparently never explicitly advanced as a claim until the

hearing had concluded" before an administrative agency).

      Boas does not dispute that the Commissioner properly considered his

motion to vacate the final judgment under the principles governing Rule 4:50-

1(a), but argues the court erred in its application of those principles because he

demonstrated excusable neglect and a meritorious defense.          See Marder v.

Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div. 1964) ("Generally, a

defendant seeking to reopen a default judgment must show that the neglect to

answer was excusable under the circumstances and that he has a meritorious

defense.").




                                                                           A-2223-17T2
                                       18
      The decision whether to grant a motion to vacate a default judgment under

Rule 4:50-1 is accorded substantial deference and will not be disturbed absent a

"clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274,

283 (1994); see also Mancini, 132 N.J. at 334 (finding the decision to vacate a

default judgment is "left to the sound discretion of the trial court, and will not

be disturbed absent an abuse of discretion"). "The rule is designed to reconcile

the strong interests in finality of judgments and judicial efficiency with the

equitable notion that courts should have authority to avoid an unjust result in

any given case." Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J.

113, 120 (1977). There is an abuse of discretion "when a decision is 'made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209

N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,

123 (2007)).

      Motions to vacate default judgments should be viewed "with great

liberality." Mancini, 132 N.J. at 334 (quoting Marder, 84 N.J. Super. at 319).

"All doubts . . . should be resolved in favor of the parties seeking relief." Ibid.

That is so because of the importance we attach to securing a decision on the




                                                                           A-2223-17T2
                                       19
merits. Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100-01 (App. Div.

1998).

      However, to prevail on a motion to vacate a judgment under Rule 4:50-

1(a), a party is "compelled to prove the existence of a 'meritorious defense,'"

Guillaume, 209 N.J. at 469 (2012) (quoting Little, 135 N.J. 284), because "[i]t

would create a rather anomalous situation if a judgment were to be vacated on

the ground of . . . excusable neglect, only to discover later that the defendant

had no meritorious defense," ibid. (first alteration in original) (quoting Shulwitz

v. Shuster, 27 N.J. Super. 554, 561 (App. Div. 1953)); see also Shulwitz, 27 N.J.

Super. at 561 (requiring the showing of a meritorious defense so "[t]he time of

the courts, counsel and litigants [is] not . . . taken up by . . . a futile

proceeding"). A court is required to "examine defendant's proposed defense to

determine its merit." Bank of N.J. v. Pulini, 194 N.J. Super. 163, 166 (App. Div.

1984).

      The record presented to the Commissioner on Boas's motion to vacate the

final order is bereft of any evidence supporting a meritorious defense to the

allegations in the order to show cause. For that reason alone, we are convinced

the Commissioner did not abuse his discretion by finding Boas failed to establish




                                                                           A-2223-17T2
                                       20
an entitlement to relief from the final order and denying his motion to vacate the

order.

         Moreover, the Commissioner's finding Boas failed to demonstrate

excusable neglect for his failure to respond to the order to show cause is

supported by the record presented when the motion was decided. Boas contends

he established excusable neglect based on vague references to his attorney's

assurances he would handle the order to show cause. But the Commissioner

aptly found that Boas failed to detail any action he took "to ensure that a defense

against the Department's charges . . . was presented" during the eight months

after he was first served with the order to show cause and before the $2000

payment Boas asserts was a retainer for the attorney's representation. The

Commissioner further found that Boas presented no evidence confirming the

payment was for the attorney's retention to defend Boas in connection with the

order to show cause or establishing he made any effort prior to the entry of the

final order to ensure a response to the allegations was filed or to learn about the

status of the matter.

         Indeed, Boas's certification demonstrates his putative attorney's alleged

assurances could not be reasonably relied upon to ensure that a response to the

order to show cause was, or would be, filed. Boas certified that he sent the


                                                                           A-2223-17T2
                                        21
September 2014 order to show cause to the attorney and received assurances the

attorney would "handle" the matter, but in December 2014 Boas was served with

the order to show cause again with a notice that if he did not respond in seven

days, the Commissioner would dispose of the matter. Thus, Boas knew in

December 2014 that his putative attorney's alleged assurances were not true, but

his certification offered no explanation why he thereafter assumed the same

attorney would actually file a response to the order to show cause or why he

took no steps to ensure the attorney did so.

      The Commissioner's findings support his determination that Boas failed

to demonstrate excusable neglect for his failure to respond to the order to show

cause. Boas's certification did not demonstrate that his failure to respond to the

order to show cause "was 'attributable to an honest mistake that is compatible

with due diligence.'" Guillaume, 209 N.J. at 468 (quoting Mancini, 132 N.J. at

335). As observed by the Commissioner, "[m]ere carelessness or lack of proper

diligence on the part on an attorney is ordinarily not sufficient to entitle his

clients to relief from an adverse judgment in a civil action." Baumann v.

Marinaro, 95 N.J. 380, 394 (1984) (alteration in original) (quoting In re T., 95

N.J. Super. 228, 235 (App. Div. 1967)).




                                                                          A-2223-17T2
                                       22
      We are not persuaded by Boas's reliance on Regional Construction Corp.

v. Ray, 364 N.J. Super. 534 (App. Div. 2003). In Ray, the motion court vacated

a default judgment because the defendant's supporting certification showed he

had other pending litigation involving related claims and parties, forwarded the

new complaint to the attorney handling those matters and assumed the attorney

would interpose a defense.       Id. at 538-40.    The defendant's supporting

certification also included facts demonstrating meritorious defenses. Id. at 539.

      The plaintiffs in Ray did not challenge the motion court's finding that the

defendant demonstrated excusable neglect and a meritorious defense supporting

relief from the default judgment. Id. at 537, 541. The issue on appeal was

whether the motion court properly imposed a condition for granting relief from

the default judgment. Id. at 541. Our finding that "there were sufficient grounds

for the vacating of the default judgment" was based solely on the information

contained in the defendant's supporting certification which "seem[ed]

reasonably sufficient to constitute excusable neglect." Ibid.

      Here, Boas's supporting certification did not demonstrate any meritorious

defenses to the order to show cause and, as the Commissioner found, Boas failed

to provide sufficient details concerning his actions, and those of his putative

attorney, to demonstrate a mistake compatible with due diligence. Contrary to


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Boas's contention, in Ray we did not decide that vague assurances from a

putative attorney that are unsupported by other evidence demonstrate excusable

neglect. In addition, in Ray, there was no evidence the defendant had reason to

question his assumption that his attorney would file a response to the complaint.

In contrast, Boas's certification established he had every reason to doubt that his

putative attorney would file a response to the order to show cause. Boas knew

in December 2014 that despite his attorney's alleged assurances, no response

was filed to the order to show cause when it was first served in September.

      In sum, Boas fails to demonstrate the Commissioner's findings and

decision denying the motion to vacate were made "without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis." Guillaume, 209 N.J. at 467-68 (quoting Iliadis, 191 N.J.

at 123). To the contrary, the Commissioner's findings are supported by the scant

evidence Boas presented in support of his motion to vacate, are founded on

established principles and do not rest on any impermissible bases. We therefore

affirm the Commissioner's denial of Boas's motion to vacate the final order.

      We also affirm the Commissioner's denial of Boas's motion for

reconsideration. We again note that Boas's reconsideration motion was founded

on numerous arguments, including those related to the amount of the penalties


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imposed and purported meritorious defenses, that were simply never presented

to the Commissioner in support of the motion to vacate the default judgment. It

was appropriate for the Commissioner to reject Boas's arguments, asserted for

the first time on his motion for reconsideration. Capital Fin. Co. of Del. Valley,

398 N.J. Super. at 310 (explaining a motion for reconsideration reviews an order

"based on the evidence before the court on the initial motion" and does not

"serve as a vehicle to introduce new evidence in order to cure an inadequacy in

the motion record").

      The remaining arguments made in support of the reconsideration motion

constituted a mere rehashing of the limited contentions Boas presented in

support of his motion to vacate the final order.        For the reasons already

explained, the Commissioner correctly addressed those arguments in his denial

of the motion to vacate the final judgment. Ibid. ("Reconsideration cannot be

used to . . . reargue a motion.").

      We last address Boas's argument that the sanction imposed by the

Commissioner is inequitable. To be sure, the $500,000 penalty imposed by the

final order is substantial.      However, the penalty was imposed by the

Commissioner's final order, and Boas did not address the penalty or claim he

had a meritorious defense to the penalty in his motion to vacate the final order.


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Thus, he effectively raises the issue of his purported meritorious defense to the

final order's imposition of the penalty for the first time on appeal. Because the

issue does not pertain to the Commissioner's jurisdiction or any issue of public

importance, we will not address the merits of Boas's claim the penalty is

inequitable. Nieder, 62 N.J. at 234. We add only that, given the substantial

deference we afford an agency's choice of remedy or sanction, Herrmann, 192

N.J. at 34-35, and all of the circumstances found by the Commissioner in the

final order, we do not find the penalty, imposed for Boas's 1011 violations of

the Act occurring over a four-year period, "is so disproportionate to the offense

. . . as to be shocking to one's sense of fairness." Stallworth, 208 N.J. at 195

(citation omitted).

      Affirmed.




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