At the end of their three-year relationship, the plaintiff in Ali v. Volo, No. A-4489-09 (App. Div. July 11, 2011), sued the defendant in the Special Civil Part seeking payment for loans and expenditures that she made on his behalf during their relationship. The plaintiff obtained a $10,000 judgment on April 19, 2010. Eight days after filing his notice of appeal with the Appellate Division, the defendant, citing newly discovered evidence pursuant to Rule 4:50-1(b), filed a motion to vacate the judgment with the trial court. The trial court denied that motion without prejudice, explaining that pursuant to Rule 2:9-1(a), it did not have jurisdiction to decide the merits because of the defendant's pending appeal.
In his motion filed with the trial court, the defendant claimed that he was unable to timely obtain copies of his relevant bank records because his bank, Commerce Bank, had been acquired by TD Bank during the pendency of the litigation. On appeal, the defendant argued to the Appellate Division that this newly discovered evidence would alter the judgment and that a new trial should be ordered.
The Appellate Division affirmed. In doing so, the court observed that it could not consider the substance of the judgment because the defendant did not cite to a specific claim of error or supporting law. Thus, the court declared that "in the absence of any discussion on the point, we affirm the judgment on the merits." However, the Appellate Division pointed out that its decision did not foreclose the defendant from renewing his motion to vacate with the trial court based on his claims of newly discovered evidence. Moreover, the court noted that the trial court had denied the defendant's initial motion without prejudice to a future application, but it did not further address or comment on that issue.