Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1340-25 KATHY B. SMALL, ESQ., Plaintiff-Respondent, v. CATHERINE GARVEY, Defendant-Appellant. Submitted September 30, 2026 – Decided November 4, 2026 Before Judges Currier and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DJ-070056-22. Stephen J. Buividas, attorney for appellant. Respondent has not filed a brief. PER CURIAM Defendant appeals from the November 7, 2025 order denying reconsideration of its prior order turning over funds pursuant to a levy imposed on a bank account jointly owned by herself and her husband. Because defendant submitted sufficient information of potentially exempt disability related funds and other monies belonging to her husband in the account, we vacate the order and remand to the trial court to consider the submitted documents and determine the ownership of the funds in the account and whether they are in part or in whole exempt from levy. Plaintiff obtained a judgment against defendant and subsequently filed a motion to execute a levy on defendant's bank accounts and for a turnover of funds. The court granted the unopposed motion on August 15, 2025. Thereafter, the levy was imposed on a TD Bank account jointly titled to Catherine Smoak and Russell Sisto. Five days later, defendant filed a nunc pro tunc opposition to plaintiff 's motion to turn over funds and a cross-motion to vacate the levy. Defendant alleged plaintiff sent the motion papers to defense counsel's previous address, which resulted in defendant failing to file a timely opposition. The submissions included certifications from "Catherine Smoak (Garvey)," and Russell Sisto. Smoak certified she was the co-owner of the TD Bank account with her husband Sisto and the funds in the account included: Sisto's Social Security Disability income; unemployment benefits previously seized in 2024 and returned; and life insurance funds allocated for Sisto's A-1340-25 2 medical needs. Sisto certified he is permanently disabled and Social Security benefits are his sole income. He is the co-owner of the levied bank account into which his Social Security benefits are deposited. Sisto asserted he was not a named party to the action and was not provided with formal notice that his personal funds would be subject to turnover or levy. Defendant also submitted Sisto's New Jersey State disability card, a bank statement, and a check from Metropolitan Life Insurance Company. Although defendant's counsel produced proof of the September 2025 e-filing of the documents, the court system reflected an October filing date. On November 7, 2025, the court denied defendant's cross-motion to vacate the levy, characterizing it as a motion for reconsideration and finding it untimely. The court stated defendant had not shown the court acted "irrationally, arbitrarily or capriciously." On appeal, defendant challenges the circumstances of the levy and the order denying reconsideration, contending the court authorized execution of the order without determining whether the funds belonged to the judgment debtor and improperly authorized the seizure of funds owned by a non-party without an evidentiary hearing. A-1340-25 3 We review a trial court's decision to grant or deny a motion for reconsideration under an abuse of discretion standard. Kornbleuth v. Westover, 241 N.J. 289, 301-02 (2020). "A court abuses its discretion when its 'decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."'" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65 (2020)). Reconsideration should be used for cases in which "the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, o r . . . it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (App. Div. 1990)). Motions for reconsideration "shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it." R. 4:49-2. The court did not err in granting the original motion to turnover funds. It was unopposed, presenting no basis for the court to perceive there was an irregularity in the levy of defendant's bank account. However, when defendant eventually successfully filed opposition and a motion to vacate the levy, which the court gracefully considered as a A-1340-25 4 reconsideration motion, defendant submitted information regarding the ownership of the joint account, including certifications of defendant and her husband, which raised issues regarding potential exemption of funds in the joint account and the propriety of the levy. As we have stated, "when seeking a turnover from a joint account, the judgment creditor has the burden 'to prove that the moneys thus deposited are the individual property of the judgment debtor, and therefore applicable to the satisfaction of the judgment.'" Banc of Am. v. Fletcher-Thompson, 453 N.J. Super. 50, 53 (App. Div. 2018) (quoting Esposito v. Palovick, 29 N.J. Super. 3, 10-11 (App. Div. 1953)). It cannot "be presumed 'that one depositing his [or her] own funds in a joint account in the names of himself [or herself] and another has thereby created a joint tenancy in the account.'" Ibid. (alteration in original) (quoting Esposito, 29 N.J. Super. at 8). Although not raised until submitted in a reconsideration motion, because of the gravity and hardship of improperly taking a person's funds, the documents raised an issue of fact regarding the ownership of the funds in the account. We have stated that "[i]f the respondent or the defendant contests the levy, a hearing will be necessary, and if there is a genuine factual dispute, an evidentiary hearing will be required." Roman v. Am. Fire & Marine, 281 N.J. Super. 355, A-1340-25 5 363-64 (App. Div. 1995). Because defendant and her husband assert the funds in the account are Sisto's Social Security/Disability benefits, his unemployment funds, and his workers' compensation benefits, this raised a dispute of material facts requiring the court to vacate its prior order and resolve the issue of ownership of the account monies. We vacate the November 7, 2025 order and remand for the trial court to determine the ownership of the funds plaintiff seeks to levy from defendant 's account. Vacated and remanded. We do not retain jurisdiction. A-1340-25 6