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D'Amato by McPherson v. D'Amato

November 5, 1997

MARY D'AMATO, BY P. ARLENE MCPHERSON, PLAINTIFF-APPELLANT,
v.
ROCCO D'AMATO AND RITA D'AMATO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Somerset County.

Approved for Publication November 5, 1997.

Before Judges Petrella, Skillman and Wertheimer. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

This appeal involves the principles which govern consideration of a motion for summary judgment where a party opposing the motion does not present affidavits or other evidential materials contradicting the moving party's allegations but nevertheless argues that the case presents credibility issues which must be decided by a trier of fact.

On June 16, 1994, Anthony D'Amato (Anthony), who was hospitalized with terminal cancer, executed a power of attorney appointing his brother Rocco D'Amato (Rocco) and his brother's wife Rita D'Amato (Rita), as his attorneys in fact. Three weeks later, Rita made out a check to Rocco for $10,000, drawn on a joint checking account in the name of Anthony and his wife Mary D'Amato (Mary), who was confined in a nursing home. Anthony died the following month. Sometime thereafter, P. Arlene McPherson was appointed Mary's attorney in fact. When McPherson discovered evidence of the $10,000 check in Anthony and Mary's bank records, she sent a letter to Rocco and Rita asking them how the proceeds had been disbursed. Rocco and Rita responded by a letter which asserted that the check constituted repayment of $10,000 which Rocco had placed with Anthony on October 8, 1992 to conceal from Rita during a period of marital strife. Rocco and Rita did not provide any documentation to substantiate this alleged transaction.

McPherson then brought this lawsuit on Mary's behalf, alleging that Rocco and Mary had converted the $10,000 and seeking both compensatory and punitive damages. After plaintiff deposed Rocco, Rita and a friend of Anthony's, Frank Papera, with whom he allegedly discussed the $10,000 transaction while on a hunting trip, Rocco and Rita moved for summary judgment. The motion was supported by Rocco's certification which asserted that the $10,000 constituted repayment of money Anthony was holding for him and excerpts from Rocco's, Rita's and Papera's depositions. In opposing the motion, plaintiff argued that the case presented credibility issues which should be decided by a jury.

The trial court granted summary judgment, ruling that plaintiff had the burden of proving that the $10,000 check did not represent repayment of money which Rocco had placed with Anthony and that she had not submitted any "certification or affidavit of anyone with personal knowledge who disputes the contention that the $10,000 check was for money which [Rocco] gave [Anthony] to hold while he and his wife reconciled." The court subsequently denied plaintiff's motion for reconsideration. We reverse and remand for trial.

Rule 4:46-2(c), as amended in 1996, provides that summary judgment shall be granted

if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.

The present version of Rule 4:46-2(c) reflects the Court's decision in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995), which held that a trial court should make the same type of evaluation of evidential materials in ruling on a motion for summary judgment as in ruling on a motion for judgment under Rule 4:37-2(b) or Rule 4:40-1 or a motion for judgment notwithstanding the verdict under Rule 4:40-2. The standard is "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 523. This is the same standard adopted by the Supreme Court of the United States in Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "The essence of the inquiry" under this standard is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, (supra) , 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc., (supra) , 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214). Under this standard genuine "credibility determinations ... continue to be made by a jury and not the Judge." Id., 142 N.J. at 540.

Although Rule 4:46-5(a) states that the mere allegations or denials of pleadings are not evidence which can defeat a motion for summary judgment, there is no particular form of evidential material that either party to a summary judgment is required to present. Rule 4:46-2(a) states that a motion for summary judgment may be submitted "with or without supporting affidavits," and Rule 4:46-2(c) provides that the motion shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged." (emphasis added). Construing the similar provisions of FRCP 56, the Supreme Court concluded that a party may demonstrate its entitlement to summary judgment without presenting any affidavits or other similar materials:

We find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. ... Regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district ...


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