On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, DC-025488-03.
Before Judges Petrella, Lintner, and Parker.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Robert J. Triffin, appeals from an order granting summary judgment in favor of defendants American International Group, Inc. and American Home Assurance Company (collectively AIG), dismissing a Special Civil Part complaint in which plaintiff sought recovery of $312 on a dishonored check issued by AIG and payable to defendant Gary Jones. We affirm.
AIG issued check number 07580752 on its account with Fleet Bank to Jones for workers' compensation benefits on October 4, 2001. The check was sent to 340 Orange Road in Montclair. Thereafter, Jones contacted AIG and advised it that he had never received the check. AIG learned that the check had been deposited on October 26, 2001, and processed by Fleet Bank, which debited AIG's account. AIG obtained an affidavit from Jones that his endorsement was a forgery, after which Fleet credited AIG's account. AIG sent Jones a second check in the same amount dated April 5, 2002, this time to the address of P.O. Box 885, Montclair.
On August 12, 2003, plaintiff purchased AIG's dishonored check number 07580752 from Montclair Check Cashing, which assigned its rights in the check to plaintiff and acknowledged in an assignment agreement that it did not know at the time it cashed and gave value for the check that it bore any evidence of forgery and that the check had been dishonored.*fn1
In support of its motion for summary judgment, AIG presented Jones' affidavit of forgery and a certification from an employee, setting forth the factual circumstances under which it issued the second check and obtained a credit from Fleet Bank.
In response to the summary judgment motion, plaintiff requested oral argument and raised N.J.S.A. 12A:3-406, claiming that"[t]his case presents the classic fact pattern of who bears the responsibility for a check that is sent to a wrong address and the payee's endorsement as a result is subsequently forged." The judge decided the motion on the papers and issued a letter opinion on November 20, 2003, stating:
Defendants' motion is granted and plaintiff's is denied. The reasons are simple. When [Montclair Check Cashing] cashed the check it was a forgery and therefore [Montclair Check Cashing] was not a holder in due course. In addition, plaintiff's assertion that defendant was negligent in sending the check to the wrong address is without merit. At best the evidence shows that after a check mailed to a residence was stolen, a replacement check was sent to a safer post office box.
On appeal, plaintiff asserts:
AS A THRESHOLD MATTER, THE TRIAL COURT COMMITTED REVERSIBLE PREJUDICIAL ERROR WHEN IT FOUND THAT THE DEFENDANT JONES AND AIG PROPERLY RAISED IN THEIR ANSWER THE ...