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Popik v. Dermer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 29, 2007

ROMAN V. POPIK, PLAINTIFF-APPELLANT,
v.
MICHAEL DERMER, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3689-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2007

Before Judges Holston, Jr. and Grall.

Plaintiff Roman V. Popik appeals from a final judgment entered in the amount of $3,480 in favor of defendant counter-claimant Michael Dermer. The claims arose under an oral contract pursuant to which defendant was to paint plaintiff's residence. Plaintiff contended that defendant misrepresented his qualifications, employed workers who were not qualified and rendered substandard and incomplete performance. He sought damages in the amount of $20,000. Defendant filed a counterclaim in which he alleged that plaintiff owed him $3,700 on a book account and $500 for scaffolding and painting materials that plaintiff had wrongfully taken and retained.

Plaintiff raises one issue on appeal, which he did not raise below. He contends that the trial judge's failure to recuse herself on her own motion was a violation of "Rule 1:12-2 and Cannon of the Code of Judicial Conduct." The argument is based upon the judge's reference to her familiarity with the type of painting work done by the painting company plaintiff claimed he retained to complete properly the work defendant agreed to perform. The argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). This court ordinarily does not consider issues that were not presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). More important, our review of the record convinces us that the judge's passing reference to her familiarity with various types of interior painting is nothing more than that, a passing reference. The judge's decision does not rest on her general knowledge about painting, and general knowledge that gives a judge insight is not grounds for recusal. See Johnson v. Salem Corp., 189 N.J. Super. 50 (App. Div. 1983), aff'd as modified, 97 N.J. 78 (1984). The judge's findings were based on the evidence presented, the allocation of the burden of persuasion and her assessment of the credibility of the witnesses, and are amply supported by the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Affirmed.

20070329

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