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Kyrollos v. Sarkes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 31, 2007

SAM E. KYROLLOS, PLAINTIFF-RESPONDENT,
v.
ATIF H. SARKES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Special Civil Part, Essex County, Docket No. DC-8348-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 16, 2007

Before Judges Winkelstein and Baxter.

Defendant Atif Sarkes appeals from the entry of judgment against him, and in favor of plaintiff Sam E. Kyrollos in the amount of $4000 plus costs. The sole issue before the trial court was whether the $4000 check issued by plaintiff to defendant was a loan as plaintiff testified, or whether, as defendant testified, it was a wedding gift. After considering the testimony of plaintiff and his three witnesses, Judge Leath concluded that the check issued on March 11, 2004, was a loan, and not a wedding gift, and that defendant was obligated to repay it.

At trial, plaintiff produced a photocopy of the check he had given to defendant on March 11, 2004. Defendant claimed that on the memo line of the check, the words "wedding gift" were written. The photocopy was of poor quality, and the exact words written there were illegible. Plaintiff denied that he wrote those words on the check and denied that the $4000 was a gift, explaining that he lent defendant the money because defendant was short of funds after having purchased a house.

The majority of the testimony centered on the question of where and when defendant had been married. Plaintiff insisted that defendant was married in a religious ceremony in Egypt to which he had not been invited, and accordingly there would have been no reason for him to have given defendant a $4000 wedding gift a year after that religious ceremony had occurred. Defendant testified that the $4000 check was a wedding gift issued following a second wedding ceremony, a civil ceremony performed in the municipal court of Bayonne. When asked by the court, defendant could not remember the date of that civil ceremony. Plaintiff testified that he was not invited to the Bayonne wedding either.

After considering the testimony, Judge Leath concluded that plaintiff's three witnesses were credible, that it was unlikely plaintiff would have "given to the defendant a marriage wedding gift of $4000 in acknowledgment of a civil ceremony that would have occurred in [New Jersey] on a date that the defendant cannot remember." She also found it significant that the three witnesses who appeared before the court and testified in favor of plaintiff were "long-term friends . . . from the same country . . . who share bonds . . . of friendship and religion and social events."

We consider defendant's appeal in accordance with our standard of review. We do not disturb the findings of fact made by a judge sitting without a jury so long as those findings could reasonably have been made based upon substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Our review of the record demonstrates that the findings of fact made by Judge Leath are well-supported by the evidence before her, and we see no reason to disturb the result she reached.

Affirmed.

20070531

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