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Albright v. Duncan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2007

JOHN A. ALBRIGHT AND DANIELA M. ALBRIGHT, PLAINTIFFS-APPELLANTS,
v.
SCOTT M. DUNCAN, JR. AND DONNA P. DUNCAN, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Small Claims Division, Hunterdon County, Docket No. SC-406-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 5, 2007

Before Judges Skillman and King.

This is an appeal from the dismissal of an action in the Small Claims Division by house buyers against the sellers. The buyers claimed the sellers failed to remove asbestos pipe covering in the basement, as allegedly promised. This eventually cost the buyers $2200 to remediate. Plaintiffs make a single claim of error on this appeal.

THE COURT BELOW COMMITTED REVERSIBLE ERROR WHEN IT IMPROPERLY EXCLUDED EVIDENCE IN A SMALL CLAIMS ACTION ON HEARSAY GROUNDS.

Plaintiffs claim that the trial judge improperly ruled against the admissibility of hearsay evidence -- especially the invoice of the asbestos abatement contractor and the asbestos waste shipment record -- under the principles set forth in Penbara v. Straczynski, 347 N.J. Super. 155, 162-63 (App. Div. 2002). In relevant part, Penbara states:

The rules of evidence may be relaxed "to admit relevant and trustworthy evidence in the interest of justice" in actions within the cognizance of the Small Claims Section of the Special Civil Part. N.J.R.E. 101(a)(2)(A). Hence, the fact that hearsay evidence is proffered does not automatically require its exclusion. The test is relevance and trustworthiness.

Because this was basically a Small Claims type claim, the judge was required to consider the evidence and make a determination of its admissibility based on its trustworthiness and probative value. The failure to do so constitutes reversible error.

[347 N.J. Super. at 162-63.]

Plaintiffs here argue that the invoice from the asbestos abatement contractor, the waste shipment record, and several other estimates, should have been admitted to show that the basement pipes were covered with seventy feet of asbestos, that the seller did not remove the asbestos as promised, and the reasonable costs of removal.

Notwithstanding the relatively small amount involved here for the asbestos removal, the issues were reasonably complex. Certain documents offered by defendant were admitted without formal proof. The judge dismissed the case because plaintiffs failed to carry their burden of proof.

We conclude that the judge erred in flatly rejecting plaintiffs' offer of proof on hearsay grounds. The judge should have considered the evidence and made a determination of its admissibility based on "trustworthiness and probative value." Id. at 163. See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 101(a)(2)(A). We remand to the trial judge for reconsideration of his evidentiary ruling, a blanket exclusion on hearsay grounds, in the context of the other proofs in the case.

We remand for reconsideration on the merits in light of our opinion. We retain jurisdiction. We suggest that the judge consider reargument on the point and provide us with a concise written opinion upon his reconsideration of the hearsay point and of his final decision after reconsideration. This remand shall be completed by September 7, 2007.

Remanded.

20070724

© 1992-2007 VersusLaw Inc.



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