On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. DC-3845-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Sapp-Peterson and Messano.
Plaintiff Michael Lloyd appeals from the motion judge's orders of September 21, 2006, that 1) denied his motion to disqualify defendant Stacy Spinosi, an attorney-at-law, from her continued representation of defendant Joseph Machulsky; and, 2) granted defendants summary judgment.
In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
Plaintiff filed his complaint in the Special Civil Part alleging defendants had wrongfully levied upon his property and asserting claims for abuse of process, conspiracy, "extortion," "breach of implied duty," a violation of 42 U.S.C.A. § 1983, "coercion," "harassment," "malicious action," "aiding and abetting," intentional infliction of emotional distress, and a claim under N.J.S.A. 2A:15-59.1, the frivolous litigation statute.
Spinosi filed an answer on behalf of herself and Machulsky, and contemporaneously filed a motion for summary judgment. In her certification she explained her version of the facts underlying plaintiff's complaint. Since 2003, Spinosi represented Joseph Machulsky (Joseph) in his matrimonial action wherein he was the defendant and his wife Mary Machulsky (Mary) was the plaintiff.*fn1 Spinosi alleged that plaintiff now resided with Mary and that neither defendant had "involvement or interest" in plaintiff's personal property.
These general denials were further expanded in the motion's statement of material facts. Defendants alleged that in January of 2006, in the matrimonial matter, judgment was entered in favor of Joseph, against Mary, in the amount of $2065.31. On April 12, 2006, Spinosi filed a writ of execution with the Gloucester County Sheriff in an effort to satisfy the judgment.
On June 7, 2006, another attorney, Robert J. Incollingo, contacted the sheriff on behalf of Joseph. Claiming to be "specially appearing on behalf [of] . . . Spinosi," he requested service of the writ of execution upon Mary. In his cover letter, Incollingo listed various personal items and effects that could be levied upon to satisfy the judgment and advised the sheriff that Mary owned a 1997 black Honda. Incollingo included an "abstract from the DMV" for the car.
The document was not an abstract from the Motor Vehicle Commission, but, rather was a report from "M.P.I. Investigative Services," summarizing a search of motor vehicle records it had conducted. These revealed that Mary alone was the owner of the black Honda and reported that "no lien information [was] available."
On June 28, 2006, plaintiff served both defendants with a letter demanding they "remove the fraudulent levy [they] caused to be placed upon [his] property." He claimed defendants "had specific knowledge that [he] had joint ownership of the automobile," and plaintiff ...