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Tumino's Towing, Inc. v. Marin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 16, 2007

TUMINO'S TOWING, INC., PLAINTIFF-RESPONDENT,
v.
EMIL MARIN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-2774-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2007

Before Judges Parker and Lyons.

Defendant Emil Marin appeals from the entry of a judgment against him in the amount of $3000 in favor of plaintiff Tumino's Towing, Inc. We affirm.

On February 22, 2006, plaintiff was directed by the Ridgefield Police Department to tow defendant's 1981 Chevrolet Monte Carlo off property owned by defendant's acquaintance. The vehicle had a dead battery and a flat tire. It had no insurance and its registration had expired. Defendant was present when the vehicle was towed. He protested the towing to the tow truck operator who informed defendant that he needed to get a police release from police headquarters and that he could then obtain the car from plaintiff's storage yard. Plaintiff provided defendant with three certified letters over the ensuing weeks advising him of the storage charges that were accruing on the vehicle and how he might reclaim it.

On July 19, 2006, plaintiff instituted a suit for the towing and storage charges in the Small Claims Section of the Special Civil Part of the Law Division. On August 16, 2006, the trial of the matter was heard. Lawrence Lamont, an employee of plaintiff, appeared on behalf of plaintiff. Defendant also appeared and testified. At the conclusion of the hearing, the trial judge found that plaintiff legally towed the vehicle pursuant to police direction. Furthermore, the judge found that the charges of $75 for towing and $25 per day for storage were reasonable and in accordance with the town's ordinance. Accordingly, the court entered a judgment in the amount of $3000 in favor of plaintiff.

Defendant appeals, arguing that the court erred in permitting plaintiff to proceed without being represented by an attorney and in proceeding to trial without defendant's witness. We find that both of these arguments lack merit and affirm.

Rule 1:21-1(c) prohibits business entities from appearing in courts except through an attorney with certain exceptions. One of the exceptions is appearances in Small Claims Section pursuant to R. 6:11, which provides that an authorized employee may prosecute and defend an action in the Small Claims Section on behalf of a party which is a business entity. That is what the proofs show occurred in this case. Consequently, the appearance of Mr. Lamont on behalf of plaintiff was not error.

Defendant also claims that at the mediation that occurred immediately before trial, he presented the mediator with an affidavit from a potential witness. The mediator advised defendant that the witness must be present. Defendant complained that the trial was not postponed, but proceeded in the absence of this witness.

First, there is no indication in the record that defendant ever sought an adjournment by way of an application to the court. Second, Rule 6:4-7(a) provides that adjournments of Special Civil Part trials must be made to the clerk's office and, absent good cause, not less than five days before the scheduled trial. An application for an adjournment on the day of trial, if it had been made, would have been untimely. Further, there is no indication that "good cause" existed for permitting an application for an adjournment to have been made within the five days before trial. Moreover, there is no showing that defendant was prejudiced by having to proceed on the day of trail. Therefore, we find no merit in defendant's argument that the judgment should be reversed because the trial was not postponed. The judgment of the trial court is, therefore, affirmed.

20071116

© 1992-2007 VersusLaw Inc.



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