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Rodriguez v. Garesc Inc.

December 11, 2007


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1404-06.

Per curiam.


Argued October 31, 2007

Before Judges Axelrad and Messano.

In the early morning hours of June 13, 2004, plaintiff Rosario Rodriguez was working as a disc jockey at defendant's establishment, the Lotus Bar and Restaurant located at 10-12 Broad Street in Elizabeth. At approximately 2:00 a.m., plaintiff fell through an open trap door into the basement of the premises and was injured. An ambulance arrived at the bar and took plaintiff to the hospital where she was treated and released with instructions to see her own doctor.

On April 17, 2006, plaintiff filed her complaint against defendant Garesc Inc., d/b/a/ Lotus Bar & Restaurant, alleging general theories of negligence in the care and maintenance of the premises, and seeking damages for pain, suffering, medical expenses, and lost wages. Before filing an answer to the complaint, defense counsel advised plaintiff's counsel that his "records indicate[d] that th[e] case was settle[d] on July 1, 2004[] for the sum of $1300 following negotiations between the owners of the Lotus Bar and [plaintiff]." He demanded plaintiff withdraw the complaint or be subject to the sanctions permitted by Rule 1:4-8.

The record does not reveal plaintiff's counsel's response, but, nevertheless, on July 13, 2006, defendant moved to enforce the settlement it claimed had been previously reached, the proceeds of which had already been paid to plaintiff. Plaintiff opposed the motion arguing there was no settlement reached between the parties, or, alternatively, that any settlement was only a partial one in which defendant paid plaintiff's claim for lost wages only.

Judge Katherine R. Dupuis concluded that a plenary hearing was necessary in order to resolve the factual disputes that existed on the face of the certifications filed in support of, and opposition to, the motion. The hearing took place on October 27, 2006.

David Hernandez, one of the partners in the Lotus Bar & Restaurant was the first witness called by defendant. He testified about a meeting that took place on July 1, 2004, at the bar. Hernandez claimed that plaintiff and her husband came to the establishment and met with himself, his mother, his partner, Fabiana Nieto, and Nieto's husband. Plaintiff asked to be compensated for the two weeks of work she claimed to have missed since the accident and requested $2500. Hernandez testified that he and Nieto offered plaintiff $1300 on the condition that she not file suit against them. He testified plaintiff agreed, and so he prepared a corporate check in that amount, payable to plaintiff, and, in the memo section, wrote in Spanish, "Compensation for salary and accident." Hernandez testified that plaintiff told him and the others that she was feeling better since the fall, that she did not want to "hurt" Hernandez and his partner, and that she would not file any lawsuit. A copy of the check was introduced into evidence.

On cross-examination, Hernandez acknowledged that the corporation carried insurance that was available to pay damages that might result from someone being injured on the premises. Nevertheless, he claimed that because "the accident was not very serious," he and Nieto agreed to pay plaintiff from the corporate account.

Fabiana Nieto also testified at the plenary hearing. She was just entering the Lotus Bar & Restaurant when plaintiff had her accident. She accompanied plaintiff to the hospital that evening along with her husband, Horacio. Nieto corroborated much of the rest of Hernandez's testimony regarding the July 1 meeting.

Horacio Nieto also testified on behalf of defendant. He paid plaintiff's pharmacy bill when she came into the bar after the accident, and he was present at the final meeting during which plaintiff accepted the $1300 check from Hernandez. Horacio Nieto's testimony in large part corroborated that of his wife and Hernandez.

Plaintiff testified regarding the events of the evening of her fall. However, she described the meeting that took place thereafter in significantly different terms from defendant's witnesses. Plaintiff testified that she demanded $2500 because that reflected the amount of lost wages she had sustained since the accident. Plaintiff also testified that Hernandez and Nieto agreed to pay her only $1300, which reflected only one week's lost wages. She accepted this amount, but claimed that Nieto and Hernandez told her they had reported the accident to the corporation's insurer and she would be hearing from the company regarding any further claims. Plaintiff denied she accepted the check in full satisfaction of all her claims, and noted she had amassed over $5000 in medical bills as a result of the fall. When plaintiff never heard from defendant's insurance company, she consulted a lawyer and started suit.

Judge Dupuis issued an oral decision on November 3, 2006, in which she began by summarizing the testimony as we have set forth above. The judge focused on plaintiff's testimony that the $1300 was only a partial settlement of her claim and that defendant allegedly still intended to report the matter to its insurer. The judge concluded this testimony made "no sense" and she did not "find that it [was] believable." Rather, she concluded, plaintiff "did not believe herself to be badly injured and agreed not to sue." Noting that a written release was not a necessity, and citing to our decision in Villanueva v. Amica ...

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