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Bursztyn v. Klein

January 30, 2008

KAYLA BURSZTYN, PLAINTIFF-RESPONDENT,
v.
YITZCHOK KLEIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1715-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2007

Before Judges Sabatino and Alvarez.

Defendant Yitzchok Klein appeals a Final Restraining Order ("FRO") under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"), issued against him by the Family Part on March 22, 2006. The FRO was procured by plaintiff, Kayla Bursztyn, based upon allegations that defendant repeatedly harassed and threatened her after he moved out of her rented home. Having fully considered the numerous substantive and procedural contentions raised by defendant on appeal, we affirm.

The case was tried on March 22, 2006, following the Lakewood municipal court's issuance of a temporary restraining order in favor of plaintiff sixteen days earlier. In her complaint, plaintiff alleged that defendant "has been stalking and making threatening phone calls to [plaintiff];" that he "has followed [plaintiff] around in town and has even driven three hours out of town to follow [plaintiff] to a summer camp in Woodridge, [New York];" and "also has been harassing [plaintiff] and made offensive comments in reference to her fidelity to her husband." The complaint also referenced a prior incident from July 2004 in which defendant allegedly stalked plaintiff.

The trial was adjourned six days from its original return date at defendant's request because, among other things, he wanted to consider consulting an attorney. He elected to proceed pro se, as did plaintiff. The judge heard testimony from plaintiff, her husband Moshe Burzstyn, and defendant. Both parties were given the opportunity to cross-examine the other witnesses.

During the course of his testimony, defendant acknowledged that he had lived in a rented bedroom in the same house as plaintiff and her husband for about eighteen months, and that he moved out in the spring of 2004. He denied threatening or harassing plaintiff. However, he did admit leaving a single voice message on plaintiff's telephone in June 2004, in which he expressed his displeasure that plaintiff was "maligning [his] name in the community." Defendant also admitted that he had criticized plaintiff, an Orthodox Jewish woman subject to certain religious constraints on her interactions with others, for socializing with a non-Jewish insurance adjustor and for spending excessive time on the Internet. Defendant denied stalking plaintiff in Woodridge, New York, explaining that he had coincidentally been hired to work there at the same Catskills camp where plaintiff and her family were staying.

After considering the proofs, the trial judge concluded that plaintiff had sustained her burden of proof under the Act by a preponderance of the evidence. Consequently, the judge issued an FRO prohibiting further contact by defendant with plaintiff, her husband and their children. In the course of his bench ruling, the judge made the following credibility determinations:

The Court has listened closely and observed the demeanor of all parties who've testified before the Court, including the plaintiff, her husband, as well as the defendant.

The Court's first finding is as follows:

Based on the Court's observations, the reasonableness of the plaintiff's testimony, the reasonableness of her supporting witness, namely her husband, the Court finds the plaintiff, as well as her husband, highly credible witnesses.

They were precise in their testimony. Their recollection was very vivid. The dates provided by the plaintiff were clear and unequivocal. The language she claims was used by the defendant was likewise clear.

To the contrary, the Court finds that the testimony of the defendant was not credible to the extent that it contradicted the testimony of the ...


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