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Rosenblum v. Lewis & Wood

February 28, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5153-00.

Per curiam.


Submitted January 24, 2008

Before Judges Lisa and Lihotz.

Plaintiff, Barry Rosenblum, appeals from a judgment of no cause for action following a bench trial. He argues that the decision was against the weight of the evidence. We reject this argument and affirm.

Plaintiff's suit alleged that in November and December 1994, he made two loans to defendants, the first in the amount of $50,000 and the second in the amount of $100,000. He claims he delivered these sums in cash to defendant, Richard Wood, at his office in Trenton on two separate occasions. Plaintiff received no receipts and was unable to produce any documentation regarding the source of the funds. Plaintiff produced two promissory notes, purportedly signed by Wood on different dates but not in plaintiff's presence, one for $50,000 and the other for $100,000, each payable with interest.

Plaintiff filed his complaint in 2000, and the case was tried in 2003. Wood was enroute from Florida on the day of trial, but the judge denied his attorney's request to grant a brief adjournment to await Wood's arrival. The case was tried to a conclusion that day in Wood's absence, and resulted in a judgment in plaintiff's favor in the amount of $359,642.88.

Defendants moved for reconsideration, a new trial, or reopening of the judgment to allow Wood to testify. The judge denied the motion in its entirety. Defendants appealed, and in an unreported opinion, we reversed and remanded for a new trial before a different judge. Rosenblum v. Lewis & Wood, No. A-3438-03T2 (App. Div. Apr. 4, 2005).

The case was retried before Judge Sullivan on May 19, 2005 and June 21, 2006. On the first day of trial, the judge heard the testimony of Rosenblum and Wood, as well as Diana DiPaolo, a former employee of Wood who purportedly notarized the notes, and Nancy Wood, Wood's wife. The judge received in evidence the two notes and other documents. The judge determined that it would be advisable to have the documents examined by a forensic document expert. He directed counsel for both parties to arrange for the services of such an expert. That was accomplished, and the testimony of the expert, Gregory McNally, was received on the second trial date.

At trial, Wood denied ever borrowing money from plaintiff. Indeed, although acknowledging he was aware of who plaintiff was, he denied knowing him. He claimed he was in Florida from October 1994 until the Spring of 1995, except for a return to New Jersey for several days in December to attend the funeral of his son who died on December 2, 1994. Nancy Wood confirmed that she and her husband were in Florida continuously during that time, except for attendance at the funeral.

On July 13, 2006, Judge Sullivan issued a written decision. He found that plaintiff "failed to prove by a preponderance of the evidence that defendant borrowed money from him." Although the judge did not expressly set forth credibility findings, it is clear that he believed Wood and did not believe plaintiff. The testimony of those two individuals could not have been more directly in conflict. Plaintiff claimed to have delivered to Wood in his Trenton office on two occasions in November and December 1994 large sums of cash. Wood said he was in Florida at that time and never received any money from plaintiff, and did not even know him. It is plain to us that, although the judge did not expressly articulate these credibility findings, he could not have reached the result he did in their absence.

Findings by a trial judge sitting without a jury are deemed binding on appeal when supported by adequate, substantial and credible evidence, and we will not disturb them unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Judge Sullivan's findings are well supported by the record, and we have no occasion to disturb them.


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