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Silerto v. 394 St. Paul's Avenue Corp.

March 31, 2008

JOSEPH SILERTO, DIANA MENDOZA, AND SHEYLA P. IBAZETA, PLAINTIFFS,
v.
394 ST. PAUL'S AVENUE CORP. T/A FOXES, SAMY SHAKER, AND CLARENDON NATIONAL INSURANCE COMPANY, DEFENDANTS, AND LAKEISHA MIXSON, AS NOMINAL DEFENDANT AS TO THE DECLARATORY JUDGMENT COUNT ONLY, DEFENDANT.
LAKEISHA MIXSON, PLAINTIFF-APPELLANT,
v.
394 ST. PAUL'S AVENUE CORPORATION D/B/A FOXES DANCE CLUB, DEFENDANT-RESPONDENT, AND EMC REALTY CORPORATION AND TANETTA HALL, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-6018-06 and L-8511-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2008

Before Judges Lintner and Sabatino.

Plaintiff, Lakeisha Mixson, appeals from a judgment of no cause for action following a bench trial and a subsequent order entered by the trial judge denying her motions for reconsideration, new trial, and additur. On appeal, plaintiff asserts that the trial judge misapplied the law in arriving at his factual findings and that she is entitled to damages, notwithstanding the judge's decision, because defendant's insurance carrier deposited its policy limits with the court prior to trial. We reject both contentions and affirm.

Plaintiff was injured on May 23, 2002, when she was attacked from behind by defendant Tanetta Hall while in the process of leaving a Jersey City nightclub known as "Foxes" and owned by defendant 394 St. Paul's Avenue Corporation.*fn1 During the attack, Hall cut plaintiff's wrist with a box cutter. Plaintiff instituted a Law Division suit for personal injuries against Hall and defendant in Hudson County.*fn2

On November 30, 2001, Joseph Silerto and Diana Mendoza were assaulted by a number of individuals who had congregated in the Foxes' parking lot after closing. They filed a Law Division complaint in Middlesex County against defendant.*fn3 While both cases were pending, defendant moved in the Middlesex action, on the part of its liability insurance carrier, to deposit the liability policy limits into court, reciting the pendency of plaintiff's suit in Hudson County. In support of the motion, defendant's counsel certified that, under the assault and battery endorsement, the aggregate limits for occurrences between November 19, 2001, and September 28, 2002, amounted to $100,000. Counsel advised:

While maintaining that the incidents were not the fault of [defendant], and also disputing plaintiffs' claims, nevertheless the defendant's insurance carrier and this defendant have offered the $100,000 policy limits to settle all claims by plaintiffs . . . Silerto and . . . Mendoza . . . and the claim brought by . . . Mixson, which offers have yet to be accepted. (emphasis added).

A Law Division judge in Middlesex County granted defendant's motion and the insurance carrier's limits were deposited with the clerk of the court. Thereafter, in a declaratory judgment action brought by Silerto and Mendoza, in which plaintiff was named as a defendant, the Law Division judge found that the applicable aggregate policy limits for both actions was $100,000.*fn4 Plaintiff's Hudson County action was then consolidated with Silerto and Mendoza's complaint and transferred to Middlesex County for trial.

Prior to the commencement of trial, the following stipulation was placed on the record by Silerto's counsel.

We've . . . agreed by stipulation so we're absolutely clear that one of the many reasons we're doing a bench trial and proceeding in this fashion is that given the court's prior rulings with respect to the aggregate amount of insurance in this case, the parties have agreed that damages sought in this case are capped at $100,000.

The [c]court is here to hopefully make a determination that -- to get past liability on the issue of damages, but damages are capped at a hundred thousand dollars with respect to the corporate entity 394 St. Paul's Avenue Corporation trading as Foxes.

Acknowledging his understanding of counsel's agreement, the judge stated the following prior to the presentation of the first witness:

We are here having a bench trial concerning both of these matters; that is the Middlesex County matter and the Hudson County matter, which has been also filed in Middlesex or transferred in Middlesex before disposition as to the issues concerning the ...


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