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Colli v. DeMarco

May 22, 2008

LUCIANO COLLI, PLAINTIFF-RESPONDENT,
v.
ANTHONY DEMARCO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4116-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2007

Before Judges Stern, A.A. Rodríguez and C.L. Miniman.

Defendant appeals from a judgment of May 15, 2006, for plaintiff which concluded that defendant was "100% at fault" in this automobile accident case and dismissed defendant's counterclaim based on "no cause of action."*fn1 Defendant also appeals from an order of May 26, 2006, denying his motion to amend the counterclaim, post-judgment, to join the law firm which represented plaintiff.*fn2 The counterclaim asserted that defendant was falsely charged for the accident as a result of which he suffered emotional and personal injuries, "suffered property damage" and was entitled to damages for fraud.*fn3 We affirm both orders.

There is no dispute that defendant's carrier settled the underlying accident case with plaintiff.*fn4 The defendant's counterclaim was thereafter tried at a bench trial on May 15, 2006. Defendant sought $4,500 for damages to his vehicle and damages for malicious prosecution.

The accident occurred around 1:00 in the afternoon on November 10, 2001. Defendant was driving a 1992 Dodge Daytona he had purchased in 1999 for $3,995. He was driving on Elmora Avenue in Elizabeth and approaching the intersection with Chilton Street at a speed noted at between about twenty and thirty-five miles per hour when defendant says he noticed plaintiff's car. Defendant noticed plaintiff's vehicle about 200 feet away coming from the opposite direction, turn left onto Chilton Street and pass "in front over" defendant causing defendant to hit the passenger side of plaintiff's car.

Defendant further testified there was no "bend" in the road from Magie Street where he stopped for a light to Chilton Street. He said he could see from 150-200 feet away that plaintiff's right window was open and that plaintiff was on the car phone. Defendant offered no evidence related to the damage or cost of repairs to his vehicle.

Plaintiff testified that he was in a row of cars, probably around three in number, and turned left onto Chilton Street after an arrow turned green to permit the turn, when he was hit "close to the headlight" on the right passenger side of his car by defendant. Plaintiff had the turn signal on, and was traveling at approximately thirty-five m.p.h. Plaintiff denied being on the phone when the accident occurred, but called his boss "after the accident." Plaintiff was taken to Trinitas Hospital by ambulance and discharged later the same day.

The trial also included a review of the interrogatories and discovery including the medical reports. Plaintiff asserted his car suffered $4,500 in damages. He was cross-examined by defendant at length. The judge declined, however, to permit defendant to call the Civil Presiding Judge and clerk to support some of his procedural claims. This was not a verbal threshold case.

Based on an assessment of credibility and photos of the accident scene, the trial judge found defendant to be "100% responsible" for the accident. In his comprehensive opinion, the judge said, among other things:

[A]fter having had a chance to see the way in which each witness has testified for the last seven hours, and after having had a chance to assess the demeanor and credibility of both witnesses, I simply find Mr. Colli's testimony to be believable.

I find that Mr. DeMarco proceeded through the intersection negligently without making proper ...


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