February 20, 2009
SHAUKAT ALI, PLAINTIFF-APPELLANT,
DAVID B. WASSERMAN, ESQ. AND GORDON L. WASSERMAN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-4518-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2008
Before Judges Payne and Waugh.
Plaintiff, Shaukat Ali, appeals from a trial court's verdict against him, following a bench trial in the Special Civil Part on Ali's claim that defendants David and Gordon Wasserman broke the lock on the mailbox of Ali's second-floor tenant, causing damages consisting of the cost of repair in the amount of $174.09. On appeal, Ali contends that (1) the Wassermans violated his property rights when they entered the three-family house that he owned, (2) Gordon Wasserman illegally impersonated a sheriff's officer, (3) various court rules were violated by the Wassermans' failure to respond to the complaint and discovery requests and by Gordon Wasserman's failure to appear for the trial, (4) the court erred in conducting trial in the absence of the Wassermans' responses to discovery, and (5) the court displayed bias in finding David Wasserman, an attorney, to be a more credible witness than Ali.
The facts of this matter arise from the continued refusal of Ali to pay, pursuant to court order, the fees of attorney David Wasserman incurred by Ali's former wife, Tehmina Ali, in connection with the parties' divorce. According to David Wasserman, who testified at the trial of the within matter, as the result of discovery obtained in an attempt to recover attorney's fees from Ali, he had learned that Ali owned a three-family house located at 170 St. Paul Avenue in Jersey City. Although Ali denied that he had tenants, Wasserman did not believe him, and accordingly, he and his son went to the location to verify Ali's statements. When there, they observed Ali's name on the first floor mailbox, and the name of a tenant on the third-floor mailbox. Because Wasserman had difficulty climbing stairs, he sent his son to the third floor to verify the identity of that tenant, and in that connection, Wasserman gave his son his business card as identification. Wasserman's objective was to obtain an order requiring that any tenant rents be paid to him, not Ali. While the son was on the third floor, a conversation occurred between the son and Ali during which the son showed Wasserman's business card to Ali. Thereafter, Wasserman and his son left the building. According to Wasserman, the only words spoken by Ali to him were to inform him that Ali's office was in the basement.
Ali's version of events differed considerably from that of Wasserman. Ali testified that he heard "somebody breaking mailbox and somebody knocking on my second floor." Ali came up from the basement, and he saw Wasserman, who "had his hand in the broken . . . mailbox." Ali testified further that he confronted Wasserman's son. As Ali described it:
And I said, are you David D. Wasserman? He said, yes. I said, why you - you are lying. I said Mr. David D. Wasserman is a - who are you? Why you are here? And I said - police and they both ran away. And that, Your Honor, is the crux. That he broke the box, then they went inside. They represented that they are sheriff officers. They are not sheriff officers.
In support of his claim, Ali offered the testimony of the person who had replaced the lock on the mailbox. However, that witness had no knowledge of when or how it had been broken, stating that he had last seen the lock, intact, approximately one year earlier.
At the conclusion of the testimony, the trial judge dismissed Ali's case, ruling that Ali had the burden of proving that Wasserman had broken the mailbox, either by direct evidence or by discrediting Wasserman's denial of such conduct, and that Ali had failed to meet his burden. The judge stated:
Now, in order for you to sustain your burden of proof, you have to show a preponderance of the evidence that in fact Mr. Wasserman broke that lock. Mr. Wasserman would have no reason to break the lock. He's coming to the apartment to find out whether there are any tenants. He admits that. He has testified not only did he [not] break the lock, but that he acknowledges that he was there. So Mr. Wasserman's testimony the court finds to be credible.
And since you didn't see him break the lock, the only way you could sustain your burden of proof is if somehow you could discredit Mr. Wasserman's testimony to show that he's not telling the truth.
And in this case I find no evidence to support any claim that Mr. Wasserman is not telling the truth. If there was some logical inference that I could draw to show that Mr. Wasserman in fact is lying, I'd have to consider it. But there isn't any that this court can think of or that has been pointed out to this court. And as an aside, the court finds it unlikely Mr.
Wasserman, an experienced officer of the court, would have any motivation to do something like that.
In a motion for reconsideration following entry of an order of dismissal, Ali sought to demonstrate that Wasserman's prior testimony that he was seeking to identify Ali's tenants as a means to collect approximately $30,000, awarded to him in attorney's fees, had been untruthful. To do so, Ali produced various documents that he claimed demonstrated that all attorney's fees had been paid. However, the judge denied Ali's motion, determining whether Wasserman was owed $30,000 or not had "nothing to do with whether or not he attacked [Ali's] mailbox."
On appeal from the order of dismissal, Ali has claimed that the Wassermans violated his property rights by entering the Jersey City building. In support of his argument, Ali relies on N.J.S.A. 2A:18-53 et seq., landlord-tenant provisions setting forth the manner in which a landlord may regain possession of rented property. He also relies upon our decision in Levin v. Lynn, 310 N.J. Super. 177 (App. Div. 1998), in which we found summary judgment to have been improperly entered in defendants' favor when the evidence presented suggested that defendants had unlawfully entered plaintiffs' apartment and removed personal property from it without first obtaining a warrant of possession. Neither of these cases is applicable to the present matter, which does not involve a landlord-tenant relationship.
Ali also relies on Trainer v. Wolff, 58 N.J.L. 381 (E. & A. 1895). In that case, the plaintiff had sought damages from her neighbor who, during the course of adding a story to his house, removed weather boards from plaintiff's residence. At issue there was whether the trial judge had improperly removed from the jury's consideration plaintiff's right to punitive damages, should the jury conclude that the defendant's act was not only unauthorized by plaintiff but also was done over her protest. The court found error to have occurred. Id. at 382. Because Ali has not sought exemplary damages in his present suit, we also find this case inapposite.
Further, our review of the record does not clearly establish that a trespass to real property occurred in this case. At oral argument, Ali explained that the building at issue contained an unlocked vestibule where the mailboxes were located, and that a locked door separated the vestibule from the remainder of the building. The record indicates that Wasserman remained throughout his time at the building in the vestibule, whereas his son went to the third floor.
A trespass occurs when there is an unauthorized entry onto the property of another. New Jersey Tpk. Auth. v. PPG Indus., Inc., 16 F. Supp. 2d 460, 478 (D.N.J. 1998) (New Jersey law), aff'd 197 F.3d 96 (3d Cir. 1999); see also Handleman v. Cox, 74 N.J. Super. 316, 325 (App. Div. 1962) ("A trespasser is one 'who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.'") (quoting Restatement, Torts § 329 (1934)), aff'd, 39 N.J. 95 (1963). The facts as presented suggest implied consent on Ali's part to the presence of the Wassermans in the vestibule, since Ali left that space open to the public at all times. See, e.g., Restatement (Second) of Torts § 169 (1965) (recognizing consent restricted as to area). Further, it is reasonable to assume that, because a locked door separated the vestibule from the remainder of the building, a tenant must have consented to the son's entry into the building itself. Section 189 of the Restatement permits entry by a tenant to undemised portions of premises in landlord's possession, and provides that persons entering the premises "in the right of the tenant" have the same privilege as the tenant. In any event, Ali has claimed no damages, including nominal damages, see Kruvant v. 12-22 Woodland Ave. Corp., 138 N.J. Super. 1, 24 (Law Div. 1975), aff'd, 150 N.J. Super. 503 (App. Div. 1977), flowing from the mere act of trespass. We therefore decline to reverse on this ground, finding no error on the part of the trial judge in determining not to make such an award, sua sponte.
Ali additionally argues:
Gordon L. Wasserman, committed impersonating act on October 21, 2006, when he said that he is a court officer. Violating, N.J.S.A. 2C:28-8. Impersonating a public servant or law enforcement officer and it is approved law in NJ with the approval of case below: State v. Cantor, 221 N.J. Super. 219 (1987) [certif. denied, 110 N.J. 291 (1988)].
Ali thus relies on a criminal statute the enforcement of which is beyond the jurisdiction of the Special Civil Part. See R. 6:1-2 (matters cognizable in the Special Civil Part).
Ali has also claimed numerous procedural violations by the Wassermans, and has asserted error in the court's failure to require responses to discovery prior to conducting the trial of the matter. Ali first claims that the Wassermans violated court rules by failing to answer his complaint. However, Rule 6:3-1(6) provides that "no answer shall be permitted . . . in actions in the Small Claims Section" where Ali's action was instituted. Ali additionally objects to the fact that Wasserman's son did not attend the trial of the matter. However, no compulsory process compelled his appearance.
Ali contests, as well, the judge's determination to hold trial without requiring the Wassermans to respond to discovery. In this regard, the record reflects that Ali served interrogatories, a demand for production of documents, and a request for admissions on the Wassermans. However, Rule 6:4-3(f) permits discovery, as of right, consisting only of five interrogatories, without subparts. Thus, service of a document demand and request for admissions was improper.
In his interrogatories, Ali asked:
1) On October 21, 2006, How many people you brought at 170 St. Paul Ave. Jersey City, NJ 07306?
2) Write, name, profession, place of employment, mailing address of work and home of each person.
3) Write the name of sheriff officer who broke mail box of second floor.
4) What is the name of Sheriff officer who was banging on the doors of second and third floor?
5) At what time you and your partner in crime left 170 St. Paul Ave. Jersey City, NJ 07306 on October 21, 2006.
Rule 6:4-3(a) requires that interrogatories be served within thirty days of the service of the complaint, and that responses be served within thirty days thereafter. Ali timely served his interrogatories upon the Wassermans and received no response. However, he failed to properly seek to compel answers by moving for sanctions pursuant to Rules 6:4-6 and 4:23. In these circumstances, we find no abuse of discretion on the part of the judge in proceeding directly to trial of the matter, without first requiring that the requested discovery be produced. Moreover, our examination of the interrogatories suggests to us that Ali was not prejudiced by the failure of the Wassermans to answer discovery, since responses to the questions posed could readily be supplied at trial and the absence of such responses prior to trial could not reasonably have affected Ali's trial preparation.
As a final matter, Ali argues that the trial judge erred when he recognized Wasserman's status as an officer of the court as a basis for his determination that Wasserman's testimony was more credible than that of Ali. In support of this argument Ali relies upon In Re Yengo, 72 N.J. 425 (1977) - a case involving "persistent misbehavior" by a municipal judge "so bizarre as to amount to 'misconduct in office, willful neglect of duty, or other conduct evidencing unfitness for judicial office or * * * incompetence,'" id. at 426 thereby establishing a statutory cause for removal.
We find the facts of Yengo to be far removed from the conduct of the trial judge that Ali seeks to place at issue in this case. In our view, the judge's decision in this case was properly based on facts in the record, Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Moreover, pursuant to RPC 3.3(a), Wasserman, an attorney as well as a testifying witness, was under a duty not to knowingly "make a false statement of material fact" to a tribunal. We find no grounds for reversal in the judge's implicit acknowledgment of that duty, particularly when made only as an aside under circumstances that did not suggest any lack of impartiality on the judge's part. See Code of Judicial Conduct, Canon 2A (a judge should "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary").
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