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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...