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Zakhari v. Elkenany

March 13, 2009

AMGAD ZAKHARI, PLAINTIFF-APPELLANT, AND NOUHA ELKENANY, INTERVENOR-RESPONDENT,
v.
CITY OF BAYONNE, NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5597-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2009

Before Judges Sabatino and Simonelli.

Plaintiff Amgad Zakhari appeals an order of the Law Division dated June 23, 2008, which disposed of plaintiff's action for replevin against defendant, the City of Bayonne ("the City") by granting it in part and denying it in part. We affirm.

According to his complaint and subsequent certification, plaintiff resided in a one-family house in Bayonne from 2002 through July 1, 2007. Plaintiff contends that during that time frame, he rented an apartment in the premises, although no lease appears in the record nor do any other documents confirming such a tenancy.

On June 21, 2007, a new tenant for the premises, Alan Mermelstein, appeared at the Bayonne Police Department. Mermelstein reported that he had discovered many items left behind in the premises, including financial documents and two computers. The realtor had instructed Mermelstein to move to a backyard shed any belongings left behind by the prior tenant. Because of his concerns about the nature of the items he found, Mermelstein instead sought the police's assistance.

That same day, several police officers went with Mermelstein to the house. The officers observed that the interior was in disarray. They discovered, among other things, $26,500 in one hundred dollar bills, plies of unopened mail, several pieces of jewelry, two computer towers, a voice recorder, two cameras, several credit cards, and numerous documents, some of which contained personal financial information. Neighbors advised the officers that they had not seen any activity on the premises during the previous five to six weeks but that there had been "constant" activity before then.

The police officers removed the items from the premises and secured them at police headquarters. Suspicious about the items and the underlying circumstances, the police notified the Newark office of the FBI Joint Terrorism Task Force about what they had found. According to the police reports, an FBI lieutenant advised that the FBI would assume responsibility for further investigation of the situation. The FBI subsequently took the two computer towers and also two banker's boxes of financial documents recovered from the premises, leaving the remaining items with the local police.*fn1

The police ascertained from tax records that the residence had three successive owners of record in 2005, 2006, and 2007. Some of the recovered financial documents contained the names of those listed owners. The items also referred to six other persons, including plaintiff, an "Amir Zakhari" and an "Adel Zakhari," as well as three entities. In particular, the documents included a driver's license issued to plaintiff by the State of New Jersey, as well as eight credit cards bearing his name. The recovered items, as described in the record, also included personal documents and credit cards in the names of other persons.

After the items were removed from the dwelling, plaintiff retained an attorney, who wrote the City twice and requested that it return his client's personal property. When those requests proved unsuccessful, plaintiff filed a replevin action against the City in the Law Division in November 2007. The complaint alleged that he was the owner of the "money, jewelry, documents, personal papers, computers and other property" that had been taken from the premises. Plaintiff contended that the items were illegally seized, and that he is entitled to have them returned. He also sought monetary compensation for an alleged constitutional violation. Notably, the complaint did not include plaintiff's current residential address, as is required by Rule 1:4-1(a)(1).

Plaintiff filed a motion for return of the property. In his certification in support of that motion, he more specifically claimed that he was the rightful owner of his driver's license, the eight credit cards bearing his name, the $26,500 in currency, a silver and gold-colored watch, a red, black and gold-colored watch, a black box with a gold-colored ring and two charms, a blue box with a gold-colored charm, two disposable cameras, a microcassette recorder, a silver cell phone and charger, and two banker's boxes of documents. Plaintiff further contended, and it is uncontested on this appeal by the City, that he has not been arrested or charged with any criminal offenses relating to the seized items. The City has not brought a forfeiture action concerning the property.

The City opposed the motion for replevin. It argued, among other things, that the property taken from the residence had been abandoned, and that plaintiff had not adequately established a bona fide ownership interest in the cash and the other valuables recovered.

Prior to the return date of plaintiff's motion, a judgment creditor of his, Nouha Elkenany, filed a motion to intervene. She specifically sought to enforce a judgment lien against plaintiff to the extent that the court might find that he had a valid interest in any of the cash and chattels recovered by the ...


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