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Abulkhair v. Engelhart

April 2, 2009

ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
v.
EDWARD ENGELHART, AND SOMMER & ENGELHART, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2345-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2009

Before Judges Rodríguez and Payne.

Assem A. Abulkhair (plaintiff) appeals from the June 6, 2008, order granting defendants Edward Engelhart and Sommer & Engelhart's (collectively "defendants") motion for summary judgment. We affirm.

In 1999, plaintiff filed a complaint against TWA in the Special Civil Part, seeking damages for loss of personal property. The judge granted the airline's motion for summary judgment and dismissed the complaint. Subsequently, plaintiff retained Edward Engelhart, of the law firm of Sommer & Engelhart, to represent him in moving for reconsideration. Plaintiff paid a $1,000 retainer. However, the judge denied the motion for reconsideration, relying on the Warsaw Convention*fn1 as dispositive.

Plaintiff then sued defendants in the Special Civil Part, seeking the return of the $1,000 retainer. That suit was dismissed without prejudice. Plaintiff appealed. We dismissed the appeal for failure to prosecute.

Plaintiff then filed a claim with the New Jersey Lawyers' Fund for Client Protection against defendants. That claim was denied for lack of jurisdiction because Engelhart had not been suspended, disbarred, or declared disability inactive.

Plaintiff filed an attorney ethics complaint against defendants. The District Ethics Committee determined that there was "no evidence of unethical conduct that would warrant filing a complaint." Plaintiff challenged that determination to the Disciplinary Review Board. Engelhart wrote to the Disciplinary Review Board in response. Engelhart's letter stated in part that plaintiff's: unfounded comments and false accusations against me... and against the system as a whole must end. It is time for him to stop.

He continues to make outrageous, unsupported statements without knowing what he is talking about. He waited for 7 years to file his ethics complaint. Clearly this was merely to continue his "campaign of terror" against me, the ethics system and the Court system as a whole.

The Disciplinary Review Board upheld the decision by the District Ethics Committee.

On March 6, 2008, plaintiff filed the present complaint against defendants for defamation based on Engelhart's use of the phrase "campaign of terror," alleging that Engelhart used such an "unethical [and] insulting comment[]" toward plaintiff because plaintiff was a Muslim and the comment was made after September 11, 2001.

Defendants moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e). Engelhart certified that he had not known that plaintiff was a Muslim, and had used the phrase "campaign of terror" to describe plaintiff's continuing conduct. Engelhart also submitted the certification of Michael Pescatore, a former partner at Sommer & Engelhart. Pescatore certified that he overheard plaintiff tell Engelhart that if his $1,000 retainer was not returned, plaintiff would "continue to make Mr. Engelhart's life difficult."

The motion to dismiss was originally scheduled to be heard on June 6, 2008. On that date, Judge Ned M. Rosenberg's staff attempted to reach the parties regarding oral argument, but apparently did not contact plaintiff. The judge addressed the merits of the motion based on the papers, and signed an order granting defendants' motion on June 6, 2008. However, sua sponte, the judge reopened the case and conducted oral argument on June 9, 2008. Both parties appeared. At the conclusion of oral argument, the judge found that Engelhart's comment had been made during a quasi-judicial proceeding and thus was absolutely privileged, and that the lawsuit was frivolous ...


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