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Malek v. Mobarek

August 27, 2010

MARIAM MALEK, PLAINTIFF-RESPONDENT,
v.
ZKHARYA A. MOBAREK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4541-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 17, 2010

Before Judges Lihotz and Baxter.

Defendant Zkharya Mobarek appeals from two Law Division orders. The first order, entered on January 29, 2009 by Judge Bariso, granted defendant a thirty-day adjournment of the commencement of mandatory arbitration, see R. 4:21A-1, on condition that he pay the sum of $1,212 to plaintiff Mariam Malek as an attorney's fee, along with costs of $55. Mobarek also appeals from an order entered on September 25, 2009 by Judge Baber that denied his request for recusal and for frivolous litigation sanctions against Malek. We affirm both orders.

I.

In November 2004, Mobarek loaned Malek $4,500 to help her avoid repossession of her son's truck. Mobarek explained that he and Malek agreed that she would repay him at the rate of $100 per week starting in December 2004, but it soon became clear that she was unable to afford those repayments. According to Mobarek, Malek attempted to repay the debt by bringing cooked meals to his home, but he "refused to take the food" and "put it in the garbage." He also explained that the repayment schedule was limited to an oral agreement and there were no written documents explaining the schedule. Although Mobarek denied ever eating a meal at Malek's home, he later acknowledged having done so on four or five occasions. He also denied asking Malek to marry him and insisted that he had never waived repayment of the debt.

Malek admitted she owed Mobarek the money and claimed he had assured her she could "take [her] time" repaying him because her son had been in a serious auto accident and had been hospitalized for approximately a year. Malek asserted that Mobarek frequently dined at her home, as a form of repayment of the debt, because "he really like [sic] my food;" however, Malek stopped his visits after he "g[o]t[] fresh with [her] daughter".

Malek also explained that after church on October 1, 2005, Mobarek invited her to his home to show her a document, but after two hours had passed and it became clear that he had invited her to his apartment for a different reason, she told him she was leaving. At that point, according to Malek, he "threw [her] to the floor" with "his legs in [her] lungs." She did not file a complaint with police concerning this incident.

At some time thereafter, Mobarek filed a complaint*fn1 against Malek in the Special Civil Part seeking repayment of the $4,500. Malek's pro se answer, filed on November 14, 2005, set forth a defense and a counterclaim. In her defense, Malek asserted that the dollar amount claimed by Mobarek was incorrect. She also asserted a counterclaim as follows: "he owes me the amount counterfeit [sic] of $8,400. I cooked for 14 months, as we agreed upon in order to paid [sic] for the money I borrowed. He assaulted me at his apartment on October 1st, 2005. He also twisted my right arm. I would like to sued [sic] for personal injuries."

When the matter came before the Special Civil Part for trial on January 13, 2006, the judge, after hearing the testimony of both parties, concluded that defendant had indeed loaned plaintiff $4,500. Speaking to Mobarek, he stated, "I think you had an expectation of having a relationship with this woman and became upset with her not returning your affection." Turning to the question of whether there had been a "forgiveness" of the debt, the judge concluded that Malek failed to prove that defendant had waived his right to insist on repayment.

Apparently not remembering that Malek had filed a counterclaim against Mobarek for assault and battery, the judge made the following statement:

And quite frankly I think since they obviously are not friends anymore, that they shouldn't be friends anymore for good reason. She has good reasons for that. She probably has a cause of action.

In response, Malek's attorney, who also apparently did not realize that Malek had filed a counterclaim, explained that he*fn2 had attempted to obtain an adjournment because he had been retained by Malek only one day earlier and "wanted to file a counterclaim. But we're going to file an action in the Superior Court." The judge responded by turning to Mobarek and commenting that Malek had a potential cause of action and "you're going to be sued." The proceeding concluded with the judge entering a $4,500 judgment against Malek. The judge specifically told Mobarek "you're going to be ...


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