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Bamigbade v. Fang

October 14, 2010

LADI (O.A.) BAMIGBADE,*FN1 PLAINTIFF-APPELLANT,
v.
YUJIAN LIU FANG, JR.,*FN2 DEFENDANT, AND AIU INSURANCE COMPANY,*FN3 DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-5500-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2010

Before Judges Sabatino and Alvarez.

This appeal arises from a November 2004 automobile accident where a vehicle owned by Xiaoyan Fang struck a vehicle owned and driven by plaintiff Ladi (O.A.) Bamigbade. Plaintiff seeks to recover property damage to his vehicle and other alleged consequential damages. The accident has spawned two separate lawsuits, in which plaintiff has been self-represented each time. After a trial, the trial court dismissed the first complaint filed against Xiaoyan Fang, and Xiaoyan Fang's insurer, AIU Insurance Company ("AIU"), under Essex County Docket No. DC-3332-05. The court found that defendants in that first lawsuit had no liability because Xiaoyan Fang's vehicle had been reported as stolen a few hours before the accident occurred.

In the present litigation, under Essex County Docket No. DC-5500-06, plaintiff named as defendants "Yujian Liu Fang, Jr.," and AIU, who plaintiff alleges was "Yujian Liu Fang, Jr.'s" insurer. The trial court granted AIU's motion to dismiss the complaint. The court also denied several motions by plaintiff to reconsider or reopen the dismissal of the case. Plaintiff then filed the instant appeal. For the reasons set forth herein, we affirm the trial court's various orders in this case, from which plaintiff has appealed.

I.

Although the procedural history is complicated, the pertinent chronology may be summarized as follows. As noted, this appeal stems from plaintiff's second complaint arising out of the same automobile accident, following a no-cause judgment in the first action. The first complaint, Docket No. DC-3332-05, was tried in the Special Civil Part on June 27, 2005, before Judge Ramona A. Santiago. Judge Santiago heard testimony from plaintiff and from Xiaoyan Fang, and viewed police reports, and storage, towing, and car rental bills, before rendering her decision. During his presentation at that trial, plaintiff agreed that defendant Xiaoyan Fang, a woman, was not the driver he saw at the scene of the accident. He described the driver as "Oriental" and "a very young guy" who was "[a]bout the same age as the defendant's husband." Plaintiff testified that he gave the same description to the police, acknowledging that he "couldn't see [the driver] clearly."

Xiaoyan Fang testified at the trial that she and her husband had been shopping at the Jersey Gardens Mall in Elizabeth with their six-month-old baby, when her car was stolen from the mall parking lot. She testified that she reported the theft to mall security, to the police, to the Division of Motor Vehicles, and to insurance personnel. She described the damage to the vehicle that she observed after it was recovered.

After considering the proofs at trial, Judge Santiago entered judgment for defendants. The judge found "very credible" the testimony of Xiaoyan Fang that her car was stolen, and that it had been reported stolen before the collision with plaintiff's vehicle occurred.

Plaintiff then moved to reinstate his first complaint and to vacate the judgment of dismissal. At an October 7, 2005 hearing on that post-trial motion, plaintiff asserted that he had become aware of a third-party driver of the vehicle, who he alleged had been given permission from Xiaoyan Fang to drive her vehicle. Plaintiff asserted to Judge Santiago that "it wasn't a theft" and that "the car was not stolen, Your Honor. That is what we find newly in evidence." Plaintiff maintained that during his cross-examination of Xiaoyan Fang at trial, she allegedly identified a driver whom she had authorized to drive her vehicle and who had caused the accident. AIU opposed the motion for reinstatement as untimely and without substantive merit. Moreover, AIU's counsel recalled no testimony at the trial about another authorized driver.

Judge Santiago denied plaintiff's motion for reinstatement of the first action. In her ruling, Judge Santiago agreed with AIU that plaintiff's application had been made beyond the twenty-day time period allowed under Rule 4:49-1. Furthermore, the judge listened to the tape recording of the trial, and heard nothing on the tape to substantiate plaintiff's assertion about the alleged driver of the vehicle. Consequently, the court found no miscarriage of justice under Rule 4:49-1.

Plaintiff then filed another motion seeking a new trial of the first action. This motion was heard by Judge Rachel N. Davidson and was denied on December 7, 2005. Plaintiff filed yet another motion for reconsideration, which Judge Davidson denied on February 3, 2006. The judge indicated in that order that: "plaintiff is now advised that further motions that the court finds to be frivolous will result in defendant being granted attorney's fees."

On or about February 6, 2006, plaintiff filed a complaint in the Special Civil Part, Essex County Docket No. DC-5500-06, which is the direct subject of the present appeal. In that second action, plaintiff named as defendants Yujian Liu Fang, Jr., and AIU. Only AIU filed an ...


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