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Tiptop-Deals v. Kazemian Foods

November 8, 2010

TIPTOP-DEALS, PLAINTIFF-RESPONDENT,
v.
KAZEMIAN FOODS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-4331-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 19, 2010

Before Judges Messano and Waugh.

Defendant Kazemian Foods (Kazemian) appeals from the judgment of the Special Civil Part finding it liable for the loss of goods belonging to plaintiff Tiptop-Deals Corp. (Tiptop) that were stolen while in Kazemian's custody. We affirm.

I.

We discern the following facts and procedural history from the record.

In June 2009, Tiptop filed a complaint against Kazemian for the value of goods accepted by Kazemian as a favor to Tiptop and subsequently stolen while still in Kazemian's custody. Although the value of the missing goods was alleged to be $3,504, Tiptop sought judgment in the amount of $3,000, which is the jurisdictional limit for small claims actions in the Special Civil Part. R. 6:1-2(a)(2). The complaint was dismissed in September 2009 for failure to prosecute. A second complaint seeking identical relief was filed later in September.

Trial was scheduled for Monday, December 21, 2009. Kazemian did not retain counsel until Friday, December 18. Counsel appeared on the trial date and requested an adjournment because Kazemian's owner, whom counsel described as seventy-eight years old and "a bit frail," had been ill for the last week and could not attend. The civil presiding judge denied the application and assigned the case for trial.*fn1

Tiptop's owner, Nate Mashini, appeared without counsel and testified on behalf of Tiptop. Tiptop and Kazemian have adjacent facilities in South Hackensack. According to Mashini, on "many times" "over the years," Kazemian's owner or his son, Amir Kazemian, had agreed to accept deliveries for him on occasions when he was going to be unavailable to accept them himself.

On March 13, 2009, Mashini asked Amir Kazemian to accept a delivery of electronics and he agreed to do so. According to a police report that was admitted into evidence without objection, a Kazemian employee, Mohammad Reza Bahmanabasl, signed for the delivery when it arrived. He stored the five boxes in the Kazemian warehouse. Mashini testified that Bahmanabasl told him the same information.

When Mashini came to collect the shipment on March 17, three of the boxes were missing and had apparently been stolen. The theft was reported to the police, who took statements from Bahmanabasl and Mashini.

In response to defense counsel's argument that Bahmanabasl did not have authority from Kazemian to sign for deliveries, Mashini testified that Kazemian's hourly employees had signed for deliveries in the past, including Bahmanabasl, and that he had seen Kazemian's owner direct hourly employees to do so.

In an oral opinion at the end of the trial, the judge found that Bahmanabasl had "apparent authority" to accept the delivery, based upon the ongoing relationship between the parties. Although he found that the stolen items were worth more than $3,000, he entered judgment in that amount because of the jurisdictional limit for small claims. The judgment also reflects an award of $22 in court costs and $75 ...


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