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John H. French, Ii and John H. French, Ii By Federal Insurance Company v. All-Stor Self Storage Warehouse

January 27, 2011

JOHN H. FRENCH, II AND JOHN H. FRENCH, II BY FEDERAL INSURANCE COMPANY AS SUBROGEE, PLAINTIFFS-RESPONDENTS,
v.
ALL-STOR SELF STORAGE WAREHOUSE, T/A ROUTE 80 SELF STORAGE, BARBARA C. KRUG, AND WHAM SYSTEMS, LTD., DEFENDANTS, AND JOSEPH S. CANOVA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5479-07.*fn1

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2011 - Decided

Before Judges R. B. Coleman and J. N. Harris.

This appeal concerns two default judgments in the aggregate amount of $548,900*fn2 entered in connection with the conversion of plaintiffs' property and the consequent losses incurred when valuable antiques, family heirlooms, and other collectibles were stolen from rented compartments located in a self-storage warehouse in Paterson. Defendant Joseph Canova appeals, contending primarily that there was insufficient evidence of his liability for the conversion of the personality to warrant entry of default judgments against him. We disagree and affirm.

I.

The default judgments (Rule 4:43-2(b)) that were entered against Canova were the product of a single proof hearing, following the entry of defaults (Rule 4:43-1) against him. Canova neither contested the service of the separate complaints upon him nor challenged the notice of the proof hearing. Canova was present for the presentation of evidence at the proof hearing and was allowed by Judge Charles E. Powers, Jr. to participate, in limited fashion, at that proceeding. Although Canova was barred from introducing evidence, he was granted the right to expansively cross-examine all three witnesses who testified: the police detective who investigated the theft; the owner of the goods that were converted, plaintiff John H. French, II; and an appraiser of personal property.

According to the evidence adduced at the proof hearing, several items of personalty -- family silverware, art work, and other valuables -- went missing from French's two storage lockers that were located within the premises of All-Stor Self Storage.*fn3 After an initial police investigation produced neither leads nor suspects, French serendipitously stumbled upon some of his goods that were exposed for sale by an antiques dealer in New York City. French bought the family heirlooms from that dealer so that no one else might acquire them, and contacted the Paterson police detective in charge of the investigation.

Armed with this information, Detective Carmine Pelosi was able to trace how French's property ended up in New York City through solid investigatory techniques. As a result of his investigation, Detective Pelosi opined that Canova -- a customer of the All-Stor Self Storage facility, a frequent visitor to the locale, and a regular bidder on the contents of abandoned storage lockers -- had disabled the security alarms at the facility, entered French's storage lockers, and pilfered belongings. Thereafter, he sold some of the ill-begotten goods to a third person who, in turn, sold the items to the New York City antiques dealer through the internet auction site Ebay.

Detective Pelosi discovered that Canova had been banned by All-Stor Self Storage from its premises based upon the belief that Canova had been tampering with its alarm system. According to the detective, Canova did not deny that he was regularly at the facility, but did not admit either to disarming the alarm system or to stealing French's property. Nevertheless, when presented with the evidence gathered by the police investigation, a Passaic County grand jury indicted Canova, charging him with, among other things, theft and possession of stolen goods.

In due course, the criminal matter was resolved. Although a transcript of Canova's plea allocution appears to have been introduced at the proof hearing, it has not been provided to us on appeal. Nevertheless, there is no dispute concerning the fact that Canova entered a plea of guilty to the theft of French's property, albeit limiting the amount involved to less than $500. See N.J.S.A. 2C:20-2(b)(3) ("Theft constitutes a crime of the fourth degree if the amount involved is at least $200 but does not exceed $500.").

Based upon the evidence presented concerning the stolen goods, Canova's link with the self storage facility, and Canova's plea, Judge Powers determined the following:

From the proofs, to the exclusion of other plausible suspects, Mr. Canova had the ability and the opportunity to purloin Mr. French's valuable items. He was frequently at the storage facility and was alone in the facility when the alarm wires were cut, leading the Court to conclude that he cut them.

When one adds testimony that goods traced from Mr. French had been sold by Mr. Canova to another dealer of items sold on EBay, and Mr. Canova pled guilty to a third [sic] degree crime of possession of stolen property (Mr. French's) in an amount under $500.00, the ineluctable conclusion is that Mr. Canova stole all the items taken from Mr. French's storage space, and is liable on the subrogated portion of the claim, and, as ...


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