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Dimiter Mihov v. Main Towing Co

May 25, 2011

DIMITER MIHOV, PLAINTIFF-RESPONDENT,
v.
MAIN TOWING CO., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. SC-001454-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2011

Before Judges Baxter and Koblitz.

Main Towing Co. (Main Towing) appeals from a June 18, 2010 judgment of $3937.30 awarded by the trial court after a bench trial. Main Towing is in the business of providing towing and emergency services for much of Hudson County. Plaintiff Dimiter Mihov was involved in a serious motor vehicle accident that left his car damaged beyond repair. Mihov maintained that Main Towing, which towed his car after the accident, did not allow him the opportunity to remove his piano tools and his wife's wheelchair when he signed over title to his damaged car for resale to a junkyard to avoid further storage fees. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Mihov testified to the following facts. The accident occurred on November 4, 2009. When defendant was paid by his insurance company, Mihov's friend, Henry Bianco, took Mihov to sign over the title to the car and retrieve his possessions. The two men were sent up the road to a lot where his car could not be located. Mihov returned to the office of Main Towing where he was told to call the next day for the location of his damaged car. The following day Mihov was told that the car was in a garage and the only person with a key was in Florida. A few days later, on December 9, 2009, Main Towing attempted to drop off a wheelchair in exchange for a complete release of liability as to all property in the car. Mihov refused and went to the police who would not take a report. He then contacted the local newspaper.

The next day the police agreed to allow a report to be filed, which plaintiff introduced into evidence. The North Bergen Incident Report No. 9066635, completed on December 15, 2009, is generally consistent with plaintiff's testimony and reflects the missing property to be license plates, a wheelchair, an EZ Pass tag, a parking garage access tag, a cell phone, "piano tech tools" and "misc. personal items." Mihov also introduced into evidence a retail catalog of piano tools in which he had put a mark next to the tools left in the car.

Bianco testified in accord with Mihov, that they had waited many hours and were sent to another parking lot, but were unable to locate Mihov's car. On cross-examination, Bianco could not describe the waiting room at Main Towing in any detail.

Patricia Davis, a supervisor at Main Towing, testified for defendant to the following facts. She sent Mihov to the lot where his car was located to retrieve his belongings. She sent a driver with Mihov to go up the street to locate his car. The driver did not report back to her. A few days later, Mihov called to report that he had forgotten to take the wheelchair. Other people in her office answer the phone so she cannot say with certainty what conversations Mihov might have had with Main Towing personnel.

The court found that Mihov's version of the events was more credible than that presented by Main Towing. The court stated: the Plaintiff's testimony is more credible than [Davis'] testimony. She claims that the Plaintiff was able to get to his car, went with a driver, although she doesn't know who the driver is and that person's not here to testify. You would think that [in] a case . . . [that] is an important case to both parties - - that the witness would be here if someone saw him go to his car and remove all these items.

As far as the testimony of [Bianco], I have no reason to doubt that he was there. Because he can't describe the waiting room, does not mean he wasn't there.

I just find that [Mihov's] story makes more sense and is more credible than [Davis'] story.

On appeal, Main Towing raises the ...


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