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The Oaks Condominium Association, Inc v. Mohammed Abouelmaati and Pamela J. Krebs

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2011

THE OAKS CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
v.
MOHAMMED ABOUELMAATI AND PAMELA J. KREBS, DEFENDANTS-APPELLANTS.

On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-16244-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2011

Before Judges Graves, Messano, and Waugh.

Defendants Mohammed Abouelmaati and Pamela J. Krebs appeal a judgment of foreclosure in favor of the Oaks Condominium Association (Association). We reverse and remand.

I. We discern the following facts and procedural history from the record on appeal.

In July 1998, defendants purchased a condominium at the Oaks in Edison Township. The master deed allows the Association to fix and collect common expense assessments. In case of nonpayment, the Association has the power to place a lien on the individual unit, which "may be foreclosed by suit brought in the name of the Association in the same manner as a foreclosure of a mortgage on real property."

In October 2005, the Association filed a complaint for foreclosure against defendants alleging nonpayment of common-expense assessments and fines. The parties subsequently entered into a consent order for settlement in February 2006:

1. The defendants owe the plaintiff the amount of $16,146.33 in past due maintenance fees, late fees, and attorney's fees and costs through February 13, 2006;

2. Defendants . . . agree to pay the outstanding balance due in the amount of $16,146.33 according to their payment proposal which was accepted by . . . the Association. Three (3) payments of $5,382.11 each will be remitted to the Association during three (3) consecutive months, commencing immediately upon receipt of this Order. The two (2) subsequent payments will be due on March 15, 2006 and April 15, 2006.

3. Defendants also agree to remit payment of the current monthly fee, presently in the amount of $185.00 but which is subject to change and/or increase. The monthly fee for February 2006 has been included in the amount stated above. Payment of the March monthly fee is due on or before March 1, 2006. Like payments are to be made on or before the first (1st) day of each subsequent month.

5. Defendants shall make all payments to The Oaks Condominium Association and forward all payments to the Association, c/o Executive Property Management Company, P.O. Box 23103, Newark, New Jersey 07189 . . . . All three (3) payments of the past fees, each in the amount of $5,382.11 shall be in the form of a money order or bank check.

7. In the event the plaintiff does not receive the payments required by this Order by the specified deadlines, the unpaid balance due at that time, as well as any waived fines and fees, shall become immediately due and payable, and the plaintiff shall proceed with the foreclosure action by requesting the Court to enter judgment.

8. Upon receipt of the total outstanding amount due, in the amount of $16,146.33, this office will dismiss the foreclosure complaint, file a discharge of the lis pendens, file a warrant of satisfaction as to the judgment entered against the defendants and prepare a discharge of lien for recording by the defendants.

It is undisputed that defendants made the first two $5,382.11 payments. However, there was a dispute concerning the third payment and additional fines required by the consent order. As a result, a two-day bench trial took place in September 2007.

As a starting point, the trial judge concluded that defendants owed $5,957.11 at the time the third payment was due on April 15, 2006. That figure reflects (1) the final $5,382.11 payment, (2) the March, April, and May monthly fees, each in the amount of $185; and (3) $20 in late fees for failure to pay the April and May monthly fees on time.

Bernard Fryd, an employee of Executive Property Management, the Association's management company, testified that defendants did not satisfy their $5,957.11 obligation. Fryd specifically identified two attempted payments, one successful and the other unsuccessful. The accounting ledger associated with defendants' condominium reflected a $957.11 credit from a postal money order dated April 17, 2006. The money order was made payable to the Association's attorneys, Hill Wallack, and bore the notation "Balance/Mar. Apr. May fees." It was issued to Mohamed Maaty, whose address was the same as Abouelmaati's. Fryd also identified a $5000 Citibank cashier's check dated April 18, 2006. The cashier's check was also made payable to Hill Wallack, contained a stamped Hill Wallack endorsement on the back, and listed Mohamed Aly, whose address was listed as a post office box in Rahway, as the remitter. Although the $5000 Citibank check, when applied to the prior $957.11 credit, would have extinguished defendants' debt, the check did not clear because of a stop payment order.

Abouelmaati denied any knowledge of or involvement with the payments Fryd described. Although he acknowledged using "Maaty" as an informal nickname, he testified that he used his full name when he writes "something official or [a] payment." Abouelmaati further testified that he had already paid the monthly fees for March and April.

According to Abouelmaati, he had mailed a personal check in the amount of $205 to Hill Wallack during the first two weeks of April 2006. The $205 included $185 for May's monthly expenses, and $20 as a late fee. Abouelmaati testified the check was sent via Federal Express and that receipt was confirmed by an attorney at Hill Wallack. However, Abouelmaati was unable to produce the check or documentary proof of the March and April payments.

Abouelmaati further testified that, on Friday, April 14, 2006, he called Brian McIntyre, an attorney at Hill Wallack, and asked if he could deliver the third installment payment personally that afternoon because he was leaving for Dubai on Sunday, April 16. According to Abouelmaati, he left New York on April 16, arrived in Cairo on April 17, and arrived in Dubai at 2:00 a.m. on April 18. Abouelmaati's passport, which was produced at trial, reflected his arrival in Dubai at 2:00 a.m. on April 18. Abouelmaati testified that he returned to the United States in August 2006.

Abouelmaati testified that he went to McIntyre's office on April 14 and hand-delivered a $5,382.11 bank check from Bank of America, dated April 14, 2006. The check, which was admitted into evidence, was purchased by Ammann Trading, Inc., Abouelmaati's company. However, the check did not bear a stamped Hill Wallack endorsement. There was an illegible signature on the back of the check. Fryd denied receiving the Bank of America check in the amount of $5,382.11.

Abouelmaati claimed that while in McIntyre's office on April 14, he asked for a letter confirming his compliance with the consent order. McIntyre responded that he was busy, but would draft the letter on the following Monday, April 17. A letter from McIntyre, dated April 17, 2006, addressed to defendants and the Association was marked as an exhibit at trial. In stated, in part:

This letter will confirm receipt of two checks, one in the amount of $5,382.11 representing the third payment under the settlement agreement, and one in the amount of $575.00, which represents your assessment payments for the months of March, April and May. We will now comply with the remainder of the settlement agreement and will dismiss the foreclosure complaint, file a discharge of the lis pendens, file a warrant of satisfaction as to the judgment entered against the defendants and prepare a discharge of lien for recording by the defendants.

Abouelmaati, however, had testified that he did not give McIntyre a check for $575 on April 14, because he had made that payment earlier in April.

Gamal Attwa, who had previously resided at the Oaks, testified that the $5,382.11 check dated April 14 had been given to him by an Association employee named Dennis. According to Attwa, Dennis gave him the check as compensation for damage he caused to Attwa. He further testified that Dennis endorsed the check in his presence and that he deposited the check on July 28, 2006.

Thus, according to Abouelmaati, he gave the $5,382.11 check to McIntyre for the third installment, but Hill Wallack never deposited it. "It just sat around either in Hill Wallack's office or . . . in the [A]ssociation's office until such time as someone gave it [to Dennis] so he could give it [to Attwa] in July of 2006."

Kathy Larkey-Jespersen, the president of the Association's board of trustees, testified that Dennis was Dennis Tobin, the Association's former resident manager. Jespersen testified that Dennis had been fired in March 2004, two years before his alleged encounter with Attwa. Jespersen also testified that Dennis had vacated his Association-supplied condominium at the end of 2004.

Aly, who Abouelmaati contends he came to know only through this litigation, testified that he formerly owned Skyline Limousine Company. In April 2006, a former employee informed Aly that his current employer, another limousine company known as A1 Limo, had declared bankruptcy. As a result, the former employee told Aly that his employer was seeking to sell a limousine with 55,000 miles on it for only $5000. Although he had not seen the vehicle, Aly obtained the April 18, 2006 Citibank check for $5000 to purchase it. The check was made payable to Hill Wallack, which Aly testified was the law firm handling the A1 Limo bankruptcy. Aly then had second thoughts about the deal and stopped payment on the check.

Because Abouelmaati did not satisfy the $16,146.33 obligation under the consent order, the Association claimed that it was entitled to collect previously waived fines. The Association asserted that Abouelmaati had installed a satellite dish on his property "in violation of a Condominium Association requirement that the support for the dish be placed in a bucket of concrete and not be embedded in the ground." Abouelmaati testified that he never had a satellite dish on his property, providing pictures of his residence taken that morning. Attwa also testified that Abouelmaati had not had a satellite dish.

Jespersen testified that Abouelmaati had a satellite dish on his property for at least seven years, and that she had seen the dish the preceding day. She submitted photographic proof showing the dish. In addition, inspection by counsel for the parties disclosed a metal pipe receptacle, with mulch mounded up to conceal it. Abouelmaati subsequently testified that he "had placed a flag in that location following the World Trade Center disaster."

On September 28, 2007, the trial judge gave an oral opinion finding that the third payment was not made and that the Association had only received the partial payment of $957.11. He also found that Abouelmaati owed the charges for the illegal satellite dish.

Addressing the conflict between Abouelmaati's testimony and McIntyre's letter, the judge found:

Well looking at the face of that letter[,] that letter is even by Mr. Abouelmaati's testimony not accurate, because Mr. Abouelmaati says he didn't give Mr. McIntyre a check for $575, he said he only gave him a check for $205, but he did give him a check for $5,382.11, the third payment. So it's clear that the McIntyre letter is inaccurate.

The explanation offered at the time of trial by the association is that Mr.McIntyre prepared this letter in anticipation of receipt of these checks, expecting having spoken with Mr. Abouelmaati on the phone that the checks in those amounts would be presented and thereafter what happened was two other forms of payment were received.

The judge determined that Abouelmaati, Aly, and Attwa were not credible witnesses. With respect to Abouelmaati, the judge concluded that he "had the opportunity to observe the manner in which he testified . . . and he is not in the [c]court's view a credible witness." The judge made the following finding with respect to the $5,382.11 check:

The [c]court finds that the check was not given by Mr. Abouelmaati to Hill Wallack, it was not presented to the [A]ssociation at any point in time, that Mr. Abouelmaati and Mr. [Attwa] realized that there had to be some explanation as to payment and they concocted I find a bizarre tale about how Mr. Dennis gave Mr. [Attwa] this . . . check. The [c]court finds that explanation to be absolutely incredible.

Additionally, the judge concluded that Aly's testimony was "equally bizarre in terms of the transaction with the car . . . and the [c]court does not accept that testimony as well."

On October 2, 2007, the judge filed an order requiring defendants to pay (1) the $5000 remaining balance under the consent order; (2) $3210 representing previously-waived fines, including the satellite dish; (3) $3240 in fines incurred since the consent order; and (4) counsel fees in an amount to be determined.

On November 2, 2007, the trial judge held oral argument regarding counsel fees. He subsequently issued an order awarding the Association fees in the amount of $27,281.56.

Defendants appealed both orders. On April 28, 2009, we remanded the matter for further proceedings:

[O]ur review of the record in this matter leads us to conclude that a key finding by the judge in this case was not supported by the evidence. Namely, there is no support for the judge's conclusion that the McIntyre letter was written in anticipation of the receipt of payment for the third installment required by the consent order and of payment for outstanding Condominium Association fees. Fryd had no personal knowledge of the matter; Jespersen did not testify on this subject; and McIntyre was not called as a witness. As a consequence, a significant foundational element supporting the judge's determination to accept the Condominium Association's contention that payment had been effected by tendering the $957.11 money order and the $5,000 Aly check is simply missing. Indeed, we do not see how a well-founded determination of this matter can be made without the testimony of McIntyre as to the circumstances leading to his drafting of the April 17, 2006 letter. We thus remand the matter to permit that testimony and such further evidence as the parties may offer and to permit a further evaluation of the evidence in light of the evidence and testimony that is proffered. [Oaks Condo. Ass'n, Inc., v. Abouelmaati, No. A-1807-07T1 (App. Div. Apr. 28, 2009) (slip op. at 15-16).]

We also required the trial judge to articulate the basis for the $27,281.56 counsel fee award, citing Rule 1:7-4(a). Id. at 16-17.

On August 13, 2009, the judge heard testimony from McIntyre. He testified that Abouelmaati called him and asked if he could personally deliver two checks, one in the amount of $5,382.11 and the second in the amount of $575. McIntyre then drafted the letter confirming receipt of those checks. He did so after his telephone conversation with Abouelmaati, but prior to Abouelmaati's arrival at his office:

[DEFENSE COUNSEL]: . . . [Y]ou indicated that this particular document was prepared after he appeared at your office with a couple of checks. Right? [MCINTYRE]: No. The receipt was drafted prior --[DEFENSE COUNSEL]: Okay. [MCINTYRE]: -- to him showing up --[DEFENSE COUNSEL]: Well -[MCINTYRE]: -- with the checks.

[DEFENSE COUNSEL]: Are you certain about that? [MCINTYRE]: I'm a hundred percent sure that I drafted that letter prior to him bringing me the two checks . . . . [DEFENSE COUNSEL]: . . . [Y]ou didn't backdate it. Right? [MCINTYRE]: I don't know. [DEFENSE COUNSEL]: So you may have drafted it on April 13th and put April 17th on it?

Is that what you're saying? [MCINTYRE]: It's possible. [DEFENSE COUNSEL]: So you don't have a clear recollection? [MCINTYRE]: I do not have a clear recollection as to the date that I drafted that letter but I do have a clear recollection that it was prior to the date that he provided me with the two checks. [DEFENSE COUNSEL]: Okay. No question about that? [MCINTYRE]: No question about it. [DEFENSE COUNSEL]: Okay. Now, you indicated that at some point after you drafted the April 17, 2006 letter -- and just let me for clarity's sake, you're certain that the letter was drafted before he brought you the checks. Right? [MCINTYRE]: Correct.

McIntyre disputed Abouelmaati's testimony that he was presented with a single $5,382.11 check. Instead, McIntyre testified that Abouelmaati arrived at his office with two checks, differing in amounts from what he had stated on the telephone. According to McIntyre, Abouelmaati presented the postal money order in the amount of $957.11, dated April 17, 2006, and the Citibank cashier's check in the amount of $5000, dated April 18, 2006. McIntyre testified he did not update the letter to reflect the discrepancies because the total of the items he received was $5,957.11, the amount Abouelmaati owed.

McIntyre testified that, after the $5000 Citibank check was returned, he drafted a letter to defendants, dated April 26, 2006, notifying them of the returned check and providing them an additional opportunity to satisfy the outstanding balance. In response, Abouelmaati returned to McIntyre's office and claimed he had already paid with the $5,382.11 check. McIntyre also testified that Hill Wallack had never represented A1 Limo, although A1 had been the defendant in a case in which the firm had represented the plaintiff.

In a supplemental opinion issued on November 30, 2009, the trial judge accepted McIntyre's testimony as credible and found that the third payment had not been made:

This [c]court finds that the McIntyre letter was written in anticipation of the receipt of the payment for the third installment required by the Consent Order and for payments for outstanding condominium association fees. The Court further finds that Mr. McIntyre did not change the April 17, 2006 letter when he received a different form of payment because he believed that he was receiving the cash equivalent. Mr. Abouelmaati presented Mr. McIntyre with a $5,000.00 Citibank Bank Check and a money order dated April 17, 2006 for $957.11. The bank check and money order totaled the precise amount that Mr. Abouelmaati owed the Association. The factual predicate, which the Appellate Division correctly observed was missing for the finding that the April 17, 2006 letter was written in anticipation of receiving the payment from Mr. Abouelmaati has now been supplied by Mr.

McIntyre. There is now ample "support" for the finding that "the McIntyre letter was written in anticipation of the receipt of payment for the third installment required by the Consent Order."

The judge rejected Abouelmaati's prior testimony concerning the date he went to McIntyre's office. The trial judge concluded that "[a]t the time of trial Mr. Abouelmaati failed to produce any documentary evidence that he departed this country on April 16, 2006. At the remand hearing, Mr. Abouelmaati did not testify, and accordingly no evidence was produced on that date that he departed this country on April 16, 2006."*fn1

On December 18, 2009, Abouelmaati moved for reconsideration because "[t]he [c]court's decision [was] at odds with irrefutable evidence presented to it relative to [Abouelmaati] not being present in the United States on April 18, 2006." For the first time, Abouelmaati produced a copy of a JFK boarding pass to Cairo, with the name "Abouelmaati/Moh" and dated "16APR." The year was not listed on the document. In the motion papers, defense counsel explained that the boarding pass had not been "presented previously because there was no indication that [the Association] disputed the validity of [Abouelmaati's] passports and its contents."

The trial judge denied the motion on January 8, 2010. A written opinion was filed on February 16, 2010.

First, it should be noted that the alleged boarding pass was not introduced at the time of the original hearing. Second, the boarding pass has not been introduced into evidence and is improperly before this court. To date, the court has not seen this alleged evidence. Therefore, the court cannot entertain evidence that is not properly before it.

Additionally, Defendant has offered no reasoning why this evidence could not have been provided to the court at the original hearing. . . . This alleged evidence could presumably been presented by Defendant at the original hearing, but Defendant neglected to do so. Defendant has failed to meet the necessary standard for reconsideration to be granted.

This appeal followed.

II. On appeal, defendants argue that the trial judge's decision was "manifestly inconsistent with the competent and credible evidence" and that the judge erred in denying their motion for reconsideration. The Association urges us to defer to the trial judge's findings of fact and his exercise of discretion in denying the motion for reconsideration, and affirm.

In an appeal of a trial judge's decision after a bench trial, the "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). So long as "'there is sufficient credible evidence in the record to support the findings,'" we defer to the trial judge. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009) (quoting State v. Adams, 194 N.J. 186, 203 (2008)); accord State v. Chun, 194 N.J. 54, 88-89, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). An appellate court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

With respect to the denial of a motion for reconsideration, we have held that "'[r]econsideration is a matter within the sound discretion of the [c]court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Therefore, any error by the trial judge in granting or denying a motion for reconsideration is reviewed under the "abuse of discretion" standard. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006).

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . . [Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401).]

If a party seeking reconsideration "'wishes to bring new or additional information to the [c]court's attention which it could not have provided on the first application, the [c]court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.'" Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401). However, a motion for reconsideration is properly denied if it is based on unraised facts known to the movant prior to entry of judgment. See Del Vecchio, supra, 388 N.J. Super. at 188-89 (affirming denial of motion for reconsideration that was premised upon an investigation that occurred after the first motion had been denied, but could have taken place before then).

By the end of the remand trial, the two sides had presented mutually inconsistent chronologies of the key event, i.e., the in-person payment by Abouelmaati to McIntyre at the latter's office. Those chronologies were supported by a combination of documents and testimony. According to McIntyre, Abouelmaati telephoned him prior to April 17 and told him that he would bring him two checks, one for $5,382.11 and the other for $575, for a total of $5,957.11. McIntyre then drafted a letter confirming receipt of those two checks. However, when Abouelmaati arrived at his office on or after April 17, he had two different financial instruments: a postal money order for $957.11, dated April 17, 2006, and a Citibank cashier's check for $5000, dated April 18, 2006. Because the items Abouelmaati gave him totaled $5,957.11, the amount due and the total of the checks Abouelmaati had promised, McIntyre simply gave him the pre-prepared letter without editing it to reflect the changed amounts of the checks.

According to Abouelmaati, he contacted McIntyre on April 14 and asked if he could stop at his office that afternoon to deliver the final payment on the settlement. Abouelmaati testified he gave McIntyre a cashier's check for $5,382.11 to make the final settlement payment. Abouelmaati further testified that he asked for a receipt for the check, and that McIntyre promised to send one the following week.

In both his original and remand opinions, the trial judge rejected Abouelmaati's version of the events, based largely on his negative assessment of Abouelmaati's credibility and that of his witnesses. After hearing McIntyre's testimony at the remand hearing, the judge credited his version of the events.

In challenging the trial judge's factual conclusion, Abouelmaati relies most heavily on the fact that his passport, which was an exhibit at the first trial, demonstrated that he arrived in Dubai at 2 a.m. on April 18.*fn2 Abouelmaati argues that he could not have given McIntyre a cashier's check dated April 18 because he arrived in Dubai in the early morning on that date.*fn3

In our view, Abouelmaati appears to make a compelling argument, assuming that he in fact arrived in Dubai on April 18 and that the check was dated as of the date it was issued. We have concluded that Abouelmaati's argument is not adequately addressed in the trial judge's remand opinion, in which the judge did not refer to the date of the check for $5000.

On cross-examination McIntyre agreed that in view of the date April 17, 2006 on the letter, he was "a hundred percent sure" that he drafted the letter prior to Mr. Abouelmaati bringing him the two checks. Accordingly, McIntyre testified that Abouelmaati would have had to come in to see him either on April 17, 18, or 19, 2006. In addition Mr. McIntyre confirmed that the $5,000.00 bank check was dated April 18, 2006, and the money order in the amount of $957.11 was dated April 17, 2006.

Mr. Abouelmaati's counsel . . . argues that because Mr. Abouelmaati's [p]assport has a date stamp for Dubai of April 18, 2006, that Mr. Abouelmaati could not have made the payment on April 17, 2006.

Mr. Abouelmaati testified that the checks referenced in the April 17, 2006 letter from Hill Wallack were delivered to Hill Wallack on Friday, April 14, 2006, and that Mr. Abouelmaati left the United States for Dubai on Sunday, April 16, 2006. Mr. Abouelmaati at trial had no explanation for the April 17, 2006 money order in the amount of $957.11. . . . The Postal Money Order dated April 17, 2006 indicated: Balance March April May Fees, and From Mohamed Maaty, a name that Mr. Abouelmaati acknowledged utilizing. He still has not offered an explanation as to how he could purchase and deliver a $957.11 money order on April 17, 2006, if he left the country on April 16, 2006, and why he would have paid the Association $6,339.22 (a $5,382.11 check and a $957.11 money order) when he only owed $5,957.11.

At the time of trial Mr. Abouelmaati failed to produce any documentary evidence that he departed this country on April 16, 2006. At the remand hearing, Mr. Abouelmaati did not testify, and accordingly no evidence was produced on that date that he departed this country on April 16, 2006.

Mr. Abouelmaati had more than enough time to provide documentary evidence that he was on an airplane bound for Dubai on April 16, 2006.

Although Abouelmaati may not have provided documentary proof at either trial that he had left the United States on April 16, he did provide his passport at the first trial to demonstrate that he arrived in Dubai very early on April 18. The judge did not reject the passport, find that Abouelmaati was not in Dubai on April 18, or explain how he could have given McIntyre a bank cashier's check dated April 18 when he was in Dubai on that date.

Consequently, Abouelmaati's motion for reconsideration presented a prima facie case fitting into the "narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings, supra, 295 N.J. Super. at 384 (citation and internal quotation marks omitted). In denying the motion for reconsideration, the judge did not address the issue raised with respect to inconsistency of Abouelmaati's giving McIntyre a cashier's check dated April 18 and his having arrived in Dubai on April 18 Dubai time and April 17, New Jersey time. Instead, he relied solely on the late submission of the boarding pass, which he correctly pointed out could, and therefore should, have been produced at the first or second trial.

Based upon our review of the record, as outlined above, we are constrained to conclude that the trial judge abused his discretion in denying the motion for reconsideration. Without some further explanation, we do not see how Abouelmaati could have obtained and given McIntyre a bank check in New Jersey on a date he was in Dubai. Consequently, we reverse and remand to the trial judge for reconsideration. Because "one of the essential purposes of a civil trial is the search for truth," Gonzalez v. Safe & Sound Security Corp., 185 N.J. 100, 117 (2005), we direct that the trial judge permit both sides to supplement the record with respect to the factual issue we have raised.

Reversed and remanded for further proceedings consistent with this opinion.


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