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Assem A. Abulkhair v. Reuben Banks


August 10, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-829-10.

Per curiam.


Argued March 21, 2011

Before Judges Grall and LeWinn.

Plaintiff appeals from the May 28, 2010 order dismissing his complaint with prejudice pursuant to Rule 4:6-2; he also appeals from the June 17, 2010 order awarding defendant $2777 in counsel fees and costs. We affirm.

In September 2001, plaintiff filed a complaint against defendant seeking damages for injuries he sustained in an automobile accident in October 1999. For reasons that are not clear from plaintiff's brief or appendix, he re-filed his complaint on January 30, 2003;*fn1 defendant filed his answer in May 2003.

Trial commenced on or about June 22, 2004.*fn2 On June 23, 2004, because plaintiff's expert, Dr. Drzala, was not available to testify, defendant was prepared to proceed with the testimony of his expert, Dr. Friedland, who was present in court; the parties had agreed to this arrangement the previous day in the event of Drzala's unavailability. Plaintiff, however, objected to the procedure and informed the judge that he wanted to fire his attorney and needed four months to retain a new attorney; plaintiff was unable to tell the judge when Drzala would definitely be available to testify. Defense counsel told the judge that he had pre-paid $4500 to another defense expert scheduled to testify the next day and was also obligated to pay Dr. Friedland $3000 for his appearance.

After a lengthy colloquy with plaintiff, the judge discharged the jury and dismissed the complaint, stating the following reasons:

Number one, the plaintiff did not want [his attorney] to represent him. Number two, the plaintiff did not want to proceed pro se. Number three, the plaintiff demanded four months to retain another attorney. Number four, the principal expert witness, Dr. Drzala, would not be available until the following Wednesday, which would be June 30[], 2004, [at] the earliest, which is contrary to the prior representations made to the [c]court that he would be available tomorrow, which is June 24[], 2004. Number five, the plaintiff refused to allow the defense to proceed with its expert, Dr. Friedland, as agreed to by the parties yesterday, despite the defense incurring $3,000 for his appearance. Number six, the jury was told at the beginning of the case that the case would end no later than next Tuesday, June 29[], 2004, and I would have inquired of the jurors if they were available beyond next Tuesday if there had not been a demand for a continuance of four months by [plaintiff] to retain another attorney. Number seven, the plaintiff refused to consider the settlement offer of $15,000 in lieu of a dismissal. And, number eight, there is no basis for a mistrial . . . . And finally, number nine, there had been two prior adjournments in that this case is two years and nine months old as of June 18[], 2004.

The judge entered an order reflecting this decision on August 6, 2004.

On March 3, 2005, plaintiff filed a motion to vacate the dismissal and restore his case to the trial calendar. On April 15, 2005, a judge entered an order denying plaintiff's motion because "[p]laintiff waited [eight] months to file a motion that is fraught with inaccuracies and misstatements." Plaintiff appealed, and we summarily affirmed in an order entered on May 5, 2006. Abulkhair v. Banks, No. A-5277-04 (App. Div. May 5, 2006). The Supreme Court denied certification. Abulkhair v. Banks, 188 N.J. 346 (2006).

On or about March 16, 2009, plaintiff filed a second motion to vacate the dismissal and reinstate his complaint,*fn3 which a judge denied in an order of April 3, 2009; the order notes that the matter "was dismissed with prejudice more than [four] years ago. The time to seek reconsideration or appeal has long passed. This court lacks jurisdiction to consider this application for reconsideration." Plaintiff appealed, and on January 19, 2010, the clerk of this court dismissed his appeal for failure to prosecute. Defendant's petition for certification to the Supreme Court was pending as of the time of oral argument on this appeal.

On January 28, 2010, plaintiff filed a complaint against defendant claiming that he had acted in bad faith by not "urg[ing] his carrier to offer his entire policy[,] and by "conspir[ing] with [p]laintiff's hostile attorney[,]" which forced him to discharge that attorney and which led to dismissal of his complaint. Plaintiff raised claims of negligent misrepresentation, fraud, negligence, deprivation of his First Amendment rights, and violations of 42 U.S.C.A. § 1983 and the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA). Plaintiff's fraud claims were based on his assertion that at trial in 2004, defendant "misled and misrepresented the facts regarding his unfounded experts' payments stated in court . . . ."

Plaintiff sought "equitable and/or injunctive relief as permitted by law," compensatory and punitive damages and costs. He also sought relief in the form of: (a) the full amount of defendant's "insurance coverage of $100,000"; (b) defendant's "full underinsured coverage of $400,000"; and (c) "his unpaid medical expenses of $26,006.92 and all future bills . . . ."

On March 18, 2010, defendant sent plaintiff a frivolous litigation letter, demanding dismissal of the complaint pursuant to Rule 1:4-8. Defendant thereafter filed a motion to dismiss the complaint and for fees. Following oral argument on May 28, 2010, Judge Michael R. Casale rendered a decision from the bench granting the motion.

After reviewing the lengthy history of this matter, the judge concluded that "[p]laintiff's remedy . . . is he wants restoration of his case. . . . [He] seeks restoration of his old case based upon fraud and misrepresentation." Because plaintiff's complaint sought relief in the nature of restoring his personal injury cause of action, Judge Casale found that res judicata and collateral estoppel applied, citing the numerous reasons stated by the trial judge in his August 2004 order of dismissal. The judge also noted that plaintiff's claims could and should have been raised in his earlier motions.

The judge found that plaintiff's claims under the CFA failed because there was "no duty owed by . . . defendant to . . . plaintiff. They were adversaries." He further stated that defendant "is not a state actor for plaintiff's constitutional claims."

The judge thereupon entered an order dismissing the complaint. On June 17, 2010, the judge entered another order, awarding defendant $2777 in fees and costs and noting that the attorney's "hours and hourly fees are fair and reasonable."

Plaintiff appeals*fn4 , claiming: (1) the judge's decision is contrary to the evidence; (2) dismissal of his complaint was a "blunder ruling based upon misapplication and misinterpretation of the law"; and (3) a fraud upon the court "is a meritorious cause of action" and should not have been dismissed. Having considered these contentions in light of the record and the controlling legal principles, we are satisfied they lack "sufficient merit to warrant discussion in a written opinion."

R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Casale's bench decision of May 28, 2010, which, we are satisfied, is based upon findings that are substantially supported by the record. R. 2:11-3(e)(1)(A).

As Judge Casale noted, all of plaintiff's claims could have been asserted in earlier proceedings, particularly in his March 2005 motion to vacate the dismissal. Plaintiff contends that he first learned of defendant's "fraud" from defense counsel's certification in opposition to that motion, in which counsel reiterated the fees he was obligated to pay to his medical experts. Plaintiff never explains the basis for his assertion that this claim is false. In any event, defense counsel made the same statement at trial in June 2004. Since these claims are the gravamen of plaintiff's allegations in his 2010 complaint, they were properly dismissed for the reasons stated in Judge Casale's decision.


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