December 28, 2011
ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
CATANZARO MANAGEMENT CORP. AND DAVID CATANZARO, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-617-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2011
Before Judges Fisher and Nugent.
Plaintiff Assem A. Abulkhair brought this action against his former landlord, Catanzaro Management Corp., and the landlord's employee, David Cantanzaro, alleging they violated his privacy rights by providing what he claims to be confidential material in response to a subpoena issued in another suit.*fn1 Even assuming the subpoena was defective in the manner or timing of its service on the landlord, Abulkhair has not demonstrated the landlord divulged any confidential information as to which Abulkhair had a reasonable expectation of privacy. We therefore affirm the summary judgment dismissing Abulkhair's complaint.
As the opponent of a summary judgment motion, Abulkhair was entitled to have the evidential materials viewed in the light most favorable to him, and the trial court was required to deny the motion if the record contained a dispute about any material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). That same standard governs appellate review. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
The subpoena duces tecum in question was issued by counsel for the plaintiff in another suit entitled New Century Financial Services, Inc. v. Abulkhair, Docket No. L-1614-99. That subpoena directed the landlord to "attend and give testimony" at the Passaic County Courthouse in that matter on March 29, 2007, at 2:00 p.m., and commanded the landlord to produce at the same time "any and all lease, and/or rental records, tenant rolls with regard to" Abulkhair and his tenancy for the period of time between November 1998 and November 2000. The portion of the subpoena entitled "proof of service" constitutes a certification executed by New Century's attorney, in which he asserted that he had personally served David Catanzaro with the subpoena on March 28, 2007. Assuming the truth of what is revealed on the face of the subpoena, there is no suggestion that the timing or mode of service was unreasonable. Abulkhair argues, however, that an examination of the copy of the subpoena in the appendix, or some other related document, reveals that the subpoena was actually telecopied to the landlord the morning of March 29, 2007. Although we are not convinced, we will assume for present purposes that this assertion is accurate, that the mode and timing of service were unreasonable, and that the landlord possessed a legitimate basis for seeking an order quashing the subpoena. We also assume there was a legitimate reason why Abulkhair could not seek to quash the subpoena on March 29, 2007, or prior to the divulging of the information in question.*fn2
We discern from the trial judge's ruling that he found the landlord did not owe Abulkhair a duty to seek relief from the subpoena or to refuse to comply with the subpoena. That blanket rejection of Abulkhair's claim is not entirely accurate. We have recognized that in certain limited instances a person or entity served with a subpoena may have an obligation to seek relief or take other actions rather than simply comply. In Crescenzo v. Crane, 350 N.J. Super. 531, 542-43 (App. Div.), certif. denied, 174 N.J. 364 (2002), we considered a physician's liability for turning over patient records pursuant to subpoena, recognizing that "a physician may find himself in a difficult position when confronted with the imposing language of a subpoena." We concluded, however, that the command of the subpoena "does not warrant a resolution of the problem by simply providing the records without a release [from the patient] or further inquiry, especially when regulatory provisions governing a doctor's conduct recognize and are designed to preserve the confidentiality of a patient's records." Id. at 542.
Crescenzo is materially distinguishable from the matter at hand. Abulkhair's landlord was not subject to any regulatory provision governing the turnover of the records sought by New Century's subpoena. Moreover, there is nothing about the description of the records sought by the subpoena that would suggest a violation of a tenant's reasonable expectation of privacy, and Abulkhair has not demonstrated otherwise. Indeed, the subpoena did not seek Abulkhair's records or property; it sought the landlord's records regarding the dates and amounts of payments made by Abulkhair during a portion of the tenancy. This information was not confidential and nothing precluded the landlord from providing it to New Century either in response to a subpoena or, for that matter, voluntarily. These undeniable facts regarding the nature of the information sought by New Century render this matter distinguishable from Crescenzo, are fatal to Abulkhair's claim against the landlord, and warranted the entry of summary judgment.
Any additional arguments that may be detected in Abulkhair's brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It is also unnecessary to our disposition of this appeal to consider the landlord's argument that Abulkhair's complaint is barred by the litigation privilege referred to in Loigman v. Township Committee of Middletown, 185 N.J. 566, 582-85 (2006), Hawkins v. Harris, 141 N.J. 207, 213 (1995), and other authorities.