On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-552-09.
The opinion of the court was delivered by: Fisher, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
The opinion of the court was delivered by FISHER, P.J.A.D.
In this appeal, we consider whether the trial judge erred in summarily dismissing plaintiff's claims of, among other things, false imprisonment, false arrest, federal and state constitutional violations, and common law torts, in connection with his arrest by a New Jersey State trooper based on suspicion that he had passed a bad check. Because pivotal questions about the propriety of plaintiff's arrest and the existence of probable cause could not be decided by resort to the moving and opposing papers, we reverse the orders of summary judgment entered in favor of defendants and remand.
This dispute innocently began on January 22, 2007, when plaintiff Richard Greenberg patronized the business of defendant Oil Station, Inc. (OSI). Plaintiff requested an oil change; Richard Pavone, who was managing the business that day, recommended a radiator flush and a cleaning of the vehicle's battery terminals. Plaintiff agreed. A short time later he watched mechanics push his car out of a garage bay, attach jumper cables to its battery from the battery of an adjacent car, and start his car. Plaintiff's car stopped running shortly thereafter, and the mechanics again used jumper cables to restart it.
Pavone told plaintiff there was a problem with the car's battery, that OSI did not have the equipment necessary to test it, and that plaintiff would have to take the car elsewhere to address the problem. OSI presented a bill for $129.44; plaintiff responded there was no problem with his car's battery before he came into OSI and protested the $14.99 charge for "Battery Terminal SVC." Pavone advised plaintiff that he would have to speak with defendant Peter Moran about any reduction in the bill. Plaintiff asked Pavone to note on the bill what had occurred with the battery; Pavone wrote: "Cleaned battery terminals then car would not start 2 times/then only after a jump from other car started after jump both times. Terminals were not removed."
Plaintiff paid $129.44, which included the disputed $14.99 charge for battery cleaning, thinking "that I would just see Mr. Moran the next morning." Plaintiff paid by check drawn on his account with Wachovia Bank. According to plaintiff, Pavone recommended that plaintiff take his car to a nearby Pep Boys to have the battery problem checked.
Plaintiff left OSI and immediately drove to Pep Boys where, upon entering the parking lot, his car again "died." The mechanics at Pep Boys examined the battery and determined that a "battery post was snapped." Plaintiff was told that "it looked like somebody tried to undo the terminal" and "probably snapped the battery post." The mechanics told plaintiff he needed a new battery, which plaintiff purchased and Pep Boys installed at a cost of $87.72.
The next morning, plaintiff returned to OSI and spoke with Moran concerning the broken battery post and the charge for cleaning the battery terminals. No other customers were present. Moran cursed at him and refused to adjust the bill. Plaintiff told Moran that, because the problem could not be resolved amicably, he would "stop payment on [his] check."*fn1
Plaintiff left OSI and went to Wachovia Bank and "told them that [he] needed to stop payment on a check." Plaintiff also noticed that one of his checks was missing; a bank representative recommended that he close the account as a precaution. Plaintiff followed that advice and transferred the balance of his account -- $1096.14 -- to a new account. Plaintiff directed the bank to honor all outstanding checks except the one given the day before to OSI, directing the bank to stop payment because "the service was not performed as charged and damage was done to [his] automobile."
After leaving the bank, plaintiff wrote to Moran, setting out the circumstances leading to his purchase of a battery from Pep Boys and claiming OSI was only entitled to $31.02.*fn2
Plaintiff enclosed a check for $31.02, which was drawn on his new bank account. In the letter, plaintiff stated that the enclosed check "in the amount of $31.02 [was] to replace" the $129.44 check given OSI on January 22, 2007. The letter was undated but the new check was dated January 25, 2007; Moran received both on January 27, 2007. Moran later received a returned-check notice from his bank, which advised that Greenberg's check for $129.44 was being returned because Greenberg's account had been "closed"; OSI's bank charged a $10 fee for the returned check.
On January 30, 2007, Moran wrote to Greenberg, rejecting the $31.02 payment and demanding payment of $129.44, plus the $10.00 bank fee. Moran stated in the letter that "if I do not receive certified payment within seven days of this letter I will be forced to file a motion in ...