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Gerardo Gonzalez and Klever Bravo v. Auto Mall 46

July 2, 2012

GERARDO GONZALEZ AND KLEVER BRAVO, PLAINTIFFS-APPELLANTS, AND PRISCILLA GARCIA, PLAINTIFF,
v.
AUTO MALL 46, INC., A/K/A NISSAN 46, BOROUGH OF TOTOWA, TOTOWA POLICE DEPARTMENT, ROBERT COYLE, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE TOTOWA POLICE DEPARTMENT, DENNIS BLAKELEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A SERGEANT OF THE TOTOWA POLICE DEPARMENT, DEFENDANTS-RESPONDENTS, AND WILLIS OF MICHIGAN, INC., D/B/A DEALERGUARD INSURANCE PROGRAM, DEFENDANT.
MOHAMMAD KHAN AND MUNAZZA KHAN, PLAINTIFFS-APPELLANTS,
v.
AUTO MALL 46, INC., A/K/A NISSAN 46, BOROUGH OF TOTOWA, TOTOWA POLICE DEPARTMENT, ROBERT COYLE, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE TOTOWA POLICE DEPARTMENT, DENNIS BLAKELEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A SERGEANT OF THE TOTOWA POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS, AND WILLIS OF MICHIGAN, INC., D/B/A DEALERGUARD, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-2412-09 and L-216-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2012 -

Before Judges Fuentes, Graves and Koblitz.

Plaintiffs in these consolidated complaints,*fn1 Gerardo Gonzalez, Klever Bravo and Mohammad and Munazza Khan, appeal from a June 16, 2010 order dismissing their claims against the Borough of Totowa, Totowa Police Department, Robert Coyle, in his official capacity as Chief of Police of the Totowa Police Department, and Dennis Blakeley, individually and in his official capacity as a Sergeant of the Totowa Police Department (the Totowa defendants). The motion judge granted summary judgment, finding that the Totowa defendants did not deprive the plaintiffs of any constitutionally protected right. Plaintiffs also appeal from the August 6, 2010 order denying reconsideration. In addition, plaintiffs appeal from the January 21, 2011 order granting partial summary judgment to Auto Mall 46, Inc. (Auto Mall), dismissing the first three counts of Gonzalez et al.'s complaint against Auto Mall and all claims asserted by the Khans against Auto Mall.

Gonzalez and Bravo both filed an Acceptance of Offer of Judgment on April 4, 2011 and their complaint was dismissed by order of June 10, 2011, thereby terminating both complaints as to all parties.*fn2

At the end of July 2008, cars innocently purchased by plaintiffs from Elmazahy Auto Sales Corp. (Elmazahy) were reported stolen by defendant Auto Mall. Auto Mall claims that Elmazahy paid for the cars with bad checks. Totowa defendants disseminated a report that the cars were stolen,*fn3 noting that the drivers might be purchasers in good faith. Neighboring police departments subsequently recovered some of the stolen cars and returned them to Auto Mall.

Plaintiffs brought civil rights actions under both 42 U.S.C.A. § 1983 (§ 1983) and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (NJCRA) against all defendants, claiming that their rights to procedural due process were violated when their cars were taken from them without prior notice and a hearing. Plaintiffs also allege that Auto Mall committed an "unconscionable commercial practice" under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA), when it reported the cars as stolen. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Auto Mall operates an automobile dealership called Nissan 46 in Totowa, New Jersey. In May 2008, Elmazahy purchased over thirty cars from Auto Mall in a wholesale transaction, paying by check. Auto Mall delivered the cars, but retained possession of the original title documents until the checks cleared. The checks were dishonored by Elmazahy's bank due to insufficient funds.

Weeks later, a representative from Auto Mall contacted the Totowa Police Department and reported the cars as stolen.*fn4 Upon receiving the complaint, Sgt. Dennis Blakeley undertook a two-week investigation to determine where the reported cars were, how to recover them, and whether any third parties were involved. Sgt. Blakeley determined that the only way to locate the cars would be to file a stolen vehicle report. The report contained the following language:

This authority has entered 33 stolen vehicles, that are a result of a fraud by a used car dealer in Jersey City, New Jersey. The dealer is Elmazahy Auto Corp. . . . Elmazahy purchased these vehicles from [] Auto Mall in Totowa, New Jersey with bad checks in the amount of $257,000.00. All these vehicles that were entered had a memo in the OAN*fn5 area that states "Driver Fraud Victim." At this time[,] one person[,] Julio Luna, the general manager[,] has been arrested, and there still is a[n] active warrant for his partner/owner Sonya D. DelRosario. Any questions, please contact

D. Sgt. Dennis Blakeley. . . .

This language was intended to apprise surrounding police departments that the current drivers of the cars were likely not involved in the theft.

The vehicles reported stolen included the cars purchased by Gonzalez and Bravo. Gonzalez paid $2190 for a 2000 Hyundai Elantra and Bravo paid $6500 for a 2001 Honda Accord.

Gonzalez claims that Elmazahy provided a series of temporary registrations, but went out of business before providing a permanent registration or title. When Gonzalez and his wife went to the New Jersey Motor Vehicle Commission (NJMVC) to register the car, the clerk noted that the car had been reported stolen, and the Jersey City Police escorted Gonzalez and his wife back to their home, where the police seized the car. Bravo reported that his car was seized by the New York City Police Department while he was at work. After the seizure of these cars, the police returned them to Auto Mall.

The Khans paid $3479 for a 1995 Toyota Four Runner. The Khans' car remains in their possession, but they claimed to be unable to register it because they ...


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