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Associated Building Maintenance Corporation, Inc., A New Jersey v. Bassam Captan

September 11, 2012

ASSOCIATED BUILDING MAINTENANCE CORPORATION, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
BASSAM CAPTAN, UNDERSTANDING SERVICES, INC., AND CLIFFORD JOHNSON, SR., DEFENDANTS, AND DAVID HUTCHINGS D/B/A UNITED CHECK CASHING, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1793-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 27, 2012

Before Judges Alvarez, Nugent and Ostrer.

Defendant David Hutchings, d/b/a United Check Cashing (United), appeals from a July 8, 2011 judgment confirming an arbitration award in favor of plaintiff Associated Building Maintenance Corporation, Inc. (ABMC). In its multi-count complaint ABMC had sought, among other things, lost profits and other damages on theories of conversion, tortious interference with business relationships, tortious interference with prospective economic advantage, and the like. The parties agreed to submit to binding arbitration, which agreement resulted in a March 26, 2007 order dismissing the pending litigation without prejudice. The arbitration award from which appeal is taken totaled $335,346.40 inclusive of interest. For the reasons set forth below, we affirm.

ABMC alleged that United's failure to comply with the Check Cashers Regulatory Act of 1993 (the Act), N.J.S.A. 17:15A-30 to -52, as well as its own internal policies and procedures, contributed to the claimed harm. The arbitrator agreed, concluding that as a result, ABMC's trusted operations manager, defendant Bassam Captan,*fn1 over several years conducted a shadow janitorial business of his own, Understanding Services, Inc. (USI), using ABMC's employees, supplies, and equipment. Captan also cashed payroll checks for phantom employees, for payment of fictitious overtime, and for work that was not performed.

The arbitrator determined that ABMC "was negligent[,]" while "[t]he conduct of United was intentional." He made the following findings:

(1) No cancelled checks were received by ABMC with their monthly statements. The statement only contained names and amounts. Accordingly, there was no way for [ABMC owners or staff] to see the documents.

(2) [Captan] created the payroll by submitting a list of names, hours and amounts to the payroll service, Paychecks, who in turn computed and deducted taxes and sent net checks to ABMC.

(3) No testimony was offered showing that ABMC even compared checks to employee applications or even conducted random audits of employees' pay or questioned them about where they worked, how many hours they worked or how much they received.

(4) When checks were received from Paychecks they were given to [Captan] to distribute.

(5) [ABMC] knew that payroll checks were being cashed at United because when they were cashed, bounced and United contacted ABMC to make good for the sums paid to employees plus expenses incurred, ABMC sent the amounts requested to United. ABMC never requested that United send ABMC the bounced checks. Had this been done, the alleged forgeries could have been discovered.

(6) [Captan] had the authority to use Zenon Rotuski's [ABMC's principal] signature stamp which ...


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