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Abulkhair v. Smith

Superior Court of New Jersey, Appellate Division

June 28, 2013

ASSEM A. ABULKHAIR, Plaintiff-Appellant,
v.
WILLIAM T. SMITH, ESQ. and HOOK, SMITH & MEYER, Defendants-Respondents. ASSEM A. ABULKHAIR, Plaintiff-Appellant,
v.
WILLIAM T. SMITH ESQ. and HOOK, SMITH & MEYER, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 11, 2012

On appeal from the Superior Court of New Jersey, Bergen County, Law Division, Docket Nos. L-1767-10 and L-1769-10.

Assem A. Abulkhair, appellant, argued the cause pro se.

William T. Smith argued the cause for pro se respondents.

Before Judges Sapp-Peterson and Nugent.

PER CURIAM

Plaintiff Assem A. Abulkhair, appeals from separate Law Division orders that consolidated plaintiff's two legal malpractice actions, denied his motion to have the trial judge recuse herself, and dismissed the complaints with prejudice. We affirm.

In July 2000, plaintiff retained defendants William T. Smith and the law firm of Hook, Smith & Meyer to represent him in a personal injury action arising out of an October 1999 automobile accident.[1] In March 2001, plaintiff retained defendants to represent him in an uninsured motorist (UM) action arising out of a March 18, 1998 automobile accident.[2] Although another attorney had been representing plaintiff in the UM action until then, plaintiff had become frustrated with repeated adjournments of the UM arbitration, so he retained defendants.

Defendants represented plaintiff in the two actions until April 16, 2004, when they wrote to him and terminated their representation in both cases. Plaintiff and defendants dispute the reason for the breakdown of their relationship. Plaintiff claims defendants grossly neglected his files; defendants claim plaintiff behaved erratically and refused to consider reasonable settlement offers.

On February 24, 2010, plaintiff filed separate legal malpractice complaints against defendants in which he alleged they mishandled his claims. The trial judge consolidated the cases in an order entered on October 28, 2011.

Thereafter, on December 12, 2011, the trial judge denied plaintiff's motion to recuse herself. Plaintiff claimed that because the judge's spouse was a partner in the law firm that had represented a defendant in one of the actions out of which plaintiff's legal malpractice case against defendants arose, she had a conflict. At the time defendant filed his recusal motion, the underlying action had been dismissed by the trial court. Although the trial court's decision had been affirmed on appeal, defendant's petition for certification was pending before the New Jersey Supreme Court. See Banks, supra, 209 N.J. 233.

The judge presiding over the malpractice actions knew nothing about the underlying action and determined that any connection between the underlying action and pending malpractice case was too remote to pose a conflict requiring recusal. The judge explained that nothing she had to decide in the pending malpractice action had anything to do with the law firm that represented a defendant in the underlying case.

Following oral argument, the judge denied plaintiff's motion and announced that she would move on to other matters concerning the malpractice case. Plaintiff refused to participate, informing the judge that he would appeal her decision. The judge explained that there was a trial date and said, "I am going to hear the other motions in front of me, if you wish to stay and participate I would welcome that." When plaintiff repeated that he intended to appeal the judge's decision declining to recuse herself, the judge asked plaintiff, "most respectfully, to please sit down." The judge attempted to address an application defendants had filed based on plaintiff's failure to file an affidavit of ...


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