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Jost Imports, Inc. v. Ciccone

Superior Court of New Jersey, Appellate Division

September 18, 2013

JOST IMPORTS, INC. d/b/a ACURA OF DENVILLE, Plaintiff-Appellant,
v.
GREGORY CICCONE, individually, and ROBERT H. WELSH, Sr., individually, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2013

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-5500-12.

The Margolis Law Firm LLC, attorneys for appellant (Sara A. Kimball, on the brief).

Respondents have not filed a brief.

Before Judges Waugh and Accurso.

PER CURIAM

Plaintiff Jost Imports, Inc., which does business as Acura of Denville, appeals the Law Division's order denying its motion for reconsideration. We affirm.

Defendant Gregory Ciccone purchased a vehicle from Jost in March 2011. He used the trade-in value of $8100, a personal check in the amount of $3000, and two charges, totaling $8758.72, on a relative's credit card to pay for the vehicle. The credit card payments were subsequently rescinded, apparently at the request of the relative.

In March 2012, approximately one year later, Jost filed suit against Ciccone and the relative, based on six legal theories, including common-law fraud. After Ciccone and the relative failed to answer the complaint, default was entered. A proof hearing was held on July 27. Following the testimony, the trial judge entered judgment in favor of Jost in the amount of $9007.89, including costs.

On September 14, Jost moved for reconsideration, seeking an award of punitive damages and counsel fees. Following oral argument on September 28, the trial judge delivered an oral opinion denying the motion. The judge observed that she had listened to the tape of the entire proof hearing and that "at no time was there ever any testimony or ever any proof of the fact that there was a fraud."[1] This appeal followed.

A motion for reconsideration under Rule 4:49-2 is a matter left to the trial judge's "sound discretion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J.Super. 299, 310 (App.Div.), certif. denied, 195 N.J. 521 (2008). Such a motion is not properly brought simply because a litigant is dissatisfied with a judge's decision, nor is it an appropriate vehicle to supplement an inadequate record. Ibid. It is primarily an opportunity to seek to convince the court that "'either 1) [it] has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div. 1990)).

Having reviewed Jost's arguments in light of the record and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). It is clear from the trial judge's oral decision that Jost failed to prove fraud at the July 27 hearing, and in fact, did not attempt to do so. As noted above, a motion for reconsideration is not an appropriate vehicle to supplement an inadequate record.

Affirmed.


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