ADAMAR OF NEW JERSEY, INC. t/a THE TROPICANA CASINO AND RESORT v. ARTHUR P. SCANDRETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4164-05T34164-05T3

ADAMAR OF NEW JERSEY, INC. t/a THE

TROPICANA CASINO AND RESORT,

Plaintiff-Respondent,

v.

ARTHUR P. SCANDRETT,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 8, 2006 - Decided December 12, 2006

Before Judges Weissbard and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2007-05.

George N. Polis, attorney for appellant.

Phillip S. Van Embden, attorney for respondent.

PER CURIAM

Defendant's appeal follows the entry of summary judgment on March 3, 2006, and the award of damages to plaintiff of $17,000, plus $658.28 in pre-judgment interest and $304.35 for the costs of suit. We affirm.

Our review of a trial court's summary judgment decision is de novo. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). A reviewing court employs the same standards as the trial court to determine whether the motion for summary judgment should have been granted or denied. See Stricklen v. Ferruggia, 379 N.J. Super. 296, 300 (App. Div. 2005); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Granting defendant the benefit of all favorable inferences, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), we recite the relevant facts. Plaintiff, Adamar of New Jersey, Inc., operates the Tropicana Casino and Resort in Atlantic City. Defendant Arthur S. Scandrett was invited to patronize plaintiff's casino, claiming he was enticed to request credit to gamble. Defendant executed the necessary documentation for the extension of $25,000 credit. See N.J.S.A. 5:12-101. No challenge is presented regarding plaintiff's failure to comply with the statutory requisites.

Defendant stated he believed that if he came to the casino he would be given $1,000 with which to gamble. Defendant asserts he did not understand he would be required to "match" the $1,000 with $1,000 of his own funds.

Defendant admits he executed "counter checks," payable to plaintiff, drawn on defendant's Sun Trust bank account, which totaled $25,000. On the face of each executed check appeared the statement: "I represent that I have received cash for the above amount and that said amount is on deposit in said bank or trust company in my name. It is free from claims and is subject to this check." Plaintiff advanced the entire $25,000, which was utilized by defendant to gamble in plaintiff's casino. Sun Trust, thereafter, dishonored the checks based upon defendant's act of closing his account prior to presentment. Defendant paid $8,000 prior to plaintiff initiating this action. Thereafter, he ignored plaintiff's demands for payment.

Defendant correctly notes that common law contract defenses, including duress and unconscionability, may be asserted in a gambler's action to have casino markers voided. See Lomonaco v. Sands Hotel Casino & Country Club, 259 N.J. Super. 523, 530 (Law Div. Div. 1992). To successfully plead the defense of unconscionability, defendant must show the contract "terms are manifestly unfair or oppressive and are dictated by a dominant party." Howard v. Diolosa, 241 N.J. Super. 222, 230 (App. Div. 1990). Defendant must demonstrate "some overreaching or imposition resulting from a bargaining disparity between the parties, or such patent unfairness in the contract that no reasonable person not acting under compulsion or out of necessity would accept its terms." Ibid. Our review discloses that the record is devoid of facts supporting the assertion of duress or unconscionability defenses, creating no genuine issues of material fact, R. 4:46-2(c); see also Lomonaco, supra, 259 N.J. Super. at 530-31.

Affirmed.

 

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A-4164-05T3

December 12, 2006