MICHAEL SMITHSON v. CARLOS GARCIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5623-06T15623-06T1

MICHAEL SMITHSON,

Plaintiff-Appellant,

v.

CARLOS GARCIA,

Defendant-Respondent.

____________________________

 

Argued June 11, 2008 - Decided

Before Judges Wefing and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-8350-04.

Ronald W. Spevack argued the cause for

appellant (Spevack & Cannan, attorneys;

Howard H. Sims, on the brief).

Steven I. Litvak argued the cause for

respondent (Litvak & Trifiolis, attorneys;

(Sean M. McDonough, on the brief).

PER CURIAM

This case arises out an automobile accident on December 18, 2002, when plaintiff Michael Smithson was a passenger in an automobile struck by a motor vehicle operated by defendant Carlos Garcia. The defense conceded liability, and the jury trial proceeded solely on the issue of damages. The jury rendered a verdict that plaintiff sustained a permanent injury but only awarded nominal damages of $1. Plaintiff filed a motion for a new trial asserting that the finding of nominal damages was against the weight of the evidence and requested oral argument. Papers were filed by defendant in opposition. On June 8, 2007 the motion judge decided the matter on the papers denying plaintiff's motion.

We need not address plaintiff's argument that the nominal jury verdict was against the weight of the evidence, for the plaintiff was entitled to oral argument on the motion as a matter of right under Rule 1:6-2(d). See also Fillipone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). We reverse and remand with the direction that the new trial motion be listed for oral argument.

Reversed.

(continued)

(continued)

2

A-5623-06T1

July 22, 2008