VICTORIA SECRETI v. KENNETH POLISH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4980-07T24980-07T2

VICTORIA SECRETI,

Plaintiff-Respondent,

v.

KENNETH POLISH,

Defendant-Appellant.

________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Special Civil Part, Bergen County,

Docket No. SC-745-08.

Chasan Leyner & Lamparello, attorneys for appellant

(Michael J. Cuellar, of counsel and on the brief).

Respondent Victoria Secreti has not filed a brief.

PER CURIAM

Defendant Kenneth Polish appeals from a Special Civil Part judgment, following a bench trial, awarding plaintiff Victoria Secreti $674.77 in property damage, and from an order sanctioning him $100. We affirm.

This action arises out of an automobile accident that occurred on November 18, 2007 at approximately 5:45 p.m. on Lake Street in Upper Saddle River. Plaintiff's car stopped for traffic at the intersection of Lake and Spring Streets and, while stopped, was rear-ended by a vehicle driven by defendant. According to defendant, he came to a complete stop in traffic about six feet behind plaintiff's vehicle after plaintiff's vehicle stopped short, at which time he was struck in the rear by a third "phantom" vehicle. The force of that contact pushed his car into the rear of plaintiff's vehicle. Plaintiff, however, never saw any vehicle strike defendant's car or leave the scene, and believed it unlikely given the level of traffic that day.

At the conclusion of the evidence, the court found defendant liable and awarded plaintiff the amount of the property damage to her car. The judge concluded:

The court found the defendant . . . was probably overstating the distance between his vehicle and the plaintiff's vehicle at the time of the accident. To -- six feet forward and then strike another vehicle did not seem credible to this trier of fact.

Defendant was not injured . . . by the alleged hit from the phantom -- vehicle. The Court . . . found that fact rather that he wasn't injured to be consistent with the Court's belief that the defendant . . . had stopped too close to the plaintiff's vehicle.

And as a result of a minor rear-end impact he's pushed into the . . . rear of the . . . plaintiff's vehicle. Had he been stopped the five or six feet that he contended . . . the accident rather probably would not have happened because it was not that great of a hit to the rear end of the defendant's vehicle.

. . . .

Furthermore, the Court determined that the plaintiff was absolutely fault free in this accident. She was stopped waiting for a vehicle and she was hit in the rear.

Defendant claims that phantom vehicle caused the accident. The Court found, however, that the accident was caused not only by the phantom vehicle, but by the defendant's failing to remain a safe distance behind the vehicle in front of him.

If he had done so when he was struck from behind he would not have impacted the vehicle . . . in front of [her] -- . . . .

Thus, he failed to maintain a reasonably safe distance behind the vehicle in front of him in violation of N.J.S.A. 39:4-89 -- Dolson v. Anastasia, again that's 55 N.J. 2 (1969), and Paiva v. Pfeiffer, 229 N.J. Super. 276 (1988).

The Court thus concluded that as a result of stopping too closely behind the plaintiff's vehicle defendant is in violation of the aforementioned statute and was negligent as a matter of law.

This trial occurred on March 27, 2008, having been originally scheduled for March 13, 2008. Having failed to obtain plaintiff's consent for an adjournment, on March 11, 2008, defendant's counsel faxed a letter to the court requesting an adjournment of the trial date due to defendant's unavailability because of a work commitment. The request was denied; however, counsel renewed the request in person on the scheduled trial date, in the presence of plaintiff pro se, who appeared ready for trial. The request was granted, the matter was adjourned, and defendant was sanctioned $100 for plaintiff's expense and inconvenience in having taken the day off from work to attend the hearing. On this score, the judge reasoned:

The Court did not doubt as to the adjournment that the defendant had to attend training, but the request was late and the Court found in all likelihood he . . . should have known about it and should have notified the Court well before the day before trial.

Post trial, defendant moved for a new trial on liability and for reconsideration of the order imposing sanction. After hearing arguments, the court denied both applications. On appeal, defendant contends both decisions were erroneous. We disagree, and affirm substantially for the reasons stated by the trial judge in his supplemental oral decision of July 11, 2008. We add only the following comments.

Our review of a trial judge's factfinding is limited. We decide only whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. We give "due regard" to the ability of the factfinder to judge credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999).

We are satisfied, based on this standard, that the judge properly evaluated the evidence and correctly applied the law to the facts as he determined them to be. As to the latter, it is elementary that a following automobile in the same lane of traffic is obligated to maintain a reasonably safe distance behind the automobile ahead, having due regard to the speed of the preceding vehicle and the traffic upon and condition of the highway, and that failure to do so, resulting in a collision, is negligence and not merely evidence of negligence. N.J.S.A. 39:4-89; see also Dolson v. Anastasia, 55 N.J. 2, 10 (1969).

Consistent with the principles articulated in Dolson, the trial court imposed liability on defendant, finding plaintiff absolutely fault-free and defendant not following plaintiff's vehicle at a safe distance in violation of N.J.S.A. 39:4-89. This finding was based on the judge's assessment of the party-witnesses' credibility and the fact that defendant's vehicle sustained only minor damage. See Brenman v. Demello, 191 N.J. 18, 32-35 (2007). We defer to the judge's credibility and fact determinations, and concur in his application of the law.

We also discern no abuse of discretion in the court's imposition of a $100 sanction for the cost and inconvenience incurred by plaintiff due to defendant's belated adjournment request. See R. 1:2-4(a) (payment of costs to adverse party as a condition of adjournment); State v. Prickett, 240 N.J. Super. 139, 147 (App. Div. 1990); State v. Audette, 201 N.J. Super. 410, 414 (App. Div. 1985). Considering the lateness of defendant's request and plaintiff's appearance on the originally scheduled trial date, we find such a sanction appropriate here. And defendant's claim to the contrary notwithstanding, we find no proof in the record to question the appropriateness of the amount of the sanction imposed.

Affirmed.

(continued)

(continued)

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A-4980-07T2

March 30, 2009