EUGENE GRECO v. MICHAEL CALLAREMI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0114-09T10114-09T1

EUGENE GRECO,

Plaintiff-Appellant,

v.

MICHAEL CALLAREMI and

CALLAREMI PONTIAC, BUICK,

CADILLAC, GMC, INC.,

Defendants-Respondents.

__________________________________

 

Argued: May 26, 2010 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-626-09.

Patricia R. Carley argued the cause for appellant.

Noel E. Schablik argued the cause for respondents (Schablik and Knapp, P.A., attorneys; Mr. Schablik, on the brief).

PER CURIAM

In December 2008, plaintiff, Eugene Greco, filed a pro se Special Civil Part complaint against Callaremi Pontiac, Buick, Cadillac, GMC, Inc. and Michael Callaremi, a car dealership and its president, claiming they "fraudulently retained monies due [him]," and demanding $10,000. On February 9, 2009, defense counsel filed a motion for summary judgment. In support, defendants presented a certification of Callaremi, with a copy of the contract of sale and other documents, explaining plaintiff's purchase of a 2004 Buick Rainier on January 10, 2005, pursuant to a special sales event, which gave him a discount of $10,000 off the sticker price, as well as a $1,500 loyalty discount. Callaremi further related that plaintiff traded in two "ancient and abused vehicles," described in detail, as part of his down payment, for which he received a total credit of $3,760; according to the attached receipts, that figure matched almost dollar for dollar the money the dealer received from a wholesaler for the subsequent sale of the trade-in vehicles. Callaremi explained why the $10,000 incentive and $3,760 trade-in value were lumped together on the contract and reflected as $13,760 under "trade-in." Plaintiff also received the $1,500 credit reflected as "rebate manufacture to dealer." Plaintiff's and the dealer's representative's signatures appear on both the handwritten and computer-generated contracts below the statement agreeing that the "[o]rder cancels and supersedes any prior agreements and as of the date signed by Dealer or his authorized agent comprises the complete and exclusive statement of the terms of the agreement between Customer and Dealer." Callaremi further certified that plaintiff contacted him about three years later and claimed he was entitled to receive a $l0,000 credit in addition to the value of his trade-ins, which he contended was $13,760. Callaremi related that he retrieved the documents and explained the entire transaction to plaintiff. Plaintiff, believing he was wrongfully deprived of the incentive, filed the subject action.

Defendants' motion to dismiss plaintiff's complaint with prejudice was granted by the court on February 23, 2009, as unopposed and the statement of facts undisputed. Plaintiff moved for reconsideration, simply providing a medical explanation for his failure to respond. Defendants filed opposition. By order of March 30, 2009, the judge denied reconsideration based on plaintiff's failure to satisfy Rule 4:49-2.

Plaintiff retained counsel who, on July 2, 2009, moved to vacate judgment pursuant to Rule 4:50-1, relying on a certification from plaintiff that he was eighty-three years old, was ill during the litigation and did not understand the procedures for the summary judgment and reconsideration motions. Plaintiff also stated he bought the Buick based on the representation he would receive a $10,000 discount in addition to the value of the two trade-ins, he "believed" the combined value of his trade-ins was closer to $13,000, and he had "proof in the form of the blue book values" that he was correct about the values, but did not attach any supporting documentation. Plaintiff therefore asked for his "day in [c]ourt." Defendants opposed the motion or, alternatively, sought about $3,500 in counsel fees for time spent.

By order of July 23, 2009, Judge Michael Wright denied plaintiff's motion, with the following notation:

In the instant case, [plaintiff] moves to vacate judgment indicating that the then pro se litigant's lack of legal acumen resulted in summary judgment. The Appellate Division case of Tuckey v. Harleysville [Insurance Co.], 236 N.J. Super. 221 [(App. Div. 1989)] mandates that the Court hold pro se litigants to the same standard as attorneys. A strict application of this case would result in this application being denied. However, the Court has decided to review same on the merits. The Court finds that the motion papers fail to establish a genuine issue of material fact. [Plaintiff's] naked and unsubstantiated assertions of his understanding of the bargain are not persuasive.

This appeal ensued.

On appeal, plaintiff argues for the first time that defendants' motion for summary judgment did not comply with Rule 6:3-3(c)(3) and (4), requiring notice, in bold letters, of the requirement of a written response and notice of the consequences of a summary judgment motion seeking dismissal without trial, which he contends entitles him to a new day in court. Plaintiff further contends the court erred in granting summary judgment, essentially because there were outstanding material issues of fact as to the transaction; erred in denying his motion for reconsideration and to vacate judgment; and that justice demands the merits of his case be adjudicated. We are not persuaded by any of these arguments and affirm substantially for the reasons set forth by the trial court. R. 2:11-3(e)(1)(A) and (E).

Defendants did fail to comply with the Rule 6:3-3(c) requirements in their initial summary judgment motion; however, plaintiff was not prejudiced in any way by that violation. Judge Wright gave every accommodation to plaintiff, who was initially pro se, when he reviewed the matter on the merits even though plaintiff, through counsel, had not presented a sufficient basis under Rule 4:50-1 to vacate the judgment. Therefore, the judge, in essence, gave plaintiff his "day in court."

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Based on our review of the record and applicable law, we are satisfied that plaintiff, even with all favorable inferences, failed to raise a debatable issue to withstand summary judgment. Plaintiff signed a contract which represented it was the total understanding of the parties; therefore, there is no reason to go outside of the document in the absence of a credible proffer.

Affirmed.

 

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A-0114-09T1

 

June 28, 2010