MARIAM MALEK v. ZKHARYA A. MOBAREK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1032-09T31032-09T3

MARIAM MALEK,

Plaintiff-Respondent,

v.

ZKHARYA A. MOBAREK,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4541-07.

George R. Wiggs, attorney for appellant.

Erica Sawyer, attorney for respondent.

PER CURIAM

Defendant Zkharya Mobarek appeals from two Law Division orders. The first order, entered on January 29, 2009 by Judge Bariso, granted defendant a thirty-day adjournment of the commencement of mandatory arbitration, see R. 4:21A-1, on condition that he pay the sum of $1,212 to plaintiff Mariam Malek as an attorney's fee, along with costs of $55. Mobarek also appeals from an order entered on September 25, 2009 by Judge Baber that denied his request for recusal and for frivolous litigation sanctions against Malek. We affirm both orders.

I.

In November 2004, Mobarek loaned Malek $4,500 to help her avoid repossession of her son's truck. Mobarek explained that he and Malek agreed that she would repay him at the rate of $100 per week starting in December 2004, but it soon became clear that she was unable to afford those repayments. According to Mobarek, Malek attempted to repay the debt by bringing cooked meals to his home, but he "refused to take the food" and "put it in the garbage." He also explained that the repayment schedule was limited to an oral agreement and there were no written documents explaining the schedule. Although Mobarek denied ever eating a meal at Malek's home, he later acknowledged having done so on four or five occasions. He also denied asking Malek to marry him and insisted that he had never waived repayment of the debt.

Malek admitted she owed Mobarek the money and claimed he had assured her she could "take [her] time" repaying him because her son had been in a serious auto accident and had been hospitalized for approximately a year. Malek asserted that Mobarek frequently dined at her home, as a form of repayment of the debt, because "he really like [sic] my food;" however, Malek stopped his visits after he "g[o]t[] fresh with [her] daughter".

Malek also explained that after church on October 1, 2005, Mobarek invited her to his home to show her a document, but after two hours had passed and it became clear that he had invited her to his apartment for a different reason, she told him she was leaving. At that point, according to Malek, he "threw [her] to the floor" with "his legs in [her] lungs." She did not file a complaint with police concerning this incident.

At some time thereafter, Mobarek filed a complaint against Malek in the Special Civil Part seeking repayment of the $4,500. Malek's pro se answer, filed on November 14, 2005, set forth a defense and a counterclaim. In her defense, Malek asserted that the dollar amount claimed by Mobarek was incorrect. She also asserted a counterclaim as follows: "he owes me the amount counterfeit [sic] of $8,400. I cooked for 14 months, as we agreed upon in order to paid [sic] for the money I borrowed. He assaulted me at his apartment on October 1st, 2005. He also twisted my right arm. I would like to sued [sic] for personal injuries."

When the matter came before the Special Civil Part for trial on January 13, 2006, the judge, after hearing the testimony of both parties, concluded that defendant had indeed loaned plaintiff $4,500. Speaking to Mobarek, he stated, "I think you had an expectation of having a relationship with this woman and became upset with her not returning your affection." Turning to the question of whether there had been a "forgiveness" of the debt, the judge concluded that Malek failed to prove that defendant had waived his right to insist on repayment.

Apparently not remembering that Malek had filed a counterclaim against Mobarek for assault and battery, the judge made the following statement:

And quite frankly I think since they obviously are not friends anymore, that they shouldn't be friends anymore for good reason. She has good reasons for that. She probably has a cause of action.

In response, Malek's attorney, who also apparently did not realize that Malek had filed a counterclaim, explained that he had attempted to obtain an adjournment because he had been retained by Malek only one day earlier and "wanted to file a counterclaim. But we're going to file an action in the Superior Court." The judge responded by turning to Mobarek and commenting that Malek had a potential cause of action and "you're going to be sued." The proceeding concluded with the judge entering a $4,500 judgment against Malek. The judge specifically told Mobarek "you're going to be facing a lawsuit yourself based on your conduct. I'm not making any finding as to that. That's a different case. You'll be allowed to have counsel."

On September 11, 2007, which was one year and ten months later, Malek filed an action in the Law Division seeking damages for personal injuries she sustained as a result of Mobarek assaulting her on October 1, 2005. She also asserted a cause of action seeking repayment for the cost of the food she provided to defendant from July 2004 through October 1, 2005, which she claimed cost her twenty-five dollars per day. She sought damages as follows: $8,400 for the food she purchased; $1,177 for the cost of the medical care she was forced to seek as a result of Mobarek's assault; $3,000 for her attorney's fees; and any "other fees th[e] court deemed just and equitable."

Without filing an answer, Mobarek, through counsel, insisted that Malek's complaint was frivolous and demanded that she dismiss it or face sanctions under the frivolous litigation statute. Malek refused to dismiss her complaint. At some point, Mobarek filed an answer, although he refused to comply with Malek's discovery requests. When Malek filed a motion to compel discovery, which was returnable on August 29, 2008, Mobarek filed a cross-motion to dismiss her complaint as frivolous, but did not support his motion with an affidavit or supporting brief. Consequently, Judge Baber deemed Malek's discovery motion unopposed and granted it. The judge also denied Mobarek's cross-motion to dismiss Malek's complaint because of the procedural defects in Mobarek's motion.

Mobarek ignored the August 29, 2008 order that required him to provide answers to Malek's discovery requests. As a result, Malek succeeded in obtaining an order suppressing Mobarek's answer for failure to comply with the August 29, 2008 order compelling discovery. At no time did Mobarek move to vacate the August 29, 2008 order, nor did he provide the missing discovery. Nonetheless, the judge did afford him the opportunity to refile his motion seeking dismissal of Malek's complaint once he cured his violation of the August 29, 2008 discovery order.

Shortly thereafter, the Law Division notified the parties of a January 29, 2009 date for mandatory arbitration pursuant to Rule 4:21A-1. Malek appeared at the arbitration proceeding with counsel, but Mobarek, who had never made an attempt to restore his answer, was precluded from participating in the arbitration proceeding. For that reason, he made an emergency application to Judge Bariso, the Civil Presiding Judge, who granted him a thirty-day adjournment of the arbitration hearing so that he could, in the interim, provide answers to Malek's discovery requests and have his answer reinstated. Judge Bariso assigned a new date of February 25, 2009 for the arbitration proceeding, but ordered that Mobarek would not be permitted to participate in that proceeding unless he provided Malek the outstanding discovery. Judge Bariso awarded Malek an attorney's fee in the amount of $1,212.

At the arbitration proceeding on February 25, 2009, the arbitrators awarded plaintiff $30,000 for the three causes of action asserted in her complaint. Mobarek filed a timely request for trial de novo. Shortly thereafter, Mobarek moved for summary judgment, asserting that Malek's causes of action were barred by res judicata and the entire controversy doctrine. Judge Baber granted Mobarek's motion on April 17, 2009 and ordered the dismissal of Malek's complaint.

After Judge Baber entered the April 17, 2009 order dismissing Malek's complaint, Mobarek filed a motion for counsel fees with Judge Bariso. After learning that the motion would be heard by Judge Baber, rather than by Judge Bariso, Mobarek filed a motion seeking the recusal of Judge Baber. On September 25, 2009, Judge Baber entered an order denying Mobarek's motion for recusal and for the award of counsel fees. Mobarek filed a notice of appeal challenging Judge Bariso's January 29, 2009 order and Judge Baber's September 25, 2009 order. Mobarek frames his arguments on appeal as follows:

I. THE SIGNATURE OF AN ATTORNEY CONSTITUTES A CERTIFICATE THAT THE SIGNATORY HAS READ THE PLEADINGS AND CERTIFIES THAT THE COMPLAINT IS NOT BEING PRESENTED FOR ANY IMPROPER PURPOSE, SUCH AS TO HARASS OR TO CAUSE NEEDLESS INCREASE IN THE COST OF LITIGATION.

II. JUDGE MARK A. BABER ERRED IN DENYING [APPELLANT'S] RECUSAL MOTION, IN THAT, JUDGE MARK A. BABER KNEW OR SHOULD HAVE KNOWN THAT THERE WERE [SIC] REASONABLE AND SUBSTANTIAL BASIS FOR APPELLANT TO SUSPECT THAT HE WILL NOT RECEIVE A FAIR AND UNBIASED HEARING.

II.

In Point I, Mobarek maintains that Judge Baber's September 25, 2009 order denying him counsel fees for the allegedly frivolous complaint filed by Malek constituted reversible error. He maintains that Malek's complaint was barred by res judicata and the entire controversy doctrine. He also maintains that the filing of her complaint was motivated by "bad faith with the sole purpose to humiliate and torment [him] and to cause [him] to incur additional legal expenses." He goes even further, insisting that Malek's "attorney continued the bad faith conduct toward [him] and . . . it amounts to torment."

The principal thrust of Mobarek's claim that Judge Baber erred when he denied Mobarek's request for counsel fees in the September 25, 2009 order is this: because Judge Baber's dismissal of Malek's complaint on April 17, 2009 was based upon res judicata and the entire controversy doctrine, he was entitled to an award of attorney's fees. Mobarek's claim ignores the fact that on the form of order he himself submitted to the judge, the judge struck the following language: "and it appearing to the Court that the complaint fails to state a claim upon which relief can be granted, based upon legal principles of res judicata and the entire controversy doctrine." After crossing out that language, Judge Baber wrote on his April 17, 2009 order, "Ruling placed on the record." In violation of Rule 2:5-3(a), Mobarek has not provided us with a transcript of Judge Baber's reasons for dismissing Malek's complaint.

In the absence of such a critical portion of the record, and in light of Judge Baber's striking out the portion of Mobarek's order that referred to the dismissal being based on "res judicata and the entire controversy doctrine," we reject Mobarek's attempt to persuade us that those were Judge Baber's reasons. Without proof that the dismissal was based upon those doctrines, Mobarek's effort to demonstrate an entitlement to attorney's fees is fatally flawed. We thus reject the claim Mobarek advances in Point I. We likewise reject his claim for an award of counsel fees on appeal.

III.

In Point II, Mobarek maintains that Judge Baber erred by denying his motion for recusal. Mobarek relies upon Rule 1:12-1, which sets forth the specific criteria for disqualification of a judge. Mobarek relies upon subsections (d) and (f). Subsection (d) requires recusal whenever the judge has "given an opinion upon a matter in question in the action." Subsection (f) requires recusal for "any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so."

Mobarek's brief is rife with accusations of bias by Judge Baber; however, his accusations are entirely meritless. Mobarek complains about Judge Baber's orders compelling discovery and suppressing his answer for failure to comply with that discovery. Yet he fails to cite any meritorious reasons explaining why any of those orders were error.

We review a judge's denial of a recusal motion for an abuse of discretion. Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). We find no error in the denial of the recusal motion, much less an abuse of discretion. We therefore reject the claim Mobarek advances in Point II.

Mobarek's remaining contentions, including his disagreement with Judge Bariso's order requiring him to pay the $1,212 attorney's fee to Malek, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

 
Affirmed.

We do not know the date of such filing because neither party has provided a copy of that complaint.

Malek's attorney was not the same attorney as the attorney who currently represents her.

The judge assigned to Malek's matter was a different judge than the judge who had presided over the trial of Mobarek's complaint.

Our discussion of the proceeding before Judge Bariso is drawn solely from the parties' briefs as Mobarek has not provided us with a transcript of that proceeding, in clear violation of Rule 2:5-3(a). Both sides agree that Judge Bariso placed a statement of reasons on the record on that date.

(continued)

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11

A-1032-09T3

August 27, 2010