HESHAM ABDELHADY v. FAIRWAY PLAZA ASSOCIATES LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3866-09T3

HESHAM ABDELHADY,

Plaintiff-Appellant,

v.

FAIRWAY PLAZA ASSOCIATES,

LLC, JAMES D. ORSI, LINDA M.

STILES, and JAYLANN TOWING

AND RECOVERY,

Defendants-Respondents.

__________________________________

May 17, 2011

Argued April 13, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Middlesex County, Docket No. SC-278-10.

Hesham Abdelhady, appellant, argued the cause pro se.

W. Lane Miller argued the cause for respondents Fairway Plaza Associates, LLC, James D. Orsi and Linda M. Stiles.

Respondent Jaylann Towing and Recovery has not filed a brief.

PER CURIAM

Plaintiff Hesham Abdelhady appeals from the judgment of the Special Civil Part, Small Claims Section, which dismissed after trial his claim for money damages. We affirm.

On January 29, 2010, plaintiff filed a complaint against Fairway Plaza Associates, two employees of that entity, and Jaylann Towing & Recovery.1 In a lengthy narrative attached to his form complaint, plaintiff alleged that his vehicle was wrongfully towed from the parking lot of a Shop-Rite Supermarket in Old Bridge while he was patronizing the businesses in the shopping plaza, that his vehicle was damaged during the towing, and that personal belongings were stolen from inside the vehicle before he recovered it. He placed responsibility for his losses on defendant towing company and on the owner of the shopping plaza, Fairway Plaza Associates, and its employees for directing that his vehicle be towed without cause. Plaintiff sought compensation for the damage and losses he alleged and the amount he was required to pay to the towing company for recovery of his vehicle.

In accordance with the rules of procedure applicable to Small Claims cases, the court issued summonses and simultaneously scheduled the trial for February 23, 2010. See R. 6:2-1.

On February 12, 2010, counsel for Fairway Plaza Associates and the two individual defendants filed a motion for summary judgment. On February 22, 2010, the court heard the motion and dismissed plaintiff's claims against the moving defendants. Neither plaintiff's notice of appeal nor case information statement makes reference to the February 22, 2010 order granting summary judgment to those defendants. In addition, plaintiff's pro se brief does not argue the procedural propriety of that order, and plaintiff has not provided a transcript of the motion. Therefore, we will not decide on this appeal whether the court employed proper procedure in a Small Claims case by accepting and deciding a summary judgment motion rather than simply hearing the case on the date scheduled for trial.

We note generally that defense counsel and the court disregarded several rules applicable to summary judgment practice in proceeding with the motion. Furthermore, defendants' notice of motion did not comply with the requirements of Rule 6:3-3(c)(3) and (4), and the court scheduled the motion in less time than the ten days required by Rule 6:3-3(c)(2) for plaintiff to respond in writing.

Although summary judgment may not have been procedurally appropriate for this Small Claims case, the court heard the evidence at the trial conducted on March 12, 2010, against Jaylynn Towing and made findings of fact and reached conclusions of law that would also have applied to plaintiff's claims against the other defendants. Jaylynn Towing has not filed a responding brief on this appeal, but Fairway Plaza Associates and the individual defendants have filed a response, arguing in the alternative that no appeal was taken from summary judgment in their favor and that they were entitled to judgment anyway based on the evidence presented at the trial.

At the trial, plaintiff and an owner of Jaylynn Towing testified, and the trial judge reviewed a number of documents admitted in evidence. The court made findings based on the testimony and documents, and it concluded that plaintiff had not met his burden of proving his vehicle had been unlawfully towed, or that Jaylynn Towing was negligent in its towing or maintenance of the vehicle while in its possession.

Our scope of appellate review is limited with respect to the trial court's findings of fact. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We defer to the trial court and may not disturb its factual findings so long as "there is sufficient credible evidence in the record to support the findings." Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009); accord State v. Adams, 194 N.J. 186, 203 (2008). Although plaintiff's appeal in effect seeks a retrial by us based on his statements and documents, this court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

Having reviewed the record and the arguments presented, we find no basis under the standard applicable to appellate review to reject the trial court's findings and conclusions. Plaintiff acknowledged at trial that his residence was adjacent to the Shop-Rite parking lot. Jaylynn Towing presented evidence claiming that it towed plaintiff's vehicle because it was parked illegally in the lot for a number of hours at a time when plaintiff was not a patron of the businesses at the shopping plaza. Furthermore, the defense presented evidence permitting the court to find that it was not negligent in the manner by which it towed or maintained the vehicle in its tow yard. Based on that evidence, the court could appropriately conclude that plaintiff had not satisfied his burden of proving that his vehicle was towed without valid cause or that defendant towing company caused his losses.

1 A document in the record indicates that the name of the business entity is Jaylynn Towing and Recovery and that the business address is in Perth Amboy, New Jersey. In this opinion, we will refer to defendant as Jaylynn Towing.