STEVEN KEENAN v. LENNY CIMO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5597-09T3

STEVEN KEENAN,

Plaintiff-Respondent,

v.

LENNY CIMO and

HERITAGE MOTORS,

Defendants-Appellants.

____________________________________________________________

Argued June 7, 2011 Decided July 15, 2011

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

SC-000948-10.

Kevin G. Roe argued the cause for appellants.

Steven Keenan, respondent, argued the cause pro se.

PER CURIAM

In a small claims complaint, plaintiff Steven Keenan stated that defendant Lenny Cimo sold him a used car for the sum of $1900. Plaintiff alleged that after he drove the car home it would not start, and Cimo had the vehicle towed to Jack Daniels Audi for repairs. Plaintiff further alleged that Cimo knowingly sold him "a car in non-working order" with "no intention of fixing it." Plaintiff demanded a full refund in the amount of $1900.

When the parties appeared for trial on April 21, 2010, Cimo requested an adjournment to obtain legal counsel, but the request was denied. During a bench trial, Cimo testified that prior to the sale he told plaintiff the ignition switch needed to be repaired, and he gave plaintiff a "[b]rand new ignition switch." He also said that plaintiff was responsible for the cost of the repairs because "the car had over 100,000 miles and it was way under $3,000. So it was an, as is, vehicle." In addition, Cimo testified that he had a signed contract at his office stating that the car was "sold as is."

In an oral decision, the trial court found that Cimo had breached the contract of sale by failing to pay for the installation of a new ignition switch, and it awarded a judgment in the amount of $1900.

On June 17, 2010, defendants obtained an order to show cause (OTSC) that was returnable on June 23, 2010. In a certification in support of the OTSC, Cimo stated that he had contacted plaintiff "to arrange for payment as directed and for the return of the vehicle in question," but plaintiff was unwilling to return the vehicle. Cimo argued that the vehicle should be returned to him after he satisfied the judgment, and he asked the court to clarify its decision.

On the return date of the OTSC, the trial judge stated that she thought the car "went to salvage" and was "gone forever." Plaintiff disclosed, however, that he "sold the car for $1000." In addition, plaintiff acknowledged that he "tried to fix" the car himself before the car was taken to a repair shop. Defendants' attorney argued that plaintiff's efforts resulted in additional repair costs because plaintiff "took apart the dashboard when all it needed was a starter." At the conclusion of the hearing, the court denied defendants' request to vacate or modify the judgment entered on April 21, 2010.

On appeal, defendants argue that the judgment entered in favor of plaintiff must be reversed and the matter remanded for a new trial because: (1) defendants should have been given an opportunity to obtain an attorney; (2) the court "never allowed [Cimo] the opportunity to cross-examine the complaining witness"; (3) defendants were "prevented from producing documentary evidence" to show that the sale was made on an "as is basis"; (4) the court failed to take into account plaintiff's own negligence when he attempted to repair the vehicle; and (5) the court failed to credit defendants with "the amount realized from the sale of the vehicle." We have reviewed these arguments in light of the record, and we have concluded that defendants are entitled to a new trial.

Plaintiff and Cimo were the only witnesses to testify. When plaintiff completed his testimony, the court said: "Okay, what do you have to say about this, Mr. Cimo?" Cimo then presented his testimony, and the court rendered its decision. Thus, neither party was subjected to cross-examination and, as defendants point out, plaintiff may have acknowledged on cross-examination that the agreement he signed stated in bold letters that the car was "SOLD AS IS."

Moreover, we "recognize that cross-examination is routinely regarded as the most effective means of challenging the credibly of a witness," State v. Nelson, 330 N.J. Super. 206, 215 (App. Div. 2000), and the lack of cross-examination may have compromised the court's ability to fully and fairly assess credibility. Accordingly, the judgment entered in favor of plaintiff is vacated and the matter is remanded to the Law Division for further proceedings consistent with this opinion. In view of this disposition, there is no need to consider defendants' additional arguments.