WOJTEK RATIEWICZ v. TAJUDEEN JIMOH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4927-11T3

WOJTEK RATIEWICZ,

Plaintiff-Respondent,

v.

TAJUDEEN JIMOH,

Defendant-Appellant.

__________________________________

October 10, 2014

Submitted September 16, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. SC-0916-12.

Tajudeen Jimoh, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Tajudeen Jimoh appeals from a Special Civil Part order granting a $1,300 judgment against him for the purchase of a vacuum cleaner from plaintiff Wojtek Ratiewicz. We affirm.

We glean the facts from the trial record. Through an in-home presentation, plaintiff sold defendant a Kirby vacuum cleaner in the amount of $1,300 which included a credit for the trade-in of defendant's old vacuum cleaner. The contract terms allowed defendant to rescind the contract within three business days without any penalty or obligation.

Defendant paid for the new vacuum cleaner with a post-dated check. Plaintiff was aware of this but accidently deposited or cashed the check.1 Defendant's bank refused to make payment on the post-dated check. When defendant learned about plaintiff's attempt to negotiate the check, he became upset and wanted to cancel the contract. To dissuade those intentions, plaintiff delivered free carpet cleaning products to defendant's house. Plaintiff felt the dispute was resolved and sought to redeposit or cash the check. However, the check was cancelled by defendant with a stop payment request.

At trial, plaintiff agreed with defendant that the contract was cancelled within three business days, but contended that defendant did not make the vacuum cleaner available to him within twenty days of the cancellation to avoid plaintiff's liability for the purchase in accordance with the contract. Plaintiff argued he had telephone records to substantiate his attempts to recover the vacuum cleaner. Defendant contended he would have made the vacuum cleaner available but plaintiff did not contact him to seek return of the vacuum cleaner.

The Special Civil Part judge found that the defendant cancelled the contract, and plaintiff's testimony that he unsuccessfully tried to retrieve the vacuum cleaner from defendant was credible. The judge did not believe defendant's testimony that he was unaware of plaintiff's requests to retrieve the vacuum cleaner. The judge determined that pursuant to the contract, defendant remained liable for the failure to make the vacuum cleaner available to plaintiff and judgment was entered against the defendant in the amount of $1,300.

Defendant now appeals pro se, contending that he is not liable under the contract because he cancelled the contract in a timely manner and plaintiff failed to retrieve the vacuum cleaner after the cancellation. Despite the failure of plaintiff to file a response, we are not persuaded by defendant's argument.

The Special Civil Part judge as finder of facts has to determine credibility and the weight to be accorded to the proofs. State v. Locurto, 157 N.J. 463, 470-71(1999). If the fact findings by the judge are supported by substantial credible evidence, they should not be disturbed. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

Here, we have no reason to conclude that the judge was incorrect in finding that plaintiff made unsuccessful efforts to retrieve the vacuum cleaner from defendant after the contract was cancelled. Therefore, we have no basis to set aside the judgment.

Affirmed.

1 The record is not clear whether defendant deposited the check in his account or sought to cash the check at plaintiff's bank.