OSCAR R. FLORES v. GLORY FURNITURE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

OSCAR R. FLORES,

Plaintiff-Appellant,

v.

GLORY FURNITURE,

Defendant-Respondent.

_________________________________

June 26, 2015

Argued January 12, 2015 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-18883-13.

Jared Walsh argued the cause for appellant (Rodriguez Law Firm LLC, attorneys; Maritza Rodriguez, on the brief).

Randolph A. Newman argued the cause for respondent (Newman & Andriuzzi, attorneys; Mr. Newman and Herbert R. Ezor, on the brief).

PER CURIAM

Plaintiff Oscar R. Flores appeals from the Special Civil Part's December 24, 2013 order dismissing his complaint against defendant Glory Furniture, which the court entered at the end of plaintiff's case in accordance with Rule 4:37-2(b). Plaintiff's complaint alleged defendant caused damage to his property while defendant's truck was making a delivery at an adjoining property. Plaintiff did not witness the alleged accident that caused the damage. He appeared at trial with no other witnesses, intending to rely upon the contents of a police report and the statements contained therein. When it became clear to plaintiff that his evidence could not establish his claim, he asked for an adjournment to see if he could produce actual witnesses to the accident on another day. The court denied the request and dismissed his complaint with prejudice.

Plaintiff argues on appeal that, in granting the directed verdict, the trial court misapplied N.J.R.E. 803(c)(6), it abused its discretion by not granting the adjournment, and it was partial to defendant. Defendant disagrees and argues the trial court acted impartially and its actions were appropriate under the circumstances.

We have considered the parties' contentions in light of our review of the record and applicable law. We affirm.

We discern the facts from the record of plaintiff's testimony at trial. On April 4, 2013, defendant's delivery truck allegedly struck a wall and fence located at plaintiff's property in Elizabeth. Plaintiff understood from the manager of Jericho Furniture, which was located at the adjoining property, that defendant was making a delivery to that company. Although plaintiff was "close to the area," he was not present when the accident occurred. He learned of it when a tenant called him. Plaintiff arrived at the scene after the damage was already done. He "didn't see the truck hitting . . . the retaining wall." After the accident, the manager of Jericho Furniture also called defendant to tell him about the accident.

While plaintiff was testifying to what other people told him about what occurred, the court attempted to interrupt him to determine if, contrary to what plaintiff told the court at the beginning of the trial, plaintiff was producing other witnesses. The court told plaintiff and defense counsel, it was willing "to give [plaintiff] some latitude, but counsel if you got to object, you just object." Defense counsel objected to all of plaintiff's testimony as being hearsay. The court again inquired of plaintiff whether he was producing any other witnesses that were "going to show up today that's going to say I saw that company truck hit the fence[.]" Plaintiff responded by stating he had "been having a really hard time since April. I've been trying to get in touch with [defendant]. And they are trying to avoid me all the time. . . . I don't have anyone physically here. . . . " The court inquired whether plaintiff could produce the tenant to testify. Plaintiff stated he could not because it was "difficult" to get the tenant to appear.

Plaintiff also brought up the fact that he previously obtained a default judgment. The court advised plaintiff that the judgment had been vacated and the matter was scheduled for trial that day. Plaintiff confirmed to the court that he received his notice for trial on November 25, a month before the trial date. The following exchange then occurred

THE COURT: Now I realize the tenant or witness or whatever is in Elizabeth. [We are] in Hackensack, but you had a whole month to get this person here, or if the person couldn't be here today, maybe next week could be here o[r] after the New Year. There's no application . . . to adjourn the matter.

So you have no witnesses here today that[ are] going to testify as to what they saw at that time. Right?

[PLAINTIFF]: Can we have time so we can get the . . . witness here on another day . . .

THE COURT: Yeah, but you had a month. That's what I'm trying to say. If suppose you . . . said to the witness, look we've got to go to Court this day or whatever. The witness said, oh I can't do it that day or whatever. You could have sent a letter and maybe we would have adjourned it or something. But, you know, today's your day in Court.

All right. I want the record to reflect you've indicated that you have no witness to testify who witnessed the alleged incident. And you were away and you didn't come until afterwards.

[PLAINTIFF]: We have the police report.

THE COURT: Is the policeman here?

[PLAINTIFF]: No. The police are not here, but we have . . . that report here that tells you.

THE COURT: Okay.

[PLAINTIFF]: And I don't know if we can get the police.

[DEFENSE COUNSEL]: Your Honor, the policeman didn't witness the accident either. He came after.

The judge told plaintiff "I [can] bend the rules, but I can't break them," and then granted defendant's motion for a directed verdict based on plaintiff's lack of proof that defendant's negligence caused damage to plaintiff's property.

This appeal followed.

We review a trial court's grant of a motion for involuntary dismissal of a negligence claim pursuant to Rule 4:37-2(b) by applying the same standard as the trial court. ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 511 (2014). "A motion for involuntary dismissal is premised 'on the ground that upon the facts and upon the law the plaintiff has shown no right to relief.'" Id. at 510 (quoting R. 4:37-2(b)). "The 'motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.'" Ibid. (quoting R. 4:37-2(b)). "If the court, accepting as true all the evidence which supports the position of the party defending against the motion and accords him the benefit of all inferences, which can reasonably and legitimately be deduced therefrom, finds that reasonable minds could differ, then the motion must be denied." Ibid. (citation and internal quotation marks omitted). "The point is that the judicial function here is quite a mechanical one. The . . . court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

Applying this standard, we conclude that plaintiff failed to produce even a scintilla of competent evidence of defendant's negligence. The source of plaintiff's knowledge about what allegedly occurred was inadmissible hearsay. N.J.R.E. 801(c) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); see also N.J.R.E. 802 ("Hearsay is not admissible except as provided by these rules or by other law."). Contrary to plaintiff's argument, even if the police report was admissible as a business record under N.J.R.E. 803(c)(6), the hearsay statements contained in the report were not admissible.1 "A police report may be admissible to prove the fact that certain statements were made to an officer, but, absent another hearsay exception, not the truth of those statements." Manata v. Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014) (citing Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369. 375 n.1 (2010); State v. Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979) ("[A] police record is admissible to prove, for example, that a report of crime was made by a member of the public and when the report was made and received."). Absent the testimony of the witness who spoke to the police officer, there was no proof within the report of defendant's negligence. Without that proof, the court properly granted defendant's motion for a directed verdict.

We also conclude the court did not abuse its discretion by denying plaintiff's request for an adjournment after the trial commenced and plaintiff concluded his presentation of his evidence. Requests for adjournments are addressed to the sound discretion of the trial judge. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). Such discretionary decisions will not be set aside unless the judge pursued a "manifestly unjust course." Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 330 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 195 N.J. 520 (2008); Union Cty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007) (citation and internal quotation marks omitted). Rule 4:36-3(b) requires adjournment requests to be made in advance of trial. "Absent exceptional circumstances," ibid, a request made after trial begins should not be granted.

Plaintiff failed to establish any legitimate reason for an adjournment. First, he decided to proceed with the matter relying on his own testimony and the incorrect understanding he could use the police report. Second, plaintiff could not assure the trial judge he could produce any witnesses to testify, only stating it was "difficult" to get the tenant to come from Elizabeth. Under these circumstances we cannot find any abuse of the court's discretion. The fact that plaintiff appeared as a self-represented litigant, or that the trial was held on Christmas Eve day does not alter our view.

Finally, we find no merit to plaintiff's argument regarding the trial judge's impartiality. There is nothing in the record to support that position. R. 2:11-3(e)(1)(E).

Affirmed.

1 The business record exception to the rule states

Whether or not the declarant is available as a witness

Records of regularly conducted activity. --A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

[N.J.R.E. 803(c)(6).]