AMGAD ZAKHARI v. CITY OF BAYONNE, NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5354-07T15354-07T1

AMGAD ZAKHARI,

Plaintiff-Appellant,

and

NOUHA ELKENANY,

Intervenor-Respondent,

vs.

CITY OF BAYONNE, NEW JERSEY,

Defendant-Respondent.

__________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5597-07.

Miller, Meyerson & Corbo, attorneys for appellant (Gerald D. Miller, of counsel; Savio D. Figaro, on the brief).

Cammarata, Nulty & Garrigan, L.L.C., attorneys for respondent City of Bayonne, New Jersey (Michael S. Doran, on the brief).

Respondent Nouha Elkenany has not filed a brief.

PER CURIAM

Plaintiff Amgad Zakhari appeals an order of the Law Division dated June 23, 2008, which disposed of plaintiff's action for replevin against defendant, the City of Bayonne ("the City") by granting it in part and denying it in part. We affirm.

According to his complaint and subsequent certification, plaintiff resided in a one-family house in Bayonne from 2002 through July 1, 2007. Plaintiff contends that during that time frame, he rented an apartment in the premises, although no lease appears in the record nor do any other documents confirming such a tenancy.

On June 21, 2007, a new tenant for the premises, Alan Mermelstein, appeared at the Bayonne Police Department. Mermelstein reported that he had discovered many items left behind in the premises, including financial documents and two computers. The realtor had instructed Mermelstein to move to a backyard shed any belongings left behind by the prior tenant. Because of his concerns about the nature of the items he found, Mermelstein instead sought the police's assistance.

That same day, several police officers went with Mermelstein to the house. The officers observed that the interior was in disarray. They discovered, among other things, $26,500 in one hundred dollar bills, plies of unopened mail, several pieces of jewelry, two computer towers, a voice recorder, two cameras, several credit cards, and numerous documents, some of which contained personal financial information. Neighbors advised the officers that they had not seen any activity on the premises during the previous five to six weeks but that there had been "constant" activity before then.

The police officers removed the items from the premises and secured them at police headquarters. Suspicious about the items and the underlying circumstances, the police notified the Newark office of the FBI Joint Terrorism Task Force about what they had found. According to the police reports, an FBI lieutenant advised that the FBI would assume responsibility for further investigation of the situation. The FBI subsequently took the two computer towers and also two banker's boxes of financial documents recovered from the premises, leaving the remaining items with the local police.

The police ascertained from tax records that the residence had three successive owners of record in 2005, 2006, and 2007. Some of the recovered financial documents contained the names of those listed owners. The items also referred to six other persons, including plaintiff, an "Amir Zakhari" and an "Adel Zakhari," as well as three entities. In particular, the documents included a driver's license issued to plaintiff by the State of New Jersey, as well as eight credit cards bearing his name. The recovered items, as described in the record, also included personal documents and credit cards in the names of other persons.

After the items were removed from the dwelling, plaintiff retained an attorney, who wrote the City twice and requested that it return his client's personal property. When those requests proved unsuccessful, plaintiff filed a replevin action against the City in the Law Division in November 2007. The complaint alleged that he was the owner of the "money, jewelry, documents, personal papers, computers and other property" that had been taken from the premises. Plaintiff contended that the items were illegally seized, and that he is entitled to have them returned. He also sought monetary compensation for an alleged constitutional violation. Notably, the complaint did not include plaintiff's current residential address, as is required by Rule 1:4-1(a)(1).

Plaintiff filed a motion for return of the property. In his certification in support of that motion, he more specifically claimed that he was the rightful owner of his driver's license, the eight credit cards bearing his name, the $26,500 in currency, a silver and gold-colored watch, a red, black and gold-colored watch, a black box with a gold-colored ring and two charms, a blue box with a gold-colored charm, two disposable cameras, a microcassette recorder, a silver cell phone and charger, and two banker's boxes of documents. Plaintiff further contended, and it is uncontested on this appeal by the City, that he has not been arrested or charged with any criminal offenses relating to the seized items. The City has not brought a forfeiture action concerning the property.

The City opposed the motion for replevin. It argued, among other things, that the property taken from the residence had been abandoned, and that plaintiff had not adequately established a bona fide ownership interest in the cash and the other valuables recovered.

Prior to the return date of plaintiff's motion, a judgment creditor of his, Nouha Elkenany, filed a motion to intervene. She specifically sought to enforce a judgment lien against plaintiff to the extent that the court might find that he had a valid interest in any of the cash and chattels recovered by the police. Over plaintiff's objection, the trial court granted the intervention motion.

After considering the papers submitted by the parties on the replevin motion, the trial court scheduled a plenary hearing. Relying principally upon State v. Rodriguez, 130 N.J. Super. 57 (App. Div.), certif. denied, 66 N.J. 325 (1974), the court found that such a hearing was necessary to assess the credibility of plaintiff's assertion of an ownership interest in the cash and in the personal items not readily and visually identifiable as belonging to him. Plaintiff failed to appear at the ensuing scheduled hearing, although his counsel did appear and argue that such a personal appearance by his client was unnecessary.

In light of the failure of plaintiff to appear and testify, the judge fashioned an order that provided as follows:

1. All cash and personal property in Defendant's possession, which is not readily and visually identifiable as property belonging to the Plaintiff shall be and hereby is declared to be Abandoned Property; and

2. All remaining property readily and visually identifiable as property belonging to the Plaintiff shall be and hereby is declared to be property owned by Plaintiff and is subject to execution on, upon, and by the Intervenor, who is the judgment creditor

of the Plaintiff; and

3. Pending expiration of time for Appeal by any Party not satisfied with the dispositions herein made, Defendant shall continue to hold all property, both abandoned and identifiable and not dispose of same; and

4. With respect to that property identifiable as property belonging to the Plaintiff, the Intervenor shall be given and hereby is given 20 days in which to make application to Essex County Chancery Division for Writ of Execution to the Hudson County Sheriff's Office for execution against said identifiable property, which execution, if made, shall abide the expiration of the Appeal waiting period referred to in the preceding decretal paragraph.

5. The subject property in the possession of the Bayonne Police Dept. is hereby deemed as not the product of a seizure and/or search by said dept.

[(Emphasis in original).]

Plaintiff appeals, contending that the court misapplied the law in not granting his replevin motion in full and in only granting him the right to obtain the items that are "readily and visually identifiable" as belonging to him. Plaintiff further contends that the court erred in granting Elkenany's motion to intervene. The City has not cross-appealed, but contends that the court's disposition was appropriate in all respects. Additionally, the City argues that plaintiff's complaint is independently subject to dismissal for non-compliance with Rule 1:4-1(a)(1). Elkenany has not participated in the appeal.

We affirm the trial court's order in all respects, substantially for the thoughtful reasons set forth in Judge O'Shaughnessy's oral opinion of June 9, 2008. Only a few additional comments are warranted.

In State v. Rodriguez, supra, the police had raided defendant's store and his adjacent living quarters upon suspicion that he was involved in illegal gambling. Id. at 59. They obtained over $11,000 in cash in the raid, most of it from the residence. Ibid. An indictment on various gambling charges followed. Ibid. The court suppressed the State's use of the cash taken from the residence to prosecute the defendant because the search warrant relied upon by the police had been limited to the store. Ibid. Eventually, the State dismissed the indictment and the defendant filed a motion, essentially for replevin, to recover the currency. Ibid. In support of his motion, the defendant filed an affidavit with the court, in which he asserted that the money belonged to him and that it was not the proceeds of any gambling. Ibid. No contrary proofs were submitted, and the trial court granted the defendant's motion. Ibid.

The State appealed. It argued, among other things, that the movant had not sustained, on the basis of the affidavit alone, his burden of proving ownership of the funds. This court agreed. Our opinion specifically noted that "it is up to the claimant in his complaint or motion [for replevin] to allege a prima facie case and to prove such a case at trial." Id. at 61 (emphasis added). Although the State had not mustered opposing proofs to counter Rodriguez's claims, we ruled that the trial court was still required to conduct an evidentiary hearing to establish his entitlement to the funds. Id. at 62. We held that such an approach was consistent with the Supreme Court's earlier holding in State v. Sherry, 46 N.J. 172, 175 (1965), involving comparable circumstances. As Judge Meanor, then sitting on this court, wrote in Rodriguez:

We emphasize the admonition of Sherry, 46 N.J. at 175, that claims for return of seized items should not be tried by affidavit, and this is true despite the fact that the action is a summary one. [citations omitted.] This is especially so in a case such as this where the available facts are peculiarly within the claimant's knowledge and the only support of his claim consists of his own factually sparse and conclusionary affidavit. In this context, the entry of summary judgment was improvident.

[Rodriguez, supra, 130 N.J. Super. at 61-62 (emphasis added).]

Those observations equally apply here. Plaintiff's certification in support of his replevin motion was, at best, conclusory. The veracity of his claims to the cash and the other items not bearing his name is not self-evident from extrinsic proofs, apart from his own self-interested assertions. A plenary hearing was required to test those assertions. Rodriguez remains good law, and the other authorities cited by plaintiff do not compel a different conclusion.

We further agree with the motion judge that since plaintiff was unwilling to appear in court and be examined on these issues to establish his rightful ownership, his claims as to the remaining property should be deemed abandoned. See State v. Carroll, 386 N.J. Super. 143, 160-61 (App. Div. 2006) (reciting the general principles of abandonment). We also concur with the motion judge that the police's removal of the property, which occurred here in response to the new tenant's request for help in removing potential contraband from his new residence, was not a wrongful search and seizure.

Although we need not reach the issue, plaintiff's failure to supply a street address with his complaint compounds the legitimate questions raised here about the bona fides of plaintiff's claims. See A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 500 (App. Div. 1995) (enforcing the address requirements of Rule 1:4-1(a)).

Lastly, we discern no error in the trial court granting the intervenor Elkenany, who has a substantial judgment of record against plaintiff, the opportunity to protect her interests in any assets he might have recovered. See R. 4:33-1 and -2.

We have considered the balance of plaintiff's arguments, and they lack sufficient merit to be addressed in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

It is unclear from the appellate record what, if anything, ensued from the FBI's investigation or whether the FBI ever returned the items to the local police.

We have treated the order appealed from as final for purposes of our review. The trial court implicitly treated plaintiff's constitutional claims for damages as dismissed because of his failure to appear and testify as to his alleged ownership interests and also because of the court's express finding in paragraph five of the order that the subject property was "not the product of a search and seizure" by the police department. (Emphasis in original).

(continued)

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A-5354-07T1

March 13, 2009