HARRAH'S ATLANTIC CITY OPERATING CO. VS. MASSIMO DANGELICO (L-2566-16, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2158-17T3
HARRAH'S ATLANTIC CITY
OPERATING CO.,
Plaintiff-Respondent,
v.
MASSIMO DANGELICO,
Defendant-Appellant.
______________________________
Submitted December 5, 2018 – Decided April 26, 2019
Before Judges Koblitz and Ostrer.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2566-16.
Mark S. Carter, attorney for appellant.
Craner, Satkin, Scheer, Schwartz & Hanna, PC,
attorneys for respondent (Myles Richard Scheer, on the
brief).
PER CURIAM
This is a debt collection case. Plaintiff Harrah's Atlantic City Operating
Co. ("Harrah's") lent defendant, a casino gambler, $160,000 against a $200,000
line of credit. The loan was secured by counter checks drawn on defendant's
bank. The counter checks included defendant's representation that he had funds
on deposit with his bank equal to the funds the casino provided. When defendant
failed to repay the loan, Harrah's deposited the checks, but the bank dishonored
them for insufficient funds. Harrah's then commenced this action, seeking
judgment in the amount of the loan, plus interest and attorney's fees. After a
period of discovery, the court granted Harrah's summary judgment in the amount
of $188,697.31, including interest and $1500 in attorney's fees.
In his appeal, defendant does not contest the essential facts of the loan,
his default, and the dishonor of his checks. His sole remaining affirmative
defense is that plaintiff should not have extended him credit in the first place
because he is a compulsive gambler, he has defaulted on "casino markers" with
other casinos, and his "name was placed in a central credit registry not to extend
to [him] because of [his] affliction."
We review de novo the trial court's grant of summary judgment, applying
the same standard as the trial court. Henry v. N.J. Dep't of Servs., 204 N.J. 320,
330 (2010). We are satisfied that Harrah's demonstrated the absence of a
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genuine issue of material fact, and it was entitled to judgment as a matter of law.
See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App.
Div. 2015).
Defendant bears the burden to prove his affirmative defense. Roberts v.
Rich Foods, Inc., 139 N.J. 365, 378 (1995). He has failed to demonstrate a
violation of the statutory and regulatory framework, see N.J.S.A. 5:12-101,
governing extension of credit by casinos, which may constitute a defense. See
N.J.S.A. 5:12-101(f) (stating that "[a]ny check cashed, transferred, conveyed or
given in violation of this act shall be invalid and unenforceable for the purposes
of collection"); Miller v. Zoby, 250 N.J. Super. 568, 575 (App. Div. 1991)
(noting that "N.J.S.A. 5:12-101(f) creates a statutory defense in a civil action
for a player in a claim by a casino for debts evidenced by checks issued in
violation of the statute"); 1 Resorts Int'l Hotel, Inc. v. Salomone, 178 N.J. Super.
598, 607 (App. Div. 1981) (affirming the denial of recovery of credit extended
to a gambler where the casino failed to comply with statutory requirements
regarding counter checks); Playboy-Elsinore Assocs. v. Strauss, 189 N.J. Super.
1
However, while the statute creates a defense to an action by a casino, it does
not create a private right of action for damages flowing from a violation of credit
regulations. Miller, 250 N.J. Super. at 577 (holding that the statute did not
"create private, civil remedies for violations of statutory credit regulations").
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185, 187-92 (Law Div. 1983) (describing the statutory and regulatory
procedures for credit extension).
Although defendant asserts his name appears on a "central credit registry
not to extend credit to [him]," he does not identify the "registry," let alone prove
that he is on it and that plaintiff was, as a result, barred from extending him
credit. Defendant could have asked the Division of Gaming Enforcement to
place him on a list of individuals ineligible for casino credit, N.J.S.A. 5:12-
101(j), to whom casinos must deny credit privileges "effective immediately
upon receipt of notice," N.J.A.C. 13:69D-1.27A(d). Although defendant
contends he defaulted on markers with other casinos, he has not established that
any checks remained unpaid when plaintiff extended him credit. See N.J.A.C.
13:69D-1.27(g) (stating that "[a]ny patron having a check returned to any casino
unpaid by the patron's bank shall have his credit privileges suspended at all New
Jersey casino licensees until such time as the returned check has been paid in
full or the reason for the derogatory information has been satisfactorily
explained").2
2
Also, defendant could have placed himself on a list of persons self-excluded
from gaming activities. See N.J.S.A. 5:12-71.2(a). However, a casino is not
liable to any self-excluded person for harm that may result from allowing the
excluded person to gamble. N.J.S.A. 5:12-71.2(c).
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Nor has defendant presented a common law defense to Harrah's cause of
action. Even if he is a compulsive gambler, defendant cites no authority for the
proposition that proof of that condition alone demonstrates incapacity to enter
into an agreement to borrow funds for gambling. Compulsiveness does not belie
understanding the nature and effect of one's actions. See Wolkoff v. Villane,
288 N.J. Super. 282, 287 (App. Div. 1996) (describing incapacity to contract);
Lomonaco v. Sands Hotel Casino & Country Club, 259 N.J. Super. 523, 532
(Law Div. 1992) (finding "no support in legislation or case law that the disorder
of compulsive gambling should, in and of itself, be recognized as a defense to
capacity to contract which will render a contract void"). Also, defendant has
not presented a duress defense because he has not demonstrated that the casino
exerted wrongful pressure to overcome his free will. See Cont'l Bank of Pa. v.
Barclay Riding Acad., 93 N.J. 153, 177 (1983); Rubenstein v. Rubenstein, 20
N.J. 359, 366 (1956).
Defendant has also not established that his claimed compulsiveness
obliged Harrah's to deny him credit. First, defendant provides no evidence that
the casino was aware he was a compulsive gambler. Being a bad credit risk is
not the same as being a compulsive gambler. Furthermore, even had Harrah's
known that, defendant points to no authority that a casino has a duty to withhold
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credit from a compulsive gambler, particularly one like defendant, who assured
the casino that he had ample funds to support his gambling and did not request
to suspend his casino credit privileges.
Our Supreme Court has outlined the factors governing whether to
recognize a duty of care from one toward another:
Whether a person owes a duty of reasonable care
toward another turns on whether the imposition of such
a duty satisfies an abiding sense of basic fairness under
all of the circumstances in light of considerations of
public policy. That inquiry involves identifying,
weighing, and balancing several factors – the
relationship of the parties, the nature of the attendant
risk, the opportunity and ability to exercise care, and
the public interest in the proposed solution. The
analysis is both very fact-specific and principled; it
must lead to solutions that properly and fairly resolve
the specific case and generate intelligible and sensible
rules to govern future conduct.
[Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439
(1993) (citations omitted).]
Applying those factors, we are not prepared to recognize a duty that
Harrah's owed defendant to deny him credit. We do not depreciate the financial
ruin that may befall compulsive gamblers and their dependents. However,
Harrah's is in the business of operating casino gambling; defendant is its
customer. The relationship is built on enabling gaming, not withholding it.
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Also, in the case of casino patrons who choose not to disqualify
themselves from credit privileges or from patronizing casinos entirely, it is
unclear how a casino would be able to exercise a duty of care. For example, it
is unclear on this record how a casino would distinguish compulsive gamblers
from recreational gamblers, and how it would set reasonable limits on
compulsive gamblers – particularly ones who, like defendant, represented they
had funds on deposit to support their activities.
As for the public interest, we are mindful that our State has approved the
operation of casino gambling and provided mechanisms for compulsive
gamblers to protect themselves from their compulsion. We are not convinced
the public interest supports recognizing a duty to withhold credit from a patron
who has not availed himself of the mechanisms the law provides to protect
himself from his compulsiveness to gamble.
Other jurisdictions have declined to impose a duty on casinos to restrict
the activities of compulsive gamblers. See Merrill v. Trump Indiana, Inc., 320
F.3d 729, 733 (7th Cir. 2003) (concluding that Indiana law would not impose a
duty on a casino to prevent a compulsive gambler from causing himself financial
harm); Rahmani v. Resorts Int'l Hotel, Inc., 20 F. Supp. 2d 932, 937 (E.D. Va.
1998) (finding that a casino had no duty, under New Jersey law, to prevent a
A-2158-17T3
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compulsive gambler from playing); Duff v. Harrah South Shore Corp., 125 Cal.
Rptr. 259, 260-61 (Ct. App. 1975) (finding that a Nevada-based casino had no
duty to limit a decedent's check-cashing ability); Stevens v. MTR Gaming Grp.,
Inc., 788 S.E.2d 59, 66 (W.Va. 2016) (holding that casinos featuring video
lottery terminals have no duty of care "to protect users from compulsively
gambling"); cf. Nev. Rev. Stat. Ann. § 463.368(6) (providing that a gambler's
"claim of having a mental or behavior disorder involving gambling" is not a
defense to a credit instrument or a basis for a counterclaim in an action to collect
a debt); Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123 (Ind.
2010) (holding that a comprehensive regulatory scheme governing riverboat
gaming abrogated any common law duty that might exist "to refrain from
attempting to entice or contact gamblers that it knows or should know are
compulsive gamblers").
In sum, defendant has failed to present facts supporting a viable
affirmative defense to Harrah's collection action.
Affirmed.
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