ROBERT J. TRIFFIN VS. DR. BINOD K. SINHA(DC-009465-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3047-15T1
ROBERT J. TRIFFIN,
Plaintiff-Respondent,
v.
DR. BINOD K. SINHA,
Defendant-Appellant,
and
CABANAMAN POOLS & SPA, LLC,
a/k/a CABANA POOL, a/k/a
CABANAMAN,
Defendant.
____________________________________
Argued May 17, 2017 – Decided July 7, 2017
Before Judges Alvarez and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Monmouth
County, Docket No. DC-009465-15.
Edward Hanratty argued the cause for appellant
(Tomes & Hanratty P.C., attorneys; Mr.
Hanratty, of counsel and on the brief).
Robert J. Triffin, respondent, argued the
cause pro se.
PER CURIAM
Defendant, Dr. Binod K. Sinha, appeals from the February 25,
2016 order granting summary judgment in favor of plaintiff, Robert
J. Triffin, against defendant in the amount of $10,081.60,
inclusive of costs. Triffin's claim was based upon a $10,000
check defendant had issued to Cabanaman Pools & Spa, LLC
(Cabanaman), which, in turn, cashed the check with S & S Check
Cashing, Inc. (S&S). Unknown to S&S at the time it cashed the
check, defendant had previously stopped payment. S&S assigned the
check to Triffin, who brought this action against defendant.
Upon completion of discovery, Triffin moved for summary
judgment. Judge Paul X. Escandon found that the undisputed
material facts entitled Triffin to judgment as a matter of law.
In a cogent and well-reasoned written decision included in his
summary judgment order, the judge set forth his findings of fact
and conclusions of law. We agree with Judge Escandon's analysis
and conclusions and affirm substantially for the reasons he
expressed in his written decision.
Defendant contracted with Cabanaman to perform services at
his home for a contract price of $41,000. During the course of
the work, defendant had paid a total of $31,000. Then, on August
8, 2015, he issued a check to Cabanaman for $10,000. The memo
line stated the check was for "pool renovation."
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On the same day the check was issued, Cabanaman presented it
to S&S, which cashed the check and paid Cabanaman $9,779. At that
time, S&S had no knowledge of any defenses, dishonor, or
impediments with the check. Nothing on the face of the check
indicated any contingencies for payment or raised any other facts
or circumstances that might cast doubt upon the validity of the
check.
When S&S presented the check to the bank, it was dishonored
as a result of defendant's stop payment order. S&S assigned the
check to Triffin for $6500. Triffin then brought this action
against defendant.
In opposition to Triffin's summary judgment motion, defendant
argued that S&S was precluded from attaining holder in due course
status because the check was obviously a payment to a contractor
performing home improvement work. Defendant argued that such
contracts are subject to the stringent requirements of the Consumer
Fraud Act (CFA) and accompanying regulations, and therefore S&S
had a duty to investigate to be sure that none of the many potential
violations of the CFA or regulations had occurred. Defendant
makes the same argument on appeal.
Judge Escandon rejected this argument. He found that, based
on the undisputed facts, S&S was a holder in due course and
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Triffin, by virtue of the assignment, achieved the same status.
The judge stated:
As to the good-faith requirement under
the Uniform Commercial Code ("UCC"), this
Court recognizes that no language on the check
in any way indicated that the payment was
contingent on any condition requiring further
inquiry or investigation. The memo line
merely said pool renovation in the memo line.
While the good faith standard imposed under
the UCC could require the exercise of some due
diligence on the part of the check cashing
entity and/or on the part of the assignee,
this Court is of the belief that the mere words
"pool renovation," would not be sufficient to
alert the check cashing entity or the assignee
of any problem with the check issued by
Defendant Dr. Sinha which would require
further inspection.
The judge noted that any defenses defendant might have had
against Cabanaman under the CFA could not be asserted against S&S
or its assignee, Triffin. This is because there was no
relationship between defendant and either of those parties.
Defendant's relationship was with Cabanaman.
The judge concluded:
This action seeks recovery upon a
dishonored negotiable instrument, not upon
a[n] unperformed home improvement contract.
It is well settled that "[a] negotiable
instrument, such as the check subject to this
litigation, is defined as an unconditional
promise or order to pay a fixed amount of
money, if it: (1) is payable to the bearer,
(2) is payable on demand, and (3) does not
state any other undertaking or instruction by
the person promising or ordering payment to
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do any act in addition to the payment of
money.["] See U.C.C. §3-104(a). Plaintiff
Triffin has presented evidence sufficient to
show that these criteria have been satisfied
and that he is entitled to judgment.
Defendant Dr. Sinha has failed to come forth
with evidence creating a genuine issue as to
a material fact in dispute.
Defendant also argues that summary judgment should have been
denied because "[t]here is no evidence that S&S complied with the
applicable regulations governing check cashing facilities and
accepting the checks of business entities." Defendant relies on
N.J.S.A. 17:15A-47, which requires licensed check cashing
facilities to have on file a corporate resolution authorizing
presentment of the check. See Triffin v. Liccardi Ford, Inc., 417
N.J. Super. 453, 458 (App. Div. 2011) (holding that N.J.S.A.
17:15A-47 sets a standard of commercially reasonable conduct by
licensed check cashing facilities and compliance is necessary to
satisfy the UCC's good faith requirement in order to achieve holder
in due course status).
This is a correct statement of law. However, in his answer
defendant failed to assert this contention as an affirmative
defense. See R. 4:5-4. More importantly, defendant did not seek
to establish through discovery the fact necessary to support this
defense, namely that S&S did not have on file the required
resolution of Cabanaman. Therefore, raising this point as a
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theoretical defense is not supported by any evidence in the record
and could not defeat summary judgment.
We review summary judgment dispositions de novo based upon
our independent review of the motion record, applying the same
standard as the trial court. Prudential Prop. & Cas. Ins. Co. v.
Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154
N.J. 608 (1998). We first decide whether there was a genuine
issue of material fact, and if there was not, we then decide
whether the trial court's ruling on the law was correct. Walker
v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div.
1987). "A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
Upon our de novo review, we agree with Judge Escandon that
the undisputed facts entitled Triffin to judgment as a matter of
law.
Affirmed.
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