OZTURK HUSSEYIN VS. LONGVIEW APARTMENTS, LLC(SC-380-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
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-3468-15T2
OZTURK HUSSEYIN,
Plaintiff-Appellant,
v.
LONGVIEW APARTMENTS, LLC,
Defendant-Respondent.
Argued May 16, 2017 – Decided June 6, 2017
Before Judges Koblitz and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Special Civil Part,
Bergen County, Docket No. SC-380-16.
Ozturk Husseyin, appellant, argued the cause
pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff appeals dismissal of his Special Civil Part Small
Claims complaint. We affirm.
Plaintiff's appellate brief and appendix contain facts and
documents that were not presented to the trial court. The facts
and evidence relevant to this appeal are set forth in the
transcript of the trial before Judge Keith A. Bachmann on March
7, 2016.1
Plaintiff filed a Small Claims Complaint in the Special Civil
Part.2 Plaintiff alleged that defendant Longview Apartments, LLC
(Longview) improperly towed his vehicle.3 According to plaintiff,
Longview instructed a towing company to tow his vehicle because
it was not parked in plaintiff's assigned parking spot. Plaintiff
claimed that Longview illegally towed his car because plaintiff
had permission to park in space number eight.
1
Rule 2:5-4(a) specifies the material that constitutes the record
on appeal. Appellate courts will not consider evidentiary material
that is not part of the record below. See Townsend v. Pierre, 221
N.J. 36, 45 n.2 (2015).
2
Plaintiff previously filed a complaint in the Special Civil Part
seeking reimbursement for the same towing fee that is the subject
of this appeal. Plaintiff originally sued a towing company and
an individual employed by Longview Apartments, LLC. We do not
have a transcript of the Special Civil Part judge's disposition
of plaintiff's earlier complaint. During the trial before Judge
Bachmann, defense counsel advised that plaintiff's earlier
complaint was tried before a different judge who dismissed that
complaint with prejudice as to the towing company and without
prejudice as to the individual who was an employee of defendant.
3
Longview is the garden apartment complex where plaintiff resides.
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According to plaintiff's testimony, he departed the apartment
complex around 11:30 a.m. and returned about 1:00 p.m. Plaintiff
told the judge that he left his car in parking space eight, rather
than space six, which was his assigned spot, because another
vehicle was parked in plaintiff's parking space. Plaintiff claimed
he had permission from a neighboring tenant to park in space number
eight. Although plaintiff testified that he paid a towing company
to retrieve his vehicle, plaintiff failed to submit evidence as
to the amount of money paid.
On cross-examination, counsel for Longview marked for
identification the written lease agreement signed by plaintiff.
Pursuant to the agreement, plaintiff was assigned parking space
six. Longview's attorney also marked for identification a warning
letter, entitled "Notice to Cease," addressed to plaintiff
demanding that he cease using two parking spaces at the apartment
complex. Plaintiff admitted receiving the letter, but denied he
ever used two parking spaces. During cross-examination, plaintiff
denied that the vehicle preventing him from parking in space number
six was his own grey Volvo. Plaintiff testified on cross-
examination that he had to park his green Expedition in space
number eight because a small compact car was parked in space number
six, and that he had permission to use space number eight. When
shown a copy of the lease agreement for apartment number eight,
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plaintiff conceded that the apartment lease for the neighboring
tenant did not provide an assigned parking space.
At the close of plaintiff's case, Longview's attorney made a
motion to dismiss the complaint. Longview argued plaintiff failed
to sustain his burden of proof as to both liability and damages.
Longview noted that plaintiff failed to present testimony
supporting the fee paid for the recovery of the vehicle. Longview
emphasized that plaintiff never established he was parked in an
authorized space at the time the vehicle was towed. Longview
maintained plaintiff failed to substantiate that it requested the
vehicle be towed. Lastly, Longview contended plaintiff never
submitted proof that if Longview directed the towing of the
vehicle, such towing was illegal.
Although the plaintiff's case was closed, the judge permitted
plaintiff to provide additional documents for the court's
consideration. Judge Bachmann marked the towing company receipt
as P-1 for identification. The judge also considered a notice
issued to tenants, marked as P-2 for identification, advising
tenants that "[p]arking in another tenants [sic] reserved space
is a violation of the lease and grounds for eviction."
In granting Longview's motion to dismiss, the judge concluded
he had no proof of damages and "very little proof on liability."
As for the towing receipt, Judge Bachmann ruled the document
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constituted hearsay. Absent an individual from the towing company
testifying in court, the judge was unable to ascertain fundamental
information. For example, the judge could not determine who
authorized the towing company to tow plaintiff's vehicle. Nor
could the judge conclude whether the amount charged for retrieval
of plaintiff's vehicle was excessive or inconsistent with any
written contract for towing services. The judge was unable to
determine if the charges were the result of a delay on the part
of plaintiff in retrieving his vehicle. Because plaintiff had the
burden of proof and failed to meet that burden as to damages and
liability, the judge dismissed plaintiff's complaint.
Our scope of review of a final judgment entered by a Special
Civil Part judge is exceedingly narrow. Because the Special Civil
Part judge was the finder of fact, and because he had an
opportunity to determine the credibility of the witnesses, we
defer to the judge's factual determinations provided they are
supported by substantial credible evidence. Rova Farms Resort,
Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We do not
weigh evidence anew, rather we determine whether there is adequate
evidence in the record to support the judgment rendered by the
trial judge. Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super.
342, 347 (App. Div. 1999). If the trial court's determination
meets this standard, our "task is complete and [we] should not
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disturb the result," even if we "might have reached a different
conclusion were [we] the trial tribunal." Ibid. (internal
citations and quotations omitted).
Considering plaintiff's arguments, both written and oral, in
light of the aforementioned standard of review, we affirm the
Special Civil Part's dismissal of plaintiff's complaint for the
reasons stated in Judge Bachmann's ruling from the bench on March
7, 2016. We add only the following comments.
First, we considered the documents included in plaintiff's
appellate appendix even though the documents were not presented
to the judge. Nothing in the improperly annexed documents changed
the facts considered by Judge Bachmann. The documents merely
confirmed plaintiff's medical appointment on the date that his car
was towed and identified other medical conditions suffered by
plaintiff. Further, the handwritten statement from the tenant
occupying apartment eight, purportedly allowing plaintiff to use
her parking space, was belied by D-5 marked for identification at
trial. The document marked D-5 was the lease agreement for
apartment eight and substantiated that the neighboring tenant had
no parking space to offer plaintiff. This document, coupled with
the document marked P-2 for identification, provided further
evidence that plaintiff's parking in space number eight was
impermissible.
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Second, plaintiff failed to articulate specific errors
allegedly committed by the judge. In his appellate brief,
plaintiff claimed, "Judge Bachmann did not relax the court and
evidence rules that are commonly done in Small Claims Court, . .
. and failed to consider the circumstantial evidence that no one
other than Defendant landlord could have been responsible for the
wrongful tow of the Plaintiff's vehicle." Based upon our review
of the record, we find Judge Bachmann did consider evidence
allegedly supporting plaintiff's claims notwithstanding the
objection made by Longview's attorney. Despite relaxation of the
evidence rules governing the Small Claims Section of the Special
Civil Part, N.J.R.E. 101(a)(2)(A), we find no error in the judge's
decision. Neither the towing company nor the neighbor who
purportedly gave permission to plaintiff to park in space number
eight were in court to establish whether the evidence was probative
and trustworthy. See Penbara v. Straczynski, 347 N.J. Super. 155,
162-63 (App. Div. 2002).
Affirmed.
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