Opinion
DOCKET NO. A-3230-12T2
03-17-2014
GYU UOOK CHO, Plaintiff-Appellant, v. MICHAEL KANE, Defendant-Respondent.
Andrew Park, PC, attorneys for appellant (Scott A. Edley, on the brief). Law Offices of Walter F. Skrod, attorneys for respondent (Mark E. Dwyer, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5165-11.
Andrew Park, PC, attorneys for appellant (Scott A. Edley, on the brief).
Law Offices of Walter F. Skrod, attorneys for respondent (Mark E. Dwyer, on the brief). PER CURIAM
Plaintiff Gyu Uook Cho appeals the Law Division's January 25, 2013 grant of summary judgment to defendant Michael Kane. We now affirm.
Cho's lawsuit sought recovery for personal injuries suffered in a car accident that occurred on December 21, 2010. The vehicle, although owned by Kane, was operated by Chloe Descombes.
In answers to interrogatories propounded after the filing of Cho's complaint, Kane repeatedly responded that he was not present when the accident occurred and therefore could not provide information regarding the incident. He indicated Descombes was the driver. No follow-up interrogatories were served by Cho, nor were depositions taken.
In November 2012, Kane filed a motion to dismiss the complaint with prejudice "on the grounds of non-agency." Contrary to Rule 1:6-6, Kane's attorney submitted his own supporting certification, and not Kane's certification. It included the assertion that Descombes was not operating the motor vehicle as Kane's agent when the accident occurred.
The motion was mistakenly addressed by the court without consideration of Cho's opposition. The judge therefore treated Cho's motion for reconsideration of the award of summary judgment as if Cho's submissions were opposition to the initial motion, effectively deciding the motion anew.
This time, Kane's own certification was filed in response to the application for reconsideration, and he stated in relevant part that Descombes was operating the motor vehicle with his permission, but for "personal reasons." At the time Descombes was employed as Kane's full-time babysitter and resided with Kane's family. Kane certified that when the accident occurred, Descombes was using the vehicle to go to a shopping mall to shop for herself and not in any agency capacity. Not surprisingly, the court again dismissed the complaint with prejudice because no basis existed for imposing liability on Kane.
Cho raises the following points of error:
A. DEFENDANT FAILED TO REBUT THE PRESUMPTION OF AN AGENCY RELATIONSHIP IN HIS ORIGINAL MOVING PAPERS.
B. DEFENDANT ATTACHING A CERTIFICATION TO HIS OPPOSITION TO PLAINTIFF'S MOTION TO RECONSIDER IS IMPROPER AND IN VIOLATION OF THE SHAM AFFIDAVIT DOCTRINE.
In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Brill, supra, 142 N.J. at 540. In determining whether there is a genuine issue of fact, we ask whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid.
As to Cho's first point, we cannot agree that Kane is to be faulted for not providing more detailed information in his responses to interrogatories. His responses were sufficient to give rise to additional questions that could have been, but were not, propounded.
In the original and second submissions relative to his motion for summary judgment, Kane asserted he gave Descombes permission to drive his car but that she was not then acting as his agent, and had merely borrowed the car for her own use. Clearly those statements, if left unchallenged, were sufficient to rebut the presumption of agency which resulted from the fact that Descombes was using Kane's vehicle. See Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995) ("New Jersey law recognizes a presumption that the driver is acting as the owner's agent. The presumption is, of course, rebuttable."). Yet Cho has offered no proof which casts doubt on Kane's statements. Even looking at the matter in the light most favorable to Cho, the presumption of agency has been refuted. The trial judge's decision on the issue is unimpeachable.
In his second point, Cho asserts that Kane's attachment of a certification bearing a later date than the date on the notice of motion for summary judgment was a violation of the "sham affidavit doctrine." Since he did not provide us with a filed copy of the response and attachments, we cannot confirm the discrepancy was corroborated by a later filing date as well. If Kane's certification was signed after the attorney signed the notice of motion, a not infrequent occurrence not inherently suspect, but the papers were not filed until the certification was signed, the discrepancy is entirely neutral. We do not suggest that Cho's recap of the sham affidavit doctrine is incorrect, namely, that affidavits submitted in opposition to a motion for summary judgment should be disregarded when earlier deposition testimony contradicts the statements, unless explained by the affiant. See Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). However, there simply is no contradiction between Kane's attorney's earlier certification, Kane's answers to interrogatories, and Kane's own certification. Accordingly, the sham affidavit doctrine is not relevant.
We are satisfied, that even viewing the facts in the light most favorable to Cho, no issue of material fact exists. The law supports the judge's dismissal of Cho's complaint with prejudice, as the record supports his conclusion that at the time of the collision, Descombes was not acting as Kane's agent.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Rule 2:6-1(b) requires papers included in an appendix on appeal to bear the date the document was filed.