Taylor v. Cherry Hill Triplex, et al. Appellate Docket No. A-6307-08T2

The plaintiff’s case was dismissed on motion in Superior Court and is now on appeal. The Appellate Division information is as follows. This is public information.

Taylor v. Cherry Hill Triplex, et al.
Trial Court Docket No. CAM-L-1502-08 Appellate Docket No. A-6307-08T2
The Superior dismissed the case because the plaintiff was unable to show an ascertainable loss and as such there was no violation of the Consumer Fraud Act shown.

This posting is not intended to demonstrate or imply the dealership did anything wrong or illegal, especially since the case was thrown out. The purpose is to post the majority of the brief that was submitted to the appellate division for the plaintiff requesting that the Appellate division overturn the lower court’s decision.


The court failed to accept the statement of facts set forth by the plaintiff as truthful and failed to provide the plaintiff every reasonable inference when dismissing the claim. The court refused to accept the plaintiff statements that he made payments on the vehicle to his mother constituting the ascertainable loss. The court was more concerned why this had been done rather than that it had been done. Ultimately the court made ruling on the credibility of the evidence rather than accepting properly documented evidence in the context of a summary judgment motion.
New Jersey Civil Practice Rule 4:46 addresses summary judgments. New Jersey Civil Practice Rule 4:46-2. Motion and Proceedings Thereon provides, in pertinent part:

(a) Requirements in Support of Motion. The motion for summary judgment shall be served with briefs, a statement of material facts and with or without supporting affidavits. The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on. A motion for summary judgment may be denied without prejudice for failure to file the required statement of material facts.

Section (c) of this same rule, 4:46-2, provides:

The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the trial court must “consider 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 moving party.” The Make- Up Bar, LLC v. Cooper, Levenson, 2008 WL 2122341 (N.J. App. Div., May 21, 2008) (citing Brill v.Guardian Life Ins. Co. ofAm., 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954); R. 4:46-2(c).

The standard above is a heavy burden on the moving party. As quoted above, the Court must review the evidential materials presented including interrogatories, pleadings and depositions. In this case, depositions and interrogatories had been answered by Plaintiff Judge Fox was provided with a copy of Mr. Taylor’s deposition. Mr. Taylor specifically stated that he made all of the payments on the subject vehicle directly to the bank, that he was the only person to have driven the car, and that he did not receive the amount of money promised for his trade in vehicle. (Pa33, pg 26, lines 12-21; pg 27 lines 5-11, pg, 28, lines 19-25; pg 29 lines 1-18; Pa34,pg 72, lines 8-13)
The Court was provided with this information failed to give the plaintiff all reasonable inferences and ACCEPT THE FACTS AS TRUTHFUL contained in the statement OF FACTS AS TRUTHFUL and simply refused to take it into consideration which is contrary to the Rules regarding issuance of Summary Judgment. The Court stated that, ” . . .but simply because based on his allegations or whatever agreement, and I don’t even know whether or not proofs were – actual proofs were submitted that he made payments to the bank.” (Pa15, page 14, lines 9-12) The Court had plaintiff’s testimony in his deposition that he made the payments to the bank. Testimonial evidence is evidence, and is sufficient to survive a motion for summary judgment. The court, in essence, made a credibility judgment in the plaintiff testimony. The court “doubted” that the plaintiff had made payments. A jury can certainly listen to the testimony from plaintiff and make a determination as to his credibility. Nonetheless, there was evidence of payment presented to the Court, which seemed to be ignored.
The Court further stated, “I couldn’t find or maybe I missed it, anything showing that he even made proof – had proof that he actually made the payments. I don’t know if he made them to the bank or to his mother.” (Pa14, pg 14, lines 13-17) Testimonial evidence has as much weight as any other type of evidence and should not have been ignored. The court’s failure to accept the facts as set forth by the plaintiff violates almost every substantive and procedural standard. The court did not issue its ruling under the required standard, which was to view all of the evidence in the light most favorable to the non-moving party.

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