Triffin v. American International Group, Inc.

859 A.2d 751, 372 N.J. Super. 517, 2004 N.J. Super. LEXIS 386
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 3, 2004
StatusPublished
Cited by27 cases

This text of 859 A.2d 751 (Triffin v. American International Group, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Triffin v. American International Group, Inc., 859 A.2d 751, 372 N.J. Super. 517, 2004 N.J. Super. LEXIS 386 (N.J. Ct. App. 2004).

Opinion

The opinion of the court was delivered by

LINTNER, J.A.D.

Plaintiff, Robert J. Triffin, appeals from an order granting summary judgment in favor of defendants American International Group, Inc. and American Home Assurance Company (collectively AIG), dismissing a Special Civil Part complaint in which plaintiff sought recovery of $312 on a dishonored check issued by AIG and payable to defendant Gary Jones. We affirm.

[519]*519AIG issued check number 07580752 on its account with Fleet Bank to Jones for workers’ compensation benefits on October 4, 2001. The check was sent to 340 Orange Road in Montclair. Thereafter, Jones contacted AIG and advised it that he had never received the check. AIG learned that the check had been deposited on October 26, 2001, and processed by Fleet Bank, which debited AIG’s account. AIG obtained an affidavit from Jones that his endorsement was a forgery, after which Fleet credited AIG’s account. AIG sent Jones a second check in the same amount dated April 5, 2002, this time to the address of P.O. Box 885, Montclair.

On August 12, 2003, plaintiff purchased AIG’s dishonored check number 07580752 from Montclair Check Cashing, which assigned its rights in the check to plaintiff and acknowledged in an assignment agreement that it did not know at the time it cashed and gave value for the check that it bore any evidence of forgery and that the check had been dishonored.1

In support of its motion for summary judgment, AIG presented Jones’ affidavit of forgery and a certification from an employee, setting forth the factual circumstances under which it issued the second check and obtained a credit from Fleet Bank.

In response to the summary judgment motion, plaintiff requested oral argument and raised N.J.S.A. 12A:3-406, claiming that “[t]his ease presents the classic fact pattern of who bears the responsibility for a check that is sent to a wrong address and the payee’s endorsement as a result is subsequently forged.” The judge decided the motion on the papers and issued a letter opinion on November 20,2003, stating:

Defendants’ motion is granted and plaintiffs is denied. The reasons are simple. When [Montclair Check Cashing] cashed the check it was a forgery and therefore [Montclair Cheek Cashing] was not a holder in due course. In addition, plaintiffs assertion that defendant was negligent in sending the check to the wrong address [520]*520is without merit. At best the evidence shows that after a check mailed to a residence was stolen, a replacement check was sent to a safer post office box.

On appeal, plaintiff asserts:

POINT ONE
AS A THRESHOLD MATTER, THE TRIAL COURT COMMITTED REVERSIBLE PREJUDICIAL ERROR WHEN IT FOUND THAT THE DEFENDANT JONES AND AIG PROPERLY RAISED IN THEIR ANSWER THE ISSUE OF THE FORGERY OF JONES ENDORSEMENT.
POINT TWO
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN, CONTRARY TO NEW JERSEY’S STANDARDS FOR SUMMARY JUDGMENT MOTIONS AND THIS COURT’S CONTROLLING N.J.S.A 12A:3-406 DECISION, THE TRIAL COURT FOUND THAT NEGLIGENCE THAT CONTRIBUTED TO THE MAKING OF AN UNAUTHORIZED SIGNATURE MAY BE ASSERTED AGAINST A HOLDER IN DUE COURSE.
POINT THREE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO HONOR PLAINTIFF’S TIMELY REQUEST FOR ORAL ARGUMENT IN OPPOSITION TO DEFENDANT AIG’S DISPOSITIVE MOTION TO DISMISS PLAINTIFF’S COMPLAINT WITH PREJUDICE.

We reject plaintiffs contentions and affirm the motion judge’s order for slightly different reasons than those expressed in her November 20, 2003, letter opinion. See Isko v. Planning Bd. of Livingston Tp., 51 N.J. 162, 175, 238 A.2d 457 (1968).

At the outset, we note that plaintiff did not raise AIG’s failure to assert forgery as an affirmative defense before the motion judge in response to AIG’s motion for summary judgment. Normally, an appellate court will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available, ‘“unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.’ ” Brown v. Tp. of Old Bridge, 319 N.J.Super. 476, 501, 725 A.2d 1154 (App.Div.), certif. denied, 162 N.J. 131, 741 A.2d 99 (1999) (quoting Skripek v. Bergamo, 200 N.J.Super. 620, 629, 491 A.2d 1336 (App.Div.), certif. denied, 102 N.J. 308, 508 A.2d 189 (1985)). Therefore, we decline to consider plaintiffs Point I contention.

[521]*521Nevertheless, we make the following observations. We are satisfied that plaintiff did not raise the issue of AIG’s failure to assert an affirmative defense in opposition to the summary judgment motion because he was well aware of the probability that a forged instrument may have played an essential part in this case.2 Further, AIG raised as a separate defense that plaintiff failed to state a cause of action upon which relief may be granted, thus reserving its right to move to dismiss the complaint for failure to state a cognizable claim under the applicable statutes. O’Connor v. Altus, 67 N.J. 106, 116, 335 A.2d 545 (1975).

We move on to plaintiffs contention that there remained material factual questions that AIG’s conduct substantially contributed to an alteration of an instrument or to the making of a forged signature. Under N.J.S.A. 12A:3-203(b), if a transferee is not a holder in due course because the transferor did not endorse the instrument, the transferee nevertheless is entitled to enforce the instrument if the transferor was a holder in due course at the time of the transfer. See N.J.S.A. 12A:3-203, comment 2 (2004). One cannot be deemed a holder in due course where the instrument is taken with notice that it has been dishonored. N.J.S.A. 12A:3-302(a)(2). Thus, there is some question as to whether plaintiff, who entered into the assignment agreement knowing the check had been dishonored, could qualify as a holder in due course.

[522]*522Plaintiff maintains that even though he was aware that the cheek had been dishonored at the time of the assignment he is a holder in due course and can assert a claim against the maker because Montclair Check Cashing did not have reason to believe the check was forged at the time it paid the person presenting it. See Triffin v. Mellon PSFS, 372 N.J.Super. 3, 8, 855 A.2d 2 (App.Div.2004). We need not decide whether plaintiffs knowledge that the check had been dishonored at the time he purchased it precludes him from being a holder in due course because as a holder in due course he is unable to maintain this action against AIG.

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859 A.2d 751, 372 N.J. Super. 517, 2004 N.J. Super. LEXIS 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triffin-v-american-international-group-inc-njsuperctappdiv-2004.