Mark & Galusha, LLC: Defamation Attorneys in Union and Jersey City, New Jersey.
In the matter of Joseph Hakim, et al. v. Nu World Cosmetic Manufacturing & Designing Corporation, et al., App. Div. (per curiam) Plaintiff, Joseph Hakim, brought an appeal before the Court to seeking to retry his claims of defamation.
Mr. Hakim maintained a business relationship with Nu World Cosmetics for many years and during that period of time, Mr. Hakim utilized his salvage distribution business, Hakim International Trading & Marketing, Inc., to resell rejected and closed-out cosmetics from Nu World Cosmetics, including items from Nu World's Victoria Secret's line. When the arrangement ended, Mr. Hakim was no longer authorized to resell any Nu World cosmetics.
Thereafter, in October 2005, Richard Kuohn, a security guard employed at Nu World made a report to the New Jersey State Police that he suspected Mr. Hakim was still marketing the Nu World supplies, despite being unauthorized to do so. During their investigation, the State Police uncovered several illegal items in the warehouse of Hakim International including prescription drugs and United States Army and Navy items but did not find any Nu World property in their search.
As a result of the investigation and search, Mr. Hakim sued Mr. Kuohn and Nu World Cosmetics for defamation. Mr. Hakim claimed that as a result of the police investigation, he lost business and Hakim International's employee productivity decreased, resulting in serious economic loss. The trial took place at the Bergen County Superior Court and the jury reached a "no cause" verdict.
On Appeal, Mr. Hakim contended that the trial court erred in their analysis of the evidence. Further, he stated that certain pieces of evidence, such as testimony and a holiday card, should not have been introduced. Nevertheless, Mr. Hakim's attorney failed to object to the multiple areas of purported mistakes. Mr. Kuohn and Nu World countermoved before the Court, seeking attorneys' fees for Mr. Hakim's "frivolous" litigation. While the Court awarded Defendants a nominal fee of $361.25 for a continued deposition, the claims of the suit being frivolous were unfounded. With regard to Mr. Hakim's claims, the Court stood by the previous decision.
In order to reach this conclusion, the Court utilized the points raised in Plaintiffs' Reply Brief which stated (1) the court erred by allowing references by defense about the military equipment and prescription drugs; (2) a holiday card from Plaintiff to Defendant Kouhn was erroneously admitted into evidence; (3) Defendants' attorney made comments regarding the "9-11 terrorist attacks" during summation; (4) Plaintiffs had provided sufficient proof to win their defamation claims and (5) the court erred in not granting attorneys' fees.
In applying Rule 2:10-2, which states that "any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result," the Appellate Division determined that references regarding Plaintiffs' illegal possession of prescription drugs and military items was not substantial enough to sway the jury in one direction or another. Further, the Appellate Division cited to Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) which provides judges with "broad discretion in determining...whether [the evidence's] probative value is substantially outweighed by it's prejudicial nature." Finally, as Plaintiffs' counsel failed to object to the references at the time of trial, the first point raised by Plaintiffs is moot.
During the initial trial, Defendants introduced into evidence a holiday card which Mr. Hakim sent to Mr. Kouhn after the police investigation had occurred. Defendants provided this piece of evidence in order to show that the parties maintained a friendly relationship before, during and after the purported defamation took place. Again, Plaintiffs' attorney did not object to the introduction of the holiday card. In utilizing the outcome reached in Cf. Risko v. Thompson Miller Auto Grp. Inc., 206 N.J. 506, 523, wherein a mistrial was declared, the Court determined that as Plaintiffs' attorney already showed that the card was not prejudicial as no objections were raised. Further, the Appellate Court did not feel that the introduction of the card would have impact the ultimate outcome.
At the end of the trial, Defendants' attorney made the following statement:
"What do we hear, and read, and see almost every day? Report suspicious activity. You don't want to stop that, especially after September 11th. You don't want to stop that. When somebody sees something suspicious, you go to the police. That's what you're supposed to do, especially if it's your job."
As the surname "Hakim" is of Arabic assent, Plaintiff argued that references to the "9-11" terrorist attacks provided the jury with a negative impression of Mr. Hakim. Plaintiffs' attorney did not object to the statement and as the statement was made during summation, and no other mention of September 11th was made, the Appellate Division did not find this suitable cause to overturn the trial court's ruling. Rule 4:49-1(a) states that a retrial may be granted if a miscarriage of justice was created. The grounds for proving same must be clear and convincing. The Court believed that the brief mention of "9-11" had not impaired Plaintiffs' credibility therefore, no miscarriage of justice occurred.
Plaintiffs felt that the fact that the police investigation occurred and, allegedly caused harm to Plaintiffs, was suitable proof. The Appellate Division do not concur. They cited to Rule 2:11-3(e)(1)(E), wherein the Court was permitted to affirm a previous decision without the necessity of providing a written opinion regarding the affirmation. Further, the Court referred to the matter of DeAngelis v. Hill, 180 N.J. (2004) in order to show that defamation cases must contain the common law elements of defamation which include defamatory statements of or about Plaintiffs, publication of defamatory statements, damages, libel and slander. In this instance, Plaintiffs failed to mitigate their damages. Finally, the Court felt that Mr. Kuohn's report to the police was made in good faith. In this regard, they sought advice from the matters of Dairy Stores v. Sentinel Pub. Co., 104 N.J. 125, 151 (1986) and Cashen v. Spann, 125 N.J. Super. 386 (App. Div. 1973), wherein the subjects of qualified privilege were discussed. The Appellate Division felt that Mr. Kuohn had qualified privilege.
Finally, with regard to the issue of attorneys' fees, Plaintiffs claimed that Defendants should be ordered to pay their counsel costs for the necessity of responding to a motion filed out of time. In support of their application, Plaintiffs cited to Rule 4:58-1 which provides awards when motions are filed out of time. Nevertheless, the Court did not feel that the trial court erred in their decision to deny fees as it was their contention that Defendants had indeed filed a timely motion.
Defamation matters are difficult to navigate and often require the experience of seasoned attorneys. Fortunately, the lawyers at Mark & Galusha, LLC are here to help. We understand the impact that false accusations can have. If you feel that you are the victim of defamation and would like to discuss your legal options, please do not hesitate to contact Mark & Galusha, LLC. We represent clients throughout Hudson County who have been the unfortunate victims of defamation. Our offices are conveniently located in Basking Ridge, Newark and Oradell. We can be reached at (908) 626-1001 or 973-440-2311, or simply tell us your story by clicking the "contact us" page.
