How devious might a defendant act with regards to selling “Defective products?” The Superior Court of New Jersey ruled against sellers of diseased pets and upheld the trial court’s summary judgment ruling in favor of plaintiff consumers in Chiesa v. Levine, Superior Court of New Jersey, Appellate Division, Docket No.: A-4055-11T3. The New Jersey Attorney General and the Director of the Division of Consumer Affairs in July 2011 filed a “verified complaint” against Levine and Levine’s entities he controls – Al’s Special Friends, Allan Levine, Inc., and Van Dam, Inc. The complaint alleged Levine and his entities committed about three hundred violations of state consumer laws and regulations, particularly with regard to the Consumer Fraud Act (“Fraud Act”), and many of the pet regulations governing the sale of animals. The overarching theme of the case was that Levine and the other defendants (collectively, “Levine”), misled consumers by selling customers diseased pets and refusing to compensate for the foreseeable costs for treatment or provide refunds.
Among the accusations against Levine were that Levine illegally failed to provide certain consumers with animal health records; failed to have the animals examined by a licensed veterinarian at least three days prior to sale; refused to refund consumers’ money after selling them “sick or defective animals;” refused to refund consumers for the reasonable costs of veterinarian fees. The plaintiffs were consumers who purchased pets “advertised or offered for sale” and subsequently found the pets the plaintiffs recently purchased had diseases. “In each instance, Levine refused to return consumers’ money or, where applicable, reimburse them for their veterinary bills in attending to the sick animals.” The trial court granted summary judgment in favor of the plaintiffs, saying that Levine did not have a prima facie case on which to argue, making the purpose of going to trial moot.
The Judge stated Levine’s fraudulent actions were “inherently deceptive, fraudulent, and unconscionable.” The court imposed $70,000 worth of penalties in addition to $25,337.50 in counsel fees as well as an injunction against future violations.
Levine, representing himself pro se, argued (1) the civil penalties were excessive and based on no evidential support; and further, (2) the summary judgment motion filed by the plaintiffs should not have been read because the motion was filed less than thirty days prior to the trial date. The appellate court upheld thr trial court’s determination that the penalties were appropriate and the summary judgment ruling was appropriate. “The trial court is afforded considerable discretion in calibrating the appropriate penalty for each violation.” Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 136 (1987). Penalties can be assessed up to $10,000 for the first offense and up to $20,000 for all subsequent offenses. The trial court did not assign the penalty fines for each of the approximately 300 offenses; rather, the motion court the penalties with respect to each violation claimed by the plaintiffs. The first violation claimed by the first plaintiff was a cost of $10,000 and then each claimed subsequent violation was $20,000 to the remaining plaintiffs.
The court took particular stock in the fact “the certified proofs supporting these violations were ample, and there was no competent evidence . . . contradicting their validity.” Furthermore, the Appellate Division enforced the rule that a trial court may entertain a motion for summary judgment less than thirty days prior to the trial date if there is good cause for reading the memorandum in support of the motion for summary judgment. “Here, such good cause was manifestly present, in light of the unrefuted nature of plaintiffs’ factual proofs as to the four representative consumers. The court even gave more time for Levine to respond to the motion for summary judgment when it first adjourned the original return date of the motion. Still, Levine did not provide counterproof to the allegations against them.