                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3047-15T1



ROBERT J. TRIFFIN,

        Plaintiff-Respondent,

v.

DR. BINOD K. SINHA,

        Defendant-Appellant,

and

CABANAMAN POOLS & SPA, LLC,
a/k/a CABANA POOL, a/k/a
CABANAMAN,

     Defendant.
____________________________________

              Argued May 17, 2017 – Decided July 7, 2017

              Before Judges Alvarez and Lisa.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Monmouth
              County, Docket No. DC-009465-15.

              Edward Hanratty argued the cause for appellant
              (Tomes & Hanratty P.C., attorneys; Mr.
              Hanratty, of counsel and on the brief).

              Robert J. Triffin,         respondent,     argued    the
              cause pro se.
PER CURIAM

       Defendant, Dr. Binod K. Sinha, appeals from the February 25,

2016 order granting summary judgment in favor of plaintiff, Robert

J.    Triffin,    against   defendant       in   the   amount   of    $10,081.60,

inclusive of costs.         Triffin's claim was based upon a $10,000

check    defendant    had   issued    to     Cabanaman     Pools      &    Spa,     LLC

(Cabanaman), which, in turn, cashed the check with S & S Check

Cashing, Inc. (S&S).        Unknown to S&S at the time it cashed the

check, defendant had previously stopped payment.                S&S assigned the

check to Triffin, who brought this action against defendant.

       Upon   completion    of   discovery,      Triffin   moved      for    summary

judgment.        Judge Paul X. Escandon found that the undisputed

material facts entitled Triffin to judgment as a matter of law.

In a cogent and well-reasoned written decision included in his

summary judgment order, the judge set forth his findings of fact

and conclusions of law.          We agree with Judge Escandon's analysis

and   conclusions    and    affirm   substantially       for    the       reasons    he

expressed in his written decision.

       Defendant contracted with Cabanaman to perform services at

his home for a contract price of $41,000.                During the course of

the work, defendant had paid a total of $31,000.                Then, on August

8, 2015, he issued a check to Cabanaman for $10,000.                        The memo

line stated the check was for "pool renovation."

                                        2                                     A-3047-15T1
     On the same day the check was issued, Cabanaman presented it

to S&S, which cashed the check and paid Cabanaman $9,779.           At that

time,    S&S   had   no   knowledge    of   any   defenses,   dishonor,    or

impediments with the check.           Nothing on the face of the check

indicated any contingencies for payment or raised any other facts

or circumstances that might cast doubt upon the validity of the

check.

     When S&S presented the check to the bank, it was dishonored

as a result of defendant's stop payment order.           S&S assigned the

check to Triffin for $6500.           Triffin then brought this action

against defendant.

     In opposition to Triffin's summary judgment motion, defendant

argued that S&S was precluded from attaining holder in due course

status because the check was obviously a payment to a contractor

performing home improvement work.            Defendant argued that such

contracts are subject to the stringent requirements of the Consumer

Fraud Act (CFA) and accompanying regulations, and therefore S&S

had a duty to investigate to be sure that none of the many potential

violations of the CFA or regulations had occurred.                Defendant

makes the same argument on appeal.

     Judge Escandon rejected this argument.           He found that, based

on the undisputed facts, S&S was a holder in due course and



                                       3                            A-3047-15T1
Triffin, by virtue of the assignment, achieved the same status.

The judge stated:

                 As to the good-faith requirement under
            the Uniform Commercial Code ("UCC"), this
            Court recognizes that no language on the check
            in any way indicated that the payment was
            contingent on any condition requiring further
            inquiry or investigation.       The memo line
            merely said pool renovation in the memo line.
            While the good faith standard imposed under
            the UCC could require the exercise of some due
            diligence on the part of the check cashing
            entity and/or on the part of the assignee,
            this Court is of the belief that the mere words
            "pool renovation," would not be sufficient to
            alert the check cashing entity or the assignee
            of any problem with the check issued by
            Defendant Dr. Sinha which would require
            further inspection.

      The judge noted that any defenses defendant might have had

against Cabanaman under the CFA could not be asserted against S&S

or   its   assignee,   Triffin.       This      is   because   there    was    no

relationship    between   defendant       and   either   of    those   parties.

Defendant's relationship was with Cabanaman.

      The judge concluded:

                 This action seeks recovery upon a
            dishonored negotiable instrument, not upon
            a[n] unperformed home improvement contract.
            It is well settled that "[a] negotiable
            instrument, such as the check subject to this
            litigation, is defined as an unconditional
            promise or order to pay a fixed amount of
            money, if it: (1) is payable to the bearer,
            (2) is payable on demand, and (3) does not
            state any other undertaking or instruction by
            the person promising or ordering payment to

                                      4                                 A-3047-15T1
           do any act in addition to the payment of
           money.["]   See U.C.C. §3-104(a).  Plaintiff
           Triffin has presented evidence sufficient to
           show that these criteria have been satisfied
           and that he is entitled to judgment.
           Defendant Dr. Sinha has failed to come forth
           with evidence creating a genuine issue as to
           a material fact in dispute.

     Defendant also argues that summary judgment should have been

denied because "[t]here is no evidence that S&S complied with the

applicable regulations governing check cashing facilities and

accepting the checks of business entities."                Defendant relies on

N.J.S.A.   17:15A-47,      which     requires     licensed        check    cashing

facilities to have on file a corporate resolution authorizing

presentment of the check.        See Triffin v. Liccardi Ford, Inc., 417

N.J. Super. 453, 458 (App. Div. 2011) (holding that N.J.S.A.

17:15A-47 sets a standard of commercially reasonable conduct by

licensed check cashing facilities and compliance is necessary to

satisfy the UCC's good faith requirement in order to achieve holder

in due course status).

     This is a correct statement of law.              However, in his answer

defendant failed to assert this contention as an affirmative

defense.   See R. 4:5-4.     More importantly, defendant did not seek

to establish through discovery the fact necessary to support this

defense,   namely   that   S&S     did   not   have   on   file    the    required

resolution of Cabanaman.           Therefore, raising this point as a


                                         5                                 A-3047-15T1
theoretical defense is not supported by any evidence in the record

and could not defeat summary judgment.

       We review summary judgment dispositions de novo based upon

our independent review of the motion record, applying the same

standard as the trial court.   Prudential Prop. & Cas. Ins. Co. v.

Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154

N.J. 608 (1998).     We first decide whether there was a genuine

issue of material fact, and if there was not, we then decide

whether the trial court's ruling on the law was correct.    Walker

v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div.

1987).    "A trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to

any special deference."   Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

       Upon our de novo review, we agree with Judge Escandon that

the undisputed facts entitled Triffin to judgment as a matter of

law.

       Affirmed.




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