JEFFREY CHIESA THOMAS CALCAGNI v. ALLAN LEVINE AL SPECIAL FRIENDS ALLAN LEVINE INC VAN DAM INC (2013)

In July 2011, the Attorney General of the State of New Jersey and the Director of the Division of Consumer Affairs filed a verified complaint in the Chancery Division against defendant Allan Levine, individually and doing business as Al's Special Friends, as well as his related entities Allan Levine, Inc. and Van Dam, Inc. (collectively, “Levine”).   The verified complaint alleged that Levine had committed nearly 300 violations of state consumer laws and regulations, including the Consumer Fraud Act (“the CFA”), N.J.S.A. 56:8–1 to –20;  the Charitable Registration and Investigation Act (“the Charities Act”), N.J.S.A. 45:17A–18 to –40;  and numerous rules governing the sale of animals (“the pet regulations”), N.J.A.C. 13:45A–12.1 to –12.3.

The essence of the plaintiffs' allegations against Levine is that he and his affiliated entities misled consumers by selling them diseased pets, and then refused to return the purchasers' funds after the pets sickened or died.   More specifically, plaintiffs contended that Levine illegally:  (1) failed to provide certain consumers, as required, with animal health records;  (2) provided other consumers with improper animal health records that did not reflect when the animals were examined by a licensed veterinarian or whether such animals carried any diseases or congenital defects;  (3) failed to have the animals examined by a licensed veterinarian at least three days before their sale;  (4) sold animals with diseases, illnesses or defects to unsuspecting consumers;  (5) refused to refund consumers' money after selling them sick or defective animals;  (6) refused to refund consumers for the cost of veterinary fees associated with the treatment of the sick animals;  (7) inoculated and/or vaccinated animals without the written authorization of a licensed veterinarian;  (8) commingled the assets of a charitable organization, Allan Levine, Inc., with personal accounts and without maintaining proper records;  (9) misrepresented the purpose and nature of a charitable organization;  and (10) misrepresented the beneficiary of a charitable organization.

The verified complaint was supported by illustrative scenarios of four sets of consumers (Randisi, Prytherch, Turchak, and the Ragazzos) who had purchased pets advertised or offered for sale by Levine, only to find out after their respective purchases that the pets had diseases such as giardiasis and coccidiosis.   In each instance, Levine refused to return the consumers' money or, where applicable, reimburse them for their veterinary bills in attending to the sick animals.   These allegations were substantiated by supporting certifications from the four sets of consumers.

The trial court granted plaintiffs summary judgment, concluding that there were no genuine issues of material fact as to Levine's liability under the cited statutes and regulations.   Among other things, the judge noted in her bench opinion that Levine's conduct was “inherently deceptive, fraudulent and unconscionable,” and that he engaged in multiple violations of the CFA, the Charities Act, and the relevant pet regulations.

By way of remedy, the court imposed $70,000 in statutory penalties upon Levine, as well as $25,337.50 in counsel fees, plus an injunction against future violations.   The court also revoked Levine's charitable registrations.

Representing himself on appeal, Levine presents two arguments for our consideration.   First, he contends that the civil penalties imposed by the trial court lacked evidential support and were excessive.   Second, he argues that plaintiffs' summary judgment motion should not have been entertained because it was filed less than thirty days before the trial date.   Neither of these arguments has any merit.

The penalties imposed by the trial court were soundly based in the law and in competent supporting proof.   Both the CFA, see N.J.S.A. 56:8–13, and the Charities Act, see N.J.S.A. 45:17A–33(d), authorize penalties of up to $10,000 for the first offense and up to $20,000 for the second and each subsequent offense, for violations of their respective provisions.   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).

The trial court did not misapply its discretion here, particularly since Levine likely would have received a much higher aggregate penalty if each of the nearly 300 violations had been assigned a monetary sanction.   Instead, the court fairly limited the penalty to $10,000 for a first violation as to one of the four representative consumers, plus $20,000 each for a second or subsequent violation as to each of the other three consumers.   The certified proofs supporting these violations were ample, and there was no competent evidence before the court contradicting their validity.   Summary judgment in favor of plaintiffs was entirely appropriate under the circumstances.   See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

As to Levine's second argument, Rule 4:46–1 plainly gives the trial court discretion to entertain a motion for summary judgment less than thirty days before a trial date, where good cause exists for doing so.   Here, such good cause was manifestly present, in light of the unrefuted nature of plaintiffs' factual proofs as to the four representative consumers.   In fact, the court had already adjourned the original return date of the motion once before, affording Levine more time to respond to it, but he still tendered no counterproof.   The court did not abuse its discretion in declining Levine's request for an additional adjournment.  Abtrax Pharm., Inc. v. Elkins–Sinn, Inc., 139 N.J. 499, 513 (1995).   If anything, the court's election to dispose of the case though summary judgment in lieu of trial spared Levine additional liability for attorney's fees, for a trial surely would have caused plaintiffs' counsel to expend more time on the case.

The remainder of Levine's arguments, to the extent they are subsumed within the two points of his appellate brief, lack sufficient merit to warrant discussion.   R. 2:11–3(e)(1)(E).

Affirmed.

PER CURIAM