Daily Decision Service Alert: Vol. 21, No. 185 - September 21, 2012

46-2-7734 Ramos v. Flowers, App. Div. (Waugh, J.A.D.) (29 pp.) Plaintiff, who asserts that he was in the process of filming a documentary about gang activity in a public area, filed suit against the police officer whom he alleges ordered him to stop filming, claiming that the officer violated his free-speech rights under Article I, paragraphs 6 and 18 of the New Jersey Constitution, as well as the First Amendment to the United States Constitution. He brought the suit under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. The Law Division granted defendant's motion for summary judgment and dismissed the complaint, finding that qualified immunity barred the free-speech claims. We reversed. We determined that the affirmative defense of qualified immunity is available in actions brought under the Civil Rights Act, just as it is in actions brought under 42 U.S.C.A. § 1983. However, as is the case with § 1983, it is only applicable to claims for money damages and does not apply to injunctive relief. We further determined that the motion judge erred in applying the defense on summary judgment because the alleged actions of defendant, taken in the light most favorable to plaintiff, violated plaintiff's free-speech rights, which we held were well-established at the time of the incidents that gave rise to plaintiff's claims. Under those circumstances, qualified immunity is not applicable. We remanded claims involving allegations of an unlawful arrest for further consideration and the articulation of reasons for the dismissal of those claims. [Approved for publication.]

07-2-7735 Ginsburg Development Companies LLC v. Township of Harrison, App. Div. (per curiam) (7 pp.) Plaintiff, the contract-purchaser of property in the township, entered into a sewer improvement agreement with the township as a condition of the planning board's approval of its application to construct 27 homes. A dispute regarding the parties' responsibilities under that agreement led to litigation that ended with a judgment from which both parties appeal. Because, although the judgment indicates that the trial judge put his findings and reasons on the record, neither party provided the appellate panel with a transcript and, although the township's case information statement indicates that the judge also issued a written opinion, the panel has not been given that either, the panel remands and directs appellant to provide the appellate clerk with a transcript or written decision or a certification asserting that neither is available and setting forth the basis for that assertion. If there is no written decision or record of an oral decision, the judge shall provide a written statement, opinion or memorandum.

 

07-2-7736 Fichtner v. Sovereign Bank, App. Div. (per curiam) (5 pp.) Plaintiff, who filed this personal injury action after a slip-and-fall accident on defendant's property, appeals the denial of her requests to adjourn the trial due to the unavailability of her liability expert. The panel reverses because it is clear that the need for an adjournment did not result from careless conduct by plaintiff or her attorney, there was a timely request for an adjournment which defendant did not oppose, and plaintiff's expert was essential to refute defendant's expert who testified that the concrete walkway and step on which plaintiff fell complied with the state's construction code.

31-2-7737 Garczynski v. DiStefano, App. Div. (per curiam) (11 pp.) Plaintiff John Garczynski appeals from a final judgment in the Special Civil Part, following a bench trial, in favor of defendant Mermaid's Cove Marina dismissing his complaint for damages to his boat allegedly caused by defendant's faulty repair work. Plaintiff argues that the trial court's "factual findings and credibility findings were inadequate and insufficient to negate clear proof of negligence." Plaintiff contends his proofs clearly established a cause of action against defendant and that defendant's faulty repairs proximately caused damage to the boat. This case is one in which reasonable minds could certainly differ on whether the repairs proximately caused plaintiff's damages. However, the conclusions of plaintiff’s expert witness were, in part, based upon testimony from plaintiff which the trial judge explicitly found not to be credible, and a testing method the trial judge found "was lacking" in reliability. These findings are supported by the record and thus are binding on appeal.

31-2-7738 Radwan v. George-Hammond, App. Div. (per curiam) (4 pp.) Plaintiff was injured on when the vehicle he was driving was struck in the rear by a vehicle driven by defendant. Defendant admitted that she was 100% at fault for causing the accident, and the case went to trial on the issue of damages only. The jury found plaintiff did notsustain a permanent injury proximately caused by the accident. Accordingly, the judge entered a judgment of no cause of action. Plaintiff did not move for a new trial. He filed this appeal, in which his sole argument is that the verdict should be set aside because it was against the weight of the evidence and constituted a miscarriage of justice. Pursuant to Rule 2:10-1, Plaintiff's sole argument on appeal is barred because of his failure to preserve the issue by making a new trial motion in the trial court. In any event, the appellate panel finds no basis for setting aside the jury's verdict.

14-2-7739 State v. Batista, App. Div. (per curiam) (6 pp.) Defendant appeals his conviction in the municipal court and on a de novo trial in the Law Division for harassment based on his having made a number of telephone calls over two days to the Division of Youth and Family Services after DYFS found no support for his allegation that his ex-wife's boyfriend was abusing his son. The panel reverses, finding that, where the Law Division judge found that defendant made the calls because he wanted division workers to change their minds, there was insufficient evidence to support a finding that he acted with a purpose to harass.

42-7-7740 Smith v. Manasquan Savings Bank, Dist. Ct. (Pisano, U.S.D.J.) (12 pp.) Pro se debtor, who filed a Chapter 13 bankruptcy petition, appeals the Bankruptcy Court's order of December 2011 denying her motion for reconsideration of its November 2011 order denying her motion to stay enforcement of two prior orders that vacated the automatic stay as to the New Jersey Bureau of Securities and the Manasquan Savings Bank. Finding that it is unable to address the merits of appellant's appeal and the bank's cross-motion to dismiss because the Bankruptcy Court did not include an explanations of its reasoning in issuing the November and December orders, the court remands to that court for elaboration of its reasoning in issuing those orders. The court denies appellant's motion to recuse Judge Pisano, finding that the fact that he graduated from the same law school as other judges who have presided over her various legal proceedings and is familiar with them is not a sufficient basis for recusal. Appellant's motion to subpoena documents is denied as the documents that she seeks were not considered by the Bankruptcy Court and because the subpoenas were improper because they were signed by appellant's husband. The court also denies appellant's request for appointment of pro bono counsel. [Filed September 20, 2012]

 

46-8-7741 Green v. State of New Jersey, Third Circuit (per curiam.) (4 pp.) Jevon Green appeals a District Court order dismissing his complaint under 28 U.S.C. § 1915(e)(2)(B). While driving in New Jersey, Green was stopped by Maywood police officers. Apparently, an altercation arose during the traffic stop and Green was charged with assaulting two police officers. Green was convicted of charges stemming from the incident. Green filed a pro se complaint against the State of New Jersey, the Maywood Police Department, the Maywood Municipal Court, and Officers Matthew Parodi and Kevin Madden. The complaint alleged “assault, mistaken identity, illegal incarceration, illegal towing of motor vehicle, violation of civil rights and housing discrimination.” The circuit panel agrees with the District Court that the complaint fails to state a claim on which relief may be granted. Nonetheless, prior to dismissing a pro se complaint under § 1915(e), a District Court must give the plaintiff an opportunity to amend his pleading to cure the defect unless amendment would be inequitable or futile. Concluding the District Court erred in dismissing the complaint without providing Green leave to amend, the panel vacates the order dismissing the case and remands. [Filed August 27, 2012]

 

46-8-7742 Holland v. Simon Property Group, Inc., Third Circuit (per curiam) (8 pp.) Richard Holland, proceeding pro se, appeals from the District Court’s orders granting summary judgment in favor of Defendants and denying his post-judgment motion to amend the complaint. Holland visited the Deptford Mall in New Jersey to investigate its compliance with the Americans with Disabilities Act (“ADA”). Holland was videotaping the parking lot when he was approached by two security guards who informed Holland of the mall’s no-videotaping policy and asked him to stop. He refused, stating that he was conducting an “assessment of handicapped parking.” The security guards claimed that Holland acted in a threatening manner towards them. The local police were notified and asked Holland to leave and never return. Holland’s complaint claimed that Defendants retaliated against him under the ADA and the New Jersey Law Against Discrimination (“NJLAD”) by revoking his status as a business invitee and banning him from the mall. The District Court determined that Holland’s investigative videotaping was a protected activity under the ADA and the NJLAD. However, Holland failed to meet his burden to show that he suffered an adverse action as a result of participating in protected activity. The circuit panel finds the District Court properly granted summary judgment in favor of Defendants and properly denied Holland’s motion for reconsideration. In addition, the panel affirms the denial of Holland’s motion to amend the complaint, finding undue delay. [Filed August 29, 2012]

 

46-7-7743 Palacio v. City of Camden, Dist. Ct. (Simandle, U.S.D.J.) (29 pp.) Plaintiffs Victor Figueroa and Frances Palacio seek compensatory and punitive damages for violations of their Fourth Amendment rights to be free of unreasonable seizure pursuant to 42 U.S.C. § 1983, arising from an encounter with Defendant Officer Dean Gransden and Defendant Officer William Roberts in Camden, New Jersey. Plaintiffs allege that Gransden and Roberts arrested Plaintiffs with excessive force, causing physical and psychological injury. Defendants Gransden, City of Camden, Roberts and Arturo Venegas (acting Director or Chief of Police for the Camden Police Department) have moved for summary judgment against both counts in the complaint. The Court denies the motions for summary judgment, finding material disputes of fact exist regarding the amount of force that was employed against Plaintiffs, whether that force was reasonably justified, and whether Plaintiffs’ injuries were caused by a policy or custom created or acquiesced to by the City of Camden and Venegas. [Filed August 28, 2012]

 

09-7-7744 Watkins v. DineEquity, Inc., Dist. Ct. (Simandle, U.S.D.J.) (23 pp.) Plaintiff brings a putative class action against Defendants DineEquity, Inc. and Applebee’s International, Inc. d/b/a Applebees Neighborhood Grill and Bar and d/b/a International House of Pancakes, LLC (“IHOP”). The complaint seeks damages, injunctive relief and other relief under New Jersey’s Truth in Consumer Contract Warranty and Notice Act (“NJTCCWNA”). Watkins claims she is a consumer who purchased drinks at Defendant’s restaurants in New Jersey that were offered on the menus without prices. She alleges that offering such beverages for sale without indicating the prices violates the NJTCCWNA, and is contrary to clearly established New Jersey law requiring point-of-purchase notice of an item’s selling price. Defendants filed a motion to dismiss for failure to state a claim. The Court finds Plaintiff has failed to state a prima facie case for violation of NJTCCWNA. The Court finds that the mere omission of a beverage price on a restaurant menu in the circumstances alleged here does not state a claim under the TCCWNA, because this statute governs the statements that are included in, not omitted from, a consumer contract or offer to contract. The Court dismisses the complaint without prejudice to Plaintiff’s right to seek leave to file a curative amendment. [Filed August 29, 2012]

 

48-7-7745 Levkovsky v. New Jersey Advisory Committee on Judicial Conduct, Dist. Ct. (Pisano, U.S.D.J.) (6 pp.) This action emanates from a proceeding in New Jersey Tax Court. Following the conclusion of the trial, Plaintiff filed a complaint with the New Jersey Advisory Committee on Judicial Conduct (“ACJC”) against Judge DeAlmedia, who presided over the trial, alleging violations of New Jersey Court Rules and laws. Plaintiff received a letter from the ACJC stating that it had not found a basis for a charge of improper judicial conduct and would not be instituting a formal disciplinary proceeding. Plaintiff submitted documents to the Office of the Clerk of the New Jersey Supreme Court in an attempt to appeal the ACJC’s actions. Plaintiff then filed a complaint, naming the ACJC and the Clerk’s Office as defendants. The ACJC and the Clerk’s Office filed a motion to dismiss. Thereafter, Plaintiff filed an Amended Complaint, adding John Tonelli and Mark Neary as defendants. Plaintiff alleges that Defendants violated the Equal Protection Clause of the Fourteenth Amendment and New Jersey Court Rules. The Court dismisses Plaintiff’s Amended Complaint with prejudice based on Eleventh Amendment immunity. [Filed August 27, 2012]