Daily Decision Service Alert: Vol. 21, No. 188 - September 26, 2012

 

17-1-7777 New Jersey Department of Environmental Protection v. Ofra Dimant, Sup. Ct. (LaVecchia, J.) (45 pp.) To obtain damages under the Spill Act, the DEP must demonstrate, by a preponderance of the evidence, a reasonable connection between the discharge, the discharger, and the contamination at the damaged site. The proofs failed to establish a sufficient nexus between the groundwater contamination and Sue’s discharge during its operation.

 

20-2-7778 Kozikowska v. Wykowski, App. Div. (per curiam) (57 pp.) In this appeal, defendant seeks reversal of the Family Part judge's order awarding palimony and twenty percent of the property and bank accounts to his former paramour. He argues: (1) the recent amendment to the Statute of Frauds, requiring that palimony agreements be in writing and entered with the advice of counsel, applies to this case; (2) the trial court erred in proceeding with the default hearing the same day it entered default against him for the second time; (3) plaintiff failed to establish the existence of a valid palimony agreement; (4) the palimony award was not supported by sufficient evidence; and (5) the trial court erred in failing to find defendant incompetent. The appellate panel rejects these arguments and affirms. Significantly, the panel finds that defendant is not entitled to the benefit of retroactive application of the amendment to the Statute of Frauds. Judge Ostrer, dissenting, believes the trial court erred in entering default and striking defendant's answer and that there was insufficient credible evidence to establish defendant committed a material breach of the agreement to entitle plaintiff to contract-based damages.

 

20-2-7779 R.A. v. E.A., App. Div. (per curiam) (20 pp.) Plaintiff appeals from the trial court's order denying his motion to emancipate his son, and the order denying his motion for reconsideration. The appellate panel reverses and remands for a plenary hearing. The determination of whether a child should be emancipated is a fact-sensitive one. When the evidence discloses genuine material issues of fact, a Family Court's failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. Here, the record evidence is insufficient to support the court’s fact-finding as to whether the child remained a full-time student, or, to the extent he did not, that his reduced academic load resulted from medical problems. As the child was above the age of majority, it was defendant's burden to establish full-time student status, or a reasonable basis for failure to maintain that status. Given the lack of information provided by defendant, it was inappropriate for the court to grant all favorable inferences to defendant.

 

14-2-7780 State v. Fritz, App. Div. (per curiam) (22 pp.) Tried before a jury, defendant was convicted of second-degree vehicular homicide. The trial judge previously granted defendant's motion to acquit him of driving while intoxicated (DWI). Following the jury's verdict, the judge found defendant guilty of disorderly persons possession of marijuana and disorderly persons possession of drug paraphernalia. The judge also found defendant guilty of reckless driving, and possession of a controlled dangerous substance in a motor vehicle, and not guilty of failure to wear a seatbelt. On appeal, defendant challenges only his conviction for vehicular homicide, primarily arguing that the trial judge's instructions to the jury were erroneous. The judge provided the jury with the Model Jury Charge, without changing it to take defendant's acquittal of DWI into account. Thus, the jury was erroneously instructed, contrary to what the judge had ruled by finding defendant not guilty of DWI, that it could still consider whether he had committed this offense and, if he had, to draw an inference that he had driven recklessly. The erroneous instructions on DWI constituted reversible error. In addition, the trial judge erred in instructing the jury on the concept of "recklessness" by declining to compare that mental state with "negligence." Because the jury instruction was erroneous, defendant's vehicular homicide conviction is vacated and the matter is remanded.

 

14-2-7781 State v. Soriano, App. Div. (per curiam) (26 pp.) By leave granted, the State appeals from the order of the trial court granting defendant post- conviction relief (PCR) and setting aside his 2003 conviction for third-degree burglary, and fourth-degree defiant trespass. Relying on State v. Nuñez-Valdéz, the trial court found that (1) defendant's attorney gave him incorrect legal advice concerning the immigration consequences of his conviction at the time he pleaded guilty to these offenses, and (2) defendant would not have pleaded guilty if he had been given the correct legal advice. Because the record does not support the court's findings, the appellate panel reverses. The record shows defendant knowingly and voluntarily waived the intoxication defense and agreed to plead guilty to avoid receiving a prison sentence greater than three years. Mitigating the immigration consequences of his conviction was not a material consideration of the plea agreement because a probationary sentence was not guaranteed.

 

14-2-7782 State v. T.F., App. Div. (per curiam) (9 pp.) Defendant T.F. appeals from his conviction, following a jury trial, of third-degree endangering the welfare of a child, and from that part of his sentence that imposed parole supervision for life. The appellate panel affirms the conviction but remands to the trial court for resentencing. The panel finds the judge erred in sentencing defendant to parole supervision for life pursuant to N.J.S.A. 2C:43-6.4, as this type of parole did not exist until 2004 and the conviction related to events that occurred in 2003. The State acknowledges that this part of defendant's sentence was erroneous as community supervision for life applied to covered sexual offenses committed before January 14, 2004.

04-7-7783 N.V.E., Inc. v. Palmeroni, Dist. Ct. (Salas, U.S.D.J.) (10 pp.) Before the Court are petitions for fees by Defendant’s former attorneys. The fee petitions follow the Court’s opinion granting Defendant attorneys’ fees and costs attributable to his motion for spoliation sanctions against Plaintiff N.V.E., Inc. Herein, David Rostan and Fred Scampato produced evidence of their fees totaling $111,882.00. NVE opposes the fee petitions. The Court grants the fee petitions, but reduces the amount of legal fees requested. [Filed September 10, 2012]

11-7-7784 Gargiulo v. Balducci, Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Plaintiff Alan Gargiulo, a New Jersey resident, owns Dom’s Food Service, a New Jersey corporation that brokers deals between purchasers and suppliers of food for a commission. Plaintiffs allege that they had an oral agreement with defendants John Balducci, a New York resident, and his company Krystal Fruits & Vegetables d/b/a Arrow Produce, a New York corporation that is registered as a foreign corporation in New Jersey. Their purported relationship broke down and Defendants have allegedly stopped paying commissions to Plaintiffs. Defendants filed a motion to transfer venue. The Court concludes that Defendants have not met their burden of demonstrating that it would be more convenient for all parties and witnesses to have this case litigated in the Eastern District of New York, Central Islip. Nothing in the record demonstrates that either party will be seriously inconvenienced during discovery as a result of the venue, thus Plaintiff’s choice of forum should be honored. [Filed September 6, 2012]

 

15-7-7785 HICA Education Loan Corporation v. Ulett, Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff HICA Education Loan Corporation brings this action against Defendant, seeking a judgment for an unpaid student loan. In 1995, Defendant signed a promissory note payable to the Student Loan Marketing Association (“SLMA”), in the original principal amount of $23,673.33. The Note was executed pursuant to the Health Education Assistance Loan (“HEAL”) Program. In 2003, the SLMA sold the Note to HICA. Defendant failed to make the payments due under the terms of the Note. Plaintiff seeks a judgment for the unpaid principal in the amount of $38,458.10, in addition to $8,513.62 in unpaid interest and other damages. Plaintiff provided a copy of the Note bearing Defendant’s signature, a copy of the Bill of Sale and Blanket Endorsement that transferred the Note from SLMA to HICA, and an affidavit stating that HICA is the present holder and owner of the Note. Plaintiff also provided computerized loan records showing that the Note is in default. Plaintiff’s motion for summary judgment is granted. Judgment is entered in the amount of $46,971.72. [Filed September 10, 2012]

 

45-7-7786 Abreu v. Commissioner of Social Security, Dist. Ct. (Wigenton, U.S.D.J.) (15 pp.) Plaintiff appeals, on behalf of her minor daughter, A.M., the final administrative decision of the Commissioner of Social Security, with respect to the Administrative Law Judge’s (“ALJ”) denial of Plaintiff’s claim for Supplemental Security Income under Title XVI of the Social Security Act. The Commissioner seeks a judgment affirming the final decision that A.M. was not disabled and not entitled to disability insurance benefits under the Act. The ALJ does not provide an explanation as to why he chose to reject the evidence regarding hyperactivity in favor of finding that A.M.’s Attention Deficit Disorder does not include hyperactivity and does not meet the requirements for medical equivalency. The ALJ acknowledged A.M.’s problems in acquiring and using information, and that A.M. takes medication with favorable results, as well as receives tutoring and additional teachers in the classroom. The ALJ did not, however, provide an explanation as to the basis for his decision that the assessment of A.M.’s problems constitutes a less than marked limitation. This would factor into whether or not A.M.’s impairment is functionally equivalent to the listing for ADHD. The Court remands this matter for further clarification. [Filed September 6, 2012]

 

25-7-7787 Averhart v. CWA Local 1033, Dist. Ct. (Bongiovanni, U.S.M.J.) (15 pp.) Plaintiff filed a complaint against Defendants alleging violations of the Communications Workers of America Union Constitution as well as violations of the Labor-Management Reporting and Disclosure Act. Before the Court is Plaintiff’s motion for reconsideration of the denial of its motion seeking leave to file an Amended and Supplemental Complaint. The Court denied Plaintiff’s request to add 39 additional defendants on the basis that the proposed defendants did not have proper notice that they might be a named party. The Court concluded that the relation back standard had not been met. Plaintiff does not address this rationale in his motion for reconsideration. Therefore, the Court cannot find that there was any error of law or fact which would warrant reconsideration. To the extent that Plaintiff meant to imply that the Court’s failure to reconsider will result in manifest injustice to Plaintiff, the Court finds that it will not. The Court denied Plaintiff’s request to amend to assert five additional causes of action on the basis that the amendments were futile and would be unduly prejudicial to defendants. Plaintiff has not identified any error of law which demonstrates the Court used an improperly narrow standard. The Court also rejects Plaintiff’s equitable tolling argument. [Filed September 10, 2012]