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Daily Decision Service Alert: Vol. 21, No. 191 - October 1, 2012
New Jersey Law Journal
STATE COURT CASES
ATTORNEY/CLIENT ATTORNEY FEES
04-2-7814 Brooks Sloate Terrace Cooperative Association, Inc. v. Griffin, App. Div. (per curiam) (3 pp.) Plaintiff Brooks-Sloate Terrace Cooperative Association, Inc. is the owner of a cooperative apartment complex. Defendant La Dora Griffin owns a unit in the complex. In 2009, plaintiff commenced this action against defendant, alleging her violation of various bylaws and house rules and seeking, among other things, a writ of possession. Defendant counterclaimed, alleging plaintiff's breach. The trial judge granted both parties' summary judgment motions. Defendant unsuccessfully moved for counsel fees and costs, pursuant to Rules 1:4-8 and 4:23-2, and defendant appealed. The Appellate Division affirmed in part and reversed and remanded in part, determining that in disposing of defendant's Rule 1:4-8 motion, the judge failed to make findings pursuant to Rule 1:7-4(a). The trial judge then filed a written opinion, which thoroughly analyzed defendant's arguments, the relevant facts, and the applicable legal principles, and entered an order denying defendant's motion for fees. The appellate panel rejects defendants arguments that the trial courts decisions constituted plain error and affirms the order.
FAMILY LAW DOMESTIC VIOLENCE
20-3-7815 In The Matter Of The Seizure Of Weapons Belonging To Joseph Masiello, Ocean Cy. (3 pp.) Defendant filed a motion to dismiss the States application for forfeiture of his weapons, seized in February 2012, in connection with entry of a Temporary Restraining Order (TRO) under the Prevention of Domestic Violence Act (PDVA). Defendant argues that the states motion is out-of-time and the weapons must be returned without trial. The statute requires that the local police department deliver the weapons to the prosecutors office, which is the statutory trigger for the time-period for filing the forfeiture motion. In practice, seized weapons are retained by the police departments that seized them. Therefore, the prosecutors obligation to investigate and to file its motion must be commenced when it has knowledge reasonably equivalent to the knowledge it would have if the weapons had been delivered to it. Although defense counsel notified the prosecutors office on April 5, 2012, that weapons had been seized, sufficient information was not provided to allow the state to determine whether to bring the forfeiture application until May 25, 2012. Thus the forfeiture motion is timely. The court also rejects defendants argument that the state lacks a statutory basis to oppose return of his weapons. Finally, defendants argument that the statutory criteria to find him unfit to possess a weapon cannot be met can be resolved only by plenary hearing. Defendants motion is denied.
FAMILY LAW DISSOLUTION OF MARRIAGE
20-2-7816 Fusaro v. Fusaro, App. Div. (per curiam) (10 pp.) Defendant Dorota Fusaro appeals from a final judgment of divorce, and an amended final judgment of divorce. The court determined that based on plaintiff's credible testimony and "total lack thereof" by defendant, the parties had entered into a global settlement of the all of the issues of their divorce at a June 30, 2009 mediation session. The court concluded that the settlement was enforceable. Defendant filed a motion to amend the final judgment, which the trial court denied. Defendant argues that there was insufficient competent and credible evidence to support the trial court's finding that the parties reached a settlement at the mediation session. The appellate panel disagrees and affirms, deferring to the trial court's assessment of the veracity of the witnesses.
23-2-7817 AAA Mid-Atlantic Insurance Company Of New Jersey v. SWSNUJ Warehousing, Inc., App. Div. (per curiam) (5 pp.) Plaintiff AAA Mid-Atlantic Insurance Company of New Jersey (AAA) paid personal injury protection (PIP) benefits to its insured following an accident. AAAs insured was injured when his vehicle was struck by a commercial vehicle owned by SWSNUJ Warehousing Inc. (SWSNUJ). Because SWSNUJ was not required to maintain PIP coverage for the vehicle, AAA was authorized by statute to seek reimbursement from SWSNUJ for the PIP benefits it paid. AAA filed a complaint against SWSNUJ; its primary liability insurer, defendant Liberty Mutual Insurance Company; and SWSNUJ's excess liability insurer, defendant Navigator Insurance Company, seeking reimbursement or, in the alternative, compelling defendants to submit to arbitration. Navigator now appeals from the orders that granted declaratory relief and compelled them to arbitrate the matter. Because the complaint was filed within two years of the date AAA received Whitaker's application to receive PIP benefits, the complaint was timely filed and arbitration was properly compelled.
23-2-7818 Luzuriaga v. The Copacabana Nightclub, App. Div. (per curiam) (12 pp.) Third-party defendants Hermitage Insurance Company and United States Liability Insurance Company claimed they had no duty to defend defendants/third-party plaintiffs The Copacabana Nightclub and Mohammed Quddou, or provide insurance coverage for bodily injuries plaintiffs sustained as a result of an assault by patrons of Copacabana. Defendants had purchased a commercial general liability policy from Hermitage and a liquor liability policy from United. The trial court found the allegations in plaintiffs' complaint fell under the assault and battery exclusions of the policies. The allegations in plaintiffs' complaint are based on and arose out of an assault, thus, plaintiffs' claims fell squarely within the purview of the assault and battery exclusions. Finding no ambiguity, the appellate panel finds the trial court properly granted summary judgment to Hermitage and United and properly denied defendants' motion for reconsideration.
33-2-7819 In The Matter Of The County Of Mercer And The Mercer County Prosecutor's Office v. Prosecutor's Detectives And Investigators PBA Local 339, App. Div. (per curiam) (16 pp.) Appellants County of Mercer and the Mercer County Prosecutor's Office appeal from the final administrative action of the New Jersey Public Employment Relations Commission (PERC), affirming an interest arbitration award setting the terms of the contracts between the Prosecutor and prosecutor's investigators and detectives, represented by respondent Prosecutor's Detectives and Investigators PBA Local 339, and prosecutor's senior officers, represented by respondent Prosecutor's Superior Officers Association. PERC concluded the arbitrator had appropriately considered each statutory requirement, explained the weight given to it, and reached a reasonable overall determination that was adequately supported by substantial evidence in the record. Having reviewed the County's arguments in light of the arbitrator's decision, the reasons given by PERC for its affirmance, the record on appeal, and the applicable law, the appellate panel affirms, concluding that PERC's affirmance of the award was not "clearly arbitrary or capricious."
CRIMINAL LAW AND PROCEDURE
14-2-7820 In re A.D., Petition For Expungement, App. Div. (per curiam) (3 pp.) In 1996, A.D. pled guilty to one count of fourth-degree possession of child pornography. His term of probation ended on December 3, 2001. On April 11, 2011, which was approximately eight months short of the expiration of ten years from the termination of his probation, A.D. filed a petition for expungement. Because he filed prior to the end of the ten-year period, he was required to demonstrate that expungement was "in the public interest." The judge who heard his petition determined that he had not satisfied that requirement and denied expungement. A.D. appeals. The appellate panel finds no abuse of discretion with respect to the courts finding. By the time the petition was heard, the ten-year period had elapsed and A.D. was eligible for an ordinary expungement. Because an ordinary expungement requires a lesser showing, the panel remands the matter to the Law Division to permit A.D. to amend his petition to seek an ordinary expungement.
CRIMINAL LAW AND PROCEDURE
14-2-7821 State v. Sagrati, App. Div. (per curiam) (17 pp.) A jury found defendant Agnes Sagrati guilty of trafficking in personal identifying information. Defendant's sister-in-law, Ann Armahizer, found her name posted on several websites along with her address, date of birth, social security number, children's names, bank account information, place of employment, pay stubs and her likely passwords. At that time, Armahizer and her husband, Joe, were separated and involved in divorce and custody litigation. Joe was living with defendant. One of the postings was on the "littlebluelight" website, a site which provided directions on "how to hack into people's bank accounts." Armahizer printed what she found on the littlebluelight" website and gave it to the police. The State's theory of the case was that defendant had access to Armahizer's personal information and posted it. The theory of the defense was that Armahizer, not defendant, did the postings in order to create additional problems for Joe and defendant. In finding defendant guilty, the jurors apparently credited defendant's recorded statement and disbelieved her conflicting trial testimony. The appellate panel affirms, finding the judge appropriately denied defendant's motion for a judgment of acquittal.
FEDERAL COURT CASES
CIVIL RIGHTS CORRECTIONS
46-8-7822 Aruanno v. Allen, Third Circuit (per curiam.) (6 pp.) Pro se Appellant Joseph Aruanno is confined at the Special Treatment Unit (STU) in Avenel, New Jersey, and filed a complaining naming as defendants eight staff members at the STU, alleging that they violated his constitutional rights in connection with an incident in the yard. Aruanno alleged that defendants used excessive force and conducted an illegal strip search when they placed him in lock up, even after they saw videotape evidence showing that the guilty party was not Aruanno. Aruanno also alleged that he was denied access to his legal papers, to his attorney, and to the courts during his placement in isolation. Further, he contended that the Defendants retaliated against him because of his litigation activities. He alleged that he suffered physical and mental harm as a result of the Defendants actions. The circuit panel affirms the order of the District Court dismissing Aruannos civil rights action for failure to state a claim. [Filed September 21, 2012]
DAMAGES AND REMEDIES
60-7-7823J&J Sports Productions, Inc. v. Gencarelli, Dist. Ct. (Cecchi, U.S.D.J.) (6 pp.) This matter comes before the Court by way of Plaintiff J&J Sports Productions. Inc.s brief in support of its request for damages and attorney fees. Previously, the Court granted summary judgment in favor of Plaintiff and against Defendants on its 47 U.S.C. § 605 claim arising from an unauthorized broadcast. The Court reserved judgment on damages and directed Plaintiff to submit evidence and authorities in support of its request for damages and attorney fees. The Court finds Plaintiff is entitled to statutory and enhanced damages in the amount of $8,200.00 and attorney fees and costs in the amount of $4,299.25. [Filed September 21, 2012]
PRODUCT LIABILITY JURISDICTION
32-7-7824 Benson v. Biomet, Inc., Dist. Ct. (Falk, U.S.M.J.) (12 pp.) Plaintiffs Donna Benson and Graham Benson , husband and wife, are citizens and residents of the State of Washington. Defendants Biomet, Inc. and Biomet Orthopedics, LLC are Indiana companies with their principal place of business in Warsaw, Indiana. This is a product liability action wherein plaintiff Donna Benson alleges she suffered injuries as a result of being implanted with a hip replacement device manufactured by defendants; plaintiff Graham Benson claims loss of consortium. Plaintiffs filed a motion to stay proceedings. Defendants filed a motion to transfer venue to the United States District Court for the Eastern District of Washington. The Court finds Washington has a strong connection to the case and New Jersey has none. As the private and public factors demonstrate, the Eastern District of Washington is the most appropriate and convenient forum. Defendants motion is granted and plaintiffs motion is denied as moot. [Filed September 21, 2012]