Daily Decision Service Alert: Vol. 21, No. 192 - October 2, 2012

 

42-2-7825 Gaskill v. Citi Mortgage, App. Div. (Cuff, P.J.A.D.) (17 pp.) Plaintiffs sought to cancel a judgment obtained prior to filing a petition in bankruptcy pursuant to N.J.S.A. 2A:16-49.1. Although the judgment creditor had not levied on the real property owned by plaintiffs prior to the bankruptcy filing and the judgment was eligible for cancellation, plaintiffs had failed to list the judgment creditor or the judgment in their petition. Therefore, the judgment creditor had no knowledge of the bankruptcy filing or the discharge in bankruptcy and no opportunity to enforce its judgment postdischarge and before plaintiffs filed their complaint to cancel the judgment. We held that the motion judge properly tolled the period in which the judgment creditor could seek to enforce its judgment until one year following conclusion of this litigation. We reasoned that the statutory remedy provided by N.J.S.A. 2A:16-49.1 assumes knowledge by the judgment creditor of the bankruptcy proceedings and the discharge in bankruptcy. Here, it was undisputed that the judgment creditor had no knowledge of the bankruptcy proceeding before plaintiffs filed to cancel the judgment. [Decided Sept. 28, 2012.] [Approved for publication.]

 

11-2-7826 Contract Applicators, Inc. v. Borough Of Park Ridge, App. Div. (per curiam) (12 pp.) Plaintiff Contract Applicators, Inc. appeals from a final judgment awarding it $10,894.20 following a bench trial. Plaintiff's complaint sought payment of $58,774.42 for alleged costs of "labor, material, equipment, overhead and profit" for extra work items incurred in the performance of a public works contract for defendant, the Borough of Park Ridge. The trial court determined plaintiff failed to abide the express terms of the contract, as it did not obtain prior approval authorizing performance and payment of the extra work, and thus was not entitled to relief. The judge also found plaintiff had successfully defeated defendant's claimed credits, resulting in the judgment awarded to plaintiff. On appeal, plaintiff argues the trial judge erred in denying payment for the extra work. The parties’ contract stated that absent specific prior municipal authorization and prior approval of work to be performed, payment was not warranted. The appellate panel affirms, concluding the trial court properly applied the law, and rejecting plaintiff's proposition that based on the doctrine of apparent authority, an engineer’s conduct bound defendant despite the terms of the contract.

 

20-4-7827 Leonard v. Leonard, Ch. Div., Family Pt., Ocean Co. (Jones, J.S.C.) (5 pp.) This case presents a novel issue regarding the ability of a custodial parent to collect support arrears via levy against her ex-spouse’s minority member interest in a limited liability corporation (LLC) without piercing the corporate veil. In 1993, the New Jersey Legislature enacted N.J.S.A. 42:2B-45, which addresses the issue. However, the statute has never been interpreted or applied in any subsequent reported opinion of the New Jersey family court. [Decided June 13, 2012.] [Approved for publication.]

 

20-2-7828 Solomon v. Solomon, App. Div. (per curiam) (4 pp.) Defendant Brian Solomon appeals from a Family Part order. Among other things, it denied reconsideration of an order transferring his motion to reduce child support to the inactive list pending his release from state prison. Solomon also sought parenting time with the parties' children. He also appeals the Family Part judge's denial of the request because of his imprisonment. The order is affirmed except as to parenting time; the panel reverses that provision in the order. The parties’ certifications did not agree on a point upon which the trial judge relied - that plaintiff permits Solomon access and contact with the children via telephone, electronic mail, and ordinary mail. Thus, the court must schedule a plenary hearing, assuming the parties have not already reached an agreement on the subject, to address the issue of Solomon's parenting time.

 

20-4-7829 Lavine v. Lanza, Ch. Div., Cape May Co. (Rauh, J.S.C.) (3 pp.) The issue presented is whether N.J.S.A. 2C:25-29(b)(3)(a), requiring a risk assessment when requested prior to the entry of an order for parenting time unless arbitrary or capricious, applies in the context of an application to modify a final restraining order that already provides for parenting time. The court concludes that given the facts presented in this case it does. [Decided May 2, 2012.] [Approved for publication.]

 

24-2-7830 Stan v. Smith, App. Div. (per curiam) (7 pp.) Plaintiffs Dan and Elena Stan purchased defendants Dorothy and Herbert Smiths' home. The Smiths then moved to Florida. The following spring, following heavy rainfall, the home flooded. Ultimately, the court entered default judgment against the Smiths. The Smiths appeal the orders denying their motion to dismiss for lack of personal jurisdiction, entering judgment by default against them, and denying their motion to vacate the judgment. Inasmuch as the Stans' claims relate to the New Jersey residential property they purchased from the Smiths, the appellate panel agrees that the court had personal jurisdiction over the Smiths. The fact that consideration of the Smiths' application for dismissal on jurisdictional grounds did not take place until the actual trial day put them in the position of having to travel to New Jersey for a trial that might not take place. It appears that they were told that a hearing by telephone was possible, but either they were not told how to request such a hearing or they did not do so effectively. Because the reasons articulated for their failure to appear for trial were not unreasonable, the judge should have vacated the default judgment in the interests of justice and given the Smiths an opportunity to present their defense on the merits. The appellate panel vacates the default judgment and remands for a trial.

 

25-2-7831 Education Association Of Mt. Olive v. Mt. Olive Board Of Education, App. Div. (per curiam) (5 pp.) Plaintiff Education Association of Mount Olive appeals from the order entered denying its motion to vacate an arbitration award in favor of defendant Mount Olive Board of Education. The Board and the Association are parties to a collective bargaining agreement (the Agreement). The appellate panel finds the Agreement is ambiguous, as the arbitrator determined. The Agreement mentions shortened days at the end of the school year, but does not indicate that they are shortened days for students only. Thus, the arbitrator properly considered the parties' past experience, which indicated that teachers had worked full days on the last two days of the school year, even though the students had shortened days. Based on this past practice, the arbitrator reached a reasonably debatable interpretation of the relevant section of the contract. Accordingly, the trial court correctly refused to set aside the award.

 

31-2-7832 Hanley v. Collingswood Manor, App. Div. (per curiam) (18 pp.) Edwin Ellis died after succumbing to injuries he sustained from falling in his bedroom while a resident at defendant Collingswood Manor. Plaintiffs, individually and as co-administrators ad prosequendum for the heirs-at-law of Edwin Ellis, and as co-administrators of the estate, appeal from an order granting in part, defendants Collingswood Manor's (CM) and United Methodist Homes' (UMH) motion for partial summary judgment. The motion judge determined that defendants are protected by the New Jersey Charitable Immunity Act. Because such immunity is an affirmative defense, the burden of persuasion is placed on the non-profit organization. The matter proceeded to trial. The jury returned a verdict of no cause for action. On appeal, plaintiff argues the motion judge erred by ruling that defendant was immune from liability for negligence due to charitable immunity. Plaintiff also contends that evidential errors require a new trial. The appellate panel’s examination into the soundness of the partial summary judgment order is hampered by the motion judge's failure to adequately explain her reasons for the decision. Therefore, the panel remands to the trial court for fact-sensitive findings and legal conclusions.

 

33-2-7833 Valdes v. Morejon, App. Div. (per curiam) (9 pp.) Sabino Valdes was an employee of the Union City Board of Education who was terminated from his position by the Board. Valdes filed a complaint with the Ethics Commission against Board member Alicia Morejon. He alleged that Morejon misrepresented her residence on her personal financial disclosure statement and suggested she was not a resident of Union City. The Ethics Commission's determination that Valdes continued prosecuting the complaint after he knew or should have known that it lacked reasonable basis in law or equity, as he was unable to set forth any facts to support a claim of violation, and its finding that he did so solely for the purpose of harassment or malicious injury to Morejon, is neither arbitrary nor capricious. There is substantial credible evidence in the record to support the determination that the complaint was frivolous. The appellate panel affirms the decision of the New Jersey School Ethics Commission dismissing Valdes’s complaint as frivolous, and sanctioning him $500.

33-2-7834 In The Matter Of Dwayne Smith, App. Div. (per curiam) (14 pp.) Dwayne Smith appeals from a final agency decision of the Civil Service Commission. The Commission approved the recommendation of the Department of Corrections (DOC) that appellant be terminated from his position as a senior corrections officer at Northern State Prison after he failed to investigate or report statements made to him by a nurse at the prison that she was being harassed by another corrections officer. The appellate panel affirms, rejecting appellant's claims that the Commission's decision was arbitrary and capricious and lacked support in the record, that termination of his employment was disproportionate to his offense, and that the charges were merely a pretext for retaliation.

33-2-7835 Ford-White v. Landgraf, App. Div. (per curiam) (5 pp.) Plaintiff Betty Ford-White, a former employee of defendant Middle Township Board of Education, filed a complaint charging the Board and its business administrator, Walter Landgraf, with malicious abuse and use of process, libelous defamation and negligently accusing her of theft. While employed by the Board as a "bus aide," plaintiff was also working as a "school aide" for the Cape May County Special Services School District. Landgraf, in the course of performing his duties related to the Board's budget, discovered that plaintiff was presenting time sheets to both districts reflecting the same hours of work. Bus aides, however, were paid for five and three-quarters hours each day they worked, regardless of their actual hours, because the travel time varied, and they were paid the same amount each pay period. Plaintiff's claims of malicious prosecution were based on the fact that Landgraf reported her for theft because of time sheets that she had completed as directed. The appellate panel finds the trial judge properly dismissed plaintiff’s claims based on defamation and negligence for failure to file a timely notice of claim as required by the Tort Claims Act. Also, the judge appropriately granted summary judgment in favor of defendants on the malicious prosecution claim on the ground that plaintiff could not establish malice.

 

14-2-7836 State v. Gilliard, App. Div. (per curiam) (19 pp.) Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), and two counts of third-degree aggravated assault arising out of a motor vehicle accident. The judge imposed an aggregate eight-year prison term. The appellate panel affirms the drug-related conviction. The panel reverses the aggravated assault convictions where the jury was charged on purposeful or knowing conduct, concepts that have no place in this case, which constituted plain error because it allowed the jury to convict defendant based on a mental state for which there was no evidential support. Further compounding the harmful effect, the judge did not provide the jury with a separate charge on causation. Also, the State admits that the judge failed to make the proper findings to overcome the presumption against incarceration, and concedes that the matter should be remanded for re-sentencing.

 

03-7-7837 CD&L Realty LLC v. Owens-Illinois, Inc., Dist. Ct. (Bumb, U.S.D.J.) (11pp.) Plaintiff CD&L Realty purchased a former glass manufacturing property from Defendant Owens-Brockway Glass Container, Inc. The parties memorialized the deal in a Purchase and Sale Agreement (“PSA”), which contains an arbitration provision. Defendant Owens-Brockway had closed the manufacturing operation and begun remediation of environmental contamination on the property, which was not completed before the parties closed. Plaintiff’s amended demand for arbitration asserted that: (1) Defendant concealed certain facts about the condition of the property before the PSA was executed; and (2) that Defendant had not fulfilled its obligations under the agreement to remedy contamination on the property. Plaintiff amended its allegations, alleging common law fraud, a Consumer Fraud Act claim, breach of contract claims, and claims based on the Environmental Rights Act and the New Jersey Industrial Site Recovery Act. The arbitrator dismissed all claims and counterclaims with prejudice. Plaintiff sought to have the award vacated, naming Defendant Owens-Brockway and Defendant Owens-Illinois, Inc. as Defendants. Defendants removed the case and filed a motion to confirm the arbitration award. Finding no basis to disturb the arbitration award, The Court grants Defendants’ motion to confirm the award. [Filed September 25, 2012]

20-7-7838 Green v. Green, Dist. Ct. (Simandle, U.S.D.J.) (23 pp.) Defendant filed a motion in state court seeking to enforce her rights under a Qualified Domestic Relations Order to a percentage of the Plaintiff's retirement benefits. The order at issue is a Qualified Domestic Relations Order as defined under the Employee Retirement Income Security Act ("ERISA"). Defendant's state law claims are not preempted by ERISA and Plaintiff's claims for declaratory and injunctive relief must be dismissed. In addition, Plaintiff has failed to establish a cause of action for malicious prosecution as he has not established that the underlying civil action terminated in his favor. The Court grants Defendant's motion for summary judgment, denies Plaintiff's cross motion for summary judgment and dismisses as moot Plaintiff's motion to strike Defendant's affirmative defenses. [Filed September 24, 2012]

 

25-7-7839 Corral v. Hersa Hospitality Management, Inc., Dist. Ct. (Debevoise, U.S.D.J.) (21 pp.) This case arises out of the alleged unlawful discrimination and interference by an employer following an employee’s notification of pregnancy leave. Plaintiff asserts claims against her former employer, Hersha Hospitality Management, Inc. (“HHM”), for gender discrimination, pregnancy discrimination and interference with applicable leave laws, including violations of the Family and Medical Leave Act of 1993 (“FMLA”); Title VII and/or the Pregnancy Discrimination Act; and the New York City Human Rights Law. (“NYCHRL”). Defendants filed a motion to dismiss count one of the Amended Complaint, regarding the protection of a non-eligible employee seeking pregnancy leave that would commence after she gains eligibility under the FMLA. Plaintiff has made a plausible showing of interference with her rights protected under the FMLA. Therefore, Defendants’ motion to dismiss her FMLA claim is denied. The burden now shifts to the Defendants to prove there was a reason unrelated to the employee’s exercise of her FMLA rights for terminating her. [Filed September 24, 2012]

 

Note: The correct volume number for the 10-01-12 alert is Vol. 21, No. 191.