Daily Decision Service Alert: Vol. 21, No. 194 - October 4, 2012

01-2-7857 Natural Medical Inc. v. New Jersey Department of Health and Senior Services, App. Div. (Parrillo, P.J.A.D.) (17 pp.) We hold that the Department of Health did not act arbitrarily, unreasonably or in contravention of the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16, in limiting the initial permitting to the statutorily mandated minimum of six alternate treatment centers (ATCs) to cultivate and distribute marijuana. The act further requires that the first six ATCs are to be operated by nonprofit entities. Appellants, a for-profit corporation and its principal, did not have an unqualified right to apply for permits to operate ATCs and to have their applications processed and evaluated irrespective of need. [Decided Oct. 4, 2012.]

 

09-2-7858 Street v. Hothem, App. Div. (per curiam) (11 pp.) Plaintiffs are long-term pre-conversion tenants of properties owned and managed by defendant. On plaintiffs' complaint, the trial court found that defendant had violated the Truth in Renting Act but declined to find that he had violated the Consumer Fraud Act because the violations had not been intentional and outrageous. The panel reverses, finding that defendant, an experienced landlord, was obligated to be aware of the local rent control ordinance and applicable statutes and to be aware that plaintiffs were pre-conversion tenants and that he could not demand that they sign leases that required the waiver of rights as a condition of continued tenancy. His expressions of good faith, willingness to negotiate, and reliance on counsel do not dissipate the fact that there were violations of plaintiffs' established rights, and the violations of the TRA were adequate to constitute prohibited acts under the CFA. The panel remands for consideration of whether there were ascertainable losses and a causal connection between the losses and the prohibited conduct.

 

20-2-7859 D.M. v. L.R., App. Div. (per curiam) (5 pp.) Defendant appeals from a final restraining order entered against her pursuant to the Prevention of Domestic Violence Act. Defendant argues that the trial court erred in adjudicating a domestic violence complaint by focusing on the "past history" between the parties and not addressing the actions alleged in the complaint. The appellate panel agrees and reverses. The trial judge did not make any finding that the complained-of events actually occurred or that, if they did, whether such acts amounted to harassment requiring the issuance of a final restraining order. When the court found that defendant committed domestic violence based upon a violation of a prior "consent agreement" between the parties, the court essentially converted the hearing into one on acts of domestic violence not alleged in the complaint, depriving defendant of her right to due process. The judge's determination was conclusory and not anchored in specific findings of fact which would have supported the finding that a final restraining order was necessary.

 

20-2-7860 Mitchem v. Mitchem, App. Div. (per curiam) (5 pp.) Defendant appeals from a judgment of divorce entered on grounds of irreconcilable differences, and which incorporated an agreement on equitable distribution purportedly reached by the parties. The appellate panel affirms. Defendant herself pled irreconcilable differences in her counterclaim for divorce. The judge was thus presented with two parties who pled identical causes of action, and there was no harm to defendant in electing to proceed on that basis, rather than on the basis of defendant's alternate theory of extreme cruelty. With respect to equitable distribution, despite her claim that she did not agree to the equitable distribution terms, the record plainly reveals that defendant consented to the terms, under oath.

 

25-2-7861 Paulino v. Merrill Lynch, Pierce, Fenner & Smith Inc., App. Div. (per curiam) (17 pp.) Plaintiff, an immigrant from the Dominican Republic, appeals from the grant of summary judgment to defendant dismissing his complaint alleging race and national origin employment discrimination, hostile work environment, and retaliatory discharge in violation of the Law Against Discrimination. The panel affirms, finding that (1) plaintiff failed to establish a prima facie case of employment discrimination regarding any of his claims, whether considered separately or as a pattern of conduct, since he is unable to show that he met defendant's expectations, defendant replaced him, or that defendant's employment action was a pretext for discrimination; (2) plaintiff failed to establish a prima facie case of hostile work environment since he provides no evidence that his supervisors ignored his complaints or made racially insensitive comments about Hispanics or that he complained to individuals in human resources, or to any manager, about racial discrimination, and this 13 allegations, even taken together, do not show conduct that was severed or pervasive enough to warrant a finding that the work environment was hostile; and (3) plaintiff's claim or retaliation fails because he has not established a prima facie case and even if he had, defendant has established a legtimate, non-retaliatory explanation for terminating plaintiff and he has not presented credible evidence that the explanation was pretextual.

 

27-2-7862 Fleurantin v. Warren, App. Div. (per curiam) (5 pp.) Pro se plaintiff appeals from the dismissal without prejudice of his Special Civil Part complaint seeking to recover rent and other damages allegedly due since 2006 from his former tenant. The panel affirms, finding that where, three months before trial, plaintiff informed the prior trial judge that he was retaining an attorney but on the day of trial he had not done so and instead requested an adjournment to accommodate the schedule of an attorney with whom he had spoken but had not yet retained, and where the matter had been listed for trial four times, the court did not abuse its discretion in denying the adjournment. Further, where the premises were owned by a limited liability company in which plaintiff claimed to be a principal, only that entity was entitled to any recovery due from defendant and the trial judge correctly found that, pursuant to Rule 1:21-1(c), plaintiff had no right to be heard on behalf of that entity without counsel.   

31-2-7863 Adrignolo v. Emejuru, App. Div. (per curiam) (6 pp.) In this automobile negligence action, plaintiff alleges he was permanently injured when the car he was driving was struck by a vehicle operated by defendant. This lawsuit arises under the 1998 Automobile Insurance Cost Reduction Act (AICRA). Plaintiff appeals from an order granting summary judgment to defendants. The appellate panel affirms the trial court’s finding that plaintiff failed to satisfy the limitation on lawsuit threshold where there was insufficient objective medical evidence to establish that plaintiff sustained a permanent injury.

 

33-2-7864 I/M/O Ferrarella, App. Div. (per curiam) (11 pp.) Michael Ferrarella appeals the final decision of the Civil Service Commission upholding his removal from his position as a police officer with the Borough of Oakland. The panel affirms, finding that the Commission, which adopted the findings of the ALJ but rejected her recommendation of a suspension, applied its expertise in evaluating the officer's conduct - lying to other officers to assist a fellow volunteer firemen involved in a hit and run and lying in the subsequent investigation - in determining the appropriate discipline and its determination that his conduct was egregious and indicative of poor judgment incompatible with his status as a police officer was not arbitrary, capricious, or unreasonable, and that under the circumstances presented, removal was not so disproportionate to the offense as to be shocking to one's send of fairness.

 

52-2-7865 Dittrich v. The Port Authority Of New York And New Jersey, App. Div. (per curiam) (10 pp.) Following his arrest by Port Authority Police, plaintiff made a series of requests for documents to the Port Authority. Plaintiff appeals from an order that dismissed his complaint and order to show cause, in which he alleged that the Port Authority had violated OPRA and the common law right of access to public documents. This appeal presents the question whether the Open Public Records Act (OPRA) applies to the Port Authority of New York and New Jersey, a bi-state agency. The Supreme Court recognized three scenarios in which a bi-state agency may be subject to New Jersey law: "(1) the compact explicitly provides for unilateral state action; (2) both states have complementary or parallel legislation; or (3) the bi-state agency impliedly consented to a single-state's jurisdiction." The appellate panel finds none of these scenarios applies here and affirms the order, finding that OPRA does not apply to the Port Authority.

 

07-8-7866 Abulkair v. Liberty Mutual Ins. Co., Third Cir. (per curiam) (4 pp.) After the District Court dismissed the complaint in this matter for lack of subject matter jurisdiction, and the Third Circuit affirmed and awarded costs to defendants, and the District Court enforced that award by entering an order and judgment reflecting the costs awarded on appeal, Abulkair filed a motion to reopen this time to appeal that order, which the District Court denied. Abulkahir now appeals that denial. The court affirms, agreeing with the District Court that an appeal of its judgment based on the Third Circuit's award of costs would be frivolous, taken in bad faith and prejudicial to defendants as it is clear that the Third Circuit has already heard and rejected Abulkair's arguments in opposition to the costs imposed for his prior appeal. [September 27, 2012]

 

13-7-7867 Prall v. Ellis, U. S. Dist. Ct. (Simandle, U.S.D.J.) (8 pp.) In this action by a state prison inmate confined in the Management Control Unit at the New Jersey State Prison challenging his conviction, sentence, and conditions of confinement, which has been the subject of considerable motion practice, the court denies plaintiff's motion for default judgment against certain named state employees because the motion has been rendered moot since those defendants filed an answer before plaintiff field his motion for default. [Filed September 27, 2012]

 

53-7-7868 Cambridge Educational Center, Inc. v. Yi, Dist. Ct. (Salas, U.S.D.J.) (8 pp.) Plaintiff Cambridge Educational Center brings the following causes of action against Defendant United Young Artist Foundation: misappropriation of confidential proprietary information and trade secrets, copyright infringement, unfair competition, civil conspiracy and tortious interference with prospective economic advantage. UYAF alleges that it is not a proper defendant because it is charitable foundation to encourage young people in the arts and does not offer any of the same services as Plaintiff, which helps students prepare for the SATs. Yi states that, after she left her employment with Plaintiff, she started another entity named UYAF Learning which provides teaching services. While Yi disputes Plaintiff’s allegations, she contends that UYAF Learning would be the proper party to this action, not UYAF. Second, UYAF contends that the Court lacks jurisdiction. As to the copyright infringement claim, UYAF asserts that Plaintiff does not own any copyrights to its materials and its only trademark was abandoned by Plaintiff. Finally, UYAF states that the materials alleged to be proprietary and confidential were generic and publicly available. The Court finds that UYAF’s proffered defenses have sufficient merit and factual support to weigh in favor of vacating default. UYAF’s motion to set aside the entry of default and for leave to file an untimely answer is granted. Yi’s motion for leave to file an untimely answer is granted. [Filed September 27, 2012]

 

26-7-7869 United States of America v. Hull, Dist. Ct. (Wigenton, U.S.D.J.) (5 pp.) This matter concerns rights and interests associated with a portion of Old Mine Road that crosses Defendants’ property. The Government filed a motion for summary judgment, in sum requesting an order 1) for Defendants to immediately remove the blockade of Old Mine Road, 2) to enjoin Defendants from limiting or obstructing the public’s access to Old Mine Road, and further, 3) that the public’s right to use and enjoy Old Mine Road be restored. Defendants filed a cross motion for summary judgment. The Court granted the Governments’ motion for summary judgment and denied Defendants’ cross motion. Before the Court is Defendants’ motion to amend or alter judgment or, in the alternative, for clarification on the grounds that the Government never proved a necessary element of its case, i.e., that it has a property interest in the road, or, in the alternative that the Court rule on the type of property interest Plaintiff may possess. Defendants have not met any of the requirements for reconsideration to alter or amend judgment regarding the Government’s possession of a property interest. However, the record and previous briefings for summary judgment insufficiently addressed the issues of the nature of the property rights and damages. The parties will have an opportunity to present evidence regarding these issues at trial. [Filed September 27, 2012]

34-7-7870 Bethea v. Roizman, Dist. Ct. (Simandle, U.S.D.J.) (63 pp.) In 1992, the Camden Redevelopment Agency sold 65 tracts of land and improvements to Israel Roizman's business, Camden Townhouses Associates II. Camden Townhouses also entered into an agreement that these tracts of land were to be developed into affordable rental housing units. Roizman acquired a loan from the New Jersey Housing Mortgage and Financing Agency ("NJHMFA") and entered into a Financing, Deed Restriction and Regulatory Agreement with the NJHMFA which stated that after a term of fifteen years, the owner would sell the rental units to low income persons for $1. The complaint is brought by 16 named Plaintiffs who are low-income African American and Hispanic women who allege that they are present and/or former tenants at Camden Townhouses. In a prior opinion and order, the court granted motions to dismiss filed by the other government agency defendants on grounds of immunity, failure to comply with state notice requirements under the Tort Claims Act and failure to state a claim. This reasoning applies with equal force to the City Defendants here, and their motion for judgment on the pleadings is granted. Plaintiffs' claims against them are dismissed. Also, the Roizman Defendants' motion for summary judgment is granted where Plaintiffs have not established their claim for unfair debt collection practices. Plaintiffs' complaint fails to state a claim for violations of federal constitutional and civil rights and these claims are dismissed. In addition, the Court concludes that the Plaintiffs did not have a contractual right to ownership of their rental units, thus summary judgment is appropriate to dismiss the remainder of the complaint. [Filed September 27, 2012]