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Daily Decision Service Alert: Vol. 21, No. 213 ? November 1, 2012
New Jersey Law Journal
STATE COURT CASES
16-2-8106 Hawk v. New Jersey Institute of Technology, App. Div. (Parrillo, P.J.A.D.) (17 pp.) A tenured professor at New Jersey Institute of Technology (NJIT) brought an action in the General Equity Part seeking to enjoin pending "detenure" proceedings against him, claiming deprivation of procedural due process in the university's internal investigation of his conduct. The action was dismissed for failure to exhaust administrative remedies, and we affirmed. The assertion of a constitutional claim is but one factor to be considered in determining whether judicial intervention is justified, and in order to be relieved of the exhaustion requirement, that claim must be a colorable one and not dependent on facts to be developed at the administrative proceeding, or capable of being vindicated therein. Here, plaintiff's constitutional claim does not rise to the level to warrant interlocutory judicial interference. The full panoply of procedural due process rights does not attend the administrative investigative stage and the process actually afforded plaintiff prehearing was more than adequate. [Decided Oct. 29, 2012.] [Approved for publication.]
FAMILY LAW CHILD ABUSE
20-2-8107 DYFS v. C.P., App. Div. (per curiam) (11 pp.)
Trial courts finding of abuse and neglect that the legal guardian of a 9-year-old child, her great niece, abandoned her to the child's mother without approval of the Division of Youth and Family Services is reversed where appeals court is not convinced the guardian subjected the child to significant risk of harm such as to constitute abandonment or abuse or neglect within the intendment of statutory or case law. The record shows that for nine years and under extremely difficult circumstances, the guardian provided food, shelter, love and nurturing and tried her best to address the childs significant psychiatric and emotional problems, withstanding physical attack and destruction in her home and never knowing when the child would act out and pose a threat to herself or others.
FAMILY LAW DOMESTIC VIOLENCE
20-2-8108 A.G.D. v. C.C.C., App. Div. (per curiam) (8 pp.) Final restraining order (FRO) entered against defendant under the Prevention of Domestic Violence Act is reversed, and the case is remanded for a new hearing, where FRO judge erred in (1) requiring defendant to disprove that predicate acts occurred and (2) focusing on incidents not mentioned in the domestic violence complaint, which occurred after the temporary restraining order had been issued.
FAMILY LAW EQUITABLE DISTRIBUTION
20-02-8109 Christina Mantey v. Eric Schwartz, App. Div. (per curiam) (19 pp.) In this matrimonial case, both parties appeal/cross-appeal certain aspects of the amended dual judgment of divorce, relating to the equitable distribution of two assets: the marital residence and a Morgan Stanley investment account. In light of gaps and apparent inconsistencies in the trial courts reasoning and analysis, the contested issues are remanded to the Family Part for reexamination under the applicable statutory factors and case law.
FAMILY LAW SPOUSAL SUPPORT
20-2-8110 Means v. Snipes, App. Div. (per curiam) (34 pp.) On defendants appeal, the appellate panel affirms various provisions of the amended final judgment of divorce (AJOD) and post-judgment orders, with the exception of those provisions in the AJOD that call for an automatic reduction in alimony based upon pre-determined income amounts. Paragraph 21 of the AJOD provides for a pro-rata reduction in alimony payments if defendant's annual gross earnings drop below $2,800,000 in a given year. Paragraph 8 provides that defendant "will have an automatic right to receive a reduction in Alimony" if his gross annual earnings fall below $2 million. The parties did not agree to an automatic adjustment in alimony based upon this criterion. The court erred in including this provision in the AJOD. The appellate panel reverses that part of the court's decision set forth in Paragraphs 8 and 21 of the AJOD that calls for an automatic reduction in alimony based upon predetermined income amounts, and directs that it be vacated from the order.
GOVERNMENT STATE AND LOCAL GOVERNMENT
21-2-8111 State v. Heine, App. Div. (per curiam) (3 pp.) Defendant was found guilty in municipal court of violating Garfield Ordinance 1723, Ch. 181-3, concerning a property owners obligation to permit construction officials to conduct inspections. Defendants principal contention is that the ordinance violates her Fourth Amendment right to insist that inspectors not enter her premises without a search warrant. The appellate panel concludes that this case is controlled by a prior opinion in State v. Heine, which held that Heine had a Fourth Amendment right to exclude inspectors from her premises unless they had a search warrant. This applied even if she initially consented and then withdrew that consent, as occurred in this case. The inspectors remedy was to obtain a search warrant rather than to charge her with violating the ordinance. The panel reaches the same conclusion here, reverses the order on appeal and vacates the judgment of conviction.
LABOR AND EMPLOYMENT DISCRIMINATION
25-2-8112 Queen v. City of Bridgeton, App. Div. (per curiam) (19 pp.) Summary judgment dismissal of complaint by city police dispatcher alleging disability discrimination is affirmed because she has not established any violation of the employer's duty to reasonably accommodate her alleged disability. Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide.
33-2-8113 In The Matter Of Luis Pastoriza, Camden, App. Div. (per curiam) (12 pp.) Appellant Luis Pastoriza, the municipal clerk of the City of Camden, appeals from the final administrative determination of the Civil Service Commission, which rejected his claim that the City's temporary layoff plan violated his rights under N.J.S.A. 40A:9-165. This matter concerns the interplay of the Commission's general Title 11A oversight of employment issues in civil service municipalities with the narrow application of N.J.S.A. 40A:9-165's salary protection for municipal clerks in the State. The Commission concluded that because N.J.S.A. 40A:9-165 included language making it subject to Title 11A, a municipal clerk had no right to insist upon being excluded from a Commission-approved layoff plan. Pastoriza argues that municipal clerks are protected municipal employees who cannot be forcibly disadvantaged by financial decisions invoked by municipalities. The appellate panel reverses, finding the Commission's disregard of N.J.S.A. 40A:9-165's no-diminution protection in Civil Service municipalities defeats a primary purpose of the statute giving municipal clerks statutory financial protection.
34-2-8114 New Jersey Schools Development Authority v. Marcantuone, App. Div. (Fuentes, P.J.A.D.) (24 pp.) Plaintiff New Jersey Schools Development Authority provided the funding for East Orange to acquire by condemnation environmentally contaminated real property owned by defendants Joseph Marcantuone and Robert Gieson. Pursuant to Housing Authority of New Brunswick v. Suydam Investors, 177 N.J. 2 (2003), funds representing the estimated cost of remediation of the land were held in escrow pending a final determination on liability under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24. Relying on our decision in White Oak Funding Inc. v. Winning, 341 N.J. Super. 294 (App. Div.), certif. denied, 170 N.J. 209 (2001), the trial court held defendants were not liable as a matter of law for the cost of remediation because they were not "in any way responsible" for the contamination. The court also held that defendants were not the current owners of the property at the time the contamination was discovered because plaintiff had previously been vested with title as condemnor under N.J.S.A. 20:3-19. We reverse the trial court and hold that our decision in White Oak was in part implicitly superseded by the 2001 amendments to the Spill Act creating the "innocent purchaser" defense codified at N.J.S.A. 58:10-23.11g(d)(5). We remand for the court to determine whether defendants can establish, by a preponderance of the evidence, the four elements of the "innocent purchaser" defense. We also hold that in a postcondemnation proceeding to determine Spill Act liability under Suydam, defendants are deemed the "current owners" of the property, notwithstanding N.J.S.A. 20:3-19. [Decided Oct. 29, 2012.] [Approved for publication.]
REAL ESTATE CONTRACTS
34-02-8115 Robert Occhifinto v. State of N.J. Through Commr of Dept. of Transportation, App. Div. (per curiam) (9 pp.) The plaintiff landowner sought a declaratory judgment that he had an easement by way of necessity over the DOTs land in Green Township. Summary judgment was granted to the DOT, and the plaintiff appealed. The appellate panel affirmed the summary judgment because the relevant deed unambiguously conveyed the right of way free and clear of all easements and rights of access … even if such easements and rights would otherwise arise by reason of necessity. If parties choose to contract for a forfeiture, a court of equity will not interfere with that contract term in the absence of fraud or the like.
35-5-8116 Girls Friendly Society of Pennsylvania v. City of Cape May, Tax Ct. (Brennan, J.T.C.) (25 pp.) The court held that the taxpayers use of a Christian retreat house was reasonably necessary to achieve the charitable and religious purposes of the organization and that the actual and dominant use of the property was by and for the benefit of the young female members. Occasional simultaneous use of portions of the property by restricted individuals and entities for a fee does not destroy the exemption. [Decided Oct. 26, 2012.] [Approved for publication.]
CRIMINAL LAW AND PROCEDURE POST-CONVICTION RELIEF
14-2-8117 State v. Peterson, App. Div. (per curiam) (13 pp.) In appealing the denial of his post-conviction relief (PCR) petition, defendant seeks a new trial based on, among other things, State v. A.O., which precludes admission of polygraph evidence when stipulated by the accused without the advice of counsel. Defendant was tried and convicted in 1998, and his direct appeal regarding the admission of polygraph evidence and other points was decided in 2000 -- nine years before A.O. was decided. As a result, even if appropriate, pipeline retroactivity provides defendant no benefit. Additionally, the appellate panel concludes that A.O. should not be applied to this case because the admission of polygraph evidence here did not strike at the heart of the truth-seeking function. The panel affirms the denial of relief on this ground but remands for an evidentiary hearing on defendant's ineffectiveness claim based on the alleged failure of trial counsel to pursue a diminished capacity defense.