ALM Properties, Inc.
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Daily Decision Service Alert: Vol. 21, No. 215 ? November 5, 2012
New Jersey Law Journal
STATE COURT CASES
20-2-8126 Kilgore v. Kilgore, App. Div. (per curiam) (14 pp.) Defendant-former husband appeals from Family Part post-judgment orders denying his motion to enforce litigant's rights and modify the parties' dual judgment of divorce and motion for reconsideration. The panel concludes that where the judge correctly found that the applicable statutory requirements for the establishment of child support under the circumstances were set forth in N.J.S.A. 2A:34-23(a) but that the court could not make a clear determination pursuant to the statute or the Newburgh factors because of confusing, inconsistent and insufficient financial information submitted by defendant, the court should have conducted a plenary hearing to resolve the contested issues of material fact. The panel also concludes that defendant's request that the court impute income to plaintiff is premature and without a proven basis. The panel reverses the award of counsel fees to plaintiff and the denial of counsel fees to defendant .The matter is remanded for a hearing at which the court is to review the incomes and earning capacities of the parties and consider anew the parties' fees applications. The panel affirms the determination of the parties' entitlement to tax dependency deductions for the reasons expressed below.
20-2-8127 New Jersey Division Of Youth And Family Services v. S.M., App. Div. (per curiam) (8 pp.) In this Title Nine case, the Division of Child Protection and Permanency appeals from an order permitting the children's guardian ad litem (GAL) to intervene, and an order dismissing the Division's complaint. S.M. sought to adopt two children who were in S.M.'s custody. The adoption matter is pending; the GAL was appointed in that proceeding. Meanwhile, the Division filed a Title Nine action against S.M. based on an allegation made by J.A., a woman who claimed S.M. engaged in inappropriate sexual conduct decades ago. The Family Part judge decided to hold a bifurcated hearing, first hearing the testimony of J.A. and other witnesses on the issue of whether the incident actually occurred. If he found it occurred, the judge planned to hear testimony from expert psychologists on whether S.M. was currently fit to safely parent the children. The intervenor, joined by S.M. and the GAL, filed a motion for reconsideration of the judge's subsequent determination that the incident had occurred. However, instead of ruling on the motion, the judge sua sponte dismissed the case. The appellate panel finds no abuse of discretion in the judge's decision to permit the GAL to intervene. However, finding the judge's decision to sua sponte dismiss the Title Nine action was a violation of due process, the panel reverses the order of dismissal and remands to the Family Part.
FAMILY LAW SPOUSAL SUPPORT
20-2-8128 Hendrickson v. Hendrickson, App. Div. (per curiam) (7 pp.) Defendant (Mark) appeals post-judgment matrimonial orders which denied his motion to terminate his limited duration alimony obligation to plaintiff (Kathleen). The appellate panel finds defendant is correct that the motion judge mistakenly determined the impact of his retirement on the alimony obligation. The parties did not agree that Mark's retirement would end the limited duration alimony provision. The PSA states only that Mark's death, Kathleen's death or the passage of eight years would end his alimony obligation. But the judge's misconception of this fact does not mean that Mark is entitled to relief. To the contrary, the referenced provision of the PSA further confirms that Kathleen was correct in claiming that Mark's retirement was not an event that permitted termination of the alimony obligation. The appellate panel affirms, for reasons somewhat different from those provided by the motion judge, concluding that defendant's retirement from his place of employment was an insufficient ground for a cessation of his alimony obligation.
LABOR AND EMPLOYMENT WAGES AND HOURS
25-2-8129 Wagner v. Blue Sky Classic Cars LLC, App. Div. (per curiam) (31 pp.) Defendants appeal from a judgment awarding unpaid overtime wages, liquidated damages, and counsel fees to plaintiff, a mechanic, as a result of their failure to pay him overtime wages despite his having often worked more than forty hours per week. The panel affirms, finding, inter alia, that (1) the trial court did not abuse its discretion in granting plaintiff's in limine motion to preclude introduction of documents defendants proffered to support their affirmative defense that Blue Sky was exempt from paying plaintiff overtime wages because more than 50% of its business is derived from the sale of automobiles where defendants inexplicably failed to comply with Rule 4:17-7 in attempting to supplement their discovery responses after the close of the discovery period; (2) the trial court did not err in its interpretation of the good faith defense under N.J.S.A. 34:11-56a25.2 and finding it inapplicable to this case or in excluding the testimony of a Department of Labor investigator because it would confuse the jury or be unduly prejudicial to plaintiff; and (3) the trial court did not err in permitting plaintiff to testify as to his opinion concerning the percentage of Blue Sky's revenue that came from sales as opposed to other activities or in permitting the issue of liquidated damages to proceed to the jury.
LANDLORD/TENANT COMMERCIAL LEASES
27-4-8130 Cablevision of Oakland LLC v. CK Bergen Holdings LLC, Chan. Div. (Bergen Cty.) (Doyne, A.J.S.C.) (11 pp.) Plaintiff, which entered into a 20-year lease with defendant which contained an option to extend for an additional five years pursuant to certain conditions, seeks an order directing defendant to enter into a lease amendment memorializing the fair market rent determined by the appraiser appointed by the court after the parties were unable to agree on the fair market rental value and to award attorney fees and costs incurred as a result of being compelled to bring this motion. The court grants the requested relief, finding that the appraisal is not flawed and that defendant has not executed the required amendment in accordance with the appraisal and thus is in violation of the lease and the order and appears to be acting only for the purpose of delay. [Decided October 26, 2012]
LANDLORD/TENANT PREMISES LIABILITY NEGLIGENCE
27-2-8131 Kandrac v. Marrazzos Market at Robbinsville, App. Div. (Espinosa, J.A.D.) (17 pp.) In this appeal from an order granting summary judgment, we consider whether a commercial tenant in a multitenant shopping center owes a duty to its patrons to maintain an area of the parking lot that the landlord is contractually obligated to maintain. We hold that, although the determination of a duty remains a fact-sensitive issue, as a general rule, the commercial tenant does not have such a duty. [Approved for publication.]
REAL ESTATE MORTGAGE FORECLOSURE
34-2-8132 NVE Bank v. Ber-Loew Partnership, App. Div. (per curiam) (13 pp.) Appellant Richard Berlowe, a member of the Ber-Loew partnership, appeals the denial of his motion to intervene in a foreclosure action brought by NVE Bank against defendants Ber-Lower Partnership and Christopher Durso. He also argues that the trial court erred when it found that the partnership's guaranties and mortgages were enforceable. Finding that Berlowe failed to satisfy the first of the four Chesterbrooke required elements - that he had an interest relating to the property that was the subject of plaintiff's action - because, since the properties at issue were owned solely by the partnership, the partnership has the sole interest in defending any actions relating to them, and that permissive intervention was untimely, the panel concludes that the Chancery Division properly denied the motion to intervene. It therefore declines to consider the issues regarding the merits of the foreclosure action.
REAL ESTATE MORTGAGES EVIDENCE
34-2-8133 EMC, LLC v. Cooper, App. Div. (per curiam) (30 pp.) After a two-day bench trial, plaintiff EMC, LLC, successor in interest to Emigrant Mortgage Company, Inc., obtained a judgment of foreclosure against defendants Ivy Cooper and Vashti Brouwers on a defaulted residential mortgage loan. The trial judge rejected defendants' claim that their signatures on the mortgage documents had been forged, instead adopting the opinion of Emigrant's handwriting expert that the signatures were authentic. Also, applying the cleric-penitent privilege, the judge excluded testimony proffered by defendants alleging that Cooper's son-in-law had admitted to a reverend of the church he attended that he had forged their signatures. The appellate panel affirms, finding the judge appropriately concluded that the signatures were genuine and that defendants had unsuccessfully attempted to disguise them as forgeries. Further, the judge correctly excluded the son-in-laws testimony under the cleric-penitent privilege. If, as defendants posit, the son-in-law had forged their names on the mortgage documents, his confession of such a wrongful act to a cleric would provide an occasion for potential spiritual guidance and redemption. There was an ample basis for the trial judge to deem such proof privileged, and to exclude it.
35-5-8134 North Brunswick Twp. v. Gochal, Tax Ct. (Menyuk, J.T.C.) (5 pp.) Finding that the judgment of the Middlesex County Board of Taxation reducing the assessment on defendants' property was contrary to the statutory directions in N.J.S.A. 54:3-22, the court grants the township's motion to restore the original assessment. [Filed November 1, 2012]
36-2-8135 Hunt v. Callahan, App. Div. (per curiam) (21 pp.) Plaintiff Mary Hunt appeals from orders granting summary judgment to defendants Charles Callahan and the Veterans of Foreign Wars, Post 2189 (VFW). Hunts complaint alleged that while employed by the VFW, Callahan engaged in harassment with the purpose of intimidating her on the basis of race, national origin and/or religious affiliation. Hunt also alleged that Callahan defamed her. The trial court concluded Hunts' LAD claims against the VFW failed as a matter of law because she did not present a prima facie case of unlawful discrimination or denial of access to a place of public accommodation on any prohibited basis. Also, Hunt failed to present sufficient evidence to support her claim against the VFW for negligent supervision or negligent hiring. The Court further concluded that Callahan was entitled to summary judgment, finding Hunt did not present evidence indicating that Callahan's purpose was to intimidate her on the basis of race, religion, gender or ethnicity. The evidence did not support Hunt's claim that Callahan intimidated her on the basis of her Quaker religion. Callahan's alleged statements that Hunt was a traitor, could not be trusted, was like Jane Fonda, and "supported" Ho Chi Minh were not slander per se but "pure expressions of opinion" based on his belief that Hunt had protested war. Callahan's statement that Hunt was a member of the American Friends Service Committee) was false, but not defamatory.
FEDERAL COURT CASES
ARBITRATION AND MEDIATION
03-7-8136 New Jersey Building Construction Laborers District Council v. Robert DeForest Demolition Co. Inc., U. S. Dist. Ct. (Pisano, U.S.D.J.) (5 pp.) Respondent moves to set aside the judgment confirming an arbitration award in favor of petitioner and to vacate the award. The court denies the motion, finding that the circumstances here - respondent's lone shareholder died after entry of the award and before petitioner's filing of the petition to confirm the arbitration and his wife, as his executrix, did not take any action with respect to the arbitration award or the petition until filing this motion - do not satisfy the standards of either Rule 60(b)(1) or 60(b)(6). [Filed October 25, 2012]
16-7-8137 Crisdon v. NJ Dep't of Education, U. S. Dist. Ct. (Hillman, U.S.D.J.) (8 pp.) Plaintiff seeks to vacate a judgment granting, on the basis of the Eleventh Amendment, defendant's motion to dismiss the complaint in this matter alleging the defendant failed to issue him a high school diploma after he met the high school graduation requirements in the spring of 2006 resulting in his inability to pursue his dream of becoming a professional basketball player. The court denies the requested relief because plaintiff does not specify the existence of any mistake, inadvertence, surprise or excusable neglect and he fails to offer a sufficient argument supporting his conclusion that the judgment was void and instead simply seeks to reargue the same legal errors her previously asserted and a Rule 60(b) motion is not meant to be used as a substitute for an appeal and cannot serve as a basis for challenging the prior judgment. [Filed November 5, 2012]
LABOR AND EMPLOYMENT NEGLIGENCE
25-7-8138 Gargano v. Wyndham Skyline Tower Resorts, Dist. Ct. (Simandle, U.S.D.J.) (21 pp.) Plaintiff, an employee of Mastercorp, a company that provided cleaning services to a Wyndham hotel on a contract basis, alleges that she was sexually assaulted at the hotel by Luis Lopez, a Wyndham employee. Plaintiff sued Wyndham for negligently hiring Lopez under New Jersey law. Plaintiff argues that Lopez had a reputation for a quick temper and was involved in at least two documented incidents of aggression toward other employees that should have put Wyndham on notice that hiring Lopez put other employees at risk of physical violence. Because Plaintiff has not adduced sufficient evidence to enable a reasonable jury to find that (1) Wyndham knew or should have known about a particular unfitness or dangerous attribute of Lopezs personality, or (2) plaintiffs injury, sexual assault, was reasonably foreseeable based on Lopezs record and employment history, the Court will grant Defendant Wyndham Vacation Resorts motion for summary judgment. [Filed November 2, 2012]