Daily Decision Service Alert: Vol. 21, No. 224 ? November 16, 2012

 

04-2-8207 DiClemente v. Jennings, App. Div. (per curiam) (22 pp.) Plaintiff Albert DiClemente appeals from a summary judgment order dismissing his legal malpractice and other claims against defendant Patrick Jennings, Esq. Jennings represented DiClemente and his home renovation business in litigation brought by Gail Lindsley, who sold DiClemente her home. As consideration for the sale, DiClemente offered Lindsley cash and free renovations to her apartment. Eight months later, Lindsley filed suit to rescind the sale and for other relief, alleging DiClemente had defrauded her and the contract of sale was unconscionable. After DiClemente settled the Lindsley lawsuit, he filed a malpractice complaint against Jennings and a second attorney. He alleged that Jennings failed to bring a timely motion to discharge a lis pendens filed by Lindsley against the subject real estate, and as a result, two potential contracts to resell the property were canceled by the buyers. The appellate panel finds that under the circumstances of the Lindsley lawsuit, where the sale transaction had obvious irregularities, and where application of the lis pendens statute was in dispute, the alleged negligence of Jennings in failing to file a prompt motion to discharge the lis pendens did not cause DiClemente's loss of the two potential contracts to resell the property. Therefore, his malpractice claim was properly dismissed.

20-2-8208 L.A. v. New Jersey Division of Youth and Family Services, App. Div. (Waugh, J.A.D.) (18 pp.) This case required us to define the standard of care applicable to a physician treating a child in the context of the physician’s duty to report child abuse to the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services. The parties agreed that the standard of care is embodied in N.J.S.A. 9:6-8.10, which requires reporting by “[a]ny person having reasonable cause to believe that a child has been subjected to child abuse.” For reasons explained in the opinion, we concluded that “a physician has ‘reasonable cause to believe’ that there has been abuse if a ‘probable inference’ from the medical and factual information available to the physician is that the child’s condition is the result of child abuse, including ‘reckless’ or ‘grossly or wantonly negligent’ conduct or inaction by a parent or caregiver. The inference need not be the ‘most probable,’ but it must be more than speculation or suspicion.” [Approved for publication.]

 

20-2-8209 Verrengio-Olivo v. Donovan, App. Div. (per curiam) (9 pp.) Defendant ex-husband appeals from a Family Part order requiring that a Qualified Domestic Relations Order (QDRO) be re-evaluated and revised to divide his pension equally with plaintiff ex-wife. He argues that plaintiff is only entitled to equitable distribution of the pension rights acquired during the marriage, the so-called coverture fraction of defendant's pension — that is, fifty percent of the portion of the pension rights accumulated during the marriage as compared to fifty percent of the entirety of defendant's pension. Defendant also argues that plaintiff has no right to collect pension benefits before May 1, 2014, because his early retirement was a result of his post-marital acquisition of additional benefits with his own funds and not with a marital asset. The appellate panel agrees with the Family Part judge that the parties’ agreement stated only that plaintiff had a right to fifty percent of benefits at the time of defendant's retirement and made no reference to a coverture fraction. The Family Part judge did not abuse his equitable and discretionary authority in modifying the QDRO despite the passage of more than one year since its entry.

20-2-8210 Clark v. Clark, App. Div. (per curiam) (41 pp.) In this matrimonial matter, the parties each appeal from portions of the amended final judgment of divorce. Plaintiff argues the court should not have awarded defendant rehabilitative alimony, and challenges the quantum of the permanent alimony and child support awards. In his cross-appeal, defendant argues the court should have awarded more permanent alimony, retroactively increased the spousal support award, and required life insurance as security for alimony. Both parties claim they were entitled to counsel fees. The appellate panel reverses the court's award of rehabilitative alimony after finding such award was arbitrary, and directs that plaintiff be given a credit against her permanent alimony obligation for such payments. The panel also reverses and remands for recalculation of permanent alimony and child support. The panel affirms on all other issues and on defendant's cross-appeal.

 

27-2-8211 Haddad v. Kassas, App. Div. (per curiam) (16 pp.) In this landlord-tenant appeal, the trial court found there was no settlement agreement, the tenant was not responsible for the full cost of replacing damaged carpet, the landlord was not responsible for double damages, and the tenant was entitled to seven percent interest on the security deposit the landlord had not placed in an interest-bearing escrow account. The court entered judgment in the tenant's favor and dismissed the landlord's counterclaim. The tenant appeals, arguing she was entitled to statutory double damages for wrongful withholding of her security deposit with seven percent interest calculated up until the date she received payment of her security deposit. The landlord cross-appeals, challenging the court's ruling that no settlement was reached and asserting the court's decision not to award her the entire amount of the itemized damages was erroneous. The appellate panel affirms on the appeal and cross-appeal. The appellate panel finds no basis to second-guess the judge's ruling as to the accord and satisfaction defense where the tenant's attorney never represented to his adversary that he had his client's authority to settle the case and did not expressly accept the settlement. The denial of double damages was appropriate where the landlord made a significant attempt to promptly and fairly resolve the matter through counsel.

27-2-8212 New Community Manor v. Labeeb, App. Div. (per curiam) (8 pp.) Defendant appeals from the Special Civil Part's denial of his application to vacate a default judgment removing him from his apartment at plaintiff's federally subsidized premises in Newark. The problem in this case is that the judge failed to make any findings or take any testimony under oath pertaining to defendant's assertion that he was ill and, possibly, hospitalized when he failed to appear on October 20, 2011. Further, defendant claimed that his father moved from the apartment in May, thereby raising some prospect of a meritorious defense. As to that issue, too, no testimony was taken. Consequently, there is no record on which to base a determination whether the motion judge properly exercised his discretion. Moreover, it appears that the motion judge did not require defendant to explain his initial failure to appear for trial on September 1, 2011, given that the court entered the order to show cause on September 30, 2011, apparently without any showing on that issue. The appellate panel reverses the court's order denying his application to vacate, and remands this matter to the trial court for a hearing on the application.

 

27-2-8213 Shah v. Jones, App. Div. (per curiam) (11 pp.) Defendant Barry Jones leased commercial space in a building owned by plaintiff Atul Shah. The term of the lease ended December 1, 2003. Jones remained as a holdover tenant. A third party purchased the property and Jones continued his tenancy until he vacated in September 2005. Shah filed this complaint on May 26, 2010. Shah told the trial court he was seeking back rent of $65,000. When asked how he calculated this amount, Shah explained that when the lease expired in December 2003, the "base rent" was $300 per month but he raised the rent to "about $390" per month. Shah conceded that there was nothing in writing to memorialize the increase and he continued to accept the rent Jones paid. When the judge inquired as to the timeliness of the filing of his complaint, Shah claimed that the statute of limitations was extended to December 2004 due to an assignment of rents by the subsequent purchaser of the property. Shah conceded that the Jones lease expired on December 1, 2003, and the last rent he was entitled to collect before he sold the building was due on May 1, 2004. The judge determined that the complaint was filed six years and twenty-six days after Shah's cause of action arose. The appellate panel affirms the order dismissing Shah’s complaint as outside the six-year statute of limitations.

26-2-8214 DEG, LLC v. Township Of Fairfield, App. Div. (per curiam) (12 pp.) The Township of Fairfield appeals from an order which permitted plaintiff DEG, LLC to relocate its sexually-oriented business from the front to the rear of a building in the Township. DEG had challenged the constitutionality of Fairfield’s zoning ordinance. The trial court determined that the Township's ordinance was unconstitutional on its face because it precluded all sexually-oriented businesses within the municipality. Pursuant to a consent order, the Township issued a certificate of nonconforming use to DEG. Shortly thereafter, DEG filed an application with the Township to relocate its business from the rear to the front of the building. The Township's zoning officer denied the application. The appellate panel finds the record supports the trial court's determination that DEG did not abandon its right to operate its business in the rear of the leased premises as a nonconforming use. DEG moved to the front portion of the building after the trial court ruled that the consent judgment allowed DEG to operate its business there, and DEG never indicated that it intended to abandon any right to operate the business in the rear of the building.

 

36-2-8215 Tarabokia v. Structure Tone, App. Div. (Parrillo, P.J.A.D.) (26 pp.) We affirmed the summary judgment dismissal of a negligence action by an employee of a subcontractor against the general contractor for a work-site injury, finding, under the circumstances presented, that the scope of the duty owed by the general or prime contractor does not encompass the manner and means of using equipment selected, supplied and controlled by the subcontractor. [Approved for publication.]

 

38-2-8216 In The Matter Of Approval Of A Settlement Reached In The Matter Of Kevin J. Daul v. East Coast Jets, Inc., App. Div. (per curiam) (14 pp.) This appeal involves a palimony claim asserted by appellant Loribeth Pierson against the estate of Christopher Daul (decedent). Decedent was killed when his charter flight crashed. The administrator of decedent's estate settled an action filed in the Court of Common Pleas, Philadelphia County, Pennsylvania, against defendant East Coast Jets, Inc., and four corporate entities “on behalf of all person[s] who are entitled to recover damages under any Survival or Wrongful Death law." The Pennsylvania court allocated 100% of the settlement proceeds as compensation for the wrongful death claim, and 0% for the survival claim. The Pennsylvania court directed the estate administrator to obtain approval of the allocation from the Law Division in New Jersey. In that action, Pierson claimed an equitable interest in decedent's estate based upon her palimony claim, and challenged the proposed allocation of the settlement proceeds. Pierson maintained a portion of the settlement proceeds must be allocated as damages for the survivor action, payable to decedent's estate, to which she claimed entitlement. On December 22, 2010, the Law Division judge approved the proposed allocation, effectively rejecting Pierson's challenge. Pierson filed a motion to vacate the December 22, 2010 order. The appellate panel finds no abuse of discretion in the denial of Pierson's application to set aside the December 22, 2010 order.

 

14-2-8217 State v. Murphy, App. Div. (per curiam) (7 pp.) Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), refusal to submit to a breath test, and reckless driving. The Law Division judge imposed a ninety-day driver's license suspension for the reckless driving conviction, a seven-month driver's license suspension for the DWI conviction to run consecutive to the suspension imposed for the reckless driving conviction, and a seven-month driver's license suspension for the refusal to submit to a breath test conviction to run consecutive to the suspension for the DWI conviction. The appellate panel reverses and remands for reconsideration of the reckless driving sentence, finding the Law Division judge did not follow State v. Moran and Rule 7:9-1(c) in imposing the ninety-day driver's license suspension for defendant's reckless driving conviction. The panel also reverses and remands defendant's consecutive sentences for DWI and refusal to submit to a breath test. The panel disagrees with defendant that State v. Yarbough applies to motor vehicle violations, and concludes that the court must apply the Moran rationale and factors when determining whether to impose a consecutive sentence for motor vehicle violations.

 

25-7-8218 Bleistine v. Diocese Of Trenton, Dist. Ct. (Simandle, U.S.D.J.) (35 pp.) Plaintiff Stephen Bleistine brought this action against Defendants Holy Cross High School and Diocese of Trenton alleging that they terminated him unlawfully because of his age, in violation of the Age Discrimination in Employment Act (“ADEA”) and the New Jersey Law Against Discrimination (“NJLAD”). Plaintiff was one of three Associate Principals at Holy Cross. The other two Associate Principals were Michael Fynan (age 56) and Marie Germano (age 33). They each had specific responsibilities: Plaintiff handled scheduling; Fynan handled finances; and Germano handled curriculum and instructional development. The school principal explained that he decided not to renew Plaintiff’s contract because he wanted to move the scheduling process to the guidance department and, once he had done so, there was no longer a need for the associate principal for scheduling. Here, the Court grants defendants’ motion for summary judgment because Plaintiff has not shown that Holy Cross’ reasons are worthy of disbelief or that invidious discrimination was likely. Because Plaintiff’s ADEA claim does not survive summary judgment, Plaintiff’s NJLAD claim is also dismissed. [Filed November 14, 2012]

25-7-8219 Howmedica Osteonics Corp. v. Zimmer, Inc., Dist. Ct. (Cavanugh, U.S.D.J.) (33 pp.) Before the Court is Defendants’ motion for summary judgment as to Plaintiff Stryker’s complaint. The Zimmer Corporate Defendants argue that summary judgment is appropriate in favor of Zimmer Inc. on every count. The Court finds it is inappropriate to grant summary judgment on all of Stryker’ s claims, as there is a genuine issue of fact as to whether Zimmer, Inc. proximately caused Stryker’s damages. Further, the level of involvement of each corporate entity is a question of fact, and it is inappropriate to dismiss Zimmer, Inc. from the suit. Stryker’s primary allegation against the Individual Defendants is for breach of contract; specifically that they violated the restrictive covenants contained in their Employment Agreements.  Thus as to Stryker’s tortious interference claims against the Individual Defendants, the economic loss doctrine applies, and the claims are barred. Summary judgment is denied with regard to the unfair competition claim. Summary judgment is granted in favor of Zimmer Corporate Defendants on Stryker’ s claim of breach of fiduciary duty, and for aiding and abetting a breach of fiduciary duty. It is improper to grant summary judgment in favor of the Zimmer Corporate Defendants as to the civil conspiracy claim. [Filed November 14, 012]

 

25-7-8220 Birla v. New Jersey Board Of Nursing, Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Defendants New Jersey Board of Nursing and its Executive Director filed a motion to dismiss Plaintiff’s complaint alleging that Defendants engaged in racial discrimination in violation of Title VII by denying Plaintiff’s application for certification as a Certified Homemaker Home Health Aide. Plaintiff cross-moved for summary judgment. Plaintiff seeks monetary damages. In support of their Eleventh Amendment argument, Defendants correctly assert that § 1983 does not represent an abrogation of a State’s immunity. But Plaintiff has not asserted a claim under Section 1983. Unlike Section 1983, Title VII represents a congressional abrogation of state sovereign immunity. Plaintiff’s claim is therefore not barred by Eleventh Amendment immunity. Rooker-Feldman does not bar the Court from taking jurisdiction where Plaintiff filed suit in federal district court alleging that administrative actions taken by the Board violated Title VII. Nonetheless, the Court dismisses plaintiff’s complaint for failure to state a claim where Plaintiff’s complaint fails to allege that Defendants are “employers” under Title VII. Title VII prohibits discrimination by employers; it does not reach discrimination by individual employees, or state licensing agencies. [Filed November 14, 2012]