Daily Decision Service Alert: Vol. 21, No. 232 ? November 30, 2012

 

17-4-8318 Envirofinance Group LLC v. Environmental Barrier Co., LLC, Chan. Div. (Bergen Cty.) (Contillo, P.J. Ch.) (21 pp.) The sole legal issue is whether plaintiff has established as a matter of law that defendant Geo-Con is not entitled to an equitable lien on certain mitigation credits (or the proceeds of the sale of the mitigation credits) in connection with an environmental mitigation project. Finding no express or implied agreement to grant a lien against specific property in the contractor consent agreement and other relevant documents, the court determines that EFG is entitled to partial summary judgment extinguishing Geo-Con's equitable lien claim to the extent that it is based on any alleged agreement. Similarly, it determines that EFG is entitled to summary judgment extinguishing Geo-Con's equitable lien claim to the extent that it is based on unjust enrichment because, while EFG has received a benefit as a result of Geo-Con's uncompensated work on the project, and there is at least some basis in the record from which a fact finder could determine that Geo-Con did at least some of the work for which it now seeks payment, expecting to be paid by EFG, there is no evidence from which one could find that EFG expected to pay Geo-Con and there is no evidence to support Geo-Con's claim that EFG benefited beyond its contractual rights. 

 

20-2-8319 Biancamano v. Biancamano, App. Div. (per curiam) (19 pp.) Defendant Jeffrey Biancamano appeals the Family Part order substantially modifying his parenting time as originally agreed to in a consent order embodies in a final judgment of divorce. The panel reverses the modification order and remands for further proceedings, finding that the motion judge erred in substantially curtailing defendant's parenting time based on conflicting certifications that contained disputed facts, accusations and allegations without benefit of a plenary hearing, to which defendant is entitled, and that in conditioning restoration of his parenting time on the approval of outside experts, the court wrongly delegated its judicial responsibility to resolve family disputes.

20-2-8320 Moreno v. Javan, App. Div. (per curiam) (20 pp.)In this post-judgment matrimonial action challenging certain Family Part determinations, defendant alleges that the trial judge erred in permitting plaintiff to choose the child's pediatrician and healthcare insurer in violation of the parties' matrimonial settlement agreement, in refusing to impose a geographic limitation on plaintiff's place of residence in light of the MSA's statement that the parties agreed to live within lose proximity, and in denying his request for oral argument. The panel affirms the refusal to impose geographical limitations on plaintiff's residence, finding that defendant failed to show that plaintiff's relocation to Flanders, as opposed to a town in closer proximity to his residence in Piscataway, substantially interfered with his parenting time and thus failed to establish any change in circumstances warranting a modification of the MSA, much less the imposition of geographical restrictions on her choice of residence. The court affirms the order permitting plaintiff's selection of a pediatrician and health insurer as a temporary order since plaintiff's unilateral selection of the pediatrician and health insurer did not comply with the provisions of the MSA that require consultation and cooperation but the record fails to show that the selections were inimical to the child's best interests, and the issue is remanded to the trial judge for further consideration. The panel finds that the court did not err in denying oral argument because no formal request for oral argument was made and affirms the court's denial of defendant's motion that the matter be sent to a different judge.  

 

20-2-8321 N.D. v. M.D., App. Div. (per curiam) (21 pp.) Both parties appeal from a final judgment of divorce. Defendant M.D. appeals the provisions addressing reunification of the children with plaintiff. Plaintiff N.D. appeals the provisions awarding defendant alimony and counsel fees, granting her sole custody, and granting a divorce on the extreme cruelty grounds. The panel affirms, finding that (1) the trial judge did not abuse her discretion in relying on the report of the psychologist the court appointed to evaluate plaintiff and provide an opinion on whether he should be reunited with his children since, although the panel disapproves of plaintiff's self-serving conduct in providing the expert with a favorable defense expert report from his criminal case, the court required that he be provided with additional documents providing a more complete picture of plaintiff's conduct and there is no evidence the expert was biased against defendant; (2) there is sufficient credible evidence to support the award of a divorce on grounds of extreme cruelty given the evidence that plaintiff verbally abused defendant on a regular basis and that he pled guilty to abuse of one of the children; (3) the award of alimony is supported by substantial credible evidence; (4) defendant's counsel properly supported her fee application with an affidavit of services; and (5) given the evidence, the court did not err in granting defendant sole custody of the children.

20-2-8322 Dash v. Dash, App. Div. (per curiam) (5 pp.) Plaintiff Darien Dash appeals from a Family Part order finding him in violation of an order requiring him to pay his ex-wife's rent, and awarding counsel fees to his ex-wife. The panel affirms, finding a modest counsel fee award to be justified since plaintiff repeatedly had violated the PSA by failing to pay defendant's rent and that as a result she was threatened with eviction, that when she filed her motion to enforce litigant's rights, plaintiff still had not paid the rent, and further, that the parties had agreed in the PSA that in the event of a violation, necessitating an enforcement action , the defaulting party would be responsible for the other party's reasonable and necessary counsel fees.

 

23-2-8323 Chery v. New Jersey Indemnity Insurance Company, App. Div. (per curiam) (5 pp.) Plaintiff was injured in a hit-and-run motor vehicle accident and sought compensation through an uninsured (UM) claim against defendant New Jersey Indemnity Insurance Company. The policy provided UM coverage for personal injury of $15,000 per person and $30,000 per accident. A UM arbitration was conducted and plaintiff was awarded $17,500. Defendant timely rejected the award and demanded a jury trial. Plaintiff filed a complaint to confirm the arbitration award and a motion for summary judgment. Plaintiff argued that because the mandatory minimum liability limit specified by the Financial Responsibility Law of New Jersey and the actual liability of defendant's policy are the same, $15,000, the contract provision does not permit defendant to appeal the award or demand a trial de novo. In other words, the award should be molded to $15,000. The court denied plaintiff's motion for summary judgment and dismissed plaintiff's complaint. The appellate panel affirms where Plaintiff purchased UM coverage with a potential per person limit of $15,000, and expressly contracted to be bound by an arbitration award unless it exceeds $15,000. Based on the unambiguous language of the policy, as the arbitration award exceeded $15,000, defendant was legally entitled to reject it.

31-2-8324 Garber v. Haddon Hills Associates, LLC, App. Div. (per curiam) (13 pp.) Plaintiff Justine Garber, administratrix of the estate of decedent Leonard Long, appeals from the summary judgment dismissal of decedent's personal injury negligence cause of action against defendant Haddon Hills Associates, L.L.C., t/a Haddon Hills Apartments. Decedent was injured when he fell due to a deflection or depression in the floor of his apartment that developed at the foot of the staircase. The motion judge found that defendant had no duty to protect against an obvious defect unless fraudulently concealed; decedent was aware of the defect and took precautions to avoid it by walking over it for almost a year; and decedent failed to provide written notice to defendant regarding the defect. The appellate panel reverses and remands, finding defendant had a duty to maintain the termite damaged crawl space and floor in a reasonably safe condition. Conversely, the lease imposed no duty on the tenant to inspect for and make necessary structural repairs. Second, the nature of the risk of harm in this case is quite severe. Third, the landlord was in the best position to correct these structural defects.

 

33-2-8325 Trevino v. Board Of Trustees, Public Employees' Retirement System, App. Div. (per curiam) (12 pp.) Appellant Jerri Trevino appeals from a final determination of the Board of Trustees, Public Employees' Retirement System (PERS), denying her application for ordinary disability retirement benefits. Appellant’s application asserted that she was disabled by "bipolar disorder, depression [and] ADHD." The Board credited the live testimony of defendant’s expert, Regis Acosta, M.D., a board-certified psychiatrist, that appellant had not demonstrated she was disabled. In so ruling, the Board explained that appellant's doctors never performed any objective testing on her and, instead, relied solely upon her own self-reporting of her claimed problems. The doctors also never considered increasing appellant's level of care, even though they opined her condition was worsening, and medication and therapy had helped her in the past. The Board therefore found that appellant had not met her burden of proving by a preponderance of the evidence that she was incapacitated from the performance of her duties and should be retired on an ordinary disability pension. The appellate panel affirms, finding there is substantial credible evidence in the record to support the Board's determination.

14-2-8326 State v. Graham, App. Div. (per curiam) (20 pp.) Tried to a jury, defendant was convicted and sentenced for the following offenses: second-degree robbery, simple assault, as a lesser included offense of the indicted charge of third-degree aggravated assault, third-degree receiving stolen property, third-degree conspiracy to commit the crimes of tampering with public records, forgery, and motor vehicle title offenses, third-degree tampering with public records, third-degree forgery, and third-degree motor vehicle title offenses. On defendant’s appeal, the appellate panel holds that an amended judgment of conviction shall be entered to reflect the merger of the counts charging second-degree robbery with third-degree receiving stolen property. Because theft is a lesser included offense of robbery, and because all theft crimes have been consolidated under Chapter 20 in the Code of Criminal Justice, double punishment would result if these offenses were not merged. The panel otherwise affirms.

42-6-8327 New York Commercial Bank v. Palmyra Power & Light LLC, Bankruptcy Ct. (Steckroth, U.S.B.J.) (5 pp.) After the debtor filed a petition for relief under chapter 7 of the Bankruptcy Code, the trustee filed an adversary proceeding against several defendants, including Allan Brenner and Stephen Chalk. The trustee now seeks to enforce a settlement allegedly reached between her and Brenner and Chalk against Chalk. Finding that Chalk consented to Brenner's counsel negotiating on his behalf, that Chalk, through Brenner's counsel, was involved at all significant steps in the negotiations including approving proposals and counter-proposals made to the trustee on his behalf, and that he was fully aware of the final settlement terms and was copied on a number of communications , at least one of which was filed with the court, representing that the matter was settled and made no objection thereto, the court finds that Chalk agreed to the settlement notwithstanding the absence of a final formally executed document and that the settlement is enforceable against him. [Filed November 28, 2012]

46-7-8328 Ingram v. Township Of Deptford, Dist. Ct. (Simandle, U.S.D.J.) (32 pp.) This action arises out of Defendant Sgt. Michael Taylor’s alleged use of excessive force on Plaintiff in removing her from a municipal court proceeding, allegedly causing injuries. Plaintiff filed the instant action against Defendants Township of Deptford, Deptford Township Police, Sgt. Taylor and John Does 1-50. Before the Court is Plaintiff’s motion seeking leave to amend her complaint. Plaintiff’s counsel advised the Court that Plaintiff was discontinuing voluntarily all claims under § 1983 (“Monell claims”) and against John Doe defendants. Thus, the only issue before the Court is whether Plaintiff may amend her claims against the Township, Township Police, and Sgt. Taylor under the New Jersey State Constitution or state tort law. Plaintiff’s proposed amended complaint newly alleges that the Township and Township Police engaged in a pattern or practice of allowing its police officers to act recklessly and to use excess force. The amended complaint also alleges that Plaintiff “substantially complied” with the notice requirements of the New Jersey Tort Claims Act. The Court denies Plaintiff’s motion to amend her complaint, finding the proposed claims would be futile. [Filed November 28, 2012]

 

46-7-8329 Mitchell v. Township of Willingboro, Dist. Ct. (Simandle, U.S.D.J.) (27 pp.) In this 42 U.S.C. section 1983 action arising out of a motor vehicle stop which was based on a dispatch call, in which pro se plaintiff, an African-American male, alleges that defendants violated his Fourth Amendment rights because the officer lacked reasonable suspicion for the stop and that he was stopped because of racial profiling, and in which most of the claims have been dismissed, defendant-officer moves to dismiss the remaining Fourth Amendment claim against him for failure to state a claim and because he is entitled to qualified immunity and for summary judgment. Plaintiff moves for summary judgment because the officer has failed to respond to discovery requests. The court denies all motions, finding, inter alia, that (1) the court confirms its previous holding that the complaint sufficiently states a Fourth Amendment claim against the officer; (2) qualified immunity is not established on the face of the complaint where plaintiff adequately alleges a violation of his Fourth Amendment rights and those rights were clearly established at the time of the incident; (3) plaintiff has failed to establish many of the necessary factors to warrant the extreme sanction of a default judgment, including prejudice to plaintiff and a history of dilatoriness or that the officer acted willfully or in bad faith; (4) defendant is not entitled to summary judgment because there are sufficient discrepancies between the description of the vehicle in the dispatch call and plaintiff's vehicle that a rational factfinder could conclude that a reasonable officer under the circumstances would have known that stopping plaintiff's car was unlawful because reasonable suspicion did not exist. [Filed November 28, 2012]

 

51-7-8330 Morrison v. Elwood, Dist. Ct. (Sheridan, U.S.D.J.) (11 pp.) Petitioner filed an application seeking a writ of habeas corpus, claiming that he is unlawfully held in custody as a result of Respondents' erroneous interpretation of the mandatory detention provision in the Immigration and Nationality Act ("INA"). Petitioner does not dispute that the controlled-substance offenses underlying his 2001 and 2007 convictions could trigger mandatory detention pursuant to § 1226(c). Rather, he asserts that § 1226(c) does not apply to him personally because the Government failed to detain him immediately upon his release from criminal incarceration underlying his current removal proceedings. Since the Government did not detain Petitioner in connection with his removal proceedings until four years after he was released from penal confinement underlying said removal, the Court holds that Petitioner cannot be properly classified as an alien detainee held under § 1226(c). His current detention should be reclassified as a detention resulting from operations of § 1226(a). As a § 1226(a) detainee, Petitioner should be entitled to an individualized bond hearing before an immigration judge. Petitioner's application seeking a writ of habeas corpus is granted. [Filed November 29, 2012]

 

34-7-8331 Barnes: Bey v. Johnson,Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) Seeking to quiet title to a piece of real property, Plaintiff filed a complaint against defendants and an application to proceed in forma pauperis. The Court grants Plaintiff’s application but dismisses Plaintiff’s complaint without prejudice because plaintiff did not provide a short and plain statement of the claim showing that she is entitled to relief and did not establish subject matter jurisdiction. [Filed November 29, 2012]