Daily Decision Service Alert: Vol. 21, No. 247 ? December 21, 2012

20-2-8526 Fazio v. Apisa, App. Div. (per curiam) (23 pp.) Defendant former wife appeals from multiple provisions of a December 2011 order and from a January 2012 order granting partial reconsideration to plaintiff, a firefighter severely injured in a fire, and a later January 2012 order denying her entire application for reconsideration. The panel affirms in part, reverses in part, and remands for further proceedings, finding that: (1) the court did not abuse its discretion in denying defendant's request for plaintiff's medical records and instead providing her with necessary information in a less intrusive way; (2) the court did not abuse its discretion in denying defendant's request for an accounting of the proceeds derived from fundraising efforts for defendant's medical expenses as she was not entitled to that information; (3) the court lacked a proper evidential foundation for its findings that defendant was willfully trying to keep the children from their father and that she lacked credibility and a plenary hearing is required to allow the court to grant relief under Rule 1:10-3; (4) the counsel fee award to plaintiff is vacated because the court's rationale neither applied Rule 5:3-5(c) nor explained whether the award was intended as a sanction; and (5) the matter should be remanded to a different judge where the judge made "crystal clear" findings that defendant lacked credibility, came before the court with unclean hands, and was acting in bad faith.

 

23-2-8527 Delpome v. Travelers Ins. Co., App. Div. (per curiam) (8 pp.) Plaintiff, who sustained cervical spine injuries in an automobile accident, instituted this action for first-party PIP benefits after his insurer declined to authorize payment for an additional surgical procedure. Plaintiff appeals the trial court's grant of defendant's motion to compel arbitration, arguing that his decision to pursue his remedy in court cannot be "unmade" by defendant. The panel affirms, finding that the policy language is unambiguous and provides that all disputes may be submitted to arbitration and it is specious to suggest that because the policy does not specify who may invoke arbitration, only the policyholder has the right to elect arbitration. Moreover, the right to proceed to arbitration arises from statute. The panel also holds that the issue of collateral estoppel is not ripe for resolution.

25-2-8528 Peters v. Board of Review, App. Div. (per curiam) (7 pp.) After an investigation determined that Peters had certified that he was unemployed when, in fact, he was working while he collected unemployment compensation benefits, the Division of Unemployment and Disability Insurance notified him that he was liable for a refund of benefits and fines totaling $16,570. He did not appeal that determination. Two years later, after repaying $11,000, he applied for a waiver of the overpayment and fine under N.J.A.C. 12:17-14.2. He appeals the denial of the waiver. The panel affirms, finding Peters was properly held liable for repayment under 43:21-16(d)(1) and appropriately fined under 43:21-16(a) for failing to disclose that he was working, and that the division's determination that he was not entitled to a waiver because he withheld a material fact in obtaining benefits is clearly supported by law.

 

36-2-8529 Aiges v. Fuccillo, App. Div. (per curiam) (9 pp.) In this dog bite case brought by a dog-sitter against the dog's owners, the dog-sitter appeals the trial court's ruling that her lawsuit cannot go forward in the absence of proof that the owners knew or should have known that their dog was vicious. Finding that the trial court erred in applying the independent contractor exception recognized in Reynolds v. Lancaster County Prison to New Jersey's dog-bite statute, N.J.S.A. 4:19-16, which imposes absolute liability on the owners, because the circumstances here are factually distinguishable from the commercial setting in Reynolds, the court concludes that the statutory rule of absolute liability applies to plaintiff's injuries. It reverses and remands for trial.

 

42-7-8530 In re Citta, Debtors, Dist. Ct. (Wolfson, U.S.D.J.) (14 pp.) Debtors appeal from the decision of the Bankruptcy Court granting Appellee Sun National Bank’s motion to dismiss Debtors’ converted Chapter 7 bankruptcy case. The issue is whether the Bankruptcy Court erred in dismissing Debtors’ bankruptcy case pursuant to 11 U.S.C.S. § 707(b), which allows the dismissal of a petition upon a finding that granting relief would be an abuse of Chapter 7 of the Bankruptcy Code. Contrary to Debtors’ position, there is ample support for the Bankruptcy Court’s inquiry into the reasonableness of Debtors’ budget in determining and the finding that Debtors’ housing and car expenses were unreasonable. Debtors demonstrated a lack of candor to the Bankruptcy Court regarding the necessity of repaying their pension loans and of the nature of their financial situation. The Court concludes the Bankruptcy Court did not abuse its discretion in dismissing Debtors’ case and affirms the Bankruptcy Court’s decision. [Filed December 19, 2012]

 

46-7-8531 Ash v. Township of Willingboro, Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) In this 43 U.S.C. section 1983 action arising out of plaintiff's arrest and the subsequent search of his vehicle, defendants, the township, its director of public safety, and several police officers, move for summary judgment. The court grants their motion, holding that (1) plaintiff's claims that his arrest and the search and seizure of his gun violated his constitutional rights is barred by Heck v. Humphreys here, where the criminal charges against him were resolved through PTI; (2) plaintiff's Monell supervisory liability claims require an underlying constitutional violation and because the underlying violations are barred by Heck and have been dismissed, they cannot form the basis for a derivative Monell claim; and (3) the remaining state law claims are dismissed without prejudice. [Filed December 18, 2012]

46-7-8532 David v. Miller, Dist. Ct. (Kugler, U.S.D.J.) (9 pp.) Plaintiff brings suit against more than twenty defendants alleging that these persons deprived him of his civil rights under color of law in violation of criminal statute 18 U.S.C. § 242 (2006). Before the Court are motions to dismiss filed by ten Defendants and one motion for summary judgment filed by Defendant Michael Legatie. Plaintiff was arrested by police officers Defendants Gibison, Wariwanchik, and Efelis. He was incarcerated at the Salem County Correctional Facility in Woodstown, NJ from March 23 until May 26, 2011. Thereafter, on January 25th, 2012, Plaintiff was driving on a New Jersey highway when he was stopped by state patrolman Defendant Legatie. Defendant Legatie arrested Plaintiff pursuant to a bench warrant that had been issued by Defendant Farrell, a New Jersey Superior Court Judge. Thus, Plaintiff was held pursuant to a facially valid bench warrant. The motions to dismiss are granted based on immunity grounds. Similarly, Defendant Legatie’s motion for summary judgment is granted. The Court grants all of the pending motions to dismiss and Legatie’s motion for summary judgment. [Filed December 17, 2012]

 

46-7-8533 McGann v. Collingswood Police Department, Dist. Ct. (Hillman, U.S.D.J.) (28 pp.) Plaintiff is a former police officer of the Collingswood Police Department who served for eight years before he was arrested. Plaintiff alleges violations of his Fourth Amendment rights and brings his claims pursuant to 42 U.S.C. § 1983. Defendant Borough of Collingswood filed a motion for summary judgment on Plaintiff’s claims against it for false arrest and malicious prosecution. Plaintiff’s false arrest claim fails because Plaintiff cannot demonstrate that his alleged arrest was made without probable cause. Further, the essence of Plaintiff’s claims is that the Borough lacked probable cause to arrest Plaintiff for harassment with respect to his communications with members of the Department. Assuming Plaintiff proved these allegations at trial, it would necessarily imply that Plaintiff’s conviction and guilty plea to the later amended charge under a borough ordinance was invalid. Under these circumstances, Plaintiff’s Section 1983 claims for false arrest and false imprisonment clearly run afoul of State v. Heck and summary judgment must be entered in favor of the Borough. [Filed December 17, 2012]

 

53-7-8534 Levey v. Brownstone Investment Group LLC, Dist. Ct. (Waldor, U.S.M.J.) (6 pp.) Plaintiff's second amended complaint alleged copyright infringement relating to defendants' use of software in which plaintiff alleges an authorship and copyright interest. Defendants move for sanctions against plaintiff's counsel in connection with the second amended complaint premised on plaintiff's alleged failure to own a registered copyright in Brownstone Live before filing the action and to file the action within the applicable statute of limitations. The court denies the motion, finding that plaintiff has shown a registration in LevTek and registration of an underlying copyrighted work is sufficient to sustain a copyright infringement action pertaining to a derivative work, here Brownstone Live, and, therefore, plaintiff's claim is not patently unmeritorious or frivolous. Further, the dismissal of the second amended complaint renders the motion moot. Moreover, sanctions are not warranted in light of the basis on which the magistrate judge gave plaintiff an additional opportunity to sufficiently plead a cause of action - an alleged continuing violation.  [Filed December 18, 2012]

 

32-7-8535 Tigert v. Ranbaxy Pharmaceuticals Inc., Dist. Ct. (Kugler, U.S.D.J.) (10 pp.) Defendant moves for judgment on the pleadings in this failure-to-warn action seeking damages on either a strict products liability or negligence theory of liability after plaintiff suffered serious liver damage after taking the drug Solodyn, arguing its presumptive non-liability under Texas law, which undisputedly applies here. The court finds that the presumption against preemption obtains in this case and denies defendant's motion. [Filed December 18, 2012]

 

32-7-8536 Walters v. Carson, Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Before the Court is Plaintiff’s Amended Complaint against Defendant McNeil-PPC, Inc., asserting claims of negligence, breach of implied and express warranties, and strict liability arising out of Plaintiff’s use of Tylenol Arthritis, an over-the-counter medication manufactured and distributed by Defendant. The Court grants Defendant’s motion to dismiss, finding Plaintiff’s negligence, implied warranty, and strict liability claims are subsumed by the New Jersey Products Liability Act (“the PLA”) and Plaintiff’s failure to assert his claims under the PLA is a fatal pleading deficiency. Although the PLA does not extend to claims for breach of an express warranty, Plaintiff’s complaint does not contain sufficient factual allegations to support such a claim. Defendant’s motion to dismiss is granted. [Filed December 17, 2012]

50-7-8537 Grodko v. Central European Distribution Corp., Dist. Ct. (Simandle, U.S.D.J.) (29 pp.)This consolidated action involves two federal securities class actions brought by Central European distribution Corporation (CEDC) shareholders under §§ 10(b) and 20(a) of the Securities Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5.Three parties have filed motions to be appointed as lead counsel. The court denies the Prosperity Subsidiaries Group's lead plaintiff application because it is subject to unique defenses regarding loss causation. The court appoints Puerto Rico as lead plaintiff because, after the Subsidiaries, it has allegedly suffered the greatest financial losses and is not subject to unique defenses. Harry Nelis' lead plaintiff motion is denied because Puerto Rico suffered substantially greater losses. Puerto Rico's selection of Robbins Geller Rudman & Dowd as lead counsel and Cohn, Lifland, Pearlman, Herrmann & Knopf as local counsel is approved. [Filed December 17, 2012]

 

36-7-8538 Clayton v. United States of America, Dist. Ct. (Simandle, U.S.D.J.) (44 pp.) Plaintiff, the wife of the deceased and administrator of his estate, seeks compensation after he died as a result of touching an energized power wire while working on a utility police replacement project at Fort Hamilton U. S. Army base in Brooklyn. Defendants United States and Meridian Management Corporation move for summary judgment. After finding that New York and New Jersey law both yield the same outcome on the motions, the court grants in part and denies in part the United States' motion. It is granted with respect to all of plaintiff's claims in her individual capacity because she did not file an administrative notice under the Federal Tort Claims Act. It is granted on grounds of lack of administrative notice as to specific sub-parts in count I which alleges negligence. It is denied in all other respects because there are disputed issues of material fact regarding the extent of the Army's supervision of the deceased. Meridian's motion is granted because plaintiff has not shown that a genuine issue of material fact exists regarding whether Meridian owed plaintiff a duty of care. [Filed December 18, 2012]