Daily Decision Service Alert: Vol. 22, No. 4 ? January 7, 2013

20-2-8633 Rivera v. Rivera, App. Div. (per curiam) (16 pp.) Here, where the parties have engaged in substantial post-judgment motion practice, plaintiff has been non-compliant with her support obligations resulting in her equitable distribution monies being held in escrow, defendant has consistently failed to disclose information regarding a Fidelity Investments account thus thwarting its equitable distribution, and emancipation of the parties' children and payment of their college expenses has been contested, pro se plaintiff appeals a money judgment entered in her favor and against defendant. The panel concludes thatthe issues raised by the parties, particularly those pertaining to plaintiff's pursuit of equitable distribution and defendant's continued noncompliance with orders to provide plaintiff with the Fidelity account statements, require more than the cursory attention given by the motion judge, who did not render appropriate findings of fact and conclusions of law. The panel therefore remands the matter, for the necessary findings of fact and conclusions of law with respect to the motions decided by it.

 

25-3-8634 Tan v. Pereira, Law Div. (Hudson Cty.) (Sarkisian, J.S.C.) (12 pp.) Pro se plaintiff filed this action alleging defamation, slander, professional negligence, legal malpractice, negligence, and disparate treatment/discrimination against the county, the attorney who represented the county in the proceedings that resulted in plaintiffs removal from his position as Sheriff's Officer and various county employees who testified in or played a part in the administrative dismissal proceedings. The court grants defendants' motions to dismiss, finding that: (1) the claims for defamation, slander and professional negligence against the attorney and the county defendants fail because they arise out of statements made during litigation which are protected by the litigation privilege; (2) the legal malpractice claim fails because the attorney owed no duty to plaintiff, a non-client, where there are no facts suggesting that he expected plaintiff to rely on his conduct or that plaintiff actually did rely on his conduct; (3) the court does not have jurisdiction over plaintiff's claims that are, in effect, an appeal of the decision of the ALJ and the Civil Service Commission; and (4) plaintiff's claim under the Law Against Discrimination fails because plaintiff failed to make a prima facie showing that he had been performing his job prior to his termination and because the claim is barred under the doctrine of collateral estoppel. [Filed January 4, 2013]

26-2-8635 Rosenblum v. Zoning Board Of Adjustment Of The Borough Of Closter, App. Div. (per curiam) (12 pp.) Plaintiff Jesse Rosenblum appeals pro se from a judgment affirming a decision by defendant Zoning Board of Adjustment of the Borough of Closter. The Board granted several variances to defendant James Crimmins, including a use variance to store commercial vehicles and material for his landscape and construction business on an undersized lot in a residential zone. The appellate panel reverses, finding the Board's decision cannot be sustained because Crimmins failed to satisfy the affirmative and negative criteria embodied in N.J.S.A. 40:55D-70(d).

35-5-8636 Residuary Trust A v. Dir., Div. of Taxation, Tax Ct. (Bianco, J.T.C.) (11 pp.) On cross-motions for summary judgment the Tax Court granted plaintiff’s motion for summary judgment and denied defendant’s motion for summary judgment, finding that the plaintiff was not required to pay taxes on the undistributed out-of-state income of a testamentary trust earned through the trust’s passive ownership of stock in S Corporations conducting business in New Jersey. Since the trust was administered out of state by a nonresident trustee and the court determined that the trust owned no assets in New Jersey, the court followed the precedent set forth in Pennoyer v. Taxation Div. Dir., 5 N.J. Tax 386 (Tax 1983), and Potter v. Taxation Div. Dir., 5 N.J. Tax 399 (Tax 1983), finding that the director failed to overcome the due process threshold needed to constitutionally subject the trust to taxation on out-of-state income. [Decided Jan. 3, 2013.] [Approved for publication.]

 

35-5-8637 Schaefer v. Borough of Chatham, etc., Tax Ct. (Bianco, J.T.C.) (6 pp.) The Tax Court denied defendant’s motions to dismiss plaintiffs’ complaints for lack of jurisdiction despite the dismissals of plaintiffs’ appeals for lack of prosecution by the Morris County Board Taxation. The court found that the board’s dismissals were wholly improper given that plaintiffs’ attorney and appraisal experts appeared at the scheduled board hearings and were prepared to proceed. The court determined that the board’s barring of the appraisal reports and testimony of plaintiffs’ experts due to boilerplate language contained in the reports that indicated they were prepared for a purpose other than tax appeals, effectively precluded plaintiffs from satisfying the evidentiary standard needed to avoid a dismissal for lack of prosecution under N.J.S.A. 54:51A-1c (2). [Decided Dec. 7, 2012, amplified opinion released Jan. 3, 2013.] [Approved for publication.]

36-2-8638 Olsen v. Classic Cruisers, Inc., App. Div. (per curiam) (14 pp.) Florence Carlin (decedent) exited defendant Classic Cruisers, Inc.'s bus at a mid-block stop in front of a shopping center. The stop was approximately 332 feet beyond a lighted intersection where crosswalks were designated. Upon stopping, decedent walked towards the rear of the bus, passed behind it, then stepped off the sidewalk into the street where she was struck by the motorist defendant. Carlin later died from her injuries. Plaintiff, as executrix of Carlin’s estate, filed a complaint against multiple defendants alleging negligence. Here, plaintiff appeals from an order granting summary judgment to defendants, arguing the trial court erred by concluding that its expert provided a net opinion and no genuine issues of material fact exist. The appellate panel reverses and directs the judge to conduct a N.J.R.E. 104(a) hearing to establish the admissibility of the expert's opinion, purportedly supported by industry guidelines, that Classic's mid-block stop induced decedent to cross the street. In so doing, the judge will determine if the expert rendered a net opinion. Because the parties dispute whether Classic negligently chose the midblock stop location in a dangerous area with knowledge of the risks that it posed, the panel reverses the grant of summary judgment regardless of the ruling on the admissibility of the expert opinion.

 

42-6-8639 In re Hussain, U. S. Bankruptcy Ct. (Lyons, U.S.B.J.) (17 pp.)The Debtor in this long running chapter 7 bankruptcy case seeks an order requiring the trustee to satisfy the balance due on a student loan where, despite the trustee having paid all claims in full plus post-petition interest, including the claims filed by the student loan creditor, there remained a balance due on the student loan. The court denies the Debtor’s motion because (1) the court previously granted the trustee’s motion to close this case; (2) the trustee’s accounting and amended accountings were presented to the court on notice to all parties and the Debtor did not raise this issue previously despite having filed numerous motions; and (3) the trustee properly paid the claims in full plus interest in the same manner as other general unsecured claims as allowed under the Bankruptcy Code. Because the debtor has engaged in meritless and vexatious litigation, the trustee's cross-motion to bar further pleadings by the debtor without prior court approval is granted. [Filed December 4, 2013]

 

42-7-8640 In re: Sea Village Marina, LLC, Dist. Ct. (Simandle, U.S.D.J.) (21 pp.) This is an appeal of a Bankruptcy Court order allowing certain proofs of claim pursuant to 11 U.S.C. §§ 502(a) and (b). Appellant, Sea Village Marina (“SVM”), operates a community of floating homes or houseboats in Egg Harbor Township, New Jersey. Conditions at the marina have deteriorated; the residents currently suffer from a lack of potable water, docks in disrepair, and homes that tilt at uneven angles because they rest on mud at low tides. SVM filed for bankruptcy under Chapter 11. The Bankruptcy Court’s order allows general unsecured claims from certain houseboat owners who lost value in their homes due to degraded conditions at the marina. SVM has appealed the portions of the order that granted general unsecured claims to five different SVM homeowners for loss of value in their homes. The Court vacates the Bankruptcy Court’s order and remands the case with instructions for the Bankruptcy Court to provide further explanation regarding the cause of action that serves as the basis for relief, the Claimants’ showing of causation, and the calculation of damages. [Filed December 20, 2012]

 

42-6-8641 In re: U.S. Eagle Corporation, Bankruptcy Ct. (Winfield, U.S.B.J.) (23 pp.) U.S. Eagle Corporation is a closely held Delaware corporation with its headquarters in New Jersey. It is owned by members of the Westphal family. In this adversary proceeding, two motions are before the court - a motion to dismiss Defendant Scott Westphal’s counterclaim, and a motion to dismiss the third party complaint. U.S. Eagle posits that Delaware law applies rather than the New Jersey statute on which Scott grounds his counterclaim, because the court must first look to the law of the court that granted the transfer of venue, here the Florida District Court. It urges that because the dispute is between the corporation and one of its shareholders, under Florida choice-of-law rules the Florida court would apply the “internal affairs” doctrine which holds that the internal affairs of a corporation are governed by the law of the state of incorporation. The court concludes that Florida law requires application of Delaware law. Further, under Delaware law, both the counterclaim and third party complaint fail to state claims on which relief can be granted. Both motions are granted. [Filed December 20, 2012]

46-7-8642 Mazzoccoli, M.D. v. Merit Mountainside LLC, Dist. Ct. (Linares, U.S.D.J.) (16 pp.) Plaintiff, who was granted privileges at Mountainside Hospital as an attending physician in the Department of Family Practice, brought the present action against Defendants Merit Mountainside LLC d/b/a! Mountainside Hospital, Theresa A. Soroko, M.D., Robert Brenner, M.D., and AHS Hospital Corp./Mountainside Hospital Campus (“AHS”)’alleging violations of his civil rights, the Sherman Act, and New Jersey statutes and common law. Defendants filed a motion to dismiss Plaintiff’s Second Amended Complaint, arguing that Plaintiff failed to cure fatal defects in the First Amended Complaint. In merely repeating the claims, Plaintiff fails to allege a § 1985(3) claim that is plausible on its face, and the Court dismisses Plaintiffs § 1985 claim with prejudice. As to the Sherman Act claim, the additional allegations raised in the Second Amended Complaint fail to “raise a reasonable expectation that discovery will reveal evidence of [an] illegal agreement” between any of the Defendants. Having found that Plaintiff fails to articulate a viable section 1985(3) or Sherman Act claim, the Court finds federal subject matter lacking and dismisses the remaining claims without prejudice. [Filed December 20, 2012]

32-7-8643 Solomon v. Bristol-Myers Squib Co., Court. (Wolfson, U.S.D.J.) (35 pp.) Plaintiff brings the instant suit against Defendants, Bristol Myers-Squibb Company, Sanofi-Aventis U.S., L.L.C., Sanofi-Aventis U.S., Inc., and Sanofi-Synthelabo, Inc., alleging that he suffered injuries as a result of Defendants’ design, development, manufacture, testing, packaging, promoting, marketing, distributing, labeling and sale of their prescription drug Plavix, an anti-clotting medication. Plaintiff’s Amended Complaint asserts various Texas state and common law claims against Defendants, including failure-to-warn, defective design, manufacturing defect and negligence. The Court grants Defendants’ motion for summary judgment finding the learned intermediary doctrine under Texas law applies because the duty to warn the patient rests solely with the prescribing physician and these manufacturers properly and adequately warned the prescribing physicians regarding Plavix’s risks. [Filed January 3, 2012]