Daily Decision Service Alert: Vol. 22, No. 10 ? January 15, 2013

 

07-2-8714 The Estate of Bevelyn D. Cole v. Morristown Memorial Hospital, App. Div. (per curiam) (14 pp.) Plaintiffs appeal from an order denying their motion to reinstate their complaint. Plaintiffs' complaint arose out of the treatment that defendants allegedly provided to decedent Bevelyn D. Cole. Plaintiffs were afforded 120 days from the date defendants filed their respective answers to file affidavits of merit and they failed to do so. In denying plaintiffs’ motion to reinstate, the judge stated that the court had properly dismissed plaintiffs' complaint with prejudice because plaintiffs had not complied with the affidavit of merit statute and there was no evidence of extraordinary circumstances. The judge noted that plaintiffs had not explained the four-year delay in retaining new counsel and had not provided any basis for relief from the dismissal orders. Plaintiffs did not seek relief from the trial court's dismissal orders entered on February 1, 2008, March 14, 2008, and April 17, 2008, until they filed their motion to restore their complaint on March 14, 2012. This delay precludes plaintiff from seeking relief. In any event, plaintiffs have not established any basis for relief from those orders and have not established that this case presents an exceptional situation for which relief might be available.

07-2-8715 Mastropole v. Giunta, App. Div. (per curiam) (17 pp.) Defendant appeals from a Special Civil Part judgment awarding plaintiff $500 as "restitution" for plaintiff's alleged purchase of a trailer from defendant that was never delivered. On appeal, defendant asserts that there was no contract between the parties and, therefore, plaintiff had no "standing" to file suit. This issue was never formally presented to or addressed by the trial judge, precluding appellate review. More important, the appellate panel finds the record shows that the trial itself was not fairly conducted. The panel reverses the judgment because the conduct of the trial judge prevented the parties from fairly presenting testimony, documentary evidence and argument pertaining to their claims and defenses, leaving the factual underpinning of the claims and defenses in doubt. The panel remands the matter for a new trial before a different judge.

46-2-8716 Greenstein v. Sunitha Moonthungal, P.C., App. Div. (per curiam) (8 pp.) Plaintiff appeals from the summary judgment dismissal of his complaint against defendants Cogent Healthcare of New Jersey, P.C. and Sunitha Moonthungal, M.D. Plaintiff sought medical treatment following a fall. He was admitted for treatment and interviewed by a nutritionist who recorded his statement, "[I] will kill myself if I don't lose weight." Because of this statement, two psychiatrists evaluated plaintiff. Before leaving, plaintiff was told by nurses that he must execute a general release relieving the hospital and its staff for liability. He declined to do so and left. Plaintiff's complaint alleged Dr. Moonthungal violated the New Jersey Patients' Bill of Rights and that she included a retaliatory, false chart entry, listing him as suicidal, requiring him to remain hospitalized. The appellate panel finds the judge appropriately dismissed plaintiff’s complaint, finding no factual basis to support plaintiff's civil rights claims and that Dr. Moonthungal did not violate the Patients' Bill of Rights. As for the intentional infliction of emotional distress claim, the conduct alleged was not intentional, reckless, or outrageous, but reflected a concern for the well-being of the patient. Nor did the facts support a claim for false imprisonment, as defendants' actions were directed at plaintiff's statement of possible self-harm.

20-2-8717 New Jersey Division of Youth and Family Services v. T.S., App. Div. (Nugent, J.A.D.) (22 pp.) Following a guardianship trial at which DYFS failed to prove a cause of action for terminating defendant’s parental rights, the court ordered that the matter revert to the FN docket and scheduled a permanency hearing before another judge. The FN judge, sua sponte, scheduled and conducted a fact-finding hearing at which he determined by clear and convincing evidence that defendant had abused or neglected his child, even though DYFS had not established defendant’s paternity until nearly a year after the child’s birth, had assumed responsibility for the child’s care and supervision shortly after the child’s birth, and had never relinquished its care and supervision of the child. We reversed, holding that the FN judge improperly applied a clear and convincing standard without first providing proper notice to defendant; and that the evidence presented by DYFS of defendant’s noncompliance with services was not sufficient to establish that defendant abused or neglected the child, who had never been in defendant’s custody. [Decided Jan. 11, 2013.] [Approved for publication.]

 

23-2-8718 Torres v. State Farm Insurance Companies, App. Div. (per curiam) (5 pp.) Plaintiff Dennia Torres appeals a judgment, entered at the conclusion of a bench trial that determined defendant State Farm Insurance Company — which provided auto insurance for plaintiff's husband, Kevin Torres — was not obligated to provide plaintiff with underinsured motorist (UIM) benefits because she did not reside with her husband in Newark but instead resided with her mother in Paterson. Based on the substantial evidence and his determination that plaintiff was not credible, the trial judge was entitled to conclude that plaintiff resided in Paterson and did not meet the definition of "spouse" in the State Farm policy because she did not prove that she primarily resided with Kevin Torres in Newark. The trial judge's fact finding on this point is entitled to deference, and the appellate panel affirms the trial court’s determination.

 

25-2-8719 Armato v. AT&T Mobility LLC, App. Div. (per curiam) (7 pp.) Plaintiff, formerly a district sales manager for defendant, appeals the grant of summary judgment dismissing with prejudice this action alleging age discrimination, intentional and negligent infliction of emotional distress, breach of contract, breach of an intentional covenant not to violate various employment laws, and failure to pay him all monies due at the time of his termination. He argues that the trial court erred in ruling as a matter of law that he was an at-will employee. Finding that AT&T's employment manual clearly disclaims any contract of employment and sufficiently apprised plaintiff that his employment was at-will, that the manual did not provide for a mandatory graduated disciplinary process, especially with respect to management-level employees, and that AT&T retained discretion in carrying out any progressive disciplinary measures, and that the remainder of plaintiff's arguments are without sufficient merit, the panel affirms.

 

25-2-8720 Baber v. Board of Review, App. Div. (per curiam) (11 pp.) Baber appeals from the Board of Review's decision affirming the Appeal Tribunal's determination that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work and because she was discharged for misconduct connected with the work. Finding that the record supports the agency's credibility determinations, that the conduct described by Baber was not of that character or severity and did not create such intolerable or abnormal working conditions that justified her quitting her job, and that her conduct during the transition period between her resignation and her termination falls squarely within the definition of misconduct, the panel affirms.

 

25-2-8721 Bradshaw v. Board of Review, App. Div. (per curiam) (8 pp.) Appellant, Christopher Bradshaw, appeals from a final decision of the Board of Review finding him disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to the work. Bradshaw argues that he was terminated from his employment due to his refusal to sign a contract that stripped him of rights obtained in a previous oral agreement. Additionally, he maintains that leaving his employment rather than accepting the unfair terms of the contract constituted good cause related to work. The appellate panel finds the record supports the Board's conclusion that Bradshaw resigned from his position because he was dissatisfied with the final offer the employer made, which rejected his request for additional and different compensation terms. Despite Bradshaw's claims that during negotiations the employer agreed to and later reneged on better terms, no final written agreement was reached. The employer's final offer did not reduce Bradshaw’s compensation or change his work conditions or assignment. Bradshaw failed to carry his burden of proving that he did what was reasonable and necessary to remain employed. The appellate panel affirms the Board's final decision.

 

25-2-8722 Randell v. Board of Review, App. Div. (per curiam) (5 pp.) Claimant, an attorney and non-equity partner who resigned by agreement with his firm which would have otherwise terminated him, appeals the Board of Review's decision denying his application for unemployment benefits. The panel affirms, finding that claimant's reliance on N.J.S.A. 43:21-6(20)(b)(1) is misplaced, that his claim that he was denied the opportunity to cross-examine the senior partner on the stated reasons for his termination and other issues fails where the transcript does not reveal that he sought to cross-examine the employer's witness, that the appeals examiner did not abuse her discretion in focusing the hearing on whether claimant committed misconduct as opposed to extraneous issues concerning the firm's employment practices, and that the board's decision is not arbitrary and against the weight of the evidence where the firm presented its billing records and presented testimony explaining the reasons for claimant's agreed-upon resignation.

 

27-2-8723 Newark Housing Authority v. Melvin, App. Div. (per curiam) (18 pp.) Plaintiff appeals from the trial court's dismissal without prejudice of its tenancy complaint on the basis that a known registered adult occupant of the apartment had a due process right to notice of the eviction complaint against the tenant. Rather than reach the constitutional issue, the panel looks to the Anti-Eviction Act and, finding that it is unable determine whether the adult qualifies as a functional co-tenant under Maglies v. Estate of Guy entitled to the protections of the Act, it reverses and remands for a fact-finding hearing.

07-7-8724 Grossberger v. Ruane, Dist. Ct. (Thompson, U.S.D.J.) (3 pp.) Plaintiff filed a Motion to Clarify Memorandum, concerning the Court’s September 25 Order denying Plaintiff’s Motion to Reinstate the Complaint. The September 25 Order precluded Plaintiff from filing further motions or pleadings in this matter without the written permission of the Court. Based upon Plaintiff’s repeated filings, his failure to provide evidence to support his claims, and the length of litigation, the Court had sufficient reason to bar Plaintiff from future filings absent permission. As to the Court’s discussion in the September 25 Order of a “Release” that Plaintiff signed, and whether that Release bars further litigation concerning fraud in this matter, the Court specifically stated that it did not rely on the Release in its decision to deny reinstatement, or in any of its previous decisions. As to the alleged failure of the Court to consider Defendants’ violations of the Fair Housing Act and of 42 U.S.C. §§ 3604 and 3605, Plaintiff has not provided any facts showing that Defendants refused to sell him the property at issue based upon any of the protected categorizations in the statutes. As to Plaintiff’s request that the Court explain its dismissal of the Complaint, the Court presumes its previous writings are sufficient, and considers Plaintiff’s Motion to Clarify the Court’s September 25 Order satisfied. [Filed January 2, 2013]

 

46-8-8725 Bailey v. Gibbons, Third Circuit (Fuentes, U.S.C.J.) (9 pp.) Plaintiff Regina Bailey, an elderly, disabled woman, was forced to sell her house in Englewood, New Jersey (the Property) as a result of a divorce. She hired attorney Kelly Rocco to represent her in connection with the sale. The Property was purchased by defendants Joseph Gibbons and Tanya Wood. Under a sale escrow agreement, Bailey had until January 4, 2008 to remove her belongings. On January 7, 2008, Gibbons visited the Property to take possession, but Bailey had not moved out. Bailey believed that the escrow agreement allowed her to stay in the Property as long as she paid a daily fee to Gibbons, so she called the police and Gibbons left. A few days later, Bailey was hospitalized. Upon her return to the Property, she entered the house to collect some items. Gibbons called the police who began to arrest Bailey but released her when Gibbons said he did not want her arrested. Bailey filed suit against the officers and the City of Englewood. The circuit panel affirms the District Court’s grant of summary judgment to the Englewood Defendants with respect to Bailey’s federal constitutional claims against them. The panel concludes that the District Court erred by implicitly retaining jurisdiction over Bailey’s state law claims against Rocco by denying Rocco’s motion for reconsideration. [Filed January 3, 2013]

 

19-7-8726 Tripo v. Robert Wood Johnson Medical Center, Dist. Ct. (Arpert, U.S.M.J.) (6 pp.) In this personal injury action, the court grants defendants' motion to serve expert reports out of time and for an extension of discovery because, although it appears the defense counsel decided to delay expert discovery in an effort to minimize defense costs and failed to communicate this decision to the court or plaintiff's counsel until long after the deadline set by the scheduling order, and however misguided defendants' decision may have been, the court cannot conclude that counsel acted in bad faith, nor can it conclude that plaintiff will be prejudiced by granting the motion while denying the motion would effectively strike their expert reports, a sanction that would arguably be tantamount to dismissal. However, because defendants were solely responsible for the delay in serving their expert reports and the necessity of this motion, and they have not advanced any compelling explanation that would substantially justify the delay, they are ordered to reimburse plaintiff's reasonable attorney fees and expenses in responding to the motion. [Filed January 14, 2013]

20-7-8727 Carranco v. Munoz, Dist. Ct. (Linares, U.S.D.J.) (18 pp.) Petitioner, a Mexican citizen, and respondent, a Cuban citizen and a United States legal permanent resident, have a child, Ana, who was born in Mexico. Petitioner filed a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of the child, presently residing in New Jersey with respondent, to Mexico. The court grants the petition, finding that petitioner has satisfied his burden of proving by a preponderance of the evidence that respondent wrongfully retained Ana in violation of the convention since Ana's habitual residence is Mexico, respondent's retention of her in New Jersey against petitioner's will is in breach of his custody rights under Mexican law, and he was exercising his custody rights at the time of retention, and respondent has failed to establish an affirmative defense. The court orders that respondent pay all costs and fees in connection with the matter unless she establishes that it would be inappropriate for the court to so order. [Filed January 14, 2013]

 

36-7-8728 Clark v. Darden Restaurants, Inc., Dist. Ct. (Wolfson, U.S.D.J.) (11 pp.) Plaintiff sued Defendants for injuries that Plaintiff sustained to his eyes from a broken plate as the result of Defendants’ negligence in serving Plaintiff food at one of Defendants’ restaurants. Plaintiff moves for summary judgment on the issue of liability only. Defendants admitted that at one of their restaurants, their employee, Stephen Harrison, was carrying a plate of food to Plaintiff’s table, and that plate slipped from Harrison’s hand, fell to the table, and broke. Defendants concede that they owed a duty of care to Plaintiff. Defendants’ assertion that Harrison’s conduct was only an accident is insufficient to raise a genuine issue of whether Harrison properly exercised due care.  Plaintiff is entitled to an inference of negligence under the doctrine of res ipsa loquitor, which Defendants have not rebutted, and the Court concludes that Harrison and Defendants breached the duty of care owed to Plaintiff when Harrison dropped the plate onto Plaintiff’s table. Defendants have proffered no evidence to suggest that Plaintiff’s eye injuries were the result of anything other than the broken plate, and fail to raise a genuine issue of material fact surrounding the cause of Plaintiff’s injuries. The Court grants Plaintiff’s motion for summary judgment on liability. [Filed January 8, 2013]

 

38-8-8729 Surgick v. Cirella, Third Cir. (per curiam) (10 pp.) Claiming that defendants had denied them access to tax records and other information relating to the estate of their father, and thereby violated their First Amendment and statutory rights under the Freedom of Information Act, and that defendants Cirella and Rose Surgick, in exercising power of attorney over the estate had conspired to defraud them by concealing the value of the estate, pro se plaintiffs filed suit seeking information from the Internal Revenue Service. After reviewing the complex procedural history of the case, the Third Circuit determines that it has jurisdiction to hear Surgick's appeal of the District Court's order granting summary judgment in favor of the IRS and against her and summarily affirms the District Court's order, finding that the IRS complied with its duty to conduct an adequate search of its data retrieval system and to turn over all responsive documents in its possess and plaintiff failed to identify specific facts and affirmative evidence to contradict the IRS's evidence in support of its argument that its search was adequate and it was not improperly withholding documents, and that the IRS was prohibited from releasing K. Hovnanian's tax information to Surgick without its consent, which plaintiffs did not obtain. [Filed January 14, 2013]