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Daily Decision Service Alert: Vol. 22, No. 13 ? January 18, 2013
New Jersey Law Journal
STATE COURT CASES
CIVIL PROCEDURE SANCTIONS
07-2-8755 County of Bergen v. Cooper-Shepard, App. Div. (per curiam) (4 pp.) The panel affirms the Chancery Division's imposition of a monetary sanction for defendants' persistent refusal to remove a fence and other outdoor structures that were determined to encroach upon county parkland, finding that the Chancery Division followed the procedures set forth in Rule 1:10-2(b) when it held defendants in contempt and imposed the penalty and that the $1,575 sanction is very reasonable.
16-2-8756 Rivera v. Elizabeth Bd. of Educa., App. Div. (per curiam) (31 pp.)Defendants Elizabeth Board of Education, its former president, Rafael Fajardo, and the former Acting Superintendent of the Elizabeth School District, Pablo Munoz, appeal from the Law Division order granting plaintiff Antonio Rivera's summary judgment and enforcement motions, and requiring Munoz and Fajardo to reimburse the District $63,622, the amount the Board had paid from district funds to a law firm that filed and prosecuted a civil action against fictitious entities on defendants' behalf, until the trial court enjoined the Board from further funding the suit, determining that it primarily involved personal claims filed on behalf of Munoz and Fajardo, that the suit had not been authorized by the Board, which violated the Open Public Meetings Act, and that Munoz and Fajardo had a conflict of interest that required restitution. The panel affirms, finding that the trial court did not err in determining that the suit advanced personal claims of Munoz and Fajardo individually, Munoz's and Fajardo's claim that they acted on advice of counsel is not supported by the evidence in the summary judgment motion record and the trial court did not err in rejecting this defense, and that Munoz and Fajardo had a conflict of interest where they received, albeit indirectly, the benefit of district funds to pursue a suit they otherwise would not have pursued and the trial court had authority to require them to reimburse the Board.
20-2-8757 Celia v. Celia, App. Div. (per curiam) (21 pp.) In these back-to-back appeals, which are consolidated here, plaintiff initially appeals from certain portions of a supplemental judgment of divorce, and portions of a subsequent order denying her motion for reconsideration. Plaintiff claims the award of alimony to her in the amount of $425,000 per year was an abuse of discretion; the court erred in its valuation of Union City Filament Corp. (UCF), a business acquired by defendant during the marriage; the court improperly inflated the value of the parties' jewelry; and the award of counsel fees to plaintiff in the amount of $150,000 was insufficient. In her second appeal, plaintiff challenges certain portions of a post-judgment order that denied her motion to enforce litigant's rights which related to a paragraph of the supplemental judgment of divorce that required the parties to sign a listing agreement for the sale of their condominium. The appellate panel rejects plaintiffs arguments and affirms, finding the trial court's findings and conclusions are supported by substantial credible evidence in the record.
20-2-8758 Dinaro v. Dinaro, App. Div. (per curiam) (3 pp.) Defendant appeals from the order denying his motion to decrease child support and terminate alimony, and the amended order granting plaintiff's motion and finding him in violation of litigant's rights for failing to comply with the terms of the Judgment of Divorce and subsequent orders. The parties' divorce proceedings were followed by post-judgment motions for enforcement and reduction or termination of alimony and child support obligations. Defendant maintains he is entitled to relief from his obligations due to a reduction of income and increase in debt following the closure of his business shortly after the parties divorce in 2008. In 2009, the court denied defendant's modification motion. A similar motion was denied in 2010 and again in the instant matter, where the court found that defendant failed to establish a change in circumstances. Defendant does not explain why he considers the trial court order to have been entered in error except to restate his contention that his present debt and limited income constitute good cause for termination of alimony. Without a specific claim of error supported by record references and relevant law, the appellate panel cannot properly consider an appeal and therefore affirms the orders.
20-2-8759 Heard v. Dunbar, App. Div. (per curiam) (8 pp.) In this post-judgment matrimonial matter, defendant appeals from a Family Part order denying his motion to modify his child support, college contribution and life insurance obligations. The panel reverses and remands because the judge erred in failing to consider plaintiff's increase in income in determining whether a support modification was warranted due to a change of circumstances, instead focusing solely defendant's income, did not make adequate findings with respect to the parties' competing allegations regarding the basis for the child support obligation in the PSA (defendant's income or the child's needs) and, therefore, the full extent of any change of circumstances cannot be determined from the existing record, and the judgem failed to make any findings concerning his denial of defendant's motion to modify his college contribution and life insurance obligations.
20-2-8760 I/M/O G.G. and J.G., App. Div. (per curiam) (12 pp.) G.G., the paternal grandfather of A.G., and his wife J.G., appeal from the final administrative action of the Division of Youth and Family Services ruling them out as placement providers for their grandson. The panel affirms, finding that the decision was fairly supported by the record, including appellants' initial indication that they could not care for the child because of medical conditions and their failure to request contact that would have maintained a relationship with A.G. after he was placed in foster care.
LABOR AND EMPLOYMENT
25-2-8761 Creange v. Borough of Bogota, App. Div. (per curiam) (26 pp.) Plaintiff, a Bogota police officer, was found guilty of several disciplinary infractions by a panel that included the then -mayor and several borough council members and was ordered to serve a suspension. Plaintiff appealed the findings and sanction asserted constitutional claims alleging bias and retaliation by the panel members. Pursuant to a settlement, the constitutional claims were bifurcated and tried before a jury and the disciplinary findings were vacated and remanded for rehearing before a retired Superior Court judge. A jury found that the mayor and council members retaliation against plaintiff in the first disciplinary proceeding. The retired judge found plaintiff guilty on all charges and directed that he receive counseling and be verbally reprimanded. Plaintiff again appealed. Rejecting plaintiff's claim that the jury verdict in his favor on the constitutional claims rendered the disciplinary charges against him a nullity on the grounds of res judicata and collateral estopped and that there were procedural deficiencies in the second hearing, the trial court upheld the disciplinary conviction and denied his application for attorney fees. Plaintiff again appealed, raising the same legal arguments rejected by the Law Division. The panel affirms, finding that neither res judicata nor collateral estoppel is applicable to support the summary dismissal of the findings of guilty and penalties imposed after the second disciplinary hearing since the jury was called upon to decide whether defendants retaliated against plaintiff while the trial de novo addressed plaintiff's factual guilt or innocence, two different issues.
LAND USE AND PLANNING
26-3-8762 GED, LLC v. Township of East Hanover, Law Div.-Morris Cy. (Weisenbeck, A.J.S.C.) (16 pp.) Plaintiff GED, LLC submitted an Application for Zoning Permit to the Township of East Hanover for a permit to engage in the retail sales of adult videos, DVDs, clothing, lingerie, and accessories. The use was denied pursuant to Township Ordinance §95-63C(1), which bars such businesses from locating within 1,000 feet of certain uses such as schools and residences. GED did not appeal the denial of its requested zoning permit or apply for a conditional use variance. Instead, GED filed a Verified Complaint challenging the constitutionality of §95-63(c)(1). GED also challenged the constitutionality of N.J.S.A. 2C:34-7, which was not relied upon by the Township in denying the zoning permit. The court found §95-63 unconstitutional and enjoined the Township from enforcing it against plaintiff. Here, as to N.J.S.A. 2C:34-7, the court finds that the fourteen proposed sites within 8.2 square miles of East Hanover, resulting in one alternative site for every .58 square mile and every 796 residents, would more than protect plaintiffs constitutional right to free expression. Thus, plaintiffs challenge to the constitutionality of N.J.S.A. 2C:37-7(b) as applied in this matter is denied.
TORTS BUSINESS TORTS
36-2-8763 North Jersey Media Group, Inc. v. Bergen Newspaper Group, L.L.C., App. Div. (per curiam) (12 pp.) Plaintiff North Jersey Media Group (NJMG) appeals from two orders dismissing its damages claims against defendants Bergen Newspaper Group, L.L.C. and Bergen News Publishing Corp. for failure to state a claim and denying plaintiff's motion to amend the complaint. The complaint asserts that defendants intentionally interfered with plaintiff's prospective economic advantage by misrepresenting to public entity customers that The Press Journal met the statutory criteria to carry public notices when, in fact, it did not. As a result, The Press Journal wrongfully obtained advertising business that would have been published by plaintiff's newspapers. In granting the motions to dismiss, the judge construed the complaint as an attempt to assert a private right of action against defendant for violating the official advertising statute, and the Legislature did not intend to create a private right of action for violations of that statute. The appellate panel finds the complaint states a claim for tortious interference, and the claim should not be barred because the evidence will include proof that defendant violated a statute. Nor does the fact that the customers here were public entities defeat plaintiff's claim. The panel reverses both orders and remands this case to the trial court.
TRUSTS AND ESTATES
38-2-8764 In The Matter Of The Estate Of Elizabeth Tanksley, App. Div. (per curiam) (10 pp.) Iris Randells appeals from an order dismissing her complaint with prejudice. Randells had sought to revoke the appointment of her sister, Dorothy Steele, as administratrix of their mother's estate and to vacate Steele's transfer of their mother's house to herself. Elizabeth Tanksley (decedent) died intestate in 2000. Until her death, decedent resided in a house in Camden (the Property). The Property was unencumbered at the time of her death. The estate was not administered for several years. At some point, Steele moved into the Property and began to maintain it, taking out two mortgages. The appellate panel finds that Randells made a sufficient showing under Rule 4:50-3 to warrant a hearing on her claim. Steele knowingly filed a false affidavit with the surrogate, claiming to be the sole heir of her mother's estate. By failing to list Randells as an heir, Steele denied her the opportunity to contest Steele's appointment as administratrix and claim an interest in the Property. As the motion judge failed to consider whether Steele's conduct constituted a fraud on the court and decided contested issues of fact without a hearing, the panel reverses and remands for a plenary hearing.
14-2-8765 State v. Rue, App. Div. (per curiam) (14 pp.) Defendant pled guilty in two separate indictments on heroin and marijuana charges. He appeals the denial of his motion to suppress evidence. The heroin indictment resulted from defendant's arrest after he drove away from a police command to stop his car. The trial court agreed the command was a seizure in violation of defendants constitutional rights because the police had no reasonable suspicion he was engaged in criminal activity. But the court concluded the constitutional violation was attenuated by defendant's failure to obey the police command. Based on the decisions in State v. Shaw and State v. Robert Williams, the appellate panel concludes the disorderly persons offense of fleeing an unconstitutional police command to stop, without more, does not dissipate the taint of a constitutional violation. The trial judge did not have the benefit of reviewing Shaw and Robert Williams and the judges ruling must be reversed and the heroin evidence must be suppressed. The appellate panel reverses in part and remands to permit defendant to withdraw his guilty plea to the heroin charges. This reversal does not affect his conviction on the marijuana charge.
14-2-8766 State v. Wright, App. Div. (per curiam) (54 pp.) Defendant Steven Wright shot and killed Carol Ann Bradford. At trial, Wright unsuccessfully presented an insanity defense. The jury found him guilty of first-degree murder, second-degree possession of a weapon for an unlawful purpose, and third-degree unlawful possession of a weapon. After the jury determined that Wright acted "with depravity of mind," he was sentenced to life in prison without possibility of parole, to be served in a maximum security prison. He appeals both the conviction and the sentence. The appellate panel affirms the conviction but remands for resentencing The prosecutor sought to defeat Wright's insanity defense during the guilt phase of trial by emphasizing that Wright acted with a purpose, then in the penalty phase argued that Wright had no purpose and so acted with depravity of mind. In light of that about-face, and because the prosecutor also misstated the relevant law, the appellate panel concludes that Wright's post-trial motion to set aside the jury's finding, reached after only fifteen minutes of deliberation, that Wright acted with a depraved mind should have been granted.. Finding the denial of the motion resulted in "a manifest injustice, the panel vacates the sentence and remands for resentencing.
FEDERAL COURT CASES
16-7-8767 D. F. v. Collingswood Public Schools, Dist. Ct. (Irenas, U.S.D.J.) (12 pp.) In this Individuals with Disabilities in Education Act (IDEA) matter, by way of a summary judgment motion, Plaintiff D.F. appeals the ALJs dismissal of his due process petition due to insufficient factual pleading. The due process petition at issue here was filed on July 15, 2010. The sole issue before the Court is whether the remand of this case includes the issue of the alleged improper restraint of D.F. The Court finds Plaintiffs July 2010 petition was a failed attempt to amend his March 2009 petition, pursuant to which the ALJ had dismissed the improper restraint claim, finding the complaint failed to allege facts related to the claim that D.F. was restrained without authorization. The Court finds Plaintiff was not entitled to any further opportunity to amend to add the claim. Plaintiffs motion for summary judgment is denied. [Filed January 8, 2013]
23-7-8768 Franco v. Connecticut General Life Ins. Co., Dist. Ct. (Chesler, U.S.D.J.) (43 pp.)Named plaintiffs are, or were at all relevant times, participants or beneficiaries of employer-sponsored health benefit plans insured and/or administered by Cigna. They all received medical services from out-of-network providers and their claims were paid by Cigna using a third-party, Ingenix, to determine the usual customary and reasonable amount for the service. Plaintiffs allege that Cigna violated its ERISA plan and statutory obligations when it made benefit determinations based on an allegedly flawed database operated by Ingenix. Plaintiffs move for certification of two classes: a subscriber ERISA class and a subscriber RICO class. The court denies plaintiffs' motion, finding that intractable management problems prevent certification where the subscriber plaintiffs have not shown by a preponderance of the evidence that common questions as to either liability or damages will predominate over individual ones, and have not shown that the class action vehicle would be a superior manner of resolving the claims.Further, the court finds that plaintiffs' definition of the proposed ERISA class is overbroad and incapable of determining class membership without exploring the merits of each putative class member's ERISA claim. [Filed January 16, 2013]
53-7-8769 Genetic Technologies Limited v. Medical Diagnostic Laboratories LLC, Dist. Ct. (Bongiovanni, U.S.M.J.) (8 pp.) Plaintiff alleges infringement of its '170 patent titled Intron Sequence Analysis Method for Detection of Adjacent and Remote Locus Alleles as Haplotypes. Defendant moves to stay the matter pending ex parte reexamination of the patent by the United States Patent and Trademark Office. The court grants the motion, finding that entry of a stay will not unduly prejudice GTG or place them at a clear tactical disadvantage in the litigation and that there will be no undue delay as the stay is likely to be a short one; a stay will likely simplify the issues in dispute and the trial of the matter; and that the very early stage of these proceedings strongly favors granting a stay. [Filed January 17, 2013]
53-7-8770 Helsinn Healthcare S.A. v. Dr. Reddy's Laboratories Ltd., Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) Plaintiffs, assignees of the '724 patent, allege that defendants infringed the patent by submitting a New Drug Application to the United States Food and Drug Administration. In reviewing the parties' motion and cross-motion for summary judgment, the court recognized that this action relates to a pending action between the parties in which the DRL Entities challenge the validity of the '724 patent. Finding that the validity issue has the greater public importance, and that a finding of invalidity would render this action moot, the court stays and administratively terminates this matter pending a determination of the validity of the '724 patent. [Filed January 17, 2013]
LABOR AND EMPLOYMENT
25-7-8771 Fresolone v. Fiserv, Inc., Dist. Ct. (Irenas, U.S.D.J.) (8 pp.) Joseph Fresolone brings this ERISA suit against his former employer, Fiserv, Inc., alleging that Fiserv wrongfully terminated him for cause, and wrongfully denied him severance benefits and earned bonus pay. Fiserv moves to dismiss the bonus pay claim, asserting that it is preempted by ERISA. Fresolone cross-moves to amend his Complaint to add an ERISA claim for bonus pay. The issue is whether the Fiserv 2010 Annual Cash Incentive Program (ACIP) is an ERISA qualifying plan. Fresolone submits a document entitled Fiserv, Inc. 2007 Omnibus Incentive Plan which it asserts, without any evidential support, is the plan that creates the ACIP. Fresolone has raised legitimate questions as to whether the Omnibus Incentive Plan is the plan that applies to his claim for bonus pay, and Fiserv has not met its burden of production on this issue. The Court cannot determine whether ERISA applies to Fresolones bonus pay claim because the operative documents are not adequately identified. Accordingly, the Court cannot hold that ERISA preempts Fresolones state law claim for bonus payments. Fiservs Motion to Dismiss is denied and Fresolones Motion to Amend is granted. [Filed January 9, 2012]
32-7-8772 LaBarre v. Bristol-Myers Squibb Co, Dist. Ct. (Wolfson, U.S.D.J.) (28 pp.) Plaintiff Eloise LaBarre, as surviving spouse and administratrix of the Estate of Edward Clyde LaBarre, Sr., 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. Plaintiff alleges that her late husband suffered fatal 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 brings a wrongful death and survival action against Defendants, asserting products liability-related causes of action, under Florida state law, for defective design, manufacturing defect, failure to warn, and negligence. Here, the Court grants Defendants motion for summary judgment pursuant to the learned intermediary doctrine under Florida law. [Filed January 11, 2013]
TORTS WRONGFUL DEATH
36-7-8773 Watson v. Sunrise Senior Living Services, Inc., Dist. Ct. (Hammer, U.S.M.J.) (38 pp.) Plaintiff brings this action individually and as Executor on behalf of his mother, Nancy Clare Gimenez-Watson and her wrongful death beneficiaries. Plaintiff filed a complaint against defendants Sunrise Senior Living Services, Inc., d/b/a Brighton Gardens of Edison and Sunrise Senior Living, Inc. Gimenez-Watson was a resident of Brighton Gardens, an assisted living facility, nursing home, and long-term adult care facility. Plaintiff alleges: (1) violations of the New Jersey Nursing Home Bill of Rights and the Federal Nursing Home Reform Amendments of 1987; (2) gross negligence; (3) negligence; (4) medical malpractice and professional negligence; (5) wrongful death; and (6) deprivation of civil rights under 42 U.S.C. § 1983. Here, Plaintiffs motion for leave to file a Second Amended Complaint is granted to allow plaintiff to add a count based on alter ego liability and denied to preclude plaintiff from adding a count based on the participation theory. Plaintiffs motion to compel discovery responses is granted in part. Defendants cross-motion for a protective order is denied without prejudice. [Filed January 8, 2013]
CRIMINAL LAW CORRECTIONS
14-7-8774 Bryant v. Federal Bureau of Prisons, Dist. Ct. (Bumb, U.S.D.J.) (8 pp.)Plaintiff, incarcerated at the Federal Correctional Institution in Fairton, New Jersey at the
time of filing, brings this civil rights action pursuant Bivens v. Six Unknown Fed. Narcotics Agents against the bureau of prisons and various employees. The claims against the bureau are dismissed with prejudice as plaintiff may not bring a Bivens claim against it. The claims that defendants Hampton and Palmer retaliated against plaintiff for his having filed grievances are permitted to proceed. The denial of medical care claim is dismissed without prejudice as it is not clear that he was suffering from a serious medical need or when and from whom he requested medical attention. The remaining defendants are dismissed as plaintiff does not provide specific fats regarding any constitutional deprivations they are alleged to have committed. [Filed January 17, 2013]