Daily Decision Service Alert: Vol. 22, No. 14 ? January 22, 2013

03-2-8775 Sills Cummis & Gross P.C. v. Matrix One Riverfront Plaza, LLC, App. Div. (per curiam) (21 pp.) This appeal arises from a dispute concerning the scope of arbitration between Matrix One Riverfront Plaza, LLC (landlord) and Sills Cummis & Gross P.C. (tenant) to determine the fair market rental value. In a prior appeal, the Appellate Division reversed the Chancery Division's instructions to the arbitrators and directed the arbitrators not to consider the value of the tenant's parking rights under the lease. However, parking data from comparable leases could be considered. On remand, the arbitrators determined the fair market rental value of the premises was $27.89/sq. ft., an amount equal to the sum of the previously calculated fair market value, without any considerations for parking or the value of the tenant's parking rights under the contract. The Chancery Division granted the landlord's motion to confirm the arbitration award, denied the tenant's motion to vacate the award in part, and confirmed the arbitrator's original award of $24.78/sq. ft., which did not include parking. The tenant appeals. The language relied on by tenant in the prior opinion does not require that parking rights be completely ignored. The award does not present definitive proof that the arbitrators improperly considered tenant's actual use of the parking spaces, as opposed to parking data from comparable leases. The appellate panel defers to the arbitrators and Division's confirmation of the award.

 

03-2-8776 SM Global Group, L.L.C. v. Bergenfield Senior Housing, L.L.C., App. Div. (per curiam) (37 pp.) During litigation of a dispute arising out of the failure to consummate an agreement of sale, the parties agreed to arbitration. The arbitrator entered an award which favored the buyer, SM Global Group, L.L.C. The seller, Bergenfield Senior Housing, L.L.C. (BSH), filed an action seeking to vacate the award, contending the award was beyond the scope of what the parties agreed to arbitrate, and the arbitrator exceeded his powers. SM Global filed an action seeking to confirm the award, contending the award was within the scope of the parties' agreement and BSH was precluded from seeking to vacate the award under principles of res judicata and waiver. The two actions were consolidated. The trial judge denied SM Global's request to confirm the award, granted BSH's request to vacate the award, and ordered the appointment of new arbitrator. The appellate panel reverses, finding the award was within the scope of arbitration to which the parties agreed and BSH was barred from challenging the award because of the preclusive effect of the final judgment ordering arbitration, and because of BSH's full participation in the arbitration proceedings.

11-2-8777 Adamsville Maintenance Inc. v. Watchung Crest LLC, App. Div. (per curiam) (15 pp.) In this case arising from a construction dispute between the parties regarding work that plaintiff performed for defendant in two phases, defendant appeals the judgment that plaintiff was entitled to payment of the outstanding balance for its services less certain credits and that dismissed its third-party complaint against Raymond A. Grimes Esq. and Raymond A. Grimes P.C. alleging intentional interference with contractual relations and slander of title in connection with the filing of a lis pendens. The panel affirms substantially for the reasons set forth below, finding that the trial court's factual findings and credibility determinations are amply supported by the record and that the court properly applied established principles of contract law to conclude that the parties had enforceable contracts regarding the work done by plaintiff and that defendant was entitled to certain credits and that there is no reasons to disturb those conclusions. 

 

26-2-8778 Ingenito v. Point Pleasant Beach Zoning Board Of Adjustment, App. Div. (per curiam) (23 pp.) This case concerns land use decisions made with respect to the authority of defendants (the Ammiratas) to operate a yoga/pilates instruction business within one of two residential structures located on their property in the Borough of Point Pleasant Beach. The trial court determined that the business was being operated out of an accessory structure and was not authorized as a "home occupation" conditional use on a principal structure. The matter was remanded to the Zoning Board of Adjustment, which granted the Ammiratas a use variance for the business. The trial court sustained the Board's decision. Plaintiffs appeal. The Ammiratas filed a cross-appeal, contending the court erred in its threshold ruling that the house from which they operate the business is an accessory building requiring a use variance. The Board agrees with the Ammiratas. The appellate panel reverses the court's determination that the business takes place in an accessory building requiring a use variance. The applicable ordinance provision should be construed to allow the business to be deemed a "home occupation" operated out of a principal structure, classifying it as a permissible conditional use. Moreover, even if the structure were considered an accessory building, the panel sustains the court's decision upholding the Board's issuance of a use variance.

 

05-2-8779 Ruiz v. Butavia, App. Div. (per curiam) (13 pp.) In this automobile accident case, in which the central issue was whether plaintiff lost control of the car she was driving and hit a guardrail because of weather and road conditions or because defendant's car hit the rear of her car, plaintiff appeals the order in favor of defendant and denying her motion for a new trial or for judgment notwithstanding the verdict. Plaintiff argues that the trial court erred by giving a detailed instruction to disregard testimony from defendant's expert regarding the four-wheel drive feature of the car she was driving rather than by declaring a mistrial. The panel finds no abuse of discretion in the trial judge's giving a curative instruction, holding that, having asked for a curative instruction and having been given one, plaintiff is barred by the doctrine of invited error from now contending that the judge should have declared a mistrial and finding that the record does not support a conclusion that defense counsel intentionally "sandbagged" the plaintiff. The panel also rejects plaintiff's claim that defense counsel unfairly implied that she might have been inclined to cast blame on others, finding that the questioning on that point was a fair response to testimony from her expert concerning her psychological damages. The panel affirms, finding that the verdict was not a miscarriage of justice or against the weight of the evidence.

 

34-2-8780 Claridge House One Condominium Association Inc. v. Claridge House Owners For Justice, App. Div. (9 pp.) In this case that arises out of a dispute between a condominium association and a group of dissident unit owners regarding repairs to the building, the panel looks to the by-laws of the condo association and, concluding that the "powers" provision and the "expenditures" provision must be read together, determines that unless the board declares an emergency, it must obtain the prior approval of two-thirds of the unit owners in order to approve an expenditure in excess of $50,000, and that, therefore, the trial court correctly concluded that the board was not authorized to borrow $7.7 million to effectuate repairs without submitting the proposal to a vote of the unit owners.

 

36-2-8781 Ozello v. Cyrus, App. Div. (per curiam) (12 pp.) Plaintiff appeals from orders that granted summary judgment to defendants City of New Brunswick and Joseph Carlino, Matthew Landis, and Michael St. Pierre (“the tenants”), and dismissed plaintiff's complaint with prejudice. Plaintiff was a guest of Landis and Carlino when he fell from the second-story landing of a wooden staircase leading to the backyard and was seriously injured. In his negligence action against Jason Cyrus, the owner of the apartment, plaintiff obtained a default judgment for $2,350,000. Plaintiff was granted summary judgment as to Homesite Security, Inc., Cyrus's homeowner's insurance carrier, in a consolidated matter. Plaintiff amended the complaint to include claims of negligent hiring, supervision and retention against the City, and a claim of negligence against the tenants. Here, the appellate panel affirms the summary judgment granted in favor of the City based on immunity under the New Jersey Tort Claims Act (TCA), and in favor of the tenants where Carlino warned plaintiff of the dangerous condition.

14-2-8782 State v. Elcheikhali, App. Div. (per curiam) (10 pp.) Defendant, who is not an American citizen and who filed a petition for post-conviction relief claiming that his defense attorney misinformed him that his guilty plea to third-degree theft by deception and third-degree issuance of a bad check would not result in deportation, appeals the denial of his petition without an evidentiary hearing. Because the court judged the credibility of conflicting certifications from defendant and his plea counsel without an evidentiary hearing, the panel reverses and remands for a hearing.

 

14-2-8783 State v Morgan, App. Div. (per curiam) (8 pp.) Defendant, tried in absentia and convicted on various drug related charges, appeals the denial of his petition for post-conviction relief based on ineffective assistance of counsel. The panel reverses and remands, finding that defense counsel's explanation of her reasons for insisting that a detective with the prosecutor's office, the entity prosecuting the defendant, remain on the jury - a belief in the jury system, the presumed benefits of puzzling one's adversary, and the hope of communicating the concept of jury nullification to jurors - did not establish a strategy justifying his remaining on the jury panel and did not fall within the range of legitimate decision regarding how best to represent a criminal defendant.

 

14-1-8784 State v. Nash, Sup. Ct. (Albin, J.) (49 pp.) Evidence that the purported victim, J.B., was assigned an aide who accompanied him throughout the day at school constitutes newly discovered evidence as defined by New Jersey jurisprudence. Because the evidence likely would have changed the outcome of the trial if it had been presented to the jury, the integrity of the verdict has been cast in doubt and a new trial is warranted on all charges.

 

07-7-8785 DeJesus v. Dr. Shakil Mohammad, M.D., Dist. Ct. (Hillman, U.S.D.J.) (8 pp.) In his original complaint, plaintiff asserted diversity jurisdiction. The Court issued an Order to Show Cause outlining several pleading deficiencies and instructing Plaintiff on the requirements for properly pleading the citizenship of the parties in order to correct the deficiencies. The Court found Plaintiff’s amended complaint similarly deficient and directed Plaintiff to file a second amended complaint. Plaintiff failed to file a second amended complaint, or to seek an extension, within the time frame allowed by the Court and his complaint was dismissed for lack of subject matter jurisdiction. Here, the Court denies Plaintiff’s motion to reinstate the complaint To the extent Plaintiff’s counsel seeks to imply through his certification that Plaintiff’s failure to file a timely second amended complaint was the result of the Court’s “unwillingness” to provide counsel with a facsimile copy of the Order to Show Cause other than the copy docketed by the Clerk of Court and made electronically available to the parties and the public, the Court rejects this implication. It appears that no attempt to retrieve the document electronically was made until after the expiration of the deadline. That issue aside, the Court must deny Plaintiff’s motion to reinstate the complaint where the second amended complaint, which is identical to the amended complaint, does not cure the pleading deficiencies. [Filed January 10, 2013]

25-7-8786 Spreter v. AmerisourceBergen Corporation, Dist. Ct. (Irenas, U.S.D.J.) (9 pp.) In this retaliation and employment discrimination case, Plaintiff alleges that Defendants retaliated against her for opposing discriminatory conduct and that she was the subject of sex and race discrimination. Defendants filed an Answer and a counterclaim seeking a declaratory judgment that Plaintiff voluntarily resigned from her employment and did not suffer any adverse employment action. Plaintiff filed a motion to dismiss the counterclaim, arguing that it is redundant and disposition of her claim will render the counterclaim moot. Contrary to Plaintiff’s argument, it is not clear that disposition of her claims will render Defendants’ counterclaim moot. The question of whether Plaintiff was constructively discharged is an element of all three of her claims, and Plaintiff has the burden to show that she was constructively discharged from her employment. However, the Court will not necessarily reach the question of constructive discharge. If Plaintiff’s claims fail on any other element, the Court could deny relief without determining whether Plaintiff was constructively discharged or resigned voluntarily, leaving Defendants’ counterclaim undecided. The Court denies Plaintiff’s motion to dismiss Defendants’ counterclaim. [Filed January 10, 2013]

 

25-7-8787 White v. Eberle & BCI Services LLC, Dist. Ct. (Simandle, U.S.D.J.) (12 pp.) Plaintiff filed this action against his former employer Eberle and his former supervisor Perry seeking damages for claims under the Family and Medical Leave Act and the New Jersey Family Leave Act. Defendants move to dismiss pursuant to Rule 12(b)(6).The parties agree that they will conduct limited expedited discovery regarding the hours plaintiff worked in the year preceding his leave and defendants will file a motion for summary judment on the issue of whether he worked enough hours to qualify for FMLA leave and plaintiffs will withdraw, with prejudice, their claims for NJFLA violations. The court denies defendants' argument that plaintiff's claims are barred by the FMLA statute of limitations without prejudice. Because the argument rests on a narrow question relating to the date of plaintiff's request for leave, the parties may conduct limited expedited discovery on this fact, or may stipulate to it, and defendants may raise it in their limited motion for summary judgment. Plaintiff's allegations against Perry are dismissed without prejudice because they are insufficient to establish a plausible claim for relief but the court cannot conclude that amendment would be futile. [Filed January 17, 2013]

26-7-8788 T-Mobile Northeast LLC v. Borough of Leonia Zoning Board of Adjustment, Dist. Ct. (Wigenton, U.S.D.J.) (20 pp.) T-Mobile used computer modeling, a cell signal propagation study and field testing to determine they had a significant gap in service in the Borough of Leonia. T-Mobile submitted an application to the Zoning Board of Adjustment for a use variance, and approval to collocate antennas and equipment at the apartment building located at 222 Christie Street in Leonia (the “Building”). The Building is the tallest building in Leonia. The Board passed a Resolution denying T-Mobile’s application. Sprint, a competitor of T-Mobile, has facilities installed on the Building. T-Mobile’s proposed facilities will not be higher than Sprint’s facilities. Thus, T-Mobile has satisfied both prongs of the unreasonable discrimination test under the Telecommunication Act of 1996 (the “TCA”). T-Mobile has also satisfied both prongs of an “effective prohibition” claim under the TCA where there is a “significant gap” in coverage and there are no less intrusive means of providing wireless service. Also, the Board’s denial is not supported by substantial evidence in the record where T-Mobile has satisfied New Jersey’s test for granting a zoning variance. The Court will enter an order requiring the Board to grant T-Mobile’s application and associated permits. [Filed January 10, 2013]

36-7-8789 Baker v. United States of America, Dist. Ct. (Simandle, U.S.D.J.) (10 pp.) Finding that plaintiffs' complaint fails to establish on its face that they presented their tort claims to the appropriate federal agency in writing or that they requested a sum certain, both of which are jurisdictional prerequisites, the court holds that it lacks jurisdiction to hear plaintiffs' tort claims and grants defendants' motion to dismiss the tort claims without prejudice to the filing of a second amended complaint. Plaintiffs' 42 U.S.C. sections 1983 and 1985 claims are dismissed with prejudice because the United States is not a "person" under these provisions and therefore cannot be sued under them. [Filed January 17, 2013]