Daily Decision Service Alert: Vol. 22, No. 18 ? January 28, 2013

 

20-2-8833 E.M.Y. v. D.Y., App. Div. (per curiam) (5 pp.) Plaintiff E.M.Y. appeals from the decision dismissing the Temporary Restraining Order (TRO) she obtained pursuant to the Prevention of Domestic Violence Act. The parties were married in 1985 and have two children. In March 2010, defendant D.Y. served E.M.Y. with a divorce complaint. The couple continued to live together in separate rooms in the marital home. In May 2011, both parties were granted TROs as a result of a physical altercation at their home. Each sought a Final Restraining Order (FRO). Both parties and their older son testified at trial and both parties were represented by counsel. The trial judge found neither party had met his or her burden of proof to obtain an FRO and vacated all restraints. He found plaintiff's testimony not to be credible. The judge found both parties had entered into the other's bedroom during the two confrontations. He found that although both parties sustained physical injuries, neither party had proven harassment or assault by a preponderance of the evidence as required for the issuance of an FRO pursuant to the Act. The judge also found that neither party could establish a legitimate protective need for an FRO. The appellate panel affirms substantially on the basis of the judge’s oral and written opinions.

20-2-8834 L.C. v. V.C. , App. Div. (per curiam) (8 pp.) Pro se plaintiff appeals from an order appointing a guardian ad litem and an order denying her motion to recuse the judge and disqualify the parenting coordinator. The panel finds that the judge did not abdicate his decision-making authority to the PC and concludes that plaintiff's argument that the judge erred in appointing the guardian ad litem has been rendered moot by the GAL's resignation. It then finds that by recusing himself sua sponte while at the same proceeding denying plaintiff's motion to disqualify the PC, the judge did not sufficiently adhere to the sequencing of the court's previous order which required that the judge have a different judge rule on plaintiff's motion to disqualify the PC if he recused himself. Therefore, the panel remands for a new judge to rule on plaintiff's motion to disqualify the PC.

 

25-2-8835 Shymanski v. City Of Atlantic City, App. Div. (per curiam) (25 pp.) Plaintiff filed a complaint against the City of Atlantic City, and three of its police officers, alleging violations of the New Jersey Law Against Discrimination (the LAD). Although the complaint contained only one count, plaintiff alleged several separate violations of the LAD. Plaintiff appeals from the Law Division's order that granted summary judgment to the City and denied her motion for reconsideration. She also contends that sanctions were improperly imposed. The appellate panel finds the City was properly granted summary judgment and that the continuing violation theory did not apply. As to the issue of sanctions, the panel agrees with plaintiff that the questions posed during her deposition did not seek information reasonably calculated to lead to the discovery of admissible evidence and, therefore, were objectionable. The judge erred in concluding counsel's objections violated Rule 4:14-3(c), which permits an attorney to instruct a witness not to answer a question if the basis of the objection is a right to confidentiality. The panel vacates that portion of the order that awarded sanctions.

 

04-2-8836 In The Matter Of Fred Rizzo, An Alleged Mentally Incapacitated Person, App. Div. (per curiam) (4 pp.) Douglas Rizzo appeals from the Probate Part's order making him contingently liable for the legal fees incurred by an attorney, Neil A. Tortora, whom the court appointed to represent Douglas's father, Fred Rizzo, then an allegedly incapacitated person. The court entered an order appointing Douglas as his father's guardian, and approving Tortora's fees of $9,730. A subsequent order clarified that Douglas would be personally liable if Fred's estate were insufficient to pay Tortora's fee. In this appeal, Douglas challenges the factual and legal basis for imposing personal liability on him for the legal fees incurred as a result of Tortora's representation of Fred. Fred passed away in late 2012. The net equity in Fred's house was more than sufficient to enable his estate to pay Tortora's fees. Therefore, the appellate panel finds there is no circumstance in which Douglas's contingent liability would be triggered and dismisses the appeal as moot.

 

14-2-8837 State v. Burgos, App. Div. (per curiam) (26 pp.) Defendant was convicted by a jury of first-degree conspiracy to commit murder, first-degree attempted murder of Roberto Rodriguez, second-degree conspiracy to commit aggravated assault, second-degree aggravated assault of Nicholas Dennis, second-degree attempted aggravated assault of Roberto Rodriguez, and third-degree possession of a weapon for an unlawful purpose. The court sentenced defendant to an aggregate term of twenty-five years imprisonment. The appellate panel affirms defendant’s convictions but remands for resentencing. Although in its brief the State argued the imposition of consecutive sentences on the conspiracy to commit aggravated assault and the aggravated assault charges was appropriate, at oral argument counsel conceded the counts should have been merged because they involve a conspiracy and substantive charge involving the same victim. Counsel urges, however, that the matter should be remanded for restructuring of the sentence, not just merger and resentencing on the single count, and the twenty-five year aggregate sentence is appropriate. The panel does not limit the resentencing remand to the merger of the two counts, but permits the review of defendant's sentence in accordance with State v. Rodriguez.

 

14-2-8838 I/M/O Application of J.C. for Expungement, App. Div. (per curiam) (7 pp.) Appellant, charged in June 1993 with possession of CDS and possession or distribution of a hypodermic syringe, both disorderly persons offenses which were consolidated for purposes of the entry of a plea and sentencing in November 1994, arrested and charged with possession of CDS in August 1993, arrested for theft by unlawful taking in March 2008, and arrested for hindering apprehension in January 2009, filed a petition for expungement which was granted for the August 1993, March 2008 and January 2009 arrests. He appeals the denial of expungement for the June 1993 arrest which was based on his failure to comply with N.J.S.A. 2C:52-7f which requires the court's disposition of the matter and the punishment imposed. The panel reverses and grants expungement of the June 1993 arrest where appellant has exhausted every available avenue to verify the actual disposition of that arrest but was unable to obtain the record of the disposition of that arrest, it appears that that arrest was disposed of in November 1994, and that assuming that appellant was convicted of those offenses, the arrest was eligible for expungement under 2C:52-3. The court declines to consider appellant's request for an order holding that orders, judgments, and opinions addressing expungement shall identify the petitioner by initials, not by full name.

14-2-8839 In the Matter of the Expungement of the Criminal Records of R.Z., App. Div. (Ostrer, J.A.D.) (20 pp.) We reverse and remand an order expunging an adult conviction for two second-degree crimes — theft by deception and financial facilitation of criminal activity — because petitioner failed to prove the crimes were contemporaneous. N.J.S.A. 2C:52-2(a) precludes expungement if a petitioner has been “convicted of any prior or subsequent crime.” Crimes are prior or subsequent if committed on “separate occasions.” In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008). We hold the petitioner bears the burden to show one crime was not prior or subsequent to the other. Also, we hold a crime involving a course of conduct is deemed to occur, for expungement purposes, when the course of conduct begins as well as when it ends, and we reject the suggestion that the date of commission is determined solely by N.J.S.A. 2C:1-6c, which states, for statute-of-limitations purposes, a crime involving a course of conduct is committed when the conduct terminates. We remand to allow petitioner to submit proofs that his two crimes were, in fact, contemporaneous. [Approved for publication.]

 

46-7-8840 Carter v.Buttonwood Hospital, Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) The Court reviews a complaint after granting Plaintiff’s application to file the complaint in forma pauperis. The Court finds Plaintiff does not allege clear causes of action or violations of constitutional or statutory rights. Plaintiff alleges she worked as an activist and was retaliated against by the Secret Service and Steve Hallett when she reported crimes. Plaintiff alleges these defendants wrongfully committed her to a mental hospital and that while there, she did not receive proper medical care. Plaintiff maintains she was previously wrongfully committed and admitted to a hospital against her will when the FBI and CIA found that she had certain knowledge. Plaintiff maintains she suffered harm by being physically confined, forcibly medicated for mental illness and not receiving medication for her diabetes as well as being subjected to embarrassment. Plaintiff also argues that the Defendants violated HIPPA laws and Section 8 Housing laws. The appellate panel dismisses the majority of Plaintiff's claims, finding the White House, Secret Service, State of New Jersey and Paula Dow are entitled to immunity. Plaintiff's complaint fails to provide a sufficient factual basis to state a claim against the remaining defendants. Plaintiff's complaint is dismissed. She is given leave to file a motion to amend. [Filed January 17, 2013]

 

53-7-8841 Sunovion Pharmaceuticals v. Teva Pharmaceuticals USA, Inc. ,Dist. Ct. (Cavanaugh, U.S.D.J.) (12 pp.) This suit arises out of the alleged infringement of Plaintiff Sunovion’s patents for eszopiclone, used in the sleep medication Lunesta. The ‘673 Patent issued with eight claims, three of which Sunovion asserts against Defendant DRL. Sunovion alleges DRL infringed these claims with the filing of an Abbreviated New Drug Application (“ANDA”), seeking approval from the Food and Drug Administration (“FDA”) to market DRL’s eszopiclone 1 mg. 2 mg. and 3 mg tablets as generic versions of Sunovion’s Lunesta. DRL filed its renewed motion for summary judgment for non-infringement on the grounds that DRL s proposed range for which it is seeking FDA approval was outside the purity range claimed by Sunovion’s patents. The Court determined the purity level claimed by the patents-in-suit by construing the term “essentially free.” The Court now turns to whether DRL’s formulation falls within its scope. The issue is whether DRL would likely sell an infringing composition pursuant to an approved ANDA. The Court concludes it has not been shown by a “preponderance of the evidence that the alleged infringer will likely market an infringing product.” Further, there is no possible equivalent under the doctrine of equivalents. DRL’s motion is granted. [Filed January 17, 2013]

25-7-8842 Colicchio v. Merck & Co. Inc., Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Plaintiff moves for reconsideration of the court's grant of partial summary judgment based on finding that she had not opposed defendants' motion for summary judgment on the fourth and fifth counts, for violation of the New Jersey Family Leave Act and Family and Medical Leave Act, based on a retaliation theory. Defendants move for reconsideration regarding the court's decision on every claim. Finding that it did overlook plaintiff's opposition, and that she has pointed to sufficient evidence to defeat defendants' motion for summary judgment as to the FLA and FMLA retaliation theory, the court grants plaintiff's motion for reconsideration. It denies defendants' motion, finding, inter alia, that the court did not overlook defendants' evidence but rather found that plaintiff's evidence raised material factual disputes regarding termination which need resolution at trial; contrary to defendants' assertion, they fail to articulate a legitimate reasons for not considering internal candidates for the position of Vice President of Global OE; and the court did not err in its understanding of Cicchetti v. Morris County Sheriff's Office. [Filed January 25, 2013]

 

36-7-8843 Mulheron v. Philadelphia Eagles, Dist. Ct. (Shipp, U.S.D.J.) (15 pp.) This is a diversity personal injury case. During a Philadelphia Eagles game, a fight broke out in which Plaintiff played no role. The combatants (the fictional defendants), tumbled down upon Plaintiff and allegedly caused Plaintiff serious injuries. Plaintiff’s complaint contains six claims. Defendants Philadelphia Eagles and Lincoln Financial Field filed a partial motion to dismiss. Defendants Apex Security Group, Inc. and Aramark Sports and Entertainment Services, LLC filed motions for judgment on the pleadings. Plaintiff's vicarious liability claim is dismissed with prejudice as to all defendants. The Court dismisses without prejudice Plaintiff's request for punitive damages contained in her breach of express or implied warranty claim, negligence claim, and negligent supervision claim as to all of the named Defendants. Leave to amend is granted. Apex and Aramark's motions are administratively terminated in light of the leave to amend granted to Plaintiff. Plaintiff's Dram Shop Act claim is dismissed without prejudice as to the Eagles and Aramark. Leave to amend that claim is also granted. [Filed January 18, 2013]