Daily Decision Service Alert: Vol. 22, No. 20 ? January 30, 2013

 

01-2-8858 Bureau Of Housing Inspection v. High Park Gardens Cooperative Corporation, App. Div. (per curiam) (16 pp.) High Park Gardens Cooperative Corporation appeals from a final decision of the Acting Commissioner of the Department of Community Affairs, finding that High Park’s buildings are subject to the emergency lighting requirements of N.J.A.C. 5:70-4.11(j) and that no exceptions apply. The appellate panel affirms the decision. The exception for buildings with an occupant load under fifty persons does not apply to buildings over two stories high. Hence, it could not apply to High Park’s three-story buildings. Nor is High Park grandfathered under the regulation which applies to buildings that were built after the 1977 adoption of the UCC Act and that conformed to the UCC. Highland Park’s housing complex was built more than a decade earlier. Finally, High Park is not entitled to a hardship exception to the egress lighting requirement. As High Park concedes, financial hardship alone is insufficient to justify an exception to a safety regulation under the UCC. In any event, High Park failed to prove that the cost of installing the lighting would be insurmountable. The panel declines to second-guess the Department’s decision to enforce its fire safety regulations.

 

01-2-8859 J.S. v. New Jersey Dep't of Children and Families, App. Div. (per curiam) (6 pp.) J.S. appeals from respondent's final agency decision denying as untimely his application to appeal a decision substantiating abuse of two minor children at the Vineland Residential Treatment Center where he was formerly employed. Finding that the Division of Youth and Family Services, Conflict Investigations Unit within the Office of the Public Defender sent notice of its findings in response to the allegations of abuse and of his right to appeal to J.S. at his address in Bridgeton and, because he had recently moved, to his new address in Hopewell, that neither correspondence was returned to PDCIU as undeliverable, that J.S. did not seek to appeal within the defined time frame, and that notice by ordinary mail was satisfactory, the panel affirms the decision that the application to appeal, filed one year later, was untimely.

34-2-8860 U.S. Bank National Association As Trustee v. Plaskon, App. Div. (per curiam) (9 pp.) Defendant appeals from an April 8, 2010 Chancery Division order confirming the sheriff's sale on his property. Defendant argues the foreclosing mortgagee did not mediate in good faith and the equities favored his rights over the third-party purchaser. In response to concerns about the validity of documents as a result of robo-signing, plaintiff’s motion to stay these proceedings and to remand to the Chancery judge was granted. The Chancery judge entered an order and statement of reasons resolving plaintiff's concerns and confirming the sheriff's sale. The appellate panel affirms the order confirming the sale, finding it was well within the Chancery judge’s discretion. Defendant provided no competent, credible evidence of bad faith for the Chancery judge to review. No equities favored defendant. The appellate panel finds no basis to conduct a review of defendant's finances. At the point of mediation, defendant had not paid his mortgage for several years, a final judgment of foreclosure with an award of attorney's fees and costs had been entered, and he did not qualify under the requisite front-end debt ratio test of the Home Affordable Modification Program (HAMP).

 

36-2-8861 Ruday v. Shore Memorial Hospital, App. Div. (per curiam) (11 pp.) Plaintiff, an elderly lady hospitalized after a fall at home, appeals the grant of summary judgment in favor of the hospital in this action seeking damages for injuries she suffered when she climbed over the raised rail on her hospital bed and fell. She alleges that the hospital was negligent because the alarm on her bed that should have sounded to alert staff when she attempted to get out of bed had been turned off. The panel reverses, finding that the evidence, viewed in the light most favorable to plaintiff and with the benefit of all favorable inferences, is sufficient to permit a jury to find that one of the hospital's employees breached a duty of care owed to plaintiff and that the breach, which increased the risk of her fall, was a substantial factor in bringing about the resulting injury.

 

36-2-8862 Estate Of Phyllis Davis v. Vineland Operations, LLC, App. Div. (per curiam) (12 pp.) In this medical negligence action, plaintiff Estate of Phyllis Davis through its administrator, appeals the denial of its motion seeking a new trial as to damages, or in the alternative, additur. Plaintiff also appeals the court's denial of her request for attorney fees. Defendant cross-appeals the jury's award of $14,760 in medical expenses, which the trial judge molded to accord with the verdict. Decedent suffered a stroke which caused a condition known as "Locked-in Syndrome." When she was admitted to defendant's nursing home, she was suffering from a bed or pressure sore, at stage three. During her stay, the ulcer progressed to the maximum level, stage four. The jury's verdict attributed thirty percent of the injury to defendant's care, and awarded plaintiff $49,200.11 for medical bills attributable to treatment of the bed sore. The jury awarded "$0" for pain and suffering. Plaintiff introduced no proof that the worsening of the bed sore caused decedent more pain. Thus, the judge appropriately denied the motion for a new trial. It follows that plaintiff failed to establish a basis for an award of damages. The application for additur was properly denied. Finally, the panel finds the court correctly denied the attorney fee demand pursuant to the Nursing Home Bill of Rights, where plaintiff’s claims were based on theories of ordinary negligence and not on a violation of any patient rights under the statute.

 

36-2-8863 Mayer v. Once Upon a Rose Inc., App. Div. (Sabatino, J.A.D.) (15 pp.) This negligence case arises from the personal injuries that a caterer sustained when a glass vase shattered. The vase contained a floral arrangement, which a florist working at the same catered event had been carrying across the room. Invoking the doctrine of res ipsa loquitur, the injured caterer sued the florist and the floral company, contending that either the florist had been gripping the vase in a dangerous manner or that the vase had not been adequately inspected for cracks before it was brought to the site. The trial court granted defendants a directed verdict at the close of the caterer’s proofs before the jury, mainly because the caterer had not retained a liability expert to explain why the vase had shattered. We reverse, concluding that it was not essential for this plaintiff to have retained a liability expert in these circumstances, and that the jury should have been allowed to evaluate plaintiff’s claims based on res ipsa loquitur principles. [Approved for publication.]

 

14-2-8864 I/M/O the Commitment of F.S., App. Div. (per curiam) (16 pp.) F.S., committed to the custody of the Department of Human Services after being found not guilty by reason of insanity of terroristic threats, unlawful possession of a weapon for an unlawful purpose, and unlawful possession of a weapon, appeals her continued commitment after her third Krol hearing. The panel finds that, based on the totality of the record, the judge's conclusion that F.S. is mentally ill was within the broad discretion given his ability to evaluate the testimony and the evidence and it finds no basis to reverse. The panel affirms the portion of the order that required F.S.'s continued involuntary commitment, finding that the evidence supported a finding that absent the significant, hospital-administered medication regimen, F.S. would likely present a danger to herself and others in the foreseeable future. The panel reverses that portion of the order denying discharge planning in light of the recommendations of her treating psychiatrist and the Special Status Persons Review Committee that F.S. was ready for such planning, and directs that on remand, the judge should consider the propriety of conditional discharge with appropriate conditions.

 

14-2-8865 State v. Pomianek, App. Div. (Reisner, P.J.A.D.) (37 pp.) We construed one section of the bias intimidation statute, which defendant challenged as unconstitutional. We held that a conviction under N.J.S.A. 2C:16-1a(3) requires proof of the defendant’s biased intent in committing the predicate crime; proof of the victim’s perception of the crime is insufficient for a conviction. That construction is consistent with the legislative history and necessary to avoid holding the statute unconstitutional. We also construed the official misconduct statute, N.J.S.A. 2C:30-2a, holding that under the facts of this case defendant could be retried for official misconduct based on harassment by conduct but not harassment by communication. [Approved for publication.]

 

14-2-8866 State v. Samuels, App. Div. (per curiam) (16 pp.) Finding that, while the trial court's denial of defendant's motion was based on its well intentioned concern that defendant lacked the educational background, legal knowledge and ability to effectively serve as his own counsel, the trial court made no findings of fact supporting a determination that defendant, having been informed by the court of the charges, maximum sentence, risks and inherent difficulties and consequences of self-representation, lacked the capacity to elect self-representation. Because the record does not support the denial of defendant's right to represent himself based on the invalidity of his waiver, King requires reversal of his convictions for robbery and resisting arrest. The matter is remanded to the trial court for further proceedings.

 

07-7-8867 Daybreak Express, Inc. v. VMG Investment & Developers Co., U.S. Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) Plaintiffs filed a motion for entry of default judgment, which the Court grants in part. As to damages, Plaintiffs point to the Rate Confirmation Agreement, which states that liability for loss shall be the replacement cost. Plaintiffs have submitted evidence which shows a replacement cost of $44,499.51. Plaintiffs also seek damages for: 1) “testing of material” at $8,250; 2) “overtime charges for replacement batch” at $12,000; and 3) “estimated destruction cost” at $720. Plaintiffs have provided no basis to conclude that testing and destruction costs are within the scope of the replacement cost for the loss. Nor have Plaintiffs submitted evidence to support the amount of the destruction cost. Plaintiffs have documented the overtime charges for replacement, which are within the scope of the replacement cost. Plaintiffs will be awarded replacement cost damages in the amount of $56,499.51. The Court finds that an award of prejudgment interest is warranted. Post-judgment interest shall also be awarded. Plaintiffs are entitled to attorney’s fees pursuant to their tariff, and they may submit an affidavit establishing those fees. [Filed January 24, 2013]

09-2-8868 Coba v. Ford Motor Company, U.S. Dist. Ct. (Debevoise, U.S.D.J.) (24 pp.) This matter arises out of Defendant Ford Motor Company’s inability to cure a defective fuel tank installed in a number of Ford trucks and vans. Plaintiffs filed a complaint against Ford, on behalf themselves and persons who purchased class vehicles, asserting claims for breach of express warranty, violation of the New Jersey Consumer Fraud Act (“NJCFA”), breach of the implied warranty of merchantability, common law fraud, breach of the duty of good faith and fair dealing, unjust enrichment, and unspecified injunctive relief. The complaint sought class certification, general, special, incidental, statutory, punitive, treble, and consequential damages, attorney fees, and costs. Ford filed a motion to dismiss. Ford’s motion is granted with respect to Plaintiffs’ claims for common law fraud, fraud under the NJCFA, and breach of the implied warranty of merchantability. Ford’s motion is denied with respect to Plaintiffs’ claims for breach of express warranty and breach of the implied covenant of good faith and fair dealing. Plaintiffs’ claim for breach of the implied warranty of merchantability is dismissed with prejudice. Plaintiffs’ claims for common law fraud and fraud under the NJCFA are dismissed without prejudice and with leave to amend. [Filed January 22, 2013]

 

51-7-8869 Dussard v. Elwood, U. S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Petitioner, an alien detained in connection with removal proceedings and currently confined at the Monmouth County Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. section 2241 challenging his pre-removal period of mandatory detention, pursuant to 8 U.S.C. section 1226(c). The court holds that petitioner's detention is governed by 8 U.S.C. section 1226(a) because the Department of Homeland Security did not take petitioner into custody at the time he was released from criminal incarceration for a removable offense and it grants the writ of habeas corpus to the extent that an Immigration Judge conduct an individualized bond hearing to determine if petitioner is a flight risk or danger to the community. [Filed January 29, 2013]

 

25-7-8870 Molinaro v. The UPS Health & Welfare Package, U.S. Dist. Ct. (Hillman, U.S.D.J.) (21 pp.) Plaintiff seeks reimbursement of benefits under his long term disability policy, an employee welfare benefit plan governed by the Employee Retirement Income Security Act (ERISA). The Court must determine whether the termination of plaintiff’s long term disability benefits was arbitrary and capricious. Plaintiff and defendants each moved for summary judgment. The Court finds the termination policy would not violate the Plan’s fiduciary duties to plaintiff if it had been described in the Summary Plan Description (SPD) or contemplated by the Plan language. But instead, the Plan generally requires that a participant make timely premium payments, but provides no specifics as to what “timely” means. Here, the Court finds it is arbitrary to terminate benefits for a one-month deficiency payment received nine days late, where a prior three-month delinquency did not warrant termination or provide a deadline. Further, the Plan administrator relied upon SPD provisions that do not stand for the propositions it claims support the termination of benefits. The Plan administrator’s interpretation was not reasonable. Plaintiff’s motion for summary judgment is granted as to liability. Defendants’ motion is denied. The issue of damages will be addressed after consideration of supplemental materials. [Filed January 23, 2013]

 

04-7-8871 Emmanouil v. Roggio, U. S. Dist. Ct. (Pisano, U.S.D.J.) (10 pp.) In this ongoing litigation arising out of a business deal between the parties, defendant moves to recuse Judge Pisano. Finding that the motion is another example of Roggio's attempt to litigate issues that have already been decided and that he has failed to show that a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned, the court denies the motion. [Filed January 29, 2013]