Daily Decision Service Alert: Vol. 22, No. 21 ? January 31, 2013

 

01-2-8872 I/M/O Glassen, App. Div. (per curiam) (14 pp.) Appellants Torsiello and Donaghy challenge a final decision of the Civil Service Commission rejecting their demands for permanent appointments to positions of Fire Captain and Fire Lieutenant, respectively and from its determination that the civil service statutes and rules do not require an appointing authority to fill a vacancy. The panel affirms, finding that the applicable statutes and regulations do not compel the township to appoint appellants to permanent positions nor do they require the commission to take enforcement measures to compel the township to do so. Rather, an appointing authority has the discretion to determine the number of Fire Captains and Fire Lieutenants it wishes to employ at any particular time. Further, there is no evidence that the township elected not to fill the vacancies from the eligible lists for some improper purpose.

 

03-2-8873 Meade v. Cardinale & Jackson Crossing Associates, LLC, App. Div. (per curiam) (14 pp.) In this action concerning a commercial lease and bankruptcy, plaintiff filed a complaint against defendants alleging violations of the RICO statute and other statutes; breach of fiduciary duty, fraudulent conveyance, “failure to complete promised construction of plaintiff's leased space and the entire shopping plaza in a timely manner," that defendants made numerous misrepresentations to induce plaintiff to sign the lease, and violations of the New Jersey Consumer Fraud Act (CFA). Here, plaintiff appeals from the order dismissing with prejudice certain claims and allegations against some defendants, dismissing without prejudice other claims and parties, and directing that the matter be referred to arbitration. Plaintiff argues the arbitration clause in the contract is ambiguous and unconscionable, and does not require arbitration of statutory claims. He also argues that defendants invoked their right to arbitration outside the contractual time limits, and that the court erred in dismissing a party and some claims with prejudice. The appellate panel affirms the dismissal of the claims and parties challenged by plaintiff. The panel finds no policy bar or ambiguity in the language of the arbitration clause, that the contractual demand for arbitration was timely, and that in the absence of waiver, the arbitration clause applies to the remaining CFA claim, RICO claim and breach of contract claim.

 

20-2-8874 Chandler v. Chandler, App. Div. (per curiam) (22 pp.) Defendant appeals from the Family Part's post-judgment order that denied defendant's request to modify residential custody of the parties' children, and denied defendant relief based on plaintiff's failure to pay the mortgages on the former marital home as required by the property settlement agreement (PSA). The appellate panel agrees with defendant that it was error for the trial court to deny oral argument. Nonetheless, the panel affirms the provisions of the order that defendant challenges on appeal and finds no further relief is warranted. Defendant failed to meet his burden to demonstrate a prima facie case of changed circumstances warranting a modification of custody. The court did not err in denying defendant's motion to assume possession of the marital home ten months in the future where pursuant to the PSA, in the event of plaintiff's unexcused failure to pay, defendant had the right to re-enter, or to force a sale, but not to reserve his right in the future. The panel finds no error in the denial of defendant's request for reimbursement of mortgage payments where there was insufficient evidence to determine the amount that was debited. The panel reverses that part of the order that adds an unauthorized amount to defendant’s probation account and remands to the trial court to fashion appropriate relief.

 

20-2-8875 Fischer v. Fischer, App. Div. (per curiam) (12 pp.) Defendant appeals from a post-judgment order in this matrimonial action that entered judgment in favor of plaintiff for $25,000 as compensation for personal property defendant failed to turn over to plaintiff, and awarded plaintiff $3,000 in attorney fees. The parties’ oral agreement that specified items of personalty would be turned over to plaintiff was ratified by a written statement of the agreement that was incorporated in the Judgment of Divorce one month after the terms were placed on the record. The ratification of the agreement to turn over items at a time when defendant knew or should have known whether the items were available for return, coupled with defendant's recalcitrance in responding to plaintiff's attempts to secure the items in accordance with the agreement, provide sufficient evidence to support the conclusion that she acted willfully in failing to comply with the terms of the agreement. Defendant's belated protest and alternative interpretation of the plain language of the agreement – that she believed was only required to make a good faith effort to locate the items -- did not create a genuine issue of fact that required a plenary hearing. The appellate panel affirms the finding that defendant acted in violation of litigant's rights. However, a remand is necessary to ascertain the value of certain items that were not returned to plaintiff. The panel further finds the court did not err in the award of counsel fees to plaintiff.

 

20-2-8876 Hilliard v. Hilliard, App. Div. (per curiam) (8 pp.) Less than two weeks after the parties executed a marital settlement agreement, plaintiff filed a complaint for divorce. Before the expiration of the time to respond, she filed a motion to enforce and modify the MSA. One month later she filed an unopposed motion for entry of default, which was granted by the first judge. A month later plaintiff filed a notice of proposed final judgment returnable before another judge. Defendant obtained counsel and moved to vacate the default and permit filing of an answer out of time. The first judge denied a motion for reconsideration of or relief from the enforcement order as untimely; the second judge then denied the motion to vacate default. Defendant appeals. Based on the trial court's failure to liberally indulge both defendant's request for relief from the unopposed enforcement order and his request for relief from the default, the panel reverses and vacate the orders entered so that defendant may file an answer and the matter proceed as contested.

 

20-2-8877 New Jersey Div. of Youth & Family Services v. K.S., App. Div. (per curiam) (6 pp.) Defendant appeals the Family Part's order finding that she abused or neglected her daughter M.S..The panel reverses that finding. Defendant also appeals the permanency order and the order terminating the Title Nine proceedings in light of the filing of the Title 30 complaint for termination of her parental rights, arguing that the Family Part had no further jurisdiction over the family based on the reversal of the finding that she abused or neglected her daughter. The panel dismisses the appeal as it relates to that issue as moot because DYFS proceeded under both Title Nine and Title 30 and had the Family Part not found abuse or neglect, it would not have lost jurisdiction because of the Title 30 proceeding which ultimately resulted in an order of termination. Any challenge to the Title Nine proceedings is moot. Any issue concerning the permanency order should be raised in an appeal of the termination order entered in the Title 30 proceedings.

 

20-2-8878 Rivera v. Corrales, App. Div. (per curiam) (12 pp.) Plaintiff appeals from two post-judgment orders in this contentious and bitter matrimonial litigation. The panel affirms, finding that to a large degree, plaintiff's arguments in favor of her requested relief rest on her premise that the PSA should not be enforced because of defendant's fraud but the court previously denied plaintiff's request to vacate the parties' PSA on that ground because she had not provided clear and convincing evidence that the agreement should be vacated, plaintiff did not appeal that order and the PSA therefore remains valid and enforceable; plaintiff failed to produce sufficient evidence to establish a prima facie case of changed circumstances sufficient to justify modifying the imputation of income to her and her child support obligation; and the court did not abuse its discretion in denying plaintiff's motion to reconsideration because she failed to show that the court expressed its decision based on a palpably incorrect or irrational basis or did not consider or failed to appreciate the significant of probative competent evidence.

 

23-2-8879 Moren v. Beaulieu and, App. Div. (per curiam) (10 pp.) Joshua Moren died on June 21, 2008, as the result of injuries suffered in a head-on collision with a motor vehicle operated by Laura Lippie, who was intoxicated. Plaintiff, his mother and the administratrix of his estate, filed a wrongful death action against Laura Lippie and her husband, Paul Lippie. She also filed a declaratory judgment action against High Point Insurance Company, the Lippies' homeowners insurance carrier. The wrongful death complaint alleged that Laura was driving her vehicle in a careless and negligent manner when she struck Joshua’s motorcycle. In a separate count against Paul, the complaint alleged that he carelessly and negligently enabled his wife access to a motor vehicle based on his knowledge of her alcoholism. Plaintiff appeals from an order that granted summary judgment to High Point. The High Point policy includes an exclusion barring recovery for injury or property damage arising from the ownership, maintenance, use, loading or unloading of any a motor vehicle. The appellate panel affirms the grant of summary judgment to High Point, finding that the allegation that Paul was negligent in entrusting his automobile to Laura falls within the plain and ordinary meaning of the exclusion in the High Point policy.

 

25-2-8880 In The Matter Of Jasiecki, App. Div. (per curiam) (14 pp.) Appellant Michael Jasiecki, a former police officer, appeals from a final decision of the Civil Service Commission. The Commission accepted and adopted the findings and conclusions of an Administrative Law Judge (ALJ), and upheld a decision by the Township to remove appellant from his position. The disciplinary charges against Jasiecki resulted from his involvement in a motor vehicle pursuit. The ALJ concluded the Township established that appellant neglected and failed to perform his duties by becoming involved in an interjurisdictional pursuit without authorization and by employing “dangerous and unauthorized tactics." The ALJ also determined that appellant's conduct was unbecoming a law enforcement officer because he failed to exercise good judgment and his actions placed the safety of many individuals at risk. The ALJ found that appellant's actions violated the Department's rules and regulations. The ALJ found removal was the appropriate discipline where appellant had received the benefit of progressive discipline. On appeal, appellant primarily argues that the record does not support the factual findings of the ALJ, and that the appropriate penalty is remedial training. The appellate panel finds there is sufficient credible evidence in the record to support the ALJ's findings and conclusions, which were accepted by the Commission, and the penalty imposed is appropriate in light of Jasiecki's prior disciplinary record and his egregious misconduct.

 

26-2-8881 Ginsburg Development Companies, L.L.C. v. The Estate Of Evelyn Banff, App. Div. (per curiam) (15 pp.) This appeal is from a final judgment resolving a dispute between Ginsburg Development Companies, L.L.C. and the Township of Harrison. The dispute concerns Ginsburg's obligation for the cost of a contract the Township awarded for off-site improvements made to the Township's sewer system and needed to satisfy a condition of final major subdivision approval granted to Ginsburg by the Planning Board. When a dispute arose over the amount of the payment due, Ginsburg filed a complaint seeking a declaratory judgment interpreting the developer's agreement. The trial judge ultimately awarded the Township $178,517.18, about $30,000 less than the Township's initial demand. The Township appeals, objecting only to the provision of the judgment permitting Ginsburg to withhold payment until such time as construction begins. Ginsburg cross-appeals, and urges the court to affirm the judgment. This case involves Ginsburg’s obligation to make timely payment of its pro-rata share for work the municipality had done. The appellate panel concludes that the delay of payment in the circumstances of this case is unwarranted and vacates that provision of the judgment delaying Ginsburg's obligation to pay.

52-3-8882 Paff v. High Point Regional High School Board of Education, Law Div.-Sussex Cy. (Weisenbeck, A.J.S.C.) (15 pp.) Defendant High Point Regional High School Board of Education hired Check-M-Out Security Services and Investigations, LLC to perform an investigation of allegations concerning the conduct of Dr. John Hannum, the Superintendent. Check-M-Out provided an investigative report ("the Report") directly to the Board's law firm. The Report was shared with the Board during a closed executive session portion of a Board meeting; all copies were collected at the end of the session. The Report is not on file with the school district and is only maintained at the Board's law firm. Plaintiff filed a verified complaint alleging defendants violated OPRA and the common law right of access by not providing plaintiff with a copy of the Report. The Court finds the Report qualifies as a personnel record under OPRA and is protected from disclosure. The Report also falls within the deliberative process exemption. As to the common law right of access, the Court finds that defendants' asserted interest in maintaining the confidentiality of the Report outweighs plaintiff's and the public's asserted need for its disclosure. The Court affirms the denial of plaintiff’s requests for the Report. Plaintiff's request for attorney fees and costs is denied. [Filed December 11, 2012]

 

35-5-8883 Hill v. Moorestown Twp., Tax Ct. (DeAlmeida, J.T.C.) (29 pp.) Plaintiffs challenge the tax year 2008 assessment of $20,814,500 on property in Moorestown Township on which is located a one-family home. The court denies plaintiffs' motion to bar the testimony of defendants' experts, finding both the sales approach expert and the cost approach expert qualified to offer an opinion on the value of the property. The court determines that the cost approach is the best method for determining the market value of plaintiffs' uniquely opulent property and using that approach, it adopts the opinion of plaintiffs' experts with respect to land value and finds credible plaintiffs' expert's calculation of replacement cost new to be $33,850,000. It includes an entrepeneurial profit of 5% and applies a depreciation rate of 7.5%, and determines that the value of plaintiffs' property is $34,426,812. Because this was a revaluation year, and it is well-settled that in a revaluation year, the court may not raise the assessment in the absence of a counterclaim by the municipality unless the evidence establishes that the assessment is so far removed from the true value or the method of assessment was so patently defective as to justify removal of the presumption of validity, a standard not met here, and the municipality has not filed a counterclaim, the court affirms the assessment.

 

35-5-8884 Regent Care Center Inc. v. Hackensack City, Tax Ct. (Andresini, J.T.C.) (22 pp.) Plaintiff, Regent Care Center Inc., the owner of a nursing home built in 1988 located in defendant city, Hackensack, challenged the local property tax assessment for tax years 2007-10. In valuing the nursing home, the parties came to a number of stipulations, ultimately leaving the Tax Court to determine entrepreneurial profit and depreciation. The Tax Court accepted plaintiff’s expert’s calculation for entrepreneurial profit because the facility project was built for an owner-occupier. The Tax Court found the older nursing home entitled to functional obsolescence but that it does not suffer from economic obsolescence.  The Tax Court ultimately reduced the assessment.  [Decided Jan. 28, 2013.] [Approved for publication.]

 

35-5-8885 Venture 17 v. Hasbrouck Heights, Tax Ct. (Andresini, J.T.C.) (30 pp.) Plaintiff, Venture 17, the owner of a multitenant office building located in defendant borough, Hasbrouck Heights, challenged the local property tax assessment for tax year 2009. In valuing the office building, the Tax Court found the sale of the subject property as an unreliable indicator of market value. Instead, the Tax Court analyzed the expert appraisers’ competing capitalized income approaches, making its own independent determination of value. The Tax Court reduced the assessment. [Decided Jan. 28, 2013.] [Approved for publication.]

 

36-2-8886 Kalisher v. Mansfield Plaza Associates, App. Div. (per curiam) (9 pp.) In this personal injury action seeking damages for injuries plaintiff Deborah Kalisher suffered when she fell in a hole obscured by grass while traversing a short-cut across a heavily worn path on commercial property owned by defendant Mansfield Plaza. Mansfield's liability expert testified that the hole was the result of irrigation installation and inadequate backfill and compaction by Steve's Lawn and Landscaping. Steve's general manager gave deposition testimony that acknowledged a practice of alerting Mansfield of any hazards that Steve's would discover while maintaining the lawn and irrigation in the area where plaintiff fell. Plaintiff appeals the grant of summary judgment dismissing their claims against Steve's. The panel reverses, finding that on this record, a trier of fact could conclude that Steve's was negligent in failing to report the hidden hole to Mansfield or that Steve's created the hole through inadequate backfill and compaction after its irrigation work and that the summary disposition was inappropriate because it failed to accord plaintiff the benefit of all reasonable inferences found in the motion record.

 

36-2-8887 Porter v. Hogan, App. Div. (per curiam) (8 pp.) Plaintiff, in the business of racing thoroughbred horses, filed this action asserting a claim of professional negligence against defendant- veterinarian who examined a horse jointly owned by plaintiff and two partners in connection with a buyout as part of the dissolution of the partnership. He asserted that she failed to detect an abnormality that negatively affected the horse's ability to race. Plaintiff appeals a jury verdict finding that defendant was not negligent. The panel affirms, finding that the verdict was not against the weight of the evidence and it does not appear that there was a miscarriage of justice; the court did not err in redacting four portions of the trainer's deposition testimony and the testimony was properly excluded because the testimony that plaintiff sought to elicit was expert testimony that the trainer was not qualified to present; and the court did not improperly deny plaintiff the opportunity to present certain rebuttal testimony as the transcript reflects that the trial judge told counsel he would give him an opportunity to present it and in any event, the proffered rebuttal testimony would have been cumulative and there would have been no abuse of discretion in denying permission to repeat it. 

 

38-2-8888 Stephenson v. Spiegle, App. Div. (Fisher, P.J.A.D.) (12 pp.) Two months after executing a will that conveyed his estate to family members or trusts benefiting family members, the decedent opened a bank account, which named defendant-attorney, the drafter of the will, as the “pay-on-death” beneficiary. After decedent died a year later, defendant expressed his surprise but also took the position that the account devolved to him personally. The estate commenced this action, seeking recovery of the funds and, after a bench trial, the Chancery Division judge ordered rescission, finding decedent made a unilateral mistake in that he likely intended to fund a trust or the trusts referenced in the will. The court affirmed, finding a unilateral mistake created no impediment to rescission where: the mistake was material; decedent exercised reasonable care; enforcement of the mistake would produce an unconscionable result; and defendant was not prejudiced by the loss of the windfall. The court also held the judge could have imposed a resulting trust or reformed this “poor man’s will” by application of the doctrine of probable intention. [Approved for publication.]

42-6-8889 In re: Destefano, Bankruptcy Ct. (Steckroth, U.S.B.J.) (12 pp.) Plaintiff filed a motion for summary judgment seeking a declaration that the debts owed to her by the Debtor are non-dischargeable. Plaintiff argues that the amounts due are non-dischargeable as support obligations and, alternatively, arising out of a divorce proceeding. With regard to the obligations owed by the Debtor pursuant to the parties’ Prenuptial Agreement, summary judgment is denied and the matter shall proceed to trial before the Bankruptcy Court. Plaintiff has failed to provide the Court sufficient legal authority to rule as a matter of law that the obligations owed under the Agreement are nondischargeable. As to legal fees incurred in connection with litigating the validity of the Agreement in Family Court, summary judgment is granted in favor of the Plaintiff as to dischargeability alone, not the amount, which remains in dispute and is to be fixed by the Family Court. The legal fees incurred litigating the validity of the Agreement are in the nature of support and caused by Defendant’s failed attempt to set aside the Agreement. Summary judgment is granted in favor of Plaintiff with respect to the amount ordered by the Family Court for household expenses and legal fees to enforce that order, which were incurred in the course of a divorce and part of a divorce decree or order. [Filed January 23, 2013]

 

07-7-8890 International Union of Operating Engineers v. RAC Atlantic City Holdings LLC, U. S. Dist. Ct. (Shipp, U.S.M.J.) (21 pp.) Plaintiff- representatives of certain employees of the Atlantic City Resorts Casino Hotel, and their associated welfare, pension and apprentice training and annuity funds, filed complaints alleging that Resorts International Hotel (RIH) and Resorts Atlantic City Holdings LLC (RAC) breached the terms of the parties' respective collective bargaining agreements and violated various provisions of ERISA, the Labor Management Relations Act and the Federal Arbitration Act. RAC is a cancelled limited liability company and it moves to dismiss, arguing that it is not amenable to service. Plaintiffs move for leave to file second amended complaints asserting that RAC's cancellation should be nullified under New Jersey law and plaintiffs should be permitted to pierce the corporate veil of RAC. The Engineers' First Amended Complaint is dismissed because it fails to allege a basis upon which to affect service on RAC. The Carpenter's FAC is dismissed without prejudice because the court rejects its argument that section 4212 of ERISA may be used to make RAC amendable to service. The court finds that plaintiffs' arguments in their SACs that the cancellation should be nullified because RAC failed to adequately wind up its business as required by N.J.S.A. 42:2B-48-51 are futile because they lack a legally cognizable basis. Plaintiffs' motion to amend their complaints to add a count to pierce the corporate veil of RAC and add Wells Fargo Bank to the case is granted because they have alleged a cognizable claim against RAC's members that, during its dissolution, it may not have fulfilled its duties to creditors, including plaintiffs, and granting leave to amend will not unduly prejudice Wells Fargo which will have a full opportunity to oppose the claims. [Filed January 29, 2013]

10-8-8891 Association of New Jersey Rifle and Pistol Clubs v. Governor of New Jersey, Third Cir. (Sloviter, C.J.) (7 pp.) Because New Jersey's One-Gun-Law does not prohibit the purchase of B-B guns and other pellet-firing air guns, but merely restricts the sale of such guns to one per person per month, it is not preempted by 15 U.S.C. § 5001(g)(ii). Nor does implementation of its exemptions violate the due process clause of the Fourteenth Amendment since it does not deprive plaintiffs of any protected property interest they may have in the exemptions. [Filed January 30, 2013] [precedential]

16-7-8892 Marin v. Landgraf, U. S. Dist. Ct. (Shipp, U.S.M.J.) (18 pp.) Pro se plaintiff asserts claims against the Educational Testing Services and numerous other defendants for interference with prospective contractual relations, negligent infliction of emotional distress, and violations of the Civil Rights Act, the Sherman Act and the New Jersey Antitrust Act arising out of defendant-schools' use of the graduate records exam to admit students which is administered by ETS which requires applicants to provide their social security numbers and which allegedly failed to respond to his request not to provide his SSN which allegedly resulted in his inability to apply for admission at his desired schools and participate in the profession of his choice. Defendants' motions to dismiss are granted. The court dismisses plaintiff's claim for tortious interference because it is based entirely on speculation and conjecture. The negligent infliction claim is dismissed because plaintiff fails to allege that he was placed in reasonable fear of immediate personal injury or that a close relative died or suffered serious injury as a result of defendants' actions. Plaintiff's claims under 42 U.S.C. section 1983 are dismissed as meritless because he has no constitutionally protected interest in taking the GRE and applying to graduate schools. The Sherman Act and Antitrust Act claims are dismissed because plaintiff's complaint does not allege any antitrust injury since inability to take a standardized test and apply to a graduate school is not grounded in any economic effect - higher prices or decreased output - that could result from an antitrust violation and because plaintiff fails to establish plausible facts to indicate that but for the alleged antitrust violation - exclusive dealings - plaintiff would have been able to take the GRE without providing his SSN. [Filed January 29, 2013]

25-7-8893 Laborers' Local Union Nos. 472 & 172 v. Buckler Associates Inc., U. S. Dist. Ct. (Wolfson, U.S.D.J.) (14 pp.) Petitioner-funds, which instituted this action to enforce a labor arbitration award obtained against Buckler under the terms of a collective bargaining agreement which required Bucker to assume liability for delinquent contributions owed to petitioners, move to confirm the arbitration award. The court confirms the award, finding that Buckler has not cited any legal basis that would warrant vacating the arbitrator's decision which was drawn from the parties' agreement and is based on reasonable contractual interpretation. [Filed January 29, 2013]

 

25-7-8894 Stevens v. Santander Holdings USA, Inc., U.S. Dist. Ct. (Bongiovanni, U.S.D.J.) (17 pp.) Plaintiff is a former employee of Defendant Santander Holdings, USA, Inc. The underlying case relates to Plaintiff’s appeal of Short Term Disability (STD) and Long Term Disability (LTD) eligibility. Santander’s STD Plan is self-funded and administered by Liberty Life Assurance Company of Boston. The LTD is a group insurance policy underwritten, funded, and administered by Liberty for the benefit of eligible Santander employees. Plaintiff brought this action alleging violation of the Employee Retirement Income Security Act of 1974 (ERISA) and filed a motion seeking an order compelling discovery. Plaintiff contends that expanded discovery is necessary for a proper de novo review. Alternatively, Plaintiff maintains that even under an abuse of discretion standard, Plaintiff is entitled to discovery to establish conflicts of interest and procedural irregularities during the review of his medical condition and continuation of his benefits. Plaintiff’s allegations of procedural irregularities do not warrant discovery beyond the administrative record. Because the Court can determine whether a conflict of interest exists based on documents in the administrative record, and because the finding of conflict of interest would not alter the rule that the entire record consists of the evidence in front of the administrator when making the decision under review, the Court denies Plaintiff’s motion to compel discovery beyond the administrative record. [Filed January 28, 2013]