Daily Decision Service Alert: Vol. 22, No. 22 ? February 1, 2013

 

07-2-8895 Gitto v. Atlantic City, App. Div. (per curiam) (8 pp.) Defendant appeals the Law Division judgment setting an annual lifeguard pension benefit for plaintiff of $13,930.19 and ordering the city to reimburse plaintiff for the difference between this amount and what he has received since November 2007. The panel reverses and remands, finding that the manner in which the trial court proceeded in the case - proceeding ex parte despite being aware that counsel for defendant was unable to attend the hearing because he was on trial in Essex County and then denying counsel's request to file a motion for reconsideration out of time in order to present the city's position - violated rudimentary principles of due process and deprived a publicly funded entity the opportunity to present a defense against plaintiff's allegations.

 

17-2-8896 Ritter v. Harbor Commission of the Borough of Atlantic Highlands, App. Div. (per curiam) (9 pp.) Plaintiff, who placed a private mooring outside the borough's licensed mooring field in an area referred to as the refuge area, asserted a right to access his mooring through areas controlled by defendants in this action alleging violation of the public trust doctrine. He appeals the grant of summary judgment to defendants. The panel affirms, holding that plaintiff's unfettered and unsupervised access to the refuge area over property of the borough or commission, particularly through the marina mooring area, is not mandated by the public use doctrine given the reasonable access available to him and the general public at the Avenue A launching site. That he did not want to avail himself of that access because he finds it inconvenient and because he chooses to use a vessel unsafe for that purpose does not defeat defendants' compliance with the public trust doctrine.

 

26-2-8897 Kanter v. Wallington Board of Adjustment, App. Div. (per curiam) (14 pp.) In these prerogative writ matters, plaintiff appeals from an amended judgment which affirmed the decision of respondent Municipal Council of Wallington to affirm the decision of respondent Board of Adjustment to grant variance relief to respondent Liberty Plaza. Finding that on the facts here, the board posted and published notice of its 2008 regular meeting dates, containing the location and time of each meeting, and that the notice was timely posted and published with respect to the hearings concerning Liberty's application, and that the board was not required to comply with N.J.S.A. 10:4-8d, and that the board thus had jurisdiction to conduct the hearings, the panel affirms substantially for the reasons expressed below. It adds that there was no need for minutes or depositions with respect to the executive sessions as they were open to the public and thus there was no OPMA violation and that the meeting was not tainted because outside counsel, who presided over a meeting after the mayor recused himself was not acting as the mayor or a hearing officer and he made no factual findings or legal conclusions and did not cast a vote.

 

26-2-8898 RIYA Cranbury Hotel LLC v. Cranbury Zoning Board of Adjustment, App. Div. (per curiam) (17 pp.) Plaintiff-objector appeals, and defendant-developer AVN Holdings cross appeals from a Law Division judgment affirming defendant board's approval of AVN's application to establish and operate a Hyatt-brand hotel and a restaurant/banquet facility and reversing the board's grant of a use variance necessary to operate a wine shop in Cranbury's Highway Commercial zone. The panel affirms, declining to consider RIYA's primary contention on appeal - that the hearings were tainted by the appearance of impropriety due to the conduct of the board's planner in cross-examining witnesses - because it was not presented by RIYA in its pleadings; deferring to the board's interpretation of Cranbury's zoning ordinance that the proposed banquet facility falls within the definition of a restaurant which is a permitted use in the HC zone; agreeing that the "blade," an architectural feature to be attached to the hotel's parapet, was not a sign under the ordinance and therefore did not require N.J.S.A. 40:55D-70(c) variances; and finding that the Law Division correctly found that AVN 's proofs failed to meet the obligatory enhanced quality needed to sustain a use variance under 40:55D-70(d)(1) for the wine shop.

 

34-2-8899 Greenpoint Mortgage Funding Inc. v. Friedman, App. Div. (per curiam) (6 pp.) Appellant, who borrowed money from plaintiff to purchase three houses and issued purchase money mortgages to secure the loans on which he subsequently defaulted, challenges orders denying his motions for reconsideration of orders denying his motions to set aside final judgments of foreclosure. The panel affirms for the reasons expressed below, adding that appellant's contention that he had not been served with the summonses and complaints is belied by the certifications he submitted in support of his motions and court records show that he was served and the trial judge did not err in concluding that plaintiff had standing to pursue the foreclosures since in its submissions, it indicated that it was the holder of the notes and mortgages on the dates the complaints were filed, thereby establishing that it had standing.

 

38-2-8900 I/M/O Estate of Sand, App. Div. (per curiam) (11 pp.) Appellant, who filed this Family Part action alleging that her mother's will violated a pre-nuptial agreement and asserting numerous claims including for fraud, intentional infliction of emotional distress, and child support, during the pendency of probate proceedings in which she had filed a caveat to the probate of her mother's will and which resulted in the dismissal of her counterclaims and the probate of the will and which was affirmed on appeal, appeals the orders granting summary judgment to defendants, assessing counsel fees against her for frivolous litigation, and invoking the in terrorem clause of the will to revoke her $25,000 inheritance and denying her motion for reconsideration. Finding that the majority of the issues raised by appellant lack sufficient merit to warrant extended discussion in a written opinion, the panel relies on the motion judge's opinion setting forth his reasons for his decisions. However, the panel reverses as to the invocation of the in terrorem clause and assessment of counsel fees, finding no legal basis for vacating the probate judge's decision not to invoke the in terrorem clause and that the motion judge erred in assessing fees for frivolous litigation against appellant since there is no evidence that defendants sent her the required safe harbor letter. 

 

14-2-8901 State v. Scott, App. Div. (per curiam) (9 pp.) Defendant pled guilty to two counts of first-degree aggravated manslaughter and other charges and was sentenced to a 60-year term of imprisonment with a 25-year period of parole ineligibility. Holding that defendant was entitled to have the sentencing judge find and weigh appropriate aggravating and mitigating factors to arrive at a sentence within the parameters of the plea agreement and that the judge erred in finding aggravating factor 2 based on harm to the family members of the victim, the panel concludes that defendant was potentially prejudiced by his appellate counsel's failure to pursue the sentencing issue on appeal. It therefore reverses the dismissal of defendant's petition for post conviction relief and remands for resentencing.

46-7-8902 Day v. Jackson Twp., U. S. Dist. Ct. (Shipp, U.S.M.J.) (20 pp.) In this action arising out of a confrontation between police and plaintiff that culminated in his arrest for, inter alia, aggravated assault on a police officer and resisting arrest, defendants' motions for summary judgment are granted in part and denied in part. The court holds that plaintiff's entrance into PTI does not bar his 42 U.S.C. section 1983 claim for excessive force and failure to intervene; there are not enough undisputed facts for the court to rely on to determine if the officer-defendants' actions were reasonable and, therefore, their motion seeking a determination that they are entitled to qualified immunity on the excessive force, failure to intervene, assault and battery and intentional infliction of emotional distress claims is denied without prejudice; plaintiffs' section 1983 Monell claim seeking liability based on a custom is allowed to proceed because, taking the facts in the light most favorable to plaintiffs, a reasonable jury could find that Jackson's Internal Affairs procedures were part of a custom which showed deliberate indifference to rights of those who might interact with its officers but because plaintiff has failed to provide any proof indicating a failure to train exists that can be causally connected to defendant-officers' actions, the section 1983 Monell claim based on failure to train is dismissed. [Filed January 30, 2013]

 

25-7-8903 Averhart v. Communications Workers of America, U. S. Dist. Ct. (Thompson, U.S.D.J.) (11 pp.) Plaintiff, a member of CWA Local 1033, filed this action against the local and CWA, its parent, alleging violations of the CWA constitution and the Labor Management Reporting and Disclosure Act. He appeals the magistrate judge's denial of his motion for reconsideration of her denial, on grounds of futility and prejudice, of his motion to amend to add new defendants and five new or reconstructed causes of action. The court affirms, finding that the proposed complaint cannot be read to state coherent causes of action and that plaintiff fails to show that the magistrate judge's order is clearly erroneous, contrary to law, and an abuse of discretion resulting in a mistake. The court finds, inter alia, that plaintiff has not shown that the magistrate judge did not consider the entire proposed complaint when evaluating the causes of action; her decision to strike his arguments for equitable tolling raised for the first time in his reply brief is well-supported in the Third Circuit; and the magistrate judge did not abuse her discretion in finding that such a massive amendment and supplement to the complaint would be prejudicial to defendants. [Filed January 30, 2013]

 

25-7-8904 Sax v. The Phoenix Communications Group Inc., U. S. Dist. Ct. (Wigenton, U.S.D.J.) (9 pp.) Plaintiffs - who were employees of Phoenix and were represented by defendant Writers Guild of America, East, filed this action after the collective bargaining agreement between defendants expired, the company unilaterally implemented its offer in the absence of a new CBA, plaintiffs were terminated and were not paid severance, and the union withdrew a pending unfair labor practice charge after a new CBA was ratified which retroactively provided for pro rata severance pay if plaintiffs signed releases of any claims against the company - filed this action alleging breach of contract and breach of the implied covenant of good faith and fair dealing in negotiations claims against the company and a breach of fiduciary duty claim against the union for not filing a complaint on plaintiffs' behalves regarding the severance pay to which they believed they were entitled. The court grants the company's motions to dismiss jurisdiction under Rule 12(b)(1) due to lack of subject matter, finding that since plaintiffs' complaints allege violations of section 8 of the National Labor Relations Act, stemming from the expired CBA, the National Labor Relations Board has exclusive jurisdiction. [Filed January 30, 2013]