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Daily Decision Service Alert: Vol. 22, No. 24 ? February 5, 2013
New Jersey Law Journal
STATE COURT CASES
01-2-8920In The Matter Of The Appeal Of The Denial Of An Application For A Firearms Purchaser Identification Card Of Jacob Morris, App. Div. (per curiam) (9 pp.) Jacob Morris appeals from the trial court's denial of his application for a firearms purchaser identification card, which followed denial by the local police chief. Among the questions Morris answered on the application form was, "Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition?" Morris responded no. The police investigation discovered that Morris had received mental health treatment from a licensed clinical social worker. The trial judge found that, given the restricted wording of the form, Morris's failure to disclose his outpatient treatment by a social worker was not a knowing falsification. Nonetheless, the court concluded that Morris's mental health history supported a finding that "issuance would not be in the interest of the public health, safety or welfare." The appellate panel reverses and remands, finding the court erred in reaching its decision without conducting an evidentiary hearing.
CIVIL PROCEDURE JUDGMENTS
07-2-8921 Chelsea View Condominium Association, Inc. v. Beyer, App. Div. (per curiam) (4 pp.) Plaintiff Chelsea View Condominium Association, Inc. filed suit against defendant in the Special Civil Part to recover defendant's unpaid assessments for a residential condominium unit. Plaintiff appeals from orders that denied its motion to permit the sale of defendant's real property to satisfy its docketed judgment against defendant, and its motion for reconsideration. Plaintiff argues that the trial court erred in denying its motions because its judgment was docketed in Superior Court and the statutory provision negates the exception in N.J.S.A. 2A:17-17 relied upon by the court, which relates to judgments obtained in the Special Civil Part. The appellate panel agrees and reverses and remands. Because the court's denial of the motion was based upon an incorrect legal basis, reconsideration was appropriate.
ELECTION AND POLITICAL LAW
21-3-8922 Zimmer v. Castellano, Law Div.-Hudson Cy. (Bariso, A.J.S.C.) (9 pp.) This decision stems from a dispute over the filling of a vacancy on the Hoboken City Council. Plaintiffs, Mayor Dawn Zimmer and several members of the Hoboken City Council, seek a judgment declaring that the abstentions of Councilman Michael Russo and Councilwoman Beth Mason with regard to the appointment of James Doyle to the Council were correctly interpreted as negative votes sufficient to create a tie that allowed Mayor Zimmer to cast the deciding vote. The issue before the court is: How shall an abstention be interpreted under the Municipal Vacancy Law? When the Council convened to consider the appointment of Mr. Doyle, four Council members voted in favor of Mr. Doyle, two Council members voted against him, and two members abstained. In this limited circumstance, to afford an abstention any meaning other than a negative vote under the Municipal Vacancy Lawwould prevent the Mayor from voting and nullify the authority granted by the legislature to municipal governing bodies to fill vacancies. The court relies upon a number of common law cases, as well as Roberts Rules of Order which were affirmatively adopted by the Hoboken City Council, in concluding that the voting requirements set forth in the Municipal Vacancy Lawcompel the interpretation of abstentions as negative votes. Mayor Zimmer correctly used her power to cast a tie breaking vote.
20-2-8923 Chung v. Chung, App. Div. (per curiam) (8 pp.) In this post-judgment matrimonial matter, plaintiff appeals from an order granting her motion to enforce litigant's rights regarding defendant's obligation to pay college expenses. Plaintiff argues that the motion judge erred by failing to strictly enforce the parties Property Settlement Agreement (PSA), when he declined to order defendant to immediately pay the entire outstanding balance of the college loans or enter a judgment against defendant in that amount. Plaintiff also claims the failure to award attorney fees was error. The appellate panel affirms, finding the court did not abuse its discretion when it did not require immediate payment of all of the monies due on the college loans. The court properly considered defendant's ability to pay and the circumstances that led up to the default, in determining not to hold defendant to the letter of the PSA. The panel also finds no mistaken exercise of discretion in the court's refusal to enter a judgment against defendant, which plaintiff could have enforced by compelling defendant to liquidate his assets. Nor did the court err in denying counsel fees. Plaintiff's moving papers did not indicate that plaintiff sought counsel fees pursuant to the PSA, thus the court preserved the option to make such an application.
20-2-8924 N.J. Div. of Youth & Family Services v. S.S., App. Div. (per curiam) (10 pp.) S.S. appeals from a finding that she abused and neglected P.E., her severely autistic son, based on her having been arrested as a result of hitting R.P., her then-paramour, over the head with a bottle and thus leaving P.E. without care. The panel remands for the judge to make particularized findings of fact as to the risks posed by the incident, the harm to P.E., whether that harm could have been prevented by a cautionary act by S.S., and how, if at all, the immigration status of R.P. and his relatives, whom S.S. said would care for P.E., is relevant to the finding of abuse or neglect.
LAND USE AND PLANNING
26-2-8925 Woodruff v. U. S. Home Corp., App. Div. (per curiam) (17 pp.) In this action arising out of the construction of a housing development north of plaintiffs' property that allegedly resulted in storm water running through a ravine on their property in the front of their house that had previously been dry, the only claims remaining were for inverse condemnation and declaratory judgment against the township. Plaintiffs appeal the order granting summary judgment to the township and denying their motion for summary judgment. The court holds that although styled a declaratory judgment action, plaintiffs were seeking judicial review of the township's approval of the subdivision and site plan, including the storm water management plan, which is a quasi-judicial decision which is only subject to review in an action in lieu of prerogative writs and that plaintiffs' action, filed two years after the approval, of which plaintiffs were aware, is clearly barred by Rule 4:69-6(a) and there is no reason to enlarge the time within which to file an action in lieu of prerogative writs. Nor did the judge err in denying plaintiffs' inverse condemnation claim since, where the water flows through the ravine only intermittently, does not interfere with plaintiffs' use and enjoyment of their property, and there has been no adverse impact on vegetation or the home's foundation, there has been no permanent taking.
RESIDENTIAL AND COMMERCIAL REAL ESTATE EMINENT DOMAIN
34-2-8926 Borough of Merchantville v. Malik & Son, L.L.C., App. Div. (Axelrad, P.J.A.D.) (25 pp.) We affirm the Law Divisions order for final judgment in favor of the borough of Merchantville, permitting it to exercise its power of eminent domain and appointing commissioners, and denying the motion of appellant, L.B., a lien holder, to dismiss the condemnation complaint. We hold that a condemning authority is not obligated under N.J.S.A. 20:3-6 to negotiate with the assignee of a mortgagee that has obtained a final judgment of foreclosure on the subject property. Moreover, the property owners express formal notification of [its] rejection of the condemnors offer to purchase its property and vague invitation to discuss more reasonable compensation in an amount which would satisfy all liens and encumbrances on the property is inadequate evidence that the property is worth more than the amount offered, and constitutes a sufficient rejection of the condemnors bona fide one-price offer to permit the condemnor to proceed with litigation. [Approved for publication.]
35-5-8927 Singh Real Estate Enterprises Inc. v. Evesham Twp., Tax Court (DeAlmeida, J.T.C.) (7 pp.) In this challenge to the tax year 2012 assessment on plaintiff's property, the court grants defendant's motion to dismiss the complaint, subject to an Ocean Pines reasonableness hearing, because plaintiff provided a false response to a request for income and expense information from the municipal tax assessor pursuant to N.J.S.A. 54:4-34. The court rejects plaintiff's claim that its false response should be excused because defendant's counsel, and most likely the assessor, were in possession of discovery responses filed in an appeal of the 2011 assessment establishing that the property is income producing and detailing the income and expenses associated with the rental of the property for three years.
36-2-8928 Andiorio v. Andiorio, App. Div. (per curiam) (13 pp.) Plaintiff sued her son and daughter-in-law and their insurer alleging negligence when, while picking up her grandsons, she entered the home through the mud room intending to refill the dog's water bowl from a sink in the adjacent laundry room and tripped and fell over the hose of a canister vacuum cleaner that had been left at the doorway in the laundry room. She appeals the summary judgment dismissal of her complaint. The panel affirms, finding no breach of duty under traditional notions of premises liability where plaintiff was a social guest, was familiar with the home and its layout, knew that the vacuum was routinely left in different areas of the home including where she fell, the alleged dangerous condition was open and obvious and plaintiff could have seen it through a reasonable use of her faculties, and defendants lacked actual knowledge of the condition or that plaintiff would enter the home carrying the dog bowl which obstructed her view. The panel also holds that fairness considerations counsel against imposing a duty to warn on defendants.
36-2-8929 Davidson v. City of Atlantic City, App. Div. (per curiam) (11 pp.) After tripping and falling over the raised concrete footing which formed the base of a traffic signal while she was walking toward a 7-11 store in Atlantic City, plaintiff sued Atlantic City, which owns and maintains the traffic light, and Jitendra Patel, a franchisee and subtenant of 7-11 Inc. which leased the store from the landlord. Patel filed a third-party complaint against Tropicana Casino & Resort, the Atlantic County Improvement Authority, and the landlord. Plaintiff appeals the Law Division order denying her motion to amend her complaint to add direct claims against the ACIA and the landlord and the order granting Patel's motion for reconsideration of the denial of his motion for summary judgment and granting summary judgment. The panel affirms, finding that it would not comport with basic fairness to impose a duty and corresponding liability on Patel, in a multi-tenant building, to maintain, repair or paint a traffic light foundation owned and maintained by the city. That the city may be immune from liability under the Tort Claims Act does not justify imposing a liability on a tenant such as Patel where liability otherwise would not exist. The motion for leave to amend, made four years after the accident, was properly denied since the statute of limitations is the same for filing against a third party defendant as it is for filing against a new defendant.
FEDERAL COURT CASES
ALTERNATIVE DISPUTE RESOLUTION
03-7-8930 Comcast of New Jersey LLC v. IBEW Local 827, U. S. Dist. Ct. (Shipp, U.S.M.J.) (11 pp.) Petitioner moves to vacate an arbitration award concluding that it violated the parties' collective bargaining agreement as modified by a memorandum of understanding by failing to implement the negotiated wage increases for employees with broadband certification. At issue is the phrase "replace appendix B with the following" contained in the MOA and whether paragraph 6 in the MOA, which does not include a BBC increase, was to replace Appendix B of the CBA, which provided for an increase for those with BBC certification, in its entirety. The court denies petitioner's motion and grants respondent's cross-motion, finding that the award is significantly supported by the arbitrator's careful review of the parties' bargaining history, documents submitted to him and the oral testimony of witnesses and that his consideration of the entire record, shows his clear reasoning, which reasoning shows how the interpretation can be rationally derived from the agreement when considering all of the language of the MOA and its context. [Filed January 31, 2013]
07-7-8931 Noble v. Thalheimer, U. S. Dist. Ct. (McNulty, U.S.D.J.) (5 pp.) In this pro se action, in which plaintiff apparently alleges that Fidelity Investments holds two accounts for which he is the power of attorney and general executor totaling billions of dollars to which it has denied him access, the court grants defendant Ronald Thalheimer's motion to dismiss because the complaint does not set forth a short and plain statement of the grounds for the court's jurisdiction or a short and plain statement of the claims showing that plaintiff is entitled to relief and because plaintiff has not pleaded any facts establishing that the court can assert personal jurisdiction over defendant, who resides in Massachusetts and works in Rhode Island and has had limited contacts with New Jersey. [Filed January 31, 2013]
46-7-8932 Walker v. City Of Trenton, U.S. Dist. Ct. (Pisano, U.S.D.J.) (12 pp.) Plaintiff, Michael Walker, seeks to file a complaint asserting violation of his rights under 42 U.S.C. § 1983 against the City of Trenton and various officials. The Court grants Plaintiffs application to proceed in forma pauperis. Plaintiff asserts that the defendants improperly arrested him when his friend, Mario Wells, had claimed ownership of the contraband found, falsely imprisoned him, maliciously prosecuted him, and were deliberately indifferent to a pattern, practice and custom of unlawful arrests and malicious prosecution, as well as the need for training, supervision and discipline in the proper exercise of the power to arrest and prosecute persons. The facts in the complaint show the police had probable cause to arrest both Walker and Wells, since they were both present in the premises where the police found contraband. The fact that Wells admitted to the police at the time of the arrests that the contraband belonged to him does not show that the police lacked probable cause to arrest Walker. The Court dismisses the federal claims raised in the complaint and declines to exercise supplemental jurisdiction. [Filed January 29, 2013]
11-7-8933 United Van Lines, LLC v. Lohr Printing, Inc., U.S. Dist. Ct. (Thompson, U.S.D.J.) (22 pp.) This matter arises from the damage of a printer during transit, and the disagreement over indemnification for that damage. Lohr Printing, Inc. leased a Canon printer under a Canon Business Solutions, Inc. (CBS) service contract; the printer was leased through and owned by Canon Financial Services, Inc. (CFS). Plaintiff McCollisters Transportation Services, Inc. served as an agent for United Van Lines, Inc., which transported the printer. Lohr Printings third party complaint contained three counts -- negligence and breach of contract; breach of the implied covenant of good faith and fair dealing, and equitable estoppel; and legal fraud. Here, CBS and Canon U.S.A., Inc. (CUSA) moves to dismiss the third party complaint. McCollisters also filed a motion to dismiss the third-party complaint, and CFSs cross-claims against its former employee, Sonaie Loney. Lohr Printing cross-moves to file an amended counterclaim and third party complaint. McCollisters motion to dismiss all claims and cross-claims against Loney is granted. The Court finds all proposed counts against CBS and CUSA to be futile, and because Lohr Printings proposed second amended complaint includes the three counts present in the previous complaint, the motion to dismiss all claims with respect to CUSA and CBS is granted. Lohr Printings motion to amend is denied where it was brought outside of the scheduling order in response to the motions to dismiss which have been granted. [Filed January 29, 2013]