Daily Decision Service Alert: Vol. 22, No. 28 ? February 11, 2013

 

46-2-8979 Collura v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (20 pp.) Plaintiff appeals the grant of summary judgment to defendants the Borough of Lodi, the Lodi Police Department, and an individual detective and the dismissal with prejudice of his complaint against these defendants asserting claims under 42 U.S.C. section 1983 and alleging that his Fourth Amendment rights were violated because defendants did not show, prior to effecting the seizure of his car, a reasonable belief that probable cause and exigent circumstances were present excusing the need for a warrant. The panel holds that the legal principles articulated in Pena-Flores are not applicable because this case does not involve a search and seizure arising from a routine traffic stop but rather an undercover investigation of a reportedly stolen car, that the facts overwhelmingly show that defendants had probable cause to believe that the car in plaintiff's possession was the car reported as stolen, that no warrant was required since was no police intrusion into a constitutionally protected area because plaintiff invited the undercover detective into the garage to inspect the car which had been offered for sale, and that under the totality of the circumstances, defendants are entitled to qualified immunity.

16-2-8980 Bd. of Educa. of Pleasantville v. Riehman, App. Div. (per curiam) (12 pp.) After the state-appointed monitor overruled plaintiff-board's rejection of a proposed $225,000 settlement of litigation filed by a former board employee alleging that she was terminated in violation of the Conscientious Employee Protection Act, $100,000 of which was to be paid by the board with the remainder to be paid by the board's insurer, the board filed this action alleging that the Acting Commissioner of Education acted arbitrarily or unreasonably in determining that the monitor was acting within the scope of his authority under the School District Fiscal Accountability Act, N.J.S.A. 18A:7A-54 to -60 in overriding the board vote and approving the settlement. The panel affirms, holding that the commissioner's conclusion that the monitor's decision was related to the fiscal management of school funds and, therefore, that his override of the board's vote fell within his statutory authority, was a reasonable interpretation of the Act and had adequate support in the record.

16-4-8981 J.T. v. Dumont Public Schools, Chan. Div. (Bergen Cty.) (Contillo, P.J. Ch.) (21 pp.) Plaintiff brings this action on behalf of her minor child A.T., who is autistic, and on behalf of a putative class of all other similarly situated persons who need special education services in kindergarten, alleging that members of the class are forced to attend a school in the school district other than their neighborhood school, without defendants having given consideration to whether it is reasonable and appropriate to educate these children in their neighborhood schools, as other kindergarteners are educated, in violation of the Law Against Discrimination. Plaintiffs seek, inter alia, an order requiring defendants to educate class members wherever possible in their neighborhood school and to provide in-class special education instructors in the class members' neighborhood schools. The parties have filed cross-motions for summary judgment. The court grants defendants' motion, finding that plaintiffs have failed to establish a prima facie failure to accommodate case under the LAD because they have not shown that defendant failed to reasonably accommodate A.T.'s learning disability where they provided him with all the reasonable education programs, benefits and assistance that he required within his town, though not at the school closest to his home. The placement was fully ADA-compliant and comported with the requirements of the IDEA and the Rehabilitation Act and was made through an open process in which J.T. fully participated. Further, plaintiffs have failed to prove any damages, i.e., proof of actual harm to A.T. or to any members of the putative class. [Filed December 20, 2012]

37-2-8982 I/M/O Petition of PSE&G Pursuant to N.J.S.A. 40-55D-19, App. Div. (per curiam) (33 pp.)In these consolidated appeals, appellants Environment New Jersey, New Jersey Highlands Coalition, Sierra Club - New Jersey Chapter, New Jersey Environmental Federation, and Stop the Lines challenge the order of the Board of Public Utilities, issued pursuant to N.J.S.A. 40:55D-19, that ordinances, regulations and other municipal requirements imposed under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, shall not apply to the siting, installation, construction or operation of the New Jersey portion of a 500,000 volt upgrade of a transmission system from Berwick, Pennsylvania to Roseland, New Jersey proposed by PSE&G, after finding that the project was "reasonably necessary" to enable PSE&G to provide adequate and reliable service and to avoid predicted violations of reliability standards for the electric transmission system and consequent brownouts and blackouts with adverse impact on the public welfare. The panel finds, inter alia, that the board did not misapply the legal standard governing its review of PSE&G's petition; the board fulfilled its obligation to consider cost in determining reasonable necessity despite the uncertainty regarding the share of the $750 million costs New Jersey consumers would bear; the board did not base its finding that the line was needed for reliability reasons based on incorrect projections of energy use; and the board did not fail to consider transmission and non-transmission alternatives. 

34-2-8983 R.J. Brunelli & Co., Inc. v. Briad Development East, L.L.C., App. Div. (per curiam) (31 pp.) Plaintiff, a commercial real estate broker, appeals from final judgment denying its claims for commissions. The appellate panel disagrees with the trial court’s interpretation and application of the parties' contract for real estate commissions. The parties' agreement set a three-percent commission rate based on the sale price or the value of the land if such occurred through a sale or a contribution of the land to a joint venture. The panel concludes that the conveyance of the property from defendant to a joint venture company established by defendant and a third party required payment of the three-percent commission of $600,000 to plaintiff. The same measure of fair compensation to plaintiff is an appropriate substitute for the damages it incurred as a result of defendants’ premature termination of its services. The $600,000 alternative form of commission payable to plaintiff is a reasonable measure of its damages for defendants’ breach of the leasing agreement. The panel reverses, directing that judgment be entered awarding plaintiff $600,000 in damages, and remands to the trial court to determine whether contractual pre-judgment interest and attorney's fees should be added to the judgment.

36-2-8984 Rose v. Estate Of Peter P. Riva, Jr., App. Div. (per curiam) (18 pp.) Plaintiff commenced this action against the New Jersey Judiciary, among others, for personal injuries sustained when she was struck by a vehicle driven by a former probation officer, Peter P. Riva, Jr., who was fatally shot by police when he fled the scene. Plaintiff claims that the Judiciary negligently hired, retained and supervised Riva. The motion judge denied the Judiciary’s motion for summary judgment, finding material factual disputes precluded disposition of plaintiff's negligent hiring/retention/supervision theory and that, as a matter of law, the Tort Claims Act does not provide immunity for such a claim. The parties stipulated certain facts, which the trial judge found sufficient to support entry of an involuntary dismissal. On appeal, plaintiff argues: (1) the trial judge erred in revisiting the denial of defendant's motion for summary judgment; (2) the trial judge failed to provide plaintiff with all legitimate inferences; and (3) neither N.J.S.A. 59:2-3(a) or (b)2 provides immunity in this instance for the negligent hiring, retention or supervision of a probation officer. The appellate panel finds no merit in plaintiff's first two arguments, concluding that no reasonable juror could find that the hiring of Riva twenty years earlier, or his retention until suspended without pay in 2005, proximately caused plaintiff's 2007 injuries. The appellate panel does not reach the questions posed in plaintiff's third argument.

 

14-2-8985 State v. Torres, App. Div. (per curiam) (12 pp.) The State appeals, by leave granted, from an order granting defendant Kenneth Torres's motion to sever his trial from that of co-defendant Daniel Rivera. Torres argued that at trial he intended to introduce evidence that prior to the date of the arrest, police had observed Rivera selling Ecstasy. The State then moved to dismiss count four of the indictment, which related to Ecstasy, against Torres, arguing that Rivera's sales of Ecstasy would not be evidential on the charges against Torres, which, after the motion, concerned only marijuana. The court granted the motion. Without deciding whether Torres would be permitted to introduce evidence of Rivera's earlier Ecstasy sales, and without conducting a hearing on the admissibility of the proffered evidence, the court granted the severance motion. The appellate panel finds the court erred in ordering a severance of the trials without ruling on the admissibility of the proffered evidence. While not reaching the substantive issue of whether the proffered evidence is admissible, the appellate panel reverses the severance order of the trial court because it is premature and remands to the trial court.

46-7-8986 Peppers v. Booker, Dist. Ct. (Cecchi, U.S.D.J.) (10 pp.) Plaintiffs were Police Officers employed by the Newark Police Department. Plaintiffs assert that they were each transferred and/or demoted in retaliation for their political support of Clifford Minor -- the candidate opposing incumbent Mayor Cory A. Booker — in Newark’s 2010 mayoral election. Plaintiffs’ complaint alleges a claim under Section 1983 for interfering with Plaintiffs’ First Amendment rights to freedom of speech and association; and violations of Plaintiffs’ rights to freedom of speech and assembly under the New Jersey Constitution. Defendants’ motion to dismiss is granted in part and denied in part. Plaintiffs claim that by ordering the transfers and demotions, Defendant McCarthy, the Police Director, created an official policy of retaliation against employees who did not support Booker’s reelection. The Court finds that Plaintiffs have sufficiently pleaded claims against the municipality and have sufficiently stated McCarthy’s personal involvement and knowledge. Defendants’ motion to dismiss Plaintiffs’ claims against McCarthy is denied. The assertion that some of the Plaintiffs were “known” to have acted in support of Minor does not lead to the plausible conclusion that Booker had any knowledge of such action, nor do they lead to the inference that Booker had actual knowledge of the events. The Court dismisses all claims against Mayor Booker with prejudice. [Filed January 30, 2013]

 

09-7-8987 Watkins v. DineEquity, Inc., Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Plaintiff Watkins brings this putative class action alleging that Defendants DineEquity, Inc., and Applebee’s International, Inc., d/b/a Applebee’s Neighborhood Grill & Bar, d/b/a International House of Pancakes, LLC, violated New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), by omitting the price of soda, beer, wine, coffee and other drinks from their restaurant menus. Two motions are before the Court: Plaintiff’s motion for reconsideration of the Court’s dismissal of the First Amended Complaint and Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint. The key issues are whether the Court overlooked controlling precedent and made a clear error of law in its previous opinion, and, if not, whether Plaintiff’s Second Amended Complaint pleads additional facts that would support a plausible claim under the TCCWNA. Because the Court finds that it did not overlook any controlling precedent, the motion for reconsideration is denied. Because Plaintiff did not add new factual allegations that plausibly present a claim for liability under the TCCWNA to her Second Amended Complaint, the motion to dismiss is granted. [Filed January 31, 2013]

 

25-7-8988 Veltri v. Abbott Severance Pay Plan For Employees Of Kos Pharmaceuticals, Dist. Ct. (Sheridan, U.S.D.J.) (41 pp.) This action involves an ERISA employee benefit plan. The Plan’s Sponsor is Plaintiffs’ former employer, Abbott Laboratories. The Plan is administered by Abbott’s Divisional Vice President, Employee and Labor Relations. The Plan provides that if an eligible employee’s employment is terminated without cause or the employee has “Good Reason” to resign, the employee is entitled to severance pay and benefits. Abbott argues that under the Plan, it was entitled to cure its initial offer of a new territory that was further than 50 miles with one that was closer, and that an employee’s initial refusal of a new territory did not amount to a notice of “Good Reason.” The Court finds that the Plan Administrator’s actions in interpreting the Plan terms to allow itself a right to cure its initial territory offering to employees, and in interpreting the facts and Plan terms to designate the date of the employee’s severance claim, constitute an abuse of discretion. Abbott is conflicted and the participants are former employees; Abbott ignored material evidence; Abbott failed to respond adequately to information requests by Plan participants; and on remand the Administrator ignored the distance claim. The Administrator’s rigid adherence to a formula for computing distance that causes unreasonable results is further evidence that the Administrator’s determinations were arbitrary and capricious. Finding benefits should be awarded to the plaintiffs, the Court grants Plaintiffs’ motion for summary judgment, save for an award of attorneys’ fees. [Filed January 31, 2013]

 

25-7-8989 Snyder v. Dietz & Watson, Inc., Dist. Ct. (Hillman, U.S.D.J.) (11 pp.) In this putative class action, plaintiff, Richard Snyder, a former delivery driver for defendant Dietz & Watson, claims that Dietz & Watson, and its president and vice president, also defendants, violated the Racketeer Influenced Corrupt Organizations Act (“RICO”) and the New Jersey Wage Payment Law (“NJWPL”). Plaintiff alleges that defendants misrepresented that deductions from drivers’ paychecks to account for shortages were lawful and placed in an escrow account, when instead such withholdings were unlawful and used by defendants for their own benefit. The Court denies defendants’ motion for judgment on the pleadings with respect to plaintiff’s RICO claims. The Court finds that resolving the issue of class certification is premature at this time because the threshold issue of numerosity is still unclear. For example, even though plaintiff suggests that the class would consist of at least 49 drivers, it is unclear whether all of those drivers were subject to the deduction policy or had deductions taken out of their paychecks. Additionally, it is unclear how many of the proposed class members are residents of New Jersey. Plaintiff’s motion to certify a class for his RICO and NJWPL claim is denied without prejudice. [Filed January 30, 2013]