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Daily Decision Service Alert: Vol. 22, No. 49 ? March 13, 2013
New Jersey Law Journal
STATE COURT CASES
20-2-9293 Gall v. Gall, App. Div. (per curiam) (13 pp.) Defendant appeals a final judgment of divorce after trial. The appellate panel affirms the alimony aspect of the divorce judgment but reverses the child support order as to the parties son, Brian. The court's conclusion that Brian was not emancipated because he was attending college full-time was based on a future eventuality, and was thus not a proper basis for a finding that at the time of trial he was unemancipated. Brian worked full-time, and was only a part-time student. Should Brian enroll in college full-time and the parties are unable to reach an agreement, the issue can be revisited by way of a post-judgment motion. The matter is remanded for additional proceedings regarding mortgage reimbursement payable by defendant to plaintiff and the extent and terms of insurance coverage on defendant's life.
23-2-9294 Vega v. 21st Century Insurance Company, App. Div. (Fisher, P.J.A.D.) (9 pp.) The court held that an insurers timely letter rejecting an arbitration award was sufficient to trigger its right to nullify an uninsured motorist arbitration award even though the insurer did not expressly state it was demanding a trial. The insurers letter rejected the arbitration award and invited settlement discussions, and could not be plausibly interpreted as meaning anything other than that the insurer had invoked its right to demand a trial. In so holding, the court overruled LoBianco v. Harleysville Ins. Co., 368 N.J. Super. 515 (Law Div. 2003), which held to the contrary. [Approved for publication.]
LABOR AND EMPLOYMENT
25-2-9295 Young v. Township Of Irvington, App. Div. (per curiam) (8 pp.) Appellants, Essex County Prosecutor's Office (ECPO), former Prosecutor Paula Dow and Chief Assistant Prosecutor Clara Rodriguez, appeal from a final agency decision of the Department of Law and Public Safety, Office of the Attorney General, declining to provide them a defense or indemnification in connection with a wrongful termination complaint filed by plaintiff, a former Irvington Township police officer. The Department cited the absence of any allegation in plaintiff's complaint that the County Prosecutor tortiously investigated, arrested, or prosecuted someone. Because the record supports the Department's determination that plaintiff's complaint did not trigger its obligation to defend or indemnify appellants, the appellate panel affirms. The challenged conduct did not relate to the supervision of the Irvington Police Department because no supervision was requested or given. Nor did this conduct touch upon the appellants' prosecutorial function, as no action related to law enforcement was taken. Instead, plaintiff's complaints were part of an administrative, personnel matter.
LABOR AND EMPLOYMENT DISCRIMINATION SEXUAL HARASSMENT
25-2-9296 Davis v. Husain, App. Div. (per curiam) (32 pp.) Plaintiff Tomikia Davis and defendant Abez Husain, M.D. appeal the judgment entered by the Law Division following a jury trial of Davis's claims against Husain, which were brought under the New Jersey Law Against Discrimination. Plaintiffs claims were based on hostile work environment, sexual harassment, and retaliation. Davis settled with her primary employer and subsequently dismissed her claim against Husain for retaliatory discharge. It appears from the record that, after the trial was completed, the judge went into the jury room without counsel and spoke to the jurors off the record. One of the jurors commented that Husain had not touched the Bible when he took the oath before testifying. The judge disclosed the comment to trial counsel off the record and "in confidence." Neither counsel requested the judge to interview the juror on the record to determine the import, if any, of the juror's comment, and the judge did not do so sua sponte. Husain raised the issue in connection with his remittitur motion, certifying that his failure to put his hand on the Bible was based upon his cultural upbringing. Although the appellate panel expressed strong disapproval of judges who speak to jurors in cases that have been tried to conclusion, the panel declined to set aside the jury verdict. The appellate panel affirms as to liability and damages, but vacates that portion of the judgment that declined to award a fee enhancement and remands for further consideration of the award of counsel fees. Judge Fisher, dissenting, would order a new trial based on the judge's post-verdict discussion with the jury.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-9297 Carteret Holdings Urban Renewal, LLC v. Carteret Town Homes, LLC, App. Div. (per curiam) (21 pp.) Plaintiff entered into an Agreement to sell residential townhomes and an office to defendant. Under the contract, Defendant gave a $250,000 deposit to be held in escrow and applied toward the purchase price. The agreement also set November 1, 2008, as "a time of the essence" closing date. Transfer of title was contingent upon defendant obtaining approval from the United States Department of Housing and Urban Development (HUD) and the New Jersey Department of Community Affairs. When title did not close on November 1, 2008, defendant terminated the contract, alleging it had been unable to secure HUD approval. Plaintiff filed suit, seeking the forfeiture of the $250,000 deposit, denoted in the contract as "liquidated damages." Defendant filed its own complaint against plaintiff (as the seller) and a third party complaint against the escrow agent. The cases were consolidated and both sides moved for summary judgment concerning the release of the deposit. The trial court denied plaintiff's motion, granted defendant's motion, and directed the Clerk of the Superior Court to release the deposit funds to defendant. On plaintiffs appeal, the appellate panel finds the issues raised by these cases cannot be decided as a matter of law, and reverses and remands the matter for trial.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-9298 IndyMac Bank, FSB v. Decastro, App. Div. (per curiam) (8 pp.) In this residential foreclosure case, Alton DeCastro appeals from a final judgment in favor of IndyMac Bank FSB and subsequent orders dismissing his applications to vacate the judgment and dismiss the complaint. DeCastro raises several claims in his pro se brief but primarily argues that IndyMac lacked standing because the mortgage had not been assigned to it prior to the filing of the foreclosure complaint. IndyMac was the holder of the note on DeCastro's property at the time it filed the foreclosure complaint. DeCastro has not disputed that fact in the complaint nor presented any proof that IndyMac did not possess the note at the time of the filing of the complaint. The plaintiff bank, as the holder of the negotiable instrument, has a legal right to enforce the note at the time it obtained the judgment. As such, IndyMac had standing to bring the foreclosure action. In any event, the appellate panel rejects DeCastros appeal because lack of standing is not a meritorious defense to a foreclosure action, and because DeCastro did not timely raise any defenses or contest the foreclosure until after the default judgment was entered.
FEDERAL COURT CASES
07-7-9299 Rappa v. Delos Insurance Company, Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) Defendant Delos Insurance Company filed a motion for summary judgment. This case arises from a dispute between the insured Plaintiff and the insurer Defendant over a claim; the case was removed from the Superior Court of the State of New Jersey. The insured has opposed the insurers motion for summary judgment largely on the ground that many of the issues were previously decided in the written opinion of the Judge Chrystal (the 2011Decision). Delos argues that the 2011 Decision cannot be the law of the case because it was unpublished and not precedential. In considering the 2011 Decision, the Court must consider whether unresolved factual disputes continue to preclude the entry of judgment as a matter of law but is unable to do so on this record. This motion must be denied because it turns on factual questions that are not resolved by the present record. [Filed March 6, 2013]
14-7-9300 United States of America v. Assorted Jewelry Valued At $13,430.00, Dist. Ct. (Irenas, U.S.D.J.) (5 pp.) This matter involves the forfeiture of jewelry seized from Charles Hill during a motor vehicle stop. The Government has moved to strike Hills Answer and for entry of default judgment. The Government argues that Hill lacks statutory standing to pursue his claim, as he failed to comply with the procedures for contesting asset forfeiture. To contest a forfeiture, a claimant must meet both Article III and statutory standing requirements. Hill has failed to meet the requirements of § 983(a)(4)(A) and Rule G(5). Hill has not filed a verified claim pursuant to Rule G(5), and his Answer does not meet the requirements of a verified claim. The Answer does not identify the specific property claimed, contains no indication of Hills interest in the property, and was not signed or verified by Hill. Because Hill failed to meet these requirements, he lacks statutory standing, and the Court will strike his Answer. In the absence of a verified claim or a valid answer to the Governments complaint, the Court will enter default judgment in favor of the Government and order forfeiture of the jewelry. [Filed February 28, 2013]