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Daily Decision Service Alert: Vol. 22, No. 60 ? March 28, 2013
New Jersey Law Journal
STATE COURT CASES
ALTERNATIVE DISPUTE RESOLUTION
03-2-9406 JML Medical Inc. v. Silver, App. Div. (per curiam) (11 pp.) After JML obtained a default judgment against Silver Care Estates but the corporation was judgment proof, it sought a judgment against Silver individually. While the matter was pending, the parties agreed to resolve it through binding arbitration, which resulted in an $87,513 award against Silver personally and several companies with which he is affiliated, which was confirmed by the Law Division. Silver then filed a motion in the Law Division seeking to vacate the award based on newly discovered evidence of a conflict on the part of the arbitrator stemming from an incident 20 years before. He appeals the denial of that motion. Finding that there is no basis to conclude that the arbitrator's failure to disclose the conflict was knowing, that the relationship between the arbitrator and Silver was not a financial or personal interest in the outcome of the arbitration proceeding under N.J.S.A. 2A:23B-12(a)(1), and that the facts would not have provided a basis for the removal of the arbitrator even if the information had been available at the beginning of the arbitration, the panel concludes that the motion judge did not err in denying the application to set aside the award.
29-2-9407 McLean v. Liberty Health System, App. Div. (Ashrafi, J.A.D.) (25 pp.) At the trial of this medical-malpractice case, the jury found that defendant emergency room doctor was not negligent in failing to detect a virulent infection that paralyzed the 16-year-old decedent and eventually led to his death. We order a new trial because of error in barring plaintiff from presenting testimony from a second liability expert with respect to the alleged deviation from the standard of medical care on the ground that the testimony would have been duplicative of another expert that plaintiff presented. For purposes of the retrial, we also address defendants burden of proof, in accordance with Scafidi v. Seiler, 119 N.J. 93 (1990), to apportion proximate causation between the pre-existing infection and the doctors alleged negligence. [Approved for publication.]
34-2-9408 CitiMortgage, Inc. v. Rosado, App. Div. (per curiam) (13 pp.) Defendants Jose Rosado and Erick Rosado appeal the Chancery Division's final judgment setting aside the transfer of real property owned by Jose and his wife under the Uniform Fraudulent Transfer Act (UFTA). Defendants repeatedly tried to raise a "standing" issue as to plaintiff CitiMortgage, Inc. CitiMortgage proved that it had physical possession of the original note since August 2008, assigned directly from Somerset Investors Corp. to CitiMortgage, and so endorsed. Jose made payments to CitiMortgage beginning in 2008. The trial judge correctly concluded that CitiMortgage had standing under the UFTA to challenge the transfer of title. Jose transferred the property to Erick with knowledge that he and his wife had signed a note and mortgage that had not been satisfied. He clearly understood that CitiMortgage had succeeded to Somerset's interest in the note and mortgage. The judge's decision in favor of CitiMortgage was amply supported by the facts in the record.
REAL ESTATE MORTGAGE FORECLOSURE
34-2-9409 Wells Fargo Bank N.A. v. Lopez, App. Div. (per curiam) (10 pp.) Defendants appeal the order denying their motion to vacate default judgment in this mortgage foreclosure action, contending that plaintiff lacked standing to file its complaint because it failed to obtain an assignment of the mortgage and did not hold the note and mortgage when it filed its complaint. Finding that defendants failed to deny responsibility for their debt, contributed to substantial delay by filing numerous bankruptcy petitions, waited to file their motion to vacate until their unsuccessful short sale attempt, and provided no reason for the over four-year delay between the entry of default judgment and their motion to vacate and thus there was no abuse of discretion in determining that their motion was untimely, and that defendants are unable to show, on the merits, that they are entitled to vacate the judgment since plaintiff had a legal right to enforce the note at the time it obtained the judgment and the certification requirements of Rules 4:64-1(a)(2) and 4:64(d) did not require plaintiff to attach a certification to its complaint, the panel affirms without prejudice for defendants to file promptly with the trial court a Rule 4:50-1 motion regarding plaintiff's counsel's failure to file an affidavit pursuant to the Chief Justice's order pertaining to cases such as this in which judgment was entered but no sale of the property had occurred.
36-2-9410 Armour v. Newark Housing Authority, App. Div. (per curiam) (3 pp.) Plaintiff appeals from an order granting summary judgment to defendant Newark Housing Authority (NHA) and dismissing her case with prejudice. Plaintiff filed a complaint, named NHA as a defendant, and asserted claims for wrongful death, intentional infliction of emotional distress, appropriation, defamation, fraud, and conspiracy. NHA filed a motion for summary judgment arguing that plaintiff failed to comply with the notice provisions of the New Jersey Tort Claims Act and her claims are barred by the applicable statutes of limitations. The trial court granted NHAs motion, agreeing that plaintiff failed to comply with the Act and was also barred by the applicable limitations periods. The appellate panel affirms substantially for the reasons that the judge expressed in his oral opinion.
TORTS PERSONAL INJURY
36-2-9411 Washington v. Perez, App. Div. (Fisher, P.J.A.D.) (14 pp.) Without determining whether a missing-witness inference may be drawn from a partys failure to call an expert to testify a matter about which other appellate panels had disagreed the court held that a missing-witness charge was inappropriate where defendants chose not to call their medical experts because it was not shown that those witnesses were peculiarly within [defendants] control or that their testimony would have been superior to the other medical testimony elicited at trial. In addition, the court held the missing-witness instruction was prejudicial because plaintiffs counsel inappropriately argued in summation that defense counsels failure to call the expert witnesses demonstrated the defense lacked candor. For those reasons, the court determined that defendants were prejudiced and a new trial is required. [Approved for publication.]
14-2-9412 In the Matter of the Expungement of the Criminal Records of A.W., App. Div. (per curiam) (9 pp.) Petitioner appeals from an order dismissing her petition to expunge numerous arrests pursuant to N.J.S.A. 2C:52-6. On appeal, petitioner argues that the judge erred by denying her petition based on N.J.S.A. 2C:52-14b. She also contends that the judge misconstrued her criminal records and abused his discretion by making a credibility finding without conducting a hearing. Here, the judge reviewed petitioners criminal records and concluded that petitioner "falsely claim[ed]" that she led a law-abiding life since 2004 because of a purported 2005 municipal court conviction. Petitioner disputes that finding and maintains that her 2005 appearance in municipal court was unrelated to a new arrest and did not result in a conviction. She asserts that had she been afforded a hearing on her expungement petition, she would have established conclusively that she led an arrest-free life since 2004. The appellate panel is unable to resolve this disputed fact and, as a result, remands for further proceedings consistent with this opinion.
FEDERAL COURT CASES
ADMINISTRATIVE LAW SOCIAL SECURITY
01-7-9413 Yakely v. Astrue, Dist. Ct. (Cooper, U.S.D.J.) (13 pp.) Plaintiff, who suffers from both severe exertional and non-exertional impairments, seeks review of the final decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits. The court remands for further proceedings, finding that the ALJ failed to ensure that Yakely knowingly and intelligently waived her right to representation since the ALJ failed to confirm that Yakely understood that her representative could be an attorney who cold meaningfully assist her in the presentation to the ALJ and might work on either a pro bono or a contingency fee basis, and that she was prejudiced in the administrative proceeding because the ALJ improperly relied on the Social Security Grids without the benefit of a vocational expert's testimony. [Filed March 13, 2013]
36-7-9414 Okpor v. Sedgwick CMS, Dist. Ct. (Simandle, U.S.D.J.) (7 pp.) Plaintiff Michael Okpor, pro se, filed a complaint seeking relief from Defendants Sedgwick CMS, Public Storage, Tom Lydon, and Willis Insurance Services of California Inc., for claims relating to damage to Plaintiffs property while it was stored in a Public Storage facility. Plaintiff alleges breach of contract, fraud and civil rights violations under federal and state law. Plaintiff asserts that his storage space at Public Storage was flooded during a rainstorm damaging all of his items. Plaintiff asserts he insured his property with Sedgwick CMS, but Sedgwick denied his claim. Even accepting as true Plaintiffs allegation that racial slurs were directed at him, because there is no allegation that Plaintiffs insurance contract claim was denied because of racial animus, the Court dismisses Plaintiffs § 1981 claim without prejudice. To the extent that Plaintiff brings a claim under 42 U.S.C. § 1983 for violations of his constitutional rights, that claim must be dismissed where no state action has been alleged. Because Plaintiffs federal claims have been dismissed, the Court dismisses without prejudice Plaintiffs state-law claims for lack of jurisdiction. [Filed March 18, 2013]
INSURANCE LIFE INSURANCE
23-7-9415 The Prudential Ins. Co. of America v. Pitonyak, Dist. Ct. (Walls, S.U.S.D.J.) (5 pp.) In this interpleader action to determine the proper recipient of the life insurance proceeds of the policy issued to the deceased, a member of the New Jersey Teachers' Pension and Annuity Fund, by plaintiff, the court denies the parties' motions for summary judgment because there are material factual questions remaining in the case, including whether the Public Employees Retirement System Designation of Beneficiary form erroneously completed by the deceased was identical to the TPAF Designation of Beneficiary form that he should have completed in order to change the beneficiary designation, whether he received a letter from the Department of the Treasury advising that he had used the wrong form, and whether the department had issued such a letter. [Filed March 13, 2013]
53-7-9416 Astrazeneca AB v. Dr. Reddys Laboratories, Inc., Dist. Ct. (Arpert, U.S.M.J.) (10 pp.) In this Hatch-Waxman case, Plaintiffs AstraZeneca AB, AstraZeneca LP, KBI-E, Inc. and Pozen Inc. allege that Defendants Defendants Dr. Reddys Laboratories, Inc. and Dr. Reddys Laboratories Ltd. (DRL) infringed one Pozen patent and five AstraZeneca patents (not at issue in the instant motion) by filing Abbreviated New Drug Application No. 202461 (DRLs ANDA) with the U.S. Food and Drug Administration. DRLs ANDA seeks approval to market a generic version of a drug prior to the expiration of Plaintiffs patents. Plaintiff filed a motion for leave to amend responses to defendants invalidity contentions. The Court finds DRL would need to expend additional resources in order to defend against the new theories and defenses introduced by Plaintiffs. Further, allowing amendment at this stage of the litigation would unfairly allow Plaintiffs to amend their previously disclosed theories of infringement. Plaintiffs motion for leave to file amended responses to DRLs invalidity contentions is denied. [Filed March 18, 2013]
53-7-9417 Grayzel v. Boston Scientific Corp., Dist. Ct. (Walls, S.U.S.D.J.) (9 pp.) Plaintiff, who owns several patents relating to balloon catheters, seeks a declaratory judgment that a covenant not to sue that he entered into with defendant does not pertain to Flextome Catheters developed and sold by BSC which, he claims, infringe on his '163 patent and that he may bring a patent infringement case against BSC. Finding that the case involves only contingent future events and that plaintiff has therefore not established adversity of interest and that he fails to show that the action satisfies the requirements of conclusiveness and utility because he would still have to proceed with a patent infringement suit against BSC, the court finds that it lacks subject matter jurisdiction and remands the matter to state court. [Filed March 13, 2013]