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Daily Decision Service Alert: Vol. 22, No. 63 ? April 2, 2013
New Jersey Law Journal
STATE COURT CASES
01-2-9448 Rio Auto Center, Inc. v. Garfield Junkyard, Inc., App. Div. (per curiam) (18 pp.) Appellant Garfield Junkyard, Inc. is the prior owner of a commercial property in Jersey City, where it operated a used auto parts business and stored damaged cars, parts and scrap metal. In 2008, respondent Jersey City Redevelopment Authority (JCRA) commenced a condemnation action to acquire Garfield's property and Garfield became eligible to receive relocation assistance. Garfield sought reimbursement for $127,272 in moving expenses, plus storage fees for a two-year period, and search expenses for a replacement location. JCRA approved relocation expenses of $17,000. Garfield was granted an administrative hearing by the Department of Community Affairs (DCA). The ALJ found that Garfield's claim for moving expenses was unreasonable. The ALJ instead accepted the analysis of JCRA's relocation expert, who estimated the reasonable cost to be $17,000. The DCA accepted this ruling as its final agency decision. Garfield appealed. Given JCRAs experts expertise and his detailed credible testimony, the flaws in the Garfields mover's testimony, the deficiencies in Garfield's other moving estimates, and according due deference to the ALJ's credibility findings, the appellate panel finds ample support in the record for the conclusion that a moving cost of $17,000 was reasonable.
BUSINESS ENTITIES CLOSELY-HELD CORPORATIONS
12-2-9449 Wisniewski v. Walsh, App. Div. (per curiam) (56 pp.) This oppressed shareholder suit, involving a close corporation once equally owned by three siblings, was commenced nearly eighteen years ago. The action was commenced by plaintiff Patricia Wisniewski against her brothers, Norbert and Frank Walsh, regarding the company's acquisition of certain property. Norbert filed a complaint against Patricia and Frank, alleging their attempts to oust him from the company made him an oppressed shareholder. Patricia filed a counterclaim, seeking similar relief. The actions were consolidated. The trial court found that Norbert was an oppressing shareholder and that Norbert should be bought out as a result. The issue of valuation remained. Patricia contends that a marketability discount should have been applied to the valuation of Norbert's interest in the company. The appellate panel remands in part, concluding that the trial judge erred in not applying a marketability discount and that he may have double-counted by adhering to an error made by one of the experts.
COMMUNICATIONS AND MEDIA LAW
57-2-9450 Presidential Estates Home Owners Association v. Township of Lakewood, App. Div. (per curiam) (11 pp.) Plaintiff-homeowners association appeals the dismissal as untimely of its action seeking to enjoin defendants from constructing and operating a cellular tower on township property adjacent to its property and seeking to void the lease entered into between the township and Wireless Edge Consultants to operate the tower. Agreeing with the judge below that plaintiff , whose counsel implicitly conceded that its complaint was filed outside the 45-day limit under Rule 4:69-6(a), has not come forward with a sufficient reason to enlarge the time restrictions under Rule 4:69-6(c) where there was no deception or sub rosa conduct, the panel affirms substantially for the reasons expressed below.
16-2-9451 Piscataway Twp. Bd. of Educa. v. Cerf, App. Div. (per curiam) (11 pp.) The Piscataway Township Board of Education appeals a final agency decision of the State Commissioner of Education denying its petition to reduce the per-pupil tuition rate payable to four charter schools attended by its resident students. The district sought relief under N.J.A.C. 6A:23A-22.4(e), a regulation which states that the commissioner has the discretion to authorize a district to pay a lower per-pupil rate if the charter school spends significantly less than budgeted and has accumulated a sizable surplus. In representing the commissioner on appeal, the Attorney General argues, for the first time, that the discretion set forth in 6A:23A-22.4 has been eliminated by statute. The panel declines to resolve the issue and remands to the commissioner for further consideration, finding that the appeal has been presented in a procedurally suboptimal context since: the four charter schools that would be fiscally affected by a decision were not served with appellant's notice of appeal; the State Board of Education, which promulgated and re-codified the regulation at issue is not a party to the appeal; and the sparse content of the commissioner's letter to plaintiff provides none of the reasons for denial of the district's petition that have been crafted on appeal by the Attorney General and instead indicates that the fund balances were not being retained in a manner that warranted regulatory relief, thus relying on the regulation that his attorney now contends is invalid.
20-2-9452 Scianni v. Scianni, App. Div. (per curiam) (12 pp.)Plaintiff Anthony Scianni appeals the Family Part order denying his motion for a modification of the alimony and child-support obligations established by the property settlement agreement annexed to the parties' dual judgment of divorce. He also appeals the award of counsel fees to defendant Angela Scianni and the later denial of his motion for reconsideration. Finding that it is clear that the motion judge decided the parties' motions on the basis of disputed facts by making credibility determinations based on his reading of the competing certifications, but that the facts relating to Anthony's ability to generate income require exploration at a plenary hearing, the panel reverses and remands for further proceedings, including consideration of the appointment of a forensic accountant or other expert, appropriate discovery, and the filing of current case information statements by each party. Because the motion judge has already expressed his views on the credibility of the parties, the panel directs that the matter be assigned to a different judge.
INSURANCE AUTO INSURANCE
23-2-9453 Brusco v. State Farm Indemnity Co., App. Div. (per curiam) (6 pp.) Plaintiff appeals the dismissal of his complaint seeking underinsured motor vehicle (UIM) coverage under a policy issued to his parents that limits UIM coverage to the named insured and members of his or her family who are also part of the insured's household. Because UIM coverage is a permissive additional protection that may be purchased from an insurance carrier which is permitted to limit the scope of UIM coverage in a manner that is not inconsistent with the insured's reasonable expectations of coverage as derived from a plain reading of the policy's declaration page and other salient provisions, and the policy language used by defendant clearly and unambiguously described the scope of UIM coverage, and that it is undisputed that plaintiff was not living with his parents at the time of the accident, the panel rejects plaintiff's contention that the limitations placed by defendant in the policy violate public policy and affirms the dismissal.
LAND USE AND PLANNING CIVIL PROCEDURE
26-2-9454 Webb v. Township of Parsippany-Troy Hills, App. Div. (per curiam) (13 pp.) Plaintiffs are the owners of property in Parsippany-Troy Hills. Defendants Hill Road Properties and Rotunda are abutting property owners. Plaintiffs' property is accessed from Hill Road via Hillside Lane, which is 20 feet wide. Each party's tract of land was created by a 1926 subdivision which granted a right of way over Hillside Lane to plaintiffs' predecessors in title. In 2008, plaintiffs filed a complaint against Rotunda and the International Brotherhood of Electrical Workers Union Local 102, then an abutting landowner, seeking a determination of the exact location and dimensions of Hillside Lane and declaration that they could use it without any limits or encroachments and requesting that the dimensions of Hillside Lane be widened to conform with the township's zoning requirements. The Chancery Division granted defendants' motions for summary judgment. After Hill Properties asked the township to cease snow removal from Hillside Lane, plaintiffs filed this action seeking a declaratory judgment that Hillside Lane is a public road and restraining and enjoining the township from interfering with or limiting their right to use the lane as a public road. Plaintiffs appeal the court's grant of defendants' motions for summary judgment dismissing the action as barred by both the entire controversy doctrine and collateral estoppel. The panel affirms, finding that both doctrines bar this action since, by asserting in the 2008 litigation that the township had impermissibly given up its ownership rights in Hillside Lane, plaintiffs raised the issue of the township's ownership and this is not a claim that was either unknown, unarisen or unaccrued at the time of that action; plaintiffs cannot claim that they did not have access to the information necessary for a claim against the township in 2008 since deeds, tax maps, and other township records were as readily available in 2008 as when this action was filed; and the judge in the prior litigation found as a fact that the lane is a private right of way. The panel also affirms the denial of Rotunda's motion for counsel fees, finding that it was not an abuse of discretion.
36-2-9455 Coker v. Pershad, App. Div. (per curiam) (12 pp.) Plaintiff appeals the decision granting defendant AAA North Jersey, Inc.'s (AAA's) motion for summary judgment. Plaintiff claimed that he was assaulted by defendant Pershad when Pershad arrived to tow a car with a flat bed truck owned by defendant Five Star Auto Service. Five Star is an independent, incorporated entity which performs towing and automobile repair services for AAA pursuant to a written Emergency Road Service Agreement. Judge Friscia determined that defendant Pershad was an employee of defendant Five Star, not AAA, and that Five Star was an independent contractor. The judge concluded AAA was not responsible for the alleged negligence of Five Star in hiring Pershad. There are three exceptions to the general rule that principals are not liable for the actions of the independent contractors they hire: (1) where the principal retains control of the manner and means of doing the work subject to the contract; (2) where the principal engages an incompetent contractor; or (3) where the activity constitutes a nuisance per se. Because none of these exceptions are applicable under the circumstances of this case, the appellate panel affirms the judges conclusion that AAA could not be held liable for the actions of Five Star.
TRUSTS AND ESTATES
38-2-9456 In The Matter Of The Residuary Trust Created Under The Will Of Donald C. Watson, Deceased, App. Div. (per curiam) (30 pp.) Defendant Ann Watson, trustee of a residuary trust created in the will of her father, Donald C. Watson, who died in November 1998, appeals from several adverse orders regarding her administration of the trust estate. This appeal is from (1) the order granting summary judgment in favor of defendant's siblings, plaintiffs Donald Watson, Jr. and Susan Watson Ruhl, determining that defendant failed to make required distributions under the trust; (2) the order denying defendant's motion for reconsideration; and (3) the order imposing a stay on defendant's ability to withdraw funds for counsel fees and costs from the trust for the ongoing litigation. The appellate panel affirms the orders under review, finding the trust does not grant discretion to the trustee as to the distribution of the disputed expenses; the trust unambiguously mandates payment of those expenses.
FEDERAL COURT CASES
07-7-9457 DeMauro v. Coldwater Banker Co., Dist. Ct. (Shipp, U.S.M.J.) (4 pp.) Pro se plaintiff, who originally filed this wrongful-termination action over 20 years ago and who, because of his meritless filings, was enjoined from filing any further motions, applications or requests in this matter without first obtaining leaving from court, has filed a motion to re-open and a motion to vacate. Finding that plaintiff has failed to allege any reasonable basis to re-open pursuant to Rule 60(b), the court denies his motion with prejudice; denies his motion to vacate; and denies defendant's motion for attorney fees. [Filed March 19, 2013]
51-7-9458 Santos-Sanchez v. Elwood, Dist. Ct. (Wolfson, U.S.D.J.) (17 pp.) Petitioner, an immigration detainee, has submitted a petition for a writ of habeas corpus, challenging her continuing detention without a bond hearing. Petitioner argues that she should not be subject to mandatory detention under 8 U.S.C.§ 1226(c) based her federal drug conviction because the ICE did not immediately place her into custody when she was released from incarceration on the alleged removable offenses more than four years ago. The Court holds that Petitioner is not subject to the mandatory detention authorized by § 1226(c) because the Government did not take her into custody immediately. Petitioners pre-removal detention is instead governed by § 1226(a), which authorizes an Immigration Judge to release her on bond if she is neither a flight risk nor a danger to the community. The Court grants the Writ of Habeas Corpus and directs that an Immigration Judge provide Petitioner with an individualized bond hearing. [Filed March 20, 2013]
53-7-9459 Takeda Pharmaceutical Co, Limited v. Zydus Pharmaceuticals USA Inc., Dist. Ct. (Pisano, U.S.D.J.) (5 pp.) In this Hatch-Waxman patent infringement action, Plaintiffs move to preclude the testimony of Defendants expert witness James Morrison, a former employee of the United States Food and Drug Administration (FDA) who was employed with the agency for 40 years. Plaintiffs assert that Morrison is not qualified to testify because he is not one skilled in the relevant art and, therefore, cannot opine on infringement and invalidity. However, Defendants state that they are not proffering Morrison to testify or opine on the chemistry underlying the claims at issue, or even patent invalidity. Rather, Defendants state they intend to proffer Morrison to testify about the expectations of the FDA vis-á-vis certain representations made by Defendants, and whether the FDA would accept certain conclusions reached by Plaintiffs infringement expert. The Court undertakes a three-pronged inquiry: (1) the witness is qualified as an expert in a particular field; (2) the methodology applied by the witness is sufficiently reliable; and (3) the witnesss testimony fits the facts of the case in dispute, that is, the proffered testimony would assist the trier of fact. Because Defendants have shown that Morrison satisfies these requirements, the Court denies Plaintiffs motion. [Filed March 20, 2013]
LABOR AND EMPLOYMENT TORTS
25-7-9460 Repetto v. Magellan Health Services/EAP, Dist. Ct. (Rodriguez, U.S.D.J.) (15 pp.) Plaintiff, employed by the Federal Aviation Administration as an Air Traffic Control Specialist, lost his medical eligibility after an arrest for driving while under the influence. Although he was found not guilty, he was required to undergo a substance abuse assessment by defendant Finkelstein, an independent medical contractor/consultant who worked with the FAA and then through Magellan, a private health care management company which offers services in behavioral health and contracted with the FAA. In this action asserting claims for violations of the Privacy Act and medical malpractice, the court holds that the Privacy Act claim against Magellan and Finkelstein must be dismissed because the act's civil remedy provision applies only to federal government agencies, and that the medical malpractice count against Magellan and Johnstone, a Magellan employee working as a National Case Manager for FAA employees who diagnosed plaintiff with alcohol abuse, must be dismissed because even if they owed a professional duty to plaintiff, neither party is alleged to be a health care provider for purposes of a medical malpractice claim. [Filed March 19, 2013]
04-7-9461Sync Labs LLC v. Fusion-Manufacturing, Dist. Ct.(Walls, S.U.S.D.J.) (6 pp.) Plaintiff Radulescu appeals Magistrate Judge Arleo's order disqualifying him under Rule of Professional Conduct 1.7 as the lawyer for plaintiff Sync Labs LLC, an entity he began operating as a single-owner limited liability company, in this action filed after defendant Farchak resigned from his position as Vice President of Operations for Sync Labs. The court affirms, finding that Judge Arleo's order was not clearly erroneous or contrary to law since, although Ferchak's ownership stake in Sync Labs is a point of contention between the parties, because of his status as an investor and part-owner of Sync Labs, Radulescu and Sync Labs' interests in this litigation are not aligned, especially in light of Ferchak's counterclaim alleging securities fraud against Radulescu alone. [Filed December 18, 2012]
04-7-9462 Sync Labs LLC v. Fusion-Manufacturing, Dist. Ct.(Walls, S.U.S.D.J.) (4 pp.) Plaintiff Radulescu moves for reconsideration of the court's opinion affirming the magistrate judge's order disqualifying him as counsel for co-plaintiff Sync Labs and for partial summary judgment on the pleadings under Rule 12(c) which Radulescu filed ostensibly as counsel for both plaintiffs. The court denies the motion for reconsideration, finding that the court applied the correct "clearly erroneous or contrary to law" standard in reviewing the magistrate judge's opinion and the court did not overlook crucial facts regarding whether Sync Labs is now a sole-member LLC. The court also denies the motion for partial judgment because it is improper for Radulescu to continue filing briefs as attorney for Sync Labs. [Filed March 19, 2013]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-7-9463 Dickerson v. Bank of America, N.A., Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) On March 15, 2006, Plaintiff entered into a mortgage loan with Precision Financial, Inc. and used the loan proceeds to refinance her house. Plaintiff defaulted in her mortgage payments and a foreclosure complaint was filed. On August 10, 2010, a default was entered against Plaintiff. The foreclosure action remains pending in state court and final judgment has not yet been entered. Plaintiff now asserts claims against Defendant, demanding relief in the form of a clear title to the property in question, compensatory damages and punitive damages. Defendant filed a motion to dismiss. In addition to her complaint, Plaintiff has filed a motion to stay foreclosure pending the outcome of trial and a motion for pro bono counsel. Plaintiff has fashioned her complaint to seek compensatory and punitive damages for Defendants allegedly unlawful conduct. However, inspection of the pleading reveals that Plaintiff actually petitions the Court to enjoin the foreclosure proceedings and force Defendant to lower her monthly mortgage payment. The Court concludes that the Younger abstention doctrine compels dismissal. Plaintiffs motion to stay foreclosure and motion for pro bono counsel are denied. [Filed March 19, 2013]