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Daily Decision Service Alert: Vol. 22, No. 68 ? April 9, 2013
New Jersey Law Journal
STATE COURT CASES
17-2-9529 Bi-County Development of Jefferson Associates V. The New Jersey Highlands Water Protection And Planning Council, App. Div. (per curiam) (26 pp.) At issue is in this case is whether respondent New Jersey Highlands Water Protection and Planning Council properly calculated the allocation of Highlands transfer of development rights (TDR) credits to appellant Bi-County Development of Jefferson Associates under the New Jersey Department of Environmental Protection's (DEP) septic density requirements, based on the fact that Bi-County's property was not in an approved sewer service area on August 9, 2004, the day before the Highlands Water Protection and Planning Act became effective. The appellate panel finds the Council correctly applied the law to the undisputed facts and affirms its decision. The Council reasonably considered the Wastewater Quality Management Plans (WQMP) in place the day before the Highlands Act became effective as "rules," and the relevant WQMP here simply did not include Bi-County's property in a sewer service area. While other rules provide for amending WQMPs, the Council reasonably construed the statutory directive to consider "rules and regulations in effect" as exclusive of possible or potential changes thereto.
20-2-9530 A.M. v. J.H., App. Div. (per curiam) (8 pp.) Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act entered on behalf of plaintiff, essentially challenging the judge's credibility findings and his conclusion that a restraining order was warranted. Declining to second-guess the trial judge who listened to and observed the witnesses, the panel accepts the judge's findings that defendant committed a predicate domestic violence act and that plaintiff needed the protection of an FRO as supported by substantial credible evidence and affirms.
20-2-9531 J.K. v. B.C., App. Div. (per curiam) (3 pp.) Defendant B.C. appeals from the final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991, based on harassment. Defendant and plaintiff J.K. once had a dating relationship. Plaintiff testified that defendant sent her text messages and emails that contained threats to harm her physically, blackmail her, and ruin her life if she did not rekindle their relationship. Plaintiff produced several text messages and emails at the trial. The judge determined that defendant had committed the predicate act of harassment and a FRO was necessary to protect plaintiff from further harassment. On appeal, defendant contends he did not commit the underlying offense of harassment. Alternatively, he contends there was no need for a FRO to protect plaintiff from immediate danger or to prevent further abuse. These contentions require review of the text messages and emails on which the judge relied in rendering his decision. Defendant has failed to submit this evidence on appeal, leaving no alternative but to affirm.
LABOR AND EMPLOYMENT
25-2-9532 Atlantic City Board of Education v. Atlantic City Education Association, App. Div. (per curiam) (15 pp.) The Atlantic City Board of Education appeals from the order of the Public Employment Relations Commission (PERC) denying its request to restrain binding arbitration of a grievance that the Atlantic City Education Association filed on behalf of two of its members. The Association maintained that the employees were asked to perform additional work without additional pay. Guided by the decision in Board of Education of the Woodstown-Pilesgrove Regional School District v. Woodstown-Pilesgrove Regional Education Association, the appellate panel affirms, finding that the issue of extra pay for extended work hours was negotiable, although the decision to extend the hours was not. The Board's budgetary goals are insufficient to render the issue non-negotiable. Moreover, there is no evidence in the record that negotiation would substantially interfere with a dominant educational goal. The Board here must negotiate the issue of additional pay for additional work. It does not matter that the claimed additional work may be covered by the employee's existing job description. Although there may be no change in the kind of duties assigned, at issue is whether there has been a change in the volume of duties without a commensurate increase in pay. That is what PERC determined is negotiable.
27-3-9533 Gardens at Maplewood v. Fowlin, Law Div., Special Civ. Pt., Landlord-Tenant (Essex County) (6 pp.) The complaint in this action seeks the eviction of defendant based on non-payment of $857.50 in rent, one-half of the November 2012 rent. Tenant claims that only one-half of the rent for November was due inasmuch as he had no lights, heat or hot water for two weeks in November due to Hurricane Sandy and that he therefore had no obligation to pay the balance of the November rent. The court finds that the defense of lack of habitability and the concept of impossibility of performance are inapplicable to the case, and that there is no legal requirement that would have compelled the landlord to have maintained insurance for the benefit of the tenant to cover the loss sustained as a result of Sandy, and concludes that defendant must pay the unpaid rent directly to plaintiff's counsel or a judgment for possession shall be entered.
27-2-9534 Vasilyeva v. Griggs Farm, Inc., App. Div. (per curiam) (23 pp.) Plaintiffs appeal from two orders granting the separate summary judgment motions filed by defendants Griggs Farm, Inc. and Princeton Community Housing, L.P. (PCH), and dismissing plaintiffs' complaint. Plaintiffs rented an apartment in a building owned by Griggs Farm and managed by PCH. Their action alleged negligence and breach of contract resulting from defendants' failure to timely remediate mold contamination in the unit. On appeal, plaintiffs argue the motion judge dismissed their action after erroneously excluding their expert medical report. The appellate panel disagrees and affirms. The lack of foundational facts or data to support the offered expert conclusion requires exclusion under the net opinion rule. Further, when plaintiffs reported the mold presence, defendants immediately acted to remediate the unit. These efforts were disrupted because of plaintiffs' refusal to vacate the apartment. Defendants were forced to seek court assistance ordering plaintiffs' relocation to fulfill their contractual responsibilities. Once plaintiffs were out of the unit, remediation was completed within one month. The record also fails to support the claimed personal property loss.
39-2-9535 Fendt v. Abrahams, App. Div. (per curiam) (13 pp.) Plaintiff, employed by defendant in his paving business, appeals from the Law Division's order granting summary judgment to defendants and the denial of his motion for reconsideration in this action asserting that defendants' complete lack of safety precautions at the worksite created a virtual certainty that injury or death would result, thereby overcoming the exclusive remedy provision of the Workers' Compensation Act. Construing the intentional tort exception narrowly, the panel affirms, finding that while the facts amount to negligence, perhaps even gross negligence, they do not show that defendants knowingly exposed plaintiff to a virtual certainty of harm and their conduct does not amount to an intentional wrong that allows him to avoid the workers' compensation bar.
14-2-9536 State v. Camacho, App. Div. (per curiam) (10 pp.)Defendant appeals his conviction for second-degree eluding. He was acquitted of stealing the car he was driving. The panel reverses and remands for a new trial because the trial judge failed to charge the jury that it could not draw an adverse inference from defendant's failure to testify after he requested the charge.
FEDERAL COURT CASES
54-7-9537 I/M/O Grace, Dist. Ct. (Pisano, U.S.D.J.) (5 pp.) Pursuant to the Limitation of Shipowners' Liability Act, petitioner filed this action seeking exoneration from or limitation on his liability to claimant for any damages she suffered as a result of an incident onboard his boat. Because petitioner did not file his complaint within the six-month time period after claimant provided him with written notice of her claim for damages, the court finds that his limitation action is time-barred and grants summary judgment in favor of claimant. [Filed March 25, 2013]
ALTERNATIVE DISPUTE RESOLUTION
03-7-9538 New Jersey Regional Council of Carpenters v. G&C Custom Building LLC, Dist. Ct. (Shipp, U.S.D.J.) (6 pp.) Petitioners, a labor organization and various trust funds and employee benefit plans, filed this action to confirm an arbitration award entered after respondent, a building contractor company, failed to attend an arbitration hearing held to determine if it failed to make contributions to the funds required under a collective bargaining agreement to which respondent and petitioners were parties. The court finds that the award in this matter is significantly supported by the arbitrator's careful review of the parties' CBA as well as other documents submitted during the arbitration hearing and his reasoning was rationally derived from the agreement in consideration of the language in the CBA. As such, the court finds good cause to grant petitioner's motion to confirm the arbitrator's decision. [Filed March 25, 2013]
07-7-9539 Pastrana v. Wal-Mart Stores Inc., Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) Where defendant previously moved to dismiss the complaint as a sanction for plaintiff's failure to submit to an independent medical examination, the magistrate judge recommended that the motion be granted, plaintiff did not object to the magistrate judge's report and recommendation, the court adopted the report and recommendation and dismissed the complaint, and plaintiff neither moved for reconsideration nor filed a timely appeal, the court denies plaintiff's motion to vacate filed 338 days after entry of the order. If plaintiff chooses to move anew for such relief, she must file a brief in accordance with the Local Civil Rules that addresses her failures to attend the IME, to oppose or otherwise respond to Walmart's motion, to object to the report and recommendation, to timely move for reconsideration of or relief from the order and judgment, and the factors informing a motion to reopen an action. [Filed March 25, 2013]
09-7-9540 Barton v. RCI LLC, Dist. Ct. (Arpert, U.S.M.J.) (47 pp.) Plaintiffs filed this action alleging violation of the New Jersey Consumer Fraud Act, breach of the implied covenant of good faith and fair dealing, breach of contract, and violation of the Plain Language Act in connection with defendant's vacation exchange points program. Plaintiffs move to compel defendant to provide supplemental answers to certain interrogatories and to produce supplemental documents and information in response to certain requests for production. Defendant moves to compel plaintiffs to produce certain documents that they have withheld. Plaintiffs' motion to compel is granted in part and denied in part. Defendant's motion to compel is granted in part and denied in part. [Filed April 1, 2013]
09-7-9541 Hemy v. Perdue Farms Inc., Dist. Ct. (Shipp, U.S. D.J.) (17 pp.) In this proposed class action alleging that Perdue "Harvestland" brand products mislead consumers about the "humane" treatment of chickens, purported endorsement by the United States Department of Agriculture, and any distinction between the treatment of chickens sold under Perdue's Harvestland brand and competitors' chickens, and asserting violation of the New Jersey Consumer Fraud Act, fraud in the inducement, negligent misrepresentation, and breach of express warranty in connection with defendant's labeling and marketing of its Harvestland brand chicken, the court denies defendant's motion to dismiss plaintiffs' third amended complaint, finding that (1) plaintiffs have pled sufficient facts to support their contentions . The court also denies plaintiffs' motion for leave to file a supplemental brief, finding that plaintiffs essentially seek to add new information garnered as the result of a Freedom of Information Act request and that this attempted injection of new information runs afoul of Third Circuit precedent holding that a complaint may not be amended by the briefs in opposition to a motion to dismiss. [Filed March 31, 2013]
11-7-9542 Shri Lakshmi Cotsyn Ltd. v. Textile Decor USA Inc., Dist. Ct. (Salas, U.S.D.J.) (6 pp.) Plaintiff, a manufacturer of textiles based out of India, alleges that defendant purchased and received goods but failed to pay for those goods. Defendant alleges that the goods it received were defective and inferior and it seeks lost profit, interest, attorney fees and costs. Defendant has filed a motion to dismiss, alleging that the parties' master vendor agreement contains an arbitration clause. Because plaintiff alleges that it never signed the agreement and has presented evidence that the signature of its employee on the purported contract is a forgery, the court finds that the case involves a question of the validity of the agreement and an issue of material fact exists, and that it must decide the issue and need not defer to an arbitrator. It therefore denies the motion to dismiss and compel arbitration. [Filed March 25, 2013]
11-7-9543 Shri Lakshmi Cotsyn Ltd. v. HN International Group Inc., Dist. Ct. (Salas, U.S.D.J.) (7 pp.) Plaintiff, a manufacturer of textiles based out of India, alleges that defendant purchased and received goods but failed to pay for those goods. Defendant alleges that the goods it received were defective and inferior and it seeks lost profit, interest, attorney fees and costs. Defendant has filed a motion to dismiss, alleging that the parties' master vendor agreement contains an arbitration clause. Because plaintiff alleges that it never signed the agreement and has presented evidence that the signature of its employee on the purported contract is a forgery, the court finds that the case involves a question of the validity of the agreement and an issue of material fact exists, and that it must decide the issue and need not defer to an arbitrator. It therefore denies the motion to dismiss and compel arbitration. [Filed March 25, 2013]
23-7-9544 Witasick v. Minnesota Mutual Life Ins. Co., Dist. Ct. (Rodriguez, U.S.D.J.) (10 pp.) In 1990, while he was an attorney in Arizona, Plaintiff Kevin Witasick purchased two insurance policies from Minnesota Mutual Life Ins. Co., an individual disability insurance policy and a business overhead expense policy. In 2000, the Minnesota Mutual policies were acquired and administered by Standard Insurance Company. In 2001, Witasick was certified disabled from practice of law and placed on inactive disability status by Arizona. He submitted claims for benefits under both policies. In February 2002, Standard approved both disability claims and began making payments to Witasick. A year later, Standard stopped paying benefits, only to re-start payments after Witasicks attorney wrote to the company. In 2003, Standard again stopped paying on Witasicks policies. At issue was who was running Witasicks business during his disability. Plaintiff filed suit, along with his wife, and ultimately, the parties reached a settlement on the contractual and bad faith claims. It is clear that the parties intended to settle all claims regarding the two insurance policies. When the Witasicks executed the Mutual Release, under the advice of counsel, they abandoned the claims asserted in the complaint. Defendants motion to dismiss is granted. Moreover, the Covenant Not to Sue prohibits the Witasicks litigation against Standard and Minnesota Life in its entirety. [Filed March 25, 2013]
53-7-9545 Synchronoss Technologies Inc. v. Asurion Mobile Applications Inc., Dist. Ct. (Bongiovanni, U.S.M.J.) (11 pp.) In these patent infringement actions, the court grants defendants' motion for a stay pending inter partes reexamination by the United States Patent and Trademark Office of the patents at issue, after concluding that the entry of a stay will not unduly prejudice plaintiff or place defendants at a clear tactical advantage in the litigation, will likely simplify the issues in dispute and the trial of these matters, and that the stage of the litigation favors granting a stay. [Filed March 22, 2013]
LABOR AND EMPLOYMENT
25-7-9546 Anderson v. Thermo Fisher Scientific, Dist. Ct. (Hochberg, U.S.D.J.) (14 pp.)
Plaintiff, an African-American, brought this action against defendant Thermo Fisher Scientific, his former employer, asserting claims under the New Jersey Law Against Discrimination for race
discrimination, hostile work environment, retaliation, and wrongful termination, and a common
law claim for intentional infliction of emotional distress after he was terminated due to his behavior during a workplace incident during which he and a co-worker exchanged allegedly threatening remarks regarding a recent shooting in Connecticut by a disgruntled warehouse employee. Defendant moved for summary judgment in its favor. The court grants the motion because (1) defendant cannot establish a prima facie case of age discrimination because the person who took his position was only 7 years younger, which is insufficient to support an inference of age discrimination and even if plaintiff had sustained a prima faciecase of age discrimination, no reasonable jury could find that defendant lacked a legitimate, nondiscriminatory reason for plaintiffs termination or that defendants proffered reason was pretextual.; (2) plaintiff has not established a prima faciecase of race discrimination, as he
fails to show that his termination occurred under circumstances giving rise to an inference of
discrimination where both plaintiff and his Caucasian co-worker were terminated; (3) the hostile work environment claim fails because many of the alleged incidents are time-barred and not actionable, the alleged conduct is insufficiently severe or pervasive and defendant has established that it had anti-discrimination policies in place that plaintiff did not use; (4) the retaliation claim fails because plaintiff has not proffered facts sufficient to show a causal connection between the discrimination complaints he made and his termination; and (5) the claim for intentional infliction of emotional distress should be dismissed as it it based on the same facts as the NJLAD claims. [Filed March 25, 2013]
LABOR AND EMPLOYMENT
25-7-9547 Epps v. Lidestri Foods, Inc. Dist. Ct. (Hillman, U.S.D.J.) (25 pp.) This case arose from Plaintiffs involvement in an internal investigation conducted by Defendant Lidestri Foods, Inc. into allegations of sexual harassment by Michael Shaw, a warehouse shift manager, brought by another Lidestri employee. Kathleen Jehens, the Human Resources Manager, began an investigation and called Michael DiMaio, another warehouse shift manager. DeMaio later sent Jehens an email write-up that she had earlier requested detailing that DiMaio had observed Plaintiff sleeping on the job. Plaintiffs employment was then terminated. Plaintiff brings a complaint asserting a claim for retaliatory discharge in violation of the New Jersey Law Against Discrimination, alleging that he engaged in protected activity by providing information regarding the sexual harassment allegations against Shaw, that Plaintiffs protected activity was a determinative or motivating factor for his discharge, that he was terminated as a result of providing this information, and that Lidestris purported basis for terminating Plaintiff sleeping on the job was merely a pretext for its retaliatory actions. The Court grants Defendants motion for summary judgment, concluding Plaintiff failed to meet his burden to defeat summary judgment on the issue of pretext. [Filed March 25, 2013]
REAL ESTATE MORTGAGES
34-7-9548 U.S. Bank National Association as Trustee v. Cobalt Realty LLC, Dist. Ct. (Bongiovanni, U.S.M.J.) (10 pp.) In this commercial mortgage foreclosure action, defendants move to enforce the parties' settlement agreement and release. At issue is whether a Gulf Insurance Group Pollution Legal Environmental Insurance Policy, which defendants were required to maintain pursuant to the terms of the loan agreement, was intended to be included in the general release of claims put on the record, as defendants claim. The court grants defendants' motion, finding that it is clear that the parties reached an enforceable settlement, having agreed on the essential and material terms; that the agreement fails to contain every possible contractual provision to cover every contingency does not render it less enforceable; that it was plaintiff's prerogative to carve out an exception for the indemnity agreement and the fact that it did not does not indicate a lack o mutual assent or result in the agreement being rendered unenforceable; and plaintiff has failed to provide adequate support for its claim that its attorney did not have authority to enter into the settlement. [Filed March 22, 2013]
TORTS BUSINESS TORTS
36-7-9549 Federal Insurance Company v. Secure Cargo Corporation, Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) This matter arises out of Plaintiff Federal Insurance Companys claims against Defendant Secure Cargo Corporation for negligent interstate shipping of goods. In February 2011, Win Transport Incorporated, a transportation broker not a party to this litigation, entered into a Carrier-Broker agreement with Defendant in which Defendant agreed to transport frozen seafood cargo from Mullica Hill, New Jersey to Miami, Florida and frozen meat cargo from Pennsauken, New Jersey to Miami, Florida. On February 25, 2011, Wintook possession of this cargo in good order in New Jersey. However, when the goods arrived at their Florida destination, they were not in the same good order and condition. Plaintiff concludes that Defendant was negligent in its handling of this cargo, and that it breached its duties and obligations as a common carrier and bailee. Plaintiff, a transportation insurer, reimbursed Win for its losses relating to this shipment. Consequently, it became subrogated to Wins rights and brought suit to recover from Defendant. Currently before the Court is Plaintiffs motion for default judgment. The Court finds that Plaintiff is entitled to a default judgment against Defendant, grants Plaintiffs motion and directs Plaintiff to appear for a hearing to determine a proper award of damages. [Filed March 25, 2013]