ALM Properties, Inc.
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Daily Decision Service Alert: Vol. 22, No. 70 ? April 11, 2013
New Jersey Law Journal
STATE COURT CASES
01-2-9563 M.C. v. New Jersey Department Of Human Services, App. Div. (per curiam) (11 pp.) This appeal arises out of the denial of an extension of M.C.'s temporary rental assistance under the supportive housing assistance (SHAP) program. The Passaic County Board of Social Services terminated M.C.'s benefits because M.C. had reached the maximum time limit and was ineligible for an exemption or an extension. After a hearing, an administrative law judge (ALJ) concluded that M.C. was not entitled to an extension of emergency assistance in the form of SHAP and had failed to otherwise demonstrate her eligibility. The ALJ's decision was adopted by the Division of Family Development (DFD) of the New Jersey Department of Human Services. The pivotal issue is whether the DFD erred in concluding that M.C. was not experiencing a "new housing crisis." The pertinent regulation at the time of M.C.s denial does not define that term. M.C. asserts a pending eviction for nonpayment of rent is a new housing crisis. The ALJ decided that, based on the regulation in effect, it is only after eviction that a new housing crisis exists. The appellate panel affirms the DFDs final agency decision, determining that M.C. did not experience a "new housing crisis" and therefore was not entitled to an extension of SHAP benefits. That decision was consistent with the letter and spirit of the applicable statutes and regulations.
15-2-9564 First Indemnity Of America Insurance Company v. Aventine Edgewater, L.L.C., App. Div. (per curiam) (11 pp.) Defendant Conrad Roncati, Jr., appeals from a default judgment entered in favor of plaintiff First Indemnity of America Insurance Company, and an order denying his motion to vacate the default judgment. Roncati conceded that he was served with plaintiff's complaint and he stated that he thereafter retained an attorney to represent him. Roncati said he provided his attorney with documents, which he claimed showed that plaintiff had erroneously charged defendants with premiums after certain surety bonds were cancelled. Roncati believed that the matter would be resolved and the complaint dismissed. Roncati later learned that the matter has not been resolved and his attorney had not filed an answer. By that time, the default judgment had been entered. Roncati established that he acted with due diligence in retaining an attorney and reasonably believed his attorney would resolve the matter. Therefore, Roncati established excusable neglect for failing to answer the complaint. Also, Roncati established a potentially meritorious defense in asserting that the bonds were cancelled, thereby relieving him of any liability for additional bond premiums. The trial court erred by concluding otherwise. The appellate panel reverses and remands for further proceedings.
20-2-9565 Beltra v. Beltra, App. Div. (per curiam) (7 pp.) While this action for divorce, filed by plaintiff, was pending, plaintiff died testate. The trial court permitted her estate to be substituted as plaintiff and, following trial, essentially distributed the assets and liabilities equally. Defendant appeals from the equitable distribution order. The panel reverses, finding the record inadequate to support the entry of an equitable distribution order following plaintiff's death. It remands for the trial court to determine whether exceptional circumstances are present to warrant granting equitable relief to plaintiff's estate.
20-2-9566 Stock v. Azizoghli, App. Div. (per curiam) (6 pp.) Defendant appeals from the Family Part order requiring that he pay plaintiff $10,000 for furnishings he had removed from the former marital home. The panel affirms, finding that since defendant did not oppose plaintiff's motion seeking reimbursement for the furnishings and he provided no explanation for his failure to respond to the motion, and plaintiff provided a sufficient factual basis for the relief she requested, the trial court did not abuse its discretion by ordering defendant to reimburse
34-2-9567 Viglione v. Frisina, App. Div. (per curiam) (24 pp.) Sellers filed a complaint against buyer to recover damages for breach of a sales contract involving their waterfront residence. Buyer asserted counterclaims for breach of contract, fraudulent and negligent misrepresentation, estoppel, and breach of the covenant of good faith and fair dealing. The judge granted sellers' motion for a directed liability verdict and dismissal of the counterclaims. The jury awarded damages which were substantially less than that sought by sellers. Buyer appealed the directed verdict on liability and dismissal of his counterclaims, and sellers cross-appealed the denial of their motion for a directed verdict on damages. The panel affirms, finding buyer was bound by the terms of his contract since he has failed to show any legal basis to look beyond the plain language of the addendum to the contract of sale drafted by his attorney and he cannot rely on sellers' pre-contract representations regarding the suitability of the dock for recreational boating (as opposed to its suitability for the buyer's use of his particular boat), he failed to show fraud or misrepresentation by sellers by clear and convincing evidence, and he was aware that he had an affirmative duty to conduct his own due diligence regarding the depth of the water at the dock which he failed to do. The panel also rejects buyer's argument that sellers' non-disclosure of the mortgage foreclosure proceedings was a fraudulent misrepresentation or material breach of the contract since the property was not in foreclosure when the disclosure was signed and buyer failed to show how the omission affected the essential terms or obligations of the sale agreement. The panel finds that the judge properly submitted the damage issue to the jury, the jury was free to assess the sellers' mitigation efforts in light of the subsequent sale for $999,999, and the sellers failed to show that the verdict was against the weight of the evidence and constituted a miscarriage of justice.
FEDERAL COURT CASES
07-7-9568 Giannini v. Rosenberg, Dist. Ct. (Hillman, U.S.D.J.) (5 pp.) Plaintiffs move for reconsideration of the dismissal of their action claiming that defendants conspired to violate their constitutional rights in the prosecution of civil litigation involving a home owners' association and the filing of ethics complaints with the New Jersey Office of Attorney Ethics. The court denies the motion, finding that plaintiffs have not shown that the court needs to correct a clear error of law or fact or to prevent manifest injustice. [Filed March 26, 2013]
11-7-9569 Paul Germann & Associates v. Specialty Food Management Group LLC, Dist. Ct. (Cavanaugh, U.S.D.J.) (17 pp.) This breach of contract action alleges that defendant failed to pay plaintiff sums owing under a contract pursuant to which plaintiff assigned its exclusive rights to market McCann's Oatmeal in the United States to defendant. The parties disagree on what is owed and how the amount owed must be calculated in light of the termination of the contract between plaintiff and Odlum that gave plaintiff its exclusive right after Odlum sold its rights to McCann's to Sturm's. Defendant moves for partial summary judgment. The court denies the motion finding that there are material issues of fact, including as to whether the purpose of the Odlum contract was frustrated, the date of the termination of the agreement, the amount of monies to be prorated and the formula that should be used to prorate the remaining monies due, and whether defendant breached the assignment agreement, that preclude summary judgment. [Filed March 26, 2013]
51-7-9570 Pellington v. Nadrowski, Dist. Ct. (Wolfson, U.S.D.J.) (10 pp.) Petitioner is currently being detained by the Department of Homeland Security, Immigration and Customs Enforcement ("DHS/ICE") at the Hudson County Correctional Center in Kearny, New Jersey, pending his removal from the United States. Petitioner filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his mandatory pre-removal detention. Petitioner argues that he should not be subject to mandatory detention under § 1226(c) based upon his 2004 drug conviction because ICE did not immediately detain him when he was released from custody for the alleged removable offense approximately eight years ago. The Court holds that Petitioner is not subject to the mandatory detention authorized by § 1226(c) because the Government did not take him into custody immediately. Petitioners pre-removal detention is instead governed by 8 U.S.C. § 1226(a), which authorizes an Immigration Judge to release him on bond if he is neither a flight risk nor a danger to the community. The Court grants the Writ of Habeas Corpus and directs an Immigration Judge to conduct a bond hearing to determine if Petitioner is a flight risk or danger to the community. [Filed April 1, 2013]
INTELLECTUAL PROPERTY PATENTS
53-7-9571 AstraZeneca AB v Hanmi USA, Inc., Dist. Ct. (Pisano, U.S.D.J.) (3 pp.) This is a patent infringement action. On December 12, 2012, the Court entered its Markman decision construing a number of disputed claim terms in the asserted patents. Presently before the Court is a motion by Plaintiffs asking the Court to reconsider its construction of one of those claim terms. Specifically, Plaintiffs have moved for reconsideration of the Courts construction of the term alkaline salt in claim 1 of U.S. Patent No. 5,714,504 (the ?504 patent), which the Court construed to be limited to the six specific salt species recited in the specification. Plaintiffs efforts here seem to be an attempt to reargue and expand upon points it previously made during the claim construction process and which have already been considered by the Court. The Court finds the standards for granting reconsideration have not been met and, consequently, denies the motion. [Filed March 25, 2013]
LABOR AND EMPLOYMENT
25-0-9572 Houston v. Township Of Randolph, Dist. Ct. (McNulty, U.S.D.J.) (47 pp.) Houston, a disabled volunteer firefighter, brings this action against the Township of Randolph, the Randolph Volunteer Fire Department (RVFD), and Chief John McAndrew. Houston alleges violations of his Free Speech, Due Process, and Equal Protection rights, the New Jersey Conscientious Employee Protection Act, and the Americans with Disabilities Act. He also alleges conspiracy to deprive him of his civil rights under 42 U.S.C. § 1985, and neglect or refusal to prevent the § 1985 conspiracy pursuant to 42 U.S.C. § 1986. Defendants filed a motion for summary judgment. Citing policy disagreements with RVFD relating to the Rapid Intervention Crew (RIC), Houston had written a letter to McAndrew in which he stepped down as a trainer for the RIC. McAndrew responded by accepting Houstons resignation, stating that Houston should no longer conduct training sessions, and suggesting that Houston take a break from the RVFD. Houston now contends that this was not an acceptance of his resignation, but a pretextual suspension in retaliation for his speaking out about what he viewed as RVFDs violation of its own policies. Although McAndrew suggested a cooling-off period, he did no more than accept Houstons resignation from the RIC; Houston remained a member of the RVFD. The Court finds Houstons claims are flawed as a matter of law, and that McAndrews response to Houstons resignation letter did not violate Houstons constitutional or statutory rights. Defendants motion for summary judgment is granted. [Filed March 21, 2013]
LABOR AND EMPLOYMENT
25-7-9573 Sierra v. Continental Airlines, Inc., Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) In her Complaint, Plaintiff asserts that she was employed as a pushback operator for Continental Airlines, Inc., which merged with UAL, Inc. to form United Continental Holdings. Inc. Plaintiff states that she was terminated from this position due to alleged unsafe operation of a pushback tractor which caused damage to the aircraft and the gate and put other employees and passengers in danger. Count One of Plaintiffs Complaint is for wrongful termination and a breach of contract. Count Two of Plaintiffs Complaint sounds in defamation. Count Three of Plaintiffs Complaint asserts breach of an employment agreement. Defendants move to dismiss, arguing that all three Counts are preempted by the Railway Labor Act (RLA). Defendants contend that Plaintiffs termination constitutes a minor dispute under the RLA. Further, Defendants state that the RLA provides an appeals process for resolving minor disputes, which Plaintiff has not exhausted. The Court finds this grievance is properly characterized as a minor dispute; thus the Court does not have jurisdiction. Instead, the Adjustment Board established by the parties has exclusive jurisdiction over such disputes, and the dispute must be resolved only through the RLA mechanisms. Plaintiff has failed to exhaust the grievance and appeal process. Accordingly, Plaintiffs Complaint is dismissed as it is preempted by the RLA. [Filed March 25, 2013]
34-7-9574 Alcantara v. Deutsche Bank National Trust Company, Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Plaintiff brings this quiet title action against Defendant Deutsche Bank National Trust Company. Plaintiffs ownership of real property in Newark, New Jersey (the Property) forms the basis for the suit. Plaintiff acquired ownership of the Property in 2003. In 2007, Plaintiff entered into a loan transaction with Novastar Mortgage, Inc., by which Novastar lent to him $260,400. The loan was evidenced by a note (the Note) and mortgage (the Mortgage), which was subsequently assigned to Defendant. Plaintiff contests Defendants interest in the Mortgage and has filed this action to quiet title to the Property against the interests of Defendant. The New Jersey Quiet Title Statute contemplates that a Plaintiff seeking to quiet title will allege the existence of competing claims and the nature of those claims. The sole substantive allegation made by Plaintiff here was that he contests any interest which defendant may allege in the property. Although it appears Plaintiff is implying the transfer of the Note and Mortgage to Defendant was improper, Plaintiff offers no factual allegations to that effect. Further, the Mortgage and Note signed by Plaintiff indicate that the Lender may transfer the Note. Defendants motion to dismiss is granted. [Filed March 25, 2013]
36-7-9575 Prochazka v. Sunrise Senior Living Inc., Dist. Ct. (Cecchi, U.S.D.J.) (7 pp.) In this action alleging that plaintiffs were abused at Sunrise of Morris Plains, a senior living community, and asserting claims of assault, negligence, negligent hiring, breach of fiduciary duty and respondeat superior, defendant Sunrise Senior Living Inc. moves to dismiss the claims against it. It is the parent company of Sunrise Assisted Living Management Inc., which manages the facility in question. The court grants the motion without prejudice, finding that (1) the corporate veil should not be pierced here where plaintiffs do not allege a special relationship between SSLI and the management such that the traditional parent-subsidiary relationship should be disturbed since they do not claim that SSLI and its subsidiary shared a unity of interest or ownership, and (2) plaintiffs have failed to allege sufficient facts against SSLI indicating that SSLI should be liable for the acts of the facility, management or owner based solely on its ownership of any of those entities. [Filed March 26, 2013]