ALM Properties, Inc.
Page printed from: http://www.njlj.com
Select 'Print' in your browser menu to print this document.
Daily Decision Service Alert: Vol. 22, No. 86 — May 3, 2013
New Jersey Law Journal
STATE COURT CASES
46-2-9824 Raeford v. Bozinovski, App. Div. (per curiam) (12 pp.) Plaintiff appeals from an order granting the motion for summary judgment of defendants Jane Bozinovski, a probation officer, and the Essex County Probation Division (Probation). Plaintiff's lawsuit stems from his arrest and incarceration on a warrant for non-appearance at a child support enforcement hearing that had been previously cancelled by the court, but remained active in the law enforcement database. The trial judge found that the two State defendants were not "persons" subject to the New Jersey Civil Rights Act. The appellate panel affirms, finding Probation and Bozinovski, acting within her official capacity as a probation officer, were fulfilling a State governmental function, and therefore do not fall within the meaning of "persons" under the Act.
CREDITORS AND DEBTORS RIGHTS
15-2-9825 Janak Corporation v. Shree Hari Harshketu Corporation, App. Div. (per curiam) (21 pp.) Defendant entities, Shree Hari Harshketu Corporation and Shree Ganesh Harshketu, LLC (Borrower), purchased the assets of a business and land from plaintiff Janak Corporation. Borrower arranged for (1) primary financing from Commerce Bank, N.A., n/k/a TD Bank, N.A. in the amount of $1 million (Primary Loan), and (2) subordinate financing provided by plaintiff in the amount of $300,000 (Subordinate Loan). The Subordinate Loan is evidenced by a $300,000 promissory note executed by Borrower in favor of plaintiff. As a condition of the Subordinate Loan, plaintiff required defendants to execute an individual Guaranty of the $300,000 indebtedness. After the Subordinate Loan matured, but was not paid, plaintiff filed an action against Borrower, defendants, and TD Bank to enforce its rights under the Subordinate Loan. Defendants Atul Patel and Haripriya Patel appeal from an order granting summary judgment against them in the sum of $300,000, plus contractual interest and attorney fees. The appellate panel affirms, finding the court correctly concluded that there was no ambiguity in the Guaranty, which by its express terms establishes an unconditional obligation on the part of the individual defendants to guarantee payment of Borrower's outstanding indebtedness on the Subordinate Loan. The Guaranty, as the trial judge properly concluded, allowed plaintiff to proceed directly against the individual defendants to collect payment of the outstanding indebtedness due on the Subordinate Loan, without first proceeding against the Borrower.
17-2-9826 Ponzio's Kingsway Real Estate LLC v. Mark, App. Div. (per curiam) (13 pp.) In this action alleging violations of the Spill Compensation and Control Act and the Water Pollution Control Act in connection with contamination that migrated from an adjacent property now owned by the South Jersey Chinese Community Center Inc. onto plaintiff's property, the SJCCC appeals from orders denying its motion to vacate default judgment and granting plaintiff's cross-motion in aid of litigant's rights. The panel holds that the SJCCC has not shown excusable neglect and, therefore, its motion to vacate the default judgment under Rule 4:50-1(a) was properly denied. However, because the judge made no specific findings with respect to SJCCC's proffered defenses, or whether they were sufficient to establish such "exceptional circumstances" as to warrant relief from the sizable judgment entered against SJCCC, the panel remands to permit the court to consider SJCCC's motion to vacate the default judgment under 4:50-1(f). On remand, the judge should consider the defenses proffered by SJCCC and, in light of its status as a not-for-profit entity to whom the adjacent property was purportedly donated, the court may choose to consider the availability of other remedies in lieu of entering a substantial damages award.
LABOR AND EMPLOYMENT PENSIONS
25-2-9827 Szakacs v. Board of Trustees, Public Employees' Retirement System, App. Div (per curiam) (12 pp.) Edward Szakacs, who had been employed as the business manager at the Department of Human Services, Division of Developmental Disabilities, North Jersey Developmental Center and who returned as a consultant after his retirment, appeals from the final decision of the PERS Board of Trustees which determined he did not have a bona fide retirement from the NJDC and consequently required him to return $208,545.09 in retirement benefits received and determined that he was not entitled to the three additional years of service he had received through the Early Incentive Retirement Program. The panel affirms, finding that appellant has not shown how the ALJ's conclusion that he returned to PERS covered employment was arbitrary or unreasonable and since he returned to NJDC before the requisite 30-day separation period expired and his annual compensation in that position exceeded $15,000, the board's decision was amply supported by credible evidence and was not arbitrary, capricious or unreasonable.
LAND USE AND PLANNING
26-2-9828 Hillsborough Properties LLC v. Township Committee of Hillsborough Twp., App. Div. (per curiam) (6 pp.) Plaintiff, the owner of over 300 acres of property in the township's economic development district, which excludes residential development, appeals the dismissal with prejudice of its action in lieu of prerogative writs challenging, as applied, the zoning district on the basis that it rendered plaintiff's property inutile. The panel affirms, substantially for the reasons expressed below. It adds that there was ample evidence to support the judge's conclusion that plaintiff's proofs did not surmount the formidable threshold of showing the arbitrariness, capriciousness or unreasonableness of the zoning decision and the judge's use of the township's expert's opinion was not a misuse of his discretion.
LAND USE AND PLANNING
26-2-9829 62-64 Main Street, L.L.C. v. Mayor And Council Of The City Of Hackensack;, App. Div. (per curiam) (9 pp.) Plaintiffs 62-64 Main Street, L.L.C. and 59-61 Moore Street, L.L.C. appeal from a judgment affirming the City of Hackensack's designation of plaintiffs' properties as an area in need of redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL). Plaintiffs also appeal from the order denying reconsideration. The appellate panel finds the trial judge and the City misapplied the New Jersey Supreme Court's decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro. Gallenthin reaffirmed that the New Jersey Constitution requires a finding of actual blight before private property may be taken for purposes of redevelopment. Because this constitutionally mandated finding was not made here and the factual findings that were made do not support it, the appellate panel reverses.
35-5-9830 Estate of Shinn v. Director, Division of Taxation (Tax Court) (Sundar, J.T.C.) (18 pp.) In this estate tax matter, the director moved for summary judgment on the ground that plaintiff's refund claim is statutorily time-barred. Plaintiff-estate cross-moved for summary judgment on the ground that its recitation on its federal estate tax return of litigation involving the marital deduction amount, put the director on notice of its protective claim for refund and tolled the running of the three-year period for the refund claim. The court grants the estate's motion, holding that the estate's notice of litigation served as notice of a potential refund claim because it adequately apprised the director of the litigated issue and of the estate's undertaking to supplement its federal estate tax return upon resolution of the litigation. The litigation was not resolved until after the expiration of the limitations period and there is nothing in the record to show that the estate had sufficiently final information to compute the marital deduction and file an amended estate tax return before the end of that period. Since a change in the marital deduction amount can alter the federal estate tax liability which can impact the federal credit for state death taxes, which credit it the foundation for an assessment or refund of the New Jersey estate tax, the estate's amended return was not untimely. [Filed April 2, 2013]
35-2-9831 PT Capital LLC v. Sellen, App. Div. (per curiam) (7 pp.) Defendant appeals the denial of her motion to vacate a default judgment in this tax lien foreclosure matter. The panel reverses, finding that where plaintiff knew that defendant did not reside at the Jersey City or Wayne properties that she owned and neither personal nor mail service of process was successful at those locations, and plaintiff knew that she had addresses in Hawthorne and Wyckoff, and mail service and personal service were unsuccessful at the Hawthorne property, regardless of whether defendant was evading personal service at the Hawthorne property, plaintiff had an address for her in Wyckoff and had to take the additional stop of serving her at that address by mail before resorting to substituted service by publication. Its failure to do so renders the default judgment void.
14-2-9832 Grohs v. New Jersey Department of Corrections, App. Div. (per curiam) (4 pp.) Appellant Steven Grohs appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC), which denied his claim for lost, damaged or destroyed personal property. Grohs was an inmate at South Woods State Prison. He was transferred to the Adult Diagnostic Treatment Center in Avenel. Approximately three weeks after the transfer, SWSP shipped Grohs personal property to the ADTC. When Grohs opened his packages, he discovered that his television was damaged and eighteen items of personal property were missing. Because it was not clear that Grohs could appeal from the Administrator's denial of his claim for reimbursement for lost, damaged or destroyed personal property, the appellate panel reverses and remands this matter to the Administrator to consider Grohs's appeal.
14-2-9833 State v. Rodgers, App. Div. (per curiam) (19 pp.) Defendant appeals from his judgments of conviction for receiving stolen property and obstruction. Defendant claims that the trial court should have instructed the jury on unlawful taking of a means of conveyance, which he asserts is a lesser offense of receiving stolen property. Defendant attacks his obstruction conviction, claiming error relating to the sufficiency of the evidence, the indictment, and the jury instructions and verdict sheet. Defendant argues that the indictment describes the arresting officer, Officer Lawson, as employed by the Princeton Borough Police Department, but he was employed by Princeton University. Defendant argues that obstructing a patrolman employed by a private university cannot prevent "a public servant from lawfully performing an official function." Defendant argues that the judge directed a verdict because he inaccurately described Officer Lawson as "Patrolman Alan Lawson of the Princeton Borough Police Department" when he read the verdict sheet during his instructions. Defendant also asserts that his sentence was excessive. The appellate panel affirms defendant's conviction and sentence for receiving stolen property. Finding errors in the jury instructions and verdict sheet, the panel vacates defendants conviction and sentence for obstruction, and remands for a new trial on the obstruction charge.
FEDERAL COURT CASES
42-6-9834 In re: Tarragon Corporation, Bankruptcy Ct. (Steckroth, U.S.B.J.) (9 pp.) This proceeding was originally initiated by the Association in the New Jersey state court claiming damages arising from alleged construction defects in Plaintiff 1200 Grand Street Associations condominium building. Defendants, including the Tarragon Entities, removed the matter to the district court, which then referred the case to the Bankruptcy Court where the Tarragon Entities had filed a chapter 11 bankruptcy petition. Defendant Mt. Hawley Insurance Company filed a motion to dismiss the complaint for failure to state a claim and, alternatively, to stay discovery for sixty days. The Association filed a cross-motion seeking to compel Mt. Hawley to tender a defense for the debtor Tarragon entities. The Court entered a consent order between the Association and the Tarragon Entities which assigned the rights of Tarragon and its co-defendants rights in all of their insurance policies to the Association. Here, the Court grants Mt. Hawleys motion to dismiss, finding the assignment pursuant to the Consent Order granted only the right to assert a monetary claim based on a final judgment or settlement against the Tarragon Entities and, even then, only for an amount in excess of liabilities covered by other insurers of Tarragon. Until such time that those amounts are fixed, Mt. Hawley is not liable to the Association for claims asserted on behalf of the Tarragon Entities. Further, Mt. Hawley does not have a duty to tender a defense for the Tarragon Entities, thus one cannot be asserted by the Association. As such, the Plaintiffs cross-motion is denied. [Filed April 16, 2013]
42-6-9835 In re: Tarragon Corporation, Bankruptcy Ct. (Steckroth, U.S.B.J.) (10 pp.) This proceeding was originally initiated by the Association in the New Jersey state court claiming damages arising from alleged construction defects in Plaintiff 1200 Grand Street Condominium Associations condominium building. Defendants, including the Tarragon Entities, removed the matter to the district court, which then referred the case to the Bankruptcy Court where the Tarragon Entities had filed a chapter 11 bankruptcy petition. The Court entered a consent order between the Association and the Tarragon Entities which assigned the rights of Tarragon and its co-defendants rights in all of their insurance policies to the Association. Defendant Axis Surplus Insurance Company filed a motion to dismiss the complaint. Plaintiff filed a cross-motion seeking to compel Axis to assert a defense on behalf of the Tarragon entities. Assuming, arguendo, that the Tarragon Entities are covered by the Axis Policies, the Court grants Axiss motion to dismiss, finding the assignment pursuant to the Consent Order granted only the right to assert a monetary claim based on a final judgment or settlement against the Tarragon Entities. Those claims are limited to seeking relief directly from Axis for a final judgment rendered against the Tarragon Entities or a settlement with the written consent of Axis. Since Axis had no duty to defend the Tarragon Entities, one cannot be asserted by the Association. Plaintiffs cross-motion is denied. [Filed April 16, 2013]
10-8-9836 Rizzo v. Connell, Third Circuit (McKee, U.S.C.J.) (3 pp.) Rizzo appeals from the District Courts order denying his motion for relief from a final judgment. Rizzo conceded that his claims against the defendants in their official capacities are barred under the Eleventh Amendment. Accordingly, the Court granted judgment in favor of the defendants in their official capacities. In doing so, the Court also held that the remaining claims cannot succeed because the defendants are entitled to qualified immunity insofar as Rizzo alleges they were acting in their individual capacities. The District Court carefully and thoroughly explained its basis for concluding that Rizzo could not establish that his constitutional rights were violated by any actions of the defendants acting in their individual capacities. The circuit panel affirmsthe District Courts order denying reconsideration of its grant of judgment on the pleadings. [Filed April 17, 2013]
CREDITORS AND DEBTORS RIGHTS
15-7-9837 Pereira v. Azevedo, U.S. Dist. Ct. (Linares, U.S.D.J.) (17 pp.) Plaintiff alleges that Lurdes Azevedo, a family friend, asked Plaintiff and her husband to co-sign a loan for Lurdes son, John Azevedo. According to the complaint, John assured Plaintiff that he would repay the loan and Lurdes also assured Plaintiff that if John was unable to repay the loan, she would repay it. Believing that she and her husband were merely co-signing a loan for John, Plaintiff agreed. John and Lurdes presented Plaintiff with documents purporting to be loan papers from Defendant Wachovia Bank. Unbeknownst to Plaintiff, the documents resulted in John obtaining a line of credit against Plaintiffs home in the amount of $100,000. The loan was funded by Wachovia Bank. Plaintiff alleges that Plaintiff never authorized John or Lurdes Azevedo to negotiate with Wachovia on her behalf, nor did Plaintiff authorize Wachovia to negotiate with anyone on her behalf. When Plaintiff discovered the line of credit, Lurdes informed Plaintiff that John had filed for bankruptcy and would not pay back the debt. Lurdes also indicated that she would not pay the debt. Plaintiff filed suit against John Azevedo, Lurdes Azevedo, Wachovia Bank and Grace Tavares, an alleged Wachovia employee. Plaintiff alleges that the Azevedos conspired with Wachovia to defraud her. Due to the pleading deficiencies in plaintiffs complaint, the Court grants Wachovia Banks motion to dismiss without prejudice. [Filed April 17, 2013]
16-7-9838 J.T. v. Newark Bd. of Educa., U. S. Dist. Ct. (Wigenton, U.S.D.J.) (13 pp.) In this action seeking reversal of an ALJ's final decision holding that defendant had not violated the Individuals with Disabilities Education Act or the Rehabilitation Act of 1973 when it declined to provide a resource-in-class support program at the school closest to J.T.'s home and required her to attend another school in the district to obtain that service, the court grants defendant's motion seeking affirmance of the ALJ's decision, finding that the district is not required to implement the RIC program at the school closest to J.T. and that districts have significant authority to determine the school site for providing IDEA service. . [Filed April 5, 2013]
23-7-9839 State Farm Indemnity Co. v. United States of America, U. S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Plaintiff filed this action for reimbursement of personal injury protection benefits that it paid on behalf of one of its insureds who was involved in an auto accident with a United States Postal Service vehicle. The court denies the motion with prejudice because, in bringing a claim under N.J.S.A. 39:6A-9.1 for PIP benefits, plaintiff has sued the government as an insurer and the government has not waived its sovereign immunity to be sued as an insurer. Therefore, the court lacks subject matter jurisdiction. [Filed April 4, 2013]
53-7-9840 Ferring Pharmaceuticals Inc. v. Watson Pharmaceuticals, U. S. Dist. Ct. (Cavanaugh, U.S.D.J.) (11 pp.) In this action between pharmaceutical companies which market competing products used for in vitro fertilization, in which plaintiff asserts a false advertising claim under the Lanham Act, plaintiff moves for a preliminary injunction to enjoin defendant from further statements and for corrective advertising. The court denies the motion, finding that plaintiff has not alleged facts sufficient to prove that it was harmed or that the alleged harm was irreparable and could only be cured by a preliminary injunction. [Filed April 4, 2013]
LABOR AND EMPLOYMENT
25-7-9841 Treusch v Center Square Supermarket LLC, U. S. Dist. Ct. (Simandle, U.S.D.J.) (11 pp.) In this action arising out of plaintiff's termination and the union's alleged failure to adequately represent him and asserting claims for breach of contract, breach of fiduciary duty and gender discrimination in violation of the New Jersey Law Against Discrimination, plaintiff moves for reconsideration of the summary judgment dismissal of his case with prejudice. Plaintiff also seeks an order allowing him to amend his complaint post-judgment to allege age and race discrimination. The court denies reconsideration because plaintiff has put forth no new evidence, there has been no intervening change in the law and plaintiff has not shown that dispositive factual matters or controlling decisions were not considered. The motion for leave to amend is denied because it was filed almost one year after the deadline for filing such a motion and plaintiff has not attempted to show good cause to amend the scheduling order deadline, his delay in seeking to amend is undue , defendants would be substantially prejudiced if plaintiff were permitted to amend at this late juncture, and the values of expeditious termination of litigation and the finality of judgments would be rendered meaningless if the case were reopened for new claims after issues were joined and the case was adjudicated. [Filed April 5, 2013]
LABOR AND EMPLOYMENT EMPLOYEE BENEFITS
25-7-9842 Sportscare Of America, P.C. v. Multiplan, Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (19 pp.) Plaintiff Sportscare of America, P.C. filed this action alleging that defendants violated the Employee Retirement Income Security Act of 1974 (ERISA), breached their fiduciary duties, and breached their duties to act in good faith. Plaintiff filed this ERISA action to enforce the terms of various health care plans insured or administered by Defendants. The gravamen of Plaintiffs Second Amended Complaint is that Defendants underpaid Plaintiff by paying Plaintiff as an in-network provider instead of an out-of-network provider. Here, the Court grants the motion for summary judgment filed by Christian Brothers, the motions to dismiss filed by the Government Employees Health Association, Inc. Defendants; and the motion for summary judgment filed by Health Net, Inc. The Tower Defendants, which include defendants Tower, Guardian, Principal, Local 15, IDA, Coventry, and Nippon, are traditional health care payors. In this case, Defendant Multiplan, Inc. was the only relevant decision-maker. Sportscare was only required to exhaust the administrative remedies provided by Multiplan, and did in fact do so. Because the Court finds that Sportscare exhausted the relevant administrative remedies, the Tower Defendants motions for summary judgment are denied. [Filed April 17, 2013]
REAL ESTATE MORTGAGES
34-7-9843 U. S. Bank, National Association v. Cobalt Realty LLC, U. S. Dist. Ct. (Cooper, U.S.D.J.) (8 pp.) Plaintiff filed this mortgage foreclosure action against Cobalt and its sole managing partner, Steve Kogut, after Cobalt defaulted on a promissory note secured by a mortgage and guaranteed by Kogut. Defendants moved to enforce a purported settlement under which the bank agreed to extinguish any actual or potential claims against Kogut, including those relating to a separate environmental indemnity agreement Cobalt and Kogut had executed in favor of the bank's predecessor in interest. Plaintiff objects to the magistrate judge's report and recommendation finding that the parties had reached an enforceable settlement which released Kogut from liability under the EIA. The court conducts a de novo review and concludes that the record shows that the parties entered into a valid and binding agreement to settle which included extinguishment of Kogut's liability under the EIA, adopts the report and recommendation, and grants the motion. [Filed April 16, 2013]
CRIMINAL LAW CORRECTIONS
14-7-9844 Prall v. Supreme Court, U. S. Dist. Ct. (Simandle, U.S.D.J.) (24 pp.) Plaintiff-state prison inmate filed this pro se 42 U.S.C. section 1983 against numerous defendants, including the Supreme Court, the Appellate Division, the Law Division, the Governor, prosecutors, the Commissioner and numerous employees of the Department of Corrections, and numerous judges and sheriff's officers, arising out of his conscientious objection to the criminal justice system and his incarcertion. Plaintiffs claims of excessive force and failure to protect in violation of the Eighth Amendment are allowed to proceed against defendants John Does 1-4; the same claims are dismissed without prejudice as against the Mercer County Sheriffs officers for failure to state a claim. His claim of ongoing physical abuse and torture asserted against defendants John Moes 1-99, Commissioner Lanigan and Administrator Warren will be dismissed as they are duplicative of similar claims asserted in plaintiffs earlier, pending action and more properly should have been pled in that action by supplemental pleading with leave of Court. The complaint is dismissed with prejudice in its entirety as against all remaining defendants, pursuant to 28 U.S.C. §§1915(e)(2)(B)(ii), (iii) and 1915A(b)(1) and (2). [Filed April 4, 2013]