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Daily Decision Service Alert: Vol. 22, No. 84 — May 1, 2013
New Jersey Law Journal
STATE COURT CASES
46-2-9797 Marinaccio v. Fanwood Borough, App. Div. (per curiam) (9 pp.) Plaintiff, who initially entered an uncounseled guilty plea to public urination, a violation of the municipal ordinance, then withdrew his guilty plea and the municipal judge granted the prosecutor's motion dismissing the complaint with prejudice, appeals the grant of defendants' motion for summary judgment in this action alleging deprivation of his civil rights by the borough, the judge, the prosecutor, he police officer and the public defender. The panel affirms substantially for the reasons expressed by the judge below: plaintiff has not alleged or established that the municipality's policy makers were deliberately indifferent to his constitutional rights, the police officer was entitled to qualified immunity because on the facts, he had probable cause to issue the summons for public urination and that his belief, even if mistaken was objectively reasonable; and that the remaining defendants were acting within the scope of their official duties and were absolutely immune from liability.
11-2-9798 Barrick v. Department of Treasury, Division of Property Management and Construction, App. Div. (Axelrad, P.J.A.D.) (19 pp.) We reverse the determination of the director of the Division of Property Management and Construction recommending the award of a contract to RMD, the lowest bidder, to lease office space for a state agency, and remand the case to decide whether to award the lease to plaintiff-appellant, the second lowest bidder, or to rebid it. We hold that the DPMC erred in failing to perform an accessibility analysis when the bids initially reflected that neither bidder complied with the distance requirement to accessible public transportation, and in failing to perform a materiality and waiver analysis of the distance requirement on reconsideration when it ascertained that only RMDs bid was noncompliant. RMDs bid materially deviated from the scope of work, was nonconforming and nonwaivable, so the DPMC was without discretion to recommend the award of the lease to RMD. [Approved for publication.]
LABOR AND EMPLOYMENT PENSION AND OTHER RETIREMENT BENEFITS
25-2-9799 Cologna v. Board of Trustees, Police and Firemens Retirement System, App. Div. (Sabatino, J.A.D.) (22 pp.) N.J.S.A. 43:16A-3(5), as amended in 1980, extends to five years the usual two-year period within which a former member of the Police and Firemens Retirement System (PFRS) may resume employment and reinstitute his membership in the retirement system. The provision applies to instances when the member has been discontinued from service through no fault of his own or through leave of absence ... and he has not withdrawn his accumulated deductions[.] Ibid. Consistent with the governors conditional-veto message that led to the provisions amendment, we construe the five-year extended time frame as being confined to only members who lose their public employment as the result of an employers layoff or reduction in force, or through leave of absence in accordance with the statute. Because appellant in the present case voluntarily resigned from his former employment as a police officer and was not fired, laid off, or granted a leave of absence, we affirm the final agency decision of the PFRS board of trustees precluding reinstatement of his membership more than two years later. [Approved for publication.]
52-2-9800 North Jersey Media Group, Inc., d/b/a The Record v. State Of New Jersey, App. Div. (per curiam) (15 pp.) Plaintiff North Jersey Media Group, d/b/a as The Record, appeals from an order dismissing its complaint seeking the production of records pursuant to the Open Public Records Act (OPRA) and the common law. On January 26, 2012, the Record published an article which stated that Governor Chris Christie had recommended fifty individuals for positions at the Port Authority of New York and New Jersey since he took office. A few days later, the Record published an article which indicated that the Governor had defended the referrals. Plaintiffs OPRA request pertained to applications for employment at the Port Authority and referrals made by the Governor's Office concerning those applicants. The appellate panel finds the trial court correctly determined that the records requested by plaintiff were personnel records exempt from disclosure under OPRA. Also, the judge properly balanced plaintiff's interest in disclosure against the public's interest in confidentiality to conclude plaintiff was not entitled to the records under the common law.
36-2-9801 Abdelkader v. Bergen Square Condo. Association, App. Div. (per curiam) (5 pp.) In this action filed after plaintiff tripped and fell on an uneven sidewalk on private property on June 29, 2011, the city appeals the court's grant of plaintiff's motion, made on April 23, 2012, after plaintiff was advised that the city owned the tree that allegedly made the sidewalk uneven, for leave to file a late notice of claim under the Tort Claims Act. Because the judge did not set forth any facts or reasons undergirding her decision, the panel remands the matter for a thorough statement of reasons supporting the decision to grant the motion.
FEDERAL COURT CASES
07-7-9802 Mendez v. New Jersey State Lottery Commission, Dist. Ct. (Wolfson, U.S.D.J.) (7 pp.) Plaintiff - whose 2002 state action arising out of his claimed ownership of an interest in a winning lottery ticket resulted in a judgment against him, and whose subsequent state action asserting violations of his civil rights arising from the 2002 proceeding was dismissed, and who then filed a federal action asserting causes of action under 42 U.S.C. sections 1983 and 1985 arising out of the state defendants' and non-state defendants' alleged conspiracy to deprive him of his due process rights in the two state court proceedings which was dismissed after the court found that it lacked subject matter jurisdiction to hear the claims against the state defendants, plaintiff failed to sufficiently allege facts supporting a cause of action under 1983 or 1985 and even if he had, those claims were untimely - seeks relief from the federal court judgment pursuant to Rule 60(b). The court finds that plaintiff does not set forth any mistake, inadvertence, surprise, or excusable neglect, newly discovered evidence, fraud, misrepresentations, misconduct, or any other justifiable reason to warrant such extraordinary relief. Rather, his application seeks reconsideration of this dismissal of his claims, which application is more appropriately addressed under L. Civ. R. 7.1(i). The court denies relief because plaintiff has failed to provide any basis for finding that the court overlooked a factual or legal issue that could alter the disposition of the matter, the state defendants are entitled to Eleventh Amendment immunity, and plaintiff's assertions regarding the non-state defendants have already been considered and any differences with the court's opinion must be dealth with through the appellate process. [Filed April 15, 2013]
46-7-9803 Kirkland v. DiLeo, Dist. Ct. (McNulty, U.S.D.J.) (17 pp.) Plaintiffs filed this civil rights action against Linden Municipal Judge DiLeo and the City of Linden alleging numerous violations of their constitutional rights in connection with their prosecution in the municipal court for several disorderly persons offenses including possession of marijuana. Defendants move to dismiss claiming absolute judicial immunity and Eleventh Amendment immunity. The court denies the motion, finding that in plausibly asserting the DiLeo acted not as a neutral arbiter of disputes but as a prosecutor or advocate and did so in violation of all judicial norms, plaintiffs have alleged enough to entitle them to go forward with discovery; plaintiff's official-capacity claims against DiLeo should proceed so that discovery may be had on whether the judge and the municipal court are "arms of the state" for Eleventh Amendment immunity purposes; the claims against the city may proceed so that discovery may be had on whether it tacitly endorsed a practice of denying defendants their constitutional rights; and discovery may proceed on plaintiffs' claim of conspiracy between the judge and the city to deprive them of their constitutional rights. [Filed April 15, 2013]
ELECTION AND POLITICAL LAW
21-7-9804 Abernathy v. Garcia, Dist. Ct. (Cecchi, U.S.D.J.) (6 pp.) Plaintiff-voters initiated the underlying state court action by filing a complaint and order to show cause for temporary restraints in state court alleging the defendant is ineligible to run for election to the General Assembly because, as Executive Director of the Hoboken Housing Authority, he is barred from running for office under the New Jersey Administrative Code. After a state court judge issued a TRO restraining the county clerk from issuing ballots that include defendant's name, he filed a notice of removal to this court. The court grants plaintiffs' motion to remand, finding that: (1) the action was improperly removed because the county clerk, who is found not to be a nominal party, did not join in the removal; (2) since plaintiffs have voluntarily dismissed their claims under the Hatch Act and the U.S. HUD regulation, no federal causes of action remain and the case should be dismissed; and (3) reasons of comity and efficiency warrant remand. [Filed April 16, 2013]
LABOR AND EMPLOYMENT
25-7-9805 Roome v. Newark Public Schools, Dist. Ct. (Dickson, U.S.M.J.) (5 pp.) This matter involves a pro se litigants application for appointment of pro bono counsel. Plaintiff alleged that she was terminated from her employment with Defendant Newark Public Schools. Plaintiff received a Right to Sue Letter from the EEOC stating the EEOC had concluded the information it obtained established a possible violation of Title VII, the Americans With Disabilities Act, or the Age Discrimination in Employment Act. Plaintiffs application to proceed in forma pauperis was granted. The Court denies Plaintiffs application for pro bono counsel without prejudice. Plaintiff provided no information regarding whether she attempted to obtain counsel and whether such attempts were unsuccessful. Moreover, the Tabron factors weigh against Plaintiffs application. [Filed April 15, 2013]
LAND USE AND PLANNING
26-7-9806 McKay Brothers, LLC v. Zoning Board Of Adjustment Of The Township Of Randolph, Dist. Ct. (Linares, U.S.D.J.) (7 pp.) Plaintiff McKay Brothers, LLC submitted an application to the Township of Randolph Planning and Zoning Office for a construction permit to install antennae on a lattice tower located in Randolph. Plaintiff received a letter from a Zoning Officer rejecting its application because approval from the Zoning Board of Adjustment is required. In lieu of filing an application with the Zoning Board, Plaintiff filed a verified complaint, along with an application for an order to show cause, seeking to preliminarily enjoin Defendants from refusing to grant Plaintiffs application and to temporarily restrain Defendants from denying Plaintiffs application. Plaintiff maintains that the Zoning Officers rejection of its application violates the Middle Class Tax Relief and Job Creation Act of 2012 (the Act). Plaintiff asserts that it has not sought approval from the Zoning Board because doing so would be futile and unnecessary. As a result of Plaintiffs failure to exhaust administrative remedies, the Court determines that its application for an order to show cause seeking temporary restraints and a preliminary injunction is not ripe for review. Even if the Act preempts state and local laws, as Plaintiff argues, the Act does not prohibit local government entities from requiring the filing of applications seeking administrative approval. Further, withholding review would not result in immediate and significant hardship to Plaintiff. Plaintiffs complaint is dismissed without prejudice to its right to re-file once this matter becomes ripe for review. [Filed April 12, 2013]
LEGAL PROFESSION JUDGES
04-7-9807 Franco v. Connecticut General Life Ins. Co., Dist. Ct. (Chesler, U.S.D.J.) (9 pp.) In this action relating to an alleged denial of ERISA plan out-of-network benefits due to flaws in the Ingenix data used to determine ONET claims, plaintiffs move for the recusal of the judge, arguing that he is disqualified from presiding under 28 U.S.C. section 455(a) and (b)(4) because he has secondary insurance coverage under a CIGNA policy issued to his wife by her employer. Plaintiffs' motion is denied because the court finds that the judge and his wife did not become members of the putative class when the Cigna plan took effect because neither has made a ONET claim under his or her Cigna plan and received a benefit amount which was determined using Ingenix data regarding the usual and customary rate for the service and both have divested themselves of any claim or potential interest they could have with respect to the subject matter of this suit. Thus, plaintiffs point to no evidence that would cause a reasonable observer to doubt the court's impartiality or that would give rise to a financial interest of the judge or his wife in the subject matter in controversy. [Filed April 15, 2013]
32-7-9808 Worrell v. Elliott & Frantz, Dist. Ct. (Rodriguez, U.S.D.J.) (15 pp. Plaintiff Worrell was responsible for transporting a Hitachi excavator from Voorhees, New Jersey to a job site in Pennsylvania. Due to height clearance concerns, Worrell stated that he believed that he had to secure the hydraulic hoses of the wet kit that was added to the excavator and he climbed the arm of the boom, which is not a walkable surface, to reach them. Worrell fell off of the boom arm and was injured. Paul Stephens, Plaintiffs expert, was commissioned to examine the excavator involved in Worrells injury. Stephens claims he compared his measurements of the excavator with the State of New Jerseys statutory clearance minimum and the clearance of the anticipated hauling routes and concluded that the height of the excavator, including the installed wet kit, rendered the machine defective. Stephens report validates Worrells transportation clearance concerns. It also identifies the theory underscoring Worrells product liability claim as a manufacturing defect. Here, the Court denies Defendants motion to bifurcate the trial. Defendants motion to preclude the testimony of Stephens is granted in part. Stephens may not offer opinions on Worrells motivation, he may not state with authority that Defendant did in fact install the wet kit, and he may not opine on the issue of proximate cause. [Filed April 16, 2013]
35-7-9809 Stephanatos v. Wayne Townshipase Name, Dist. Ct. (Hochberg, U.S.D.J.) (9 pp.) Plaintiff has challenged local taxation three prior times, filing lawsuits in federal courts and New Jersey state courts alleging constitutional and tort causes of action. Here, Plaintiff opposes the payment of the local portion of his taxes going toward education since he does not have children. Also, Plaintiff claims that Defendants took part in a conspiracy to rig bids and allocate markets for the sale of Tax Sale Certificates in New Jersey to suppress competition to obtain municipal tax liens offered at public auctions at non-competitive interest rates. Defendants filed a motion to dismiss Plaintiffs complaint on the grounds that Plaintiffs claims are barred by res judicata and failure to state a claim. The majority of Plaintiffs claims are dismissed under the doctrine of res judicata where the claims stem from Plaintiffs challenge to the constitutionality of his taxes and have been decided on the merits and because res judicata also precludes matters that could have been litigated at an earlier time. Plaintiffs remaining claims are dismissed because he has failed to state a claim with respect to his Fourth Amendment and conversion of property claims where the sale and foreclosure of Plaintiffs property was conducted properly in accordance with New Jerseys Tax Sale Law. Plaintiffs complaint is dismissed with prejudice. [Filed April 15, 2013]
36-7-9810 Fletcher v. St. Joseph Regional Medical Center, Dist. Ct. (Linares, U.S.D.J.) (27 pp.) This medical malpractice action arises from the alleged failure to diagnose breast cancer in Plaintiff. Plaintiff presented to Paterson Community Health Center (PCHC) and was seen by Dr. Yung, an employee of PCHC. PCHC was deemed eligible for coverage under the Federal Tort Claims Act. Plaintiff asserted claims of negligence and vicarious liability. Plaintiff settled her claims as to all defendants except for the Government in advance of trial. The Court finds that Dr. Yung deviated from the requisite standard of care by not referring Plaintiff for a diagnostic study and biopsy after visits in 2006 and 2007. In 2008, Plaintiff was diagnosed with advanced Stage III AB cancer and underwent a mastectomy. Plaintiff had 17 out of 27 lymph nodes positive and a tumor size of eight centimeters. Plaintiff was subsequently diagnosed with cancer in her spine, skull, ribs, thigh bones, pelvic bones, and left scapula. The Court finds that Dr. Yungs deviations from the standard of care increased Plaintiffs risk of harm and diminished her chance of survival. The evidence established that had Plaintiff been diagnosed in 2006, she would have had an 87.4% rate of survival over ten years. Had she been diagnosed in 2007, she would have had a 72% rate of survival over a ten-year period. Due to the delay in diagnosis, her survival rate is now zero over a ten-year period. Plaintiffs testimony establishes substantial damages. The Court enters judgment in favor of Plaintiff in the amount of $500,000.00 of economic damages and $3,250,000.00 of non-economic damages. [Filed April 15, 2013]