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Daily Decision Service Alert: Vol. 22, No. 114 - June 13, 2013
New Jersey Law Journal
STATE COURT CASES
01-2-0272 Mile Square Towing LLC v. City of Hoboken, App. Div. (28 pp.) Plaintiff Mile Square Towing, LLC appeals the denial of its challenges to the validity of an ordinance adopted by defendant-Hoboken that provides for licensing and regulation of businesses that remove and store motor vehicles. Because the ordinance does not exceed Hoboken's authorization to license and regulate towing services provided in N.J.S.A. 40:48-2.49, or impermissibly delegate authority to the director of Hoboken's Department of Parking and Transportation to administer and enforce its provisions, the panel affirms. But to the extent the order upholds the provisions of the ordinance authorizing the director to amend and supplement the ordinance, the panel reverses the order and invalidates those provisions.
01-2-0273 Polish People's Home Inc. v. Municipal Bd. of Alcoholic Beverage Control of the City of Passaic, App. Div. (per curiam) (8 pp.) Polish People's Home, Inc. appeals from a final determination of the Director of the Division of Alcoholic Beverage Control in the Department of Law and Public Safety, suspending PPH's plenary retail consumption license for 90 days. The panel affirms substantially for the reasons expressed below. PPH's argument that it did not know that minors were exchanging wristbands and being served alcohol is unavailing as its knowledge and preventative measures are not relevant under N.J.A.C. 13:2-23.1(a) . The panel finds that sufficient credible evidence supports the director's finding that PPH suffered the delivery of an alcoholic beverage to an underage patron and thus failed to operate its business in the manner required by N.J.A.C. 13:2-23.1(a).
11-2-0274 JB Pool Management, L.L.C. v. Four Seasons at Smithville Homeowners Association Inc., App. Div. (Sabatino, J.A.D.) (32 pp.) This case arises out of a one-year contract in which appellant, a pool management company, agreed to supply a condominium association with lifeguards and maintenance services for the association’s indoor pool. During the term of that contract, a mold infestation was discovered in the pool facilities, prompting government officials to order the pool closed for more than seven months while the mold was remediated. The pool company sued the association for breach of contract, seeking to recover four months of service fees that the association had not paid while the pool was closed. Over the pool company’s objection, the trial court charged the jury that the association’s obligation to pay the monthly fees during the period when the pool was closed could be excused under the doctrine of frustration of purpose, see Restatement (Second) of Contracts § 265 (1981), a theory that the association had not raised in its affirmative defenses. Having received that instruction, the jury found the association was not liable for the four months of disputed fees. In this case of first impression, we hold that the doctrine of frustration of purpose generally should be pleaded as an affirmative defense by litigants seeking to invoke it. Because the frustration doctrine was not raised here by the association before trial, and instead was identified, sua sponte, by the trial judge during the charge conference as a more suitable alternative to a proposed charge of impossibility of performance, we reverse the final judgment dismissing the breach-of-contract claim. To rectify apparent prejudice to the pool company arising from the late notice, we remand for additional discovery focused on that defense, followed by a new trial. Given the inapplicability of the frustration doctrine where the parties have allocated the risk of supervening event, we further direct the trial court to re-examine its finding that the “underlying purpose of [the] contract was conditioned upon the pool being open for use.” The court must consider explicitly if its finding about the parties’ intentions can be reconciled with the contract’s provision that “[t]here will be no reduction in charges of the contract amount for any closing.” [Approved for publication.]
20-2-0275 Croghan v. Croghan, App. Div. (per curiam) (35 pp.) These appeals address two post-judgment matrimonial orders. The first involves an order denying defendant's motion to modify his alimony and child support obligations based on changed circumstances, terminated his support obligation for his daughter retroactive to the filing date rather than the earlier court-ordered emancipation date, directed defendant to withdraw funds from his retirement account to pay outstanding financial obligations, awarded plaintiff attorney fees and denied reconsideration. The second involves an order allocating a $14,000 payment to alimony and child support arrears rather than just to child support arrears and future child support payments as requested by defendant and denying his cross-motion involving issues pertaining to the parties' son. The panel affirms both appeals, finding, inter alia, that the judge did not abuse his discretion in directing an equal allocation of the $14,000 although plaintiff's position as to the allocation was more consistent with the ration of payments ordered on a monthly basis; the information subpoena was properly issued here and thus there is no basis to sanction plaintiff's attorney for zealously representing her client in seeking collection of the significant outstanding support and alimony arrears; the trial judge correctly declined to rule on many of the issues involving the parties' son as they were the subject of the consolidated appeal and, moreover, they are to a large extent moot because he is now 18 years old.
LAND USE AND PLANNING
26-2-0276 Rockaway Shoprite Associates Inc. v. Planning Bd. of Linden, App. Div. (per curiam) (14 pp.) This is the second appeal arising out of the proposed development of the industrial site in Linden formerly owned by GM. Plaintiff's complaint raised four issues: (1) the validity of the site plan approval granted under the previous ordinance that was deemed invalid in the first appeal solely because of insufficient notice and that preceded passage of the new ordinance; (2) the retroactivity of the new ordinance; (3) the substantive validity of the new ordinance; and (4) the adequacy of the notice given prior to adoption of the new ordinance. Plaintiff prevailed on the first two, as the result of which the developer must seek new planning permission for its proposed project. Plaintiff does not appeal the conclusion that the notice given prior to adoption of the ordinance was adequate. Thus, plaintiff appeals only the court's finding that the ordinance was valid. The panel says the whether viewed from the perspective of issue preclusion or binding precedent, the Appellate Division's opinion in the first appeal properly and squarely addressed the issue of the substantive validity of an ordinance essentially identical to the one at issue and did so on a full record with full briefing and argument by the parties. The issue of substantive validity having been already litigated once, the panel finds no reason to address it again and affirms the dismissal here.
29-2-0277 Flood v. Aluri-Vallabhaneni, App. Div. (Messano. P.J.A.D.) (32 pp.) In this lost-chance, medical-malpractice action, plaintiff, administrator of his daughter’s estate, settled with several defendants, and the claims against others were dismissed. Defendant, a radiologist, continued to assert cross-claims against the settling defendants. Over plaintiff’s objection, the judge adapted form interrogatories supplied by defendant and rejected plaintiff’s request to use the form interrogatories appended to Model Jury Charge (Civil) 5.50E, “Pre-existing Condition — Increased Risk/Loss of Chance — Proximate Cause” (Approved 12/02, Charge Originally Published 2/03, Rev’d 2/04). The interrogatories submitted to the jury essentially followed the form interrogatories previously used and appended to Model Jury Charge (Civil) 5.36E, “Pre-existing Condition — Increased Risk/Loss Chance — Proximate Cause” (4/96). The jury concluded that defendant deviated from the standard of care, and that the deviation increased the risk of harm from decedent’s pre-existing medical condition; however, the jury unanimously found the increased risk was not a substantial factor in causing her death. Plaintiff’s appeal is limited to claims that it was reversible error not to use the current interrogatories. We affirmed the no-cause verdict, finding the interrogatories did not mislead the jury or misstate the law. We also concluded that the current form interrogatories are inconsistent with established precedent and have the potential, in a Scafidi-type medical-malpractice suit, of relieving a plaintiff of proving an essential element of the lessened proximate-cause standard, i.e., that a defendant’s deviation not only increased the risk of harm, but was also a substantial factor in bringing about the ultimate harm. We requested the Model Jury Charge Committee to re-examine the issue, and, in the interim, we disapproved of the continued use of the model interrogatories as currently written. [Approved for publication.]
52-2-0278 Paff v. New Jersey State Firemen’s Association, App. Div. (Ostrer, J.A.D.) (23 pp.) We determine in this appeal that the New Jersey State Firemen’s Association, created pursuant to state law, N.J.S.A. 43:17-41, and the direct recipient of taxes on certain fire insurance premiums, N.J.S.A. 54:18-1 and -2, and N.J.S.A. 17:22-6.59, is an “independent State ... instrumentality” and therefore a “public agency,” N.J.S.A. 47:1A-1.1, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Consequently, the association is subject to OPRA, and the trial court erred in concluding otherwise. We reverse and remand to the trial court to consider plaintiff’s claim for relief under OPRA. [Approved for publication.]
REAL ESTATE — MORTGAGE FORECLOSURE
34-2-0279 Indymac Federal Bank FSB v. Schulmann, App. Div. (per curiam) (4 pp.) Defendants appeal the denial of their motion to vacate a default foreclosure judgment. The panel affirms, substantially for the reasons expressed below, according substantial deference to the trial judge and concluding that there was no abuse of discretion where the judge made extensive findings of fact and conclusions of law supporting the conclusion that defendants were properly served and that they failed to show either excusable neglect or a meritorious defense.
36-2-0280 Amezquita v. Donahue, App. Div. (per curiam) (8 pp.) In this automobile negligence action, plaintiff, a front seat passenger in a car driven by defendant Zape-Hernandez that collided with a car driven by defendant Donahue when Donahue attempted to make a left turn in front of Zape-Hernandez, appeals from an order dismissing her complaint after a jury returned a no cause verdict in favor of defendants, and from an order denying her motion for a new trial. The panel affirms, agreeing with the trial judge that the verdict was not a miscarriage of justice.
14-2-0281 State v. Howell, App. Div. (per curiam) (4 pp.) Defendant appeals from the denial of his pro se petition for post-conviction relief. The panel reverses and remands for appointment of PCR counsel because the judge disposed of the petition after considering the papers, determining that Rule 3:22-12 procedurally barred the petition, before PCR counsel received defendant's file and provided him with any representation.
CRIMINAL LAW — DISCOVERY
14-2-0282 State v. Cohen, App. Div. (per curiam) (30 pp.) This appeal requires us to balance the competing interests of a criminal defendant who seeks discovery of materials that go to the essence of the underlying charged offenses, with the public interest in prohibiting the dissemination of the same materials — contraband child pornography. The trial judge fashioned a protective order that, by its terms, provided for defendant’s discovery of the relevant materials but established strict guidelines that limited access and use of the materials. We conclude that while the state’s concerns focus on the possibility of misuse of the materials, the judge’s order recognizes these concerns and establishes procedures to minimize such eventuality. Accordingly, we conclude that defendant is entitled to discovery under the terms of the protective order and affirm. [Decided July 2, 2009.] [Approved for publication.]
CRIMINAL LAW — DISCOVERY
14-1-0283 State v. Scoles, Sup. Ct. (LaVecchia, J.) (33 pp.) The court establishes a template for courts to strike a proper balance between a defendant’s right to pretrial discovery and the public’s interest in protecting child pornography victims from the risk of unnecessary harm arising from the dissemination of child pornography images in the prosecution of criminal trials. Before a court grants defense counsel’s request for discovery of copies of alleged child pornography for viewing in their office, counsel must demonstrate their ability and willingness to abide by stringent conditions of control. In this case, the protective order is set aside, and the trial court must reconsider the defendant’s discovery request in light of the court’s opinion.