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Daily Decision Service Alert: Vol. 22, No. 122 - June 25, 2013
New Jersey Law Journal
STATE COURT CASES
07-2-0413 Dingler v. Yallof, App. Div. (per curiam) (5 pp.) Plaintiff appeals from an order dismissing his third complaint against defendant. The parties had entered into a settlement agreement to resolve all claims relating to their joint business venture. Under the agreement, defendant promised to pay plaintiff $90,000 pursuant to a specific payment schedule. Defendant also executed a confession of judgment in favor of plaintiff. When defendant defaulted on the required payments, plaintiff filed a complaint to enforce the settlement agreement and confession of judgment. Plaintiff’s first complaint was dismissed for failure to prosecute. Plaintiff’s second complaint was dismissed. Plaintiff's third complaint also sought to enforce the parties' settlement agreement. Defendant filed an answer and counterclaim, and a motion to dismiss. Defendant asserted that plaintiff's complaint was barred by duress, fraud, unclean hands, estoppel, waiver, laches, accord and satisfaction, the entire controversy doctrine, collateral estoppel, and res judicata. The court granted defendant's motion to dismiss and denied plaintiff's motion to vacate the dismissal and reinstate his complaint. On appeal, plaintiff argues the trial court erred because the merits of his underlying claims have yet to be decided by the court. Plaintiff also argues that because his claims were never adjudicated on their merits, the court erroneously concluded that his complaint is barred by res judicata or the entire controversy doctrine. The appellate panel agrees and reverses the order of dismissal. Plaintiff's complaint is reinstated.
20-2-0414 K.M. v. J.G., App. Div. (per curiam) (18 pp.) This is a domestic violence case. Defendant J.G. appeals from the entry of a final restraining order (FRO) against him and in favor of plaintiff K.M., issued under the Prevention of Domestic Violence Act of 1991 (Act). Plaintiff cross-appeals from the order awarding her only fifty percent of her counsel fees. The appellate panel affirms the FRO. Defendant's numerous e-mails threatening to release nude photographs of plaintiff into the public domain, attempting to extort money from her, bragging that he enlarged them — a fact later confirmed at a custody exchange of the parties’ child — and intimating that they have already been disseminated, constitute a course of conduct clearly meant to alarm, intimidate and seriously annoy plaintiff. There is also ample credible evidence that an FRO was necessary to protect plaintiff from further abuse. The panel remands the counsel fee issue to the Family Part for a statement of reasons and reconsideration.
LABOR AND EMPLOYMENT
25-2-0415 Sharp v. Board of Trustees, App. Div. (per curiam) (20 pp.) This matter involves the arrangement appellant Joseph Sharp had with the County of Union to continue as the administrator for Runnells Specialized Hospital of Union County following his July 1, 2003 retirement and receipt of pension benefits from respondent Public Employees' Retirement System (PERS). Administrative Law Judge Braswell determined that: Sharp was an employee of the County, not an independent contractor, who returned to a PERS-covered position following his retirement in violation of N.J.S.A. 43:15A-57.2; his retirement was not bona fide pursuant to N.J.A.C. 17:2-6.2; and he had to re-enroll in PERS, pay pension contributions for that enrollment, and repay all retirement benefits he received between August 1, 2003 and October 2009. PERS issued a final decision adopting ALJ Braswell's initial decision. On appeal, Sharp argues that the record does not support PERS's findings that he was a County employee post-retirement and did not meet the criteria of an independent contractor under the IRS twenty-factor test. The appellate panel rejects these arguments and affirms, finding there was more than sufficient credible evidence in the record as a whole supporting PERS's decision.
LABOR AND EMPLOYMENT
25-2-0416 Shipe v. Saker ShopRites Inc., App. Div. (per curiam) (37 pp.) Defendant appeals from a final judgment entered in favor of plaintiff after a jury found that Saker had wrongfully discharged plaintiff because of her female gender, in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The panel reverses the jury's finding of liability because the trial court failed to provide the jury with appropriately tailored instructions on the fourth element of a prima facie claim - replacement - and a corresponding detailed verdict sheet, and the panel cannot conclude that the omission was inconsequential. The panel also reverses the award of front pay because the evidence furnished by plaintiff did not meet the evidentiary burden necessary to justify an award for front pay as delineated in Quinlan, and the award of emotional distress damages because the charge blended the issues of harm from past and future emotional distress and because of the close nexus to the front pay claim. It remands for a new trial on those issues. The panel affirms the jury's award of back pay, contingent upon the outcome of the new trial regarding liability.
LAND USE AND PLANNING
26-3-0417 Ambielli v. Lebanon Twp., Law Division (Hunterdon County) (Buchsbaum, J.S.C.) (31 pp.) This case involves the proposed opening of a 13-bed residential substance abuse treatment facility by GenPsych, P.C.on property in the Industrial Zone of Lebanon Township. GenPsych sought conditional use approval for the proposed facility as an institutional use, a permitted conditional use in the zone. Plaintiffs challenge the planning board's approval of the application for conditional use and site plan approval as well as the grant of the requested bulk variance relief. The court finds that the board properly exercised its authority to interpret the ordinance and conclude that it includes private hospitals as permissible institutional uses and properly determined that the proposed facility constitutes a private hospital. The ordinance is severable and the board properly severed the negative criteria language of §400-11A of the ordinance which the board concedes is improper. The informal concept review meeting was proper. GenPsych was not obligated to seek review or ordinance interpretation prior to contacting the planning board. Condition #20 of the Resolution, limiting the operation of the facility regarding size, services rendered, and visitation, was not a ultra vires act by the board. The site plan and variance approvals, not having been challenged, except for condition 20, are affirmed. The Fifth Count of the Complaint, challenging §411A to the extent that it contains negative criteria language voided by Lincoln Heights, is struck down but that this action does not affect the affirmance of the conditional use, variance and site plan approvals under the valid provisions of §411B.[Filed June 13, 2013]
LAND USE AND PLANNING
26-1-0418 Price v. Himeji, L.L.C., and Union City Zoning Bd. of Adjustment, Sup. Ct. (Hoens, J.) (54 pp.) Evaluation of the particularly suitable standard is fact-specific and site-sensitive, requiring a finding that the general welfare would be served because the proposed use is peculiarly fitted to the particular location. Although the availability of alternative locations is relevant to this analysis, it does not bar a finding of particular suitability. In light of the thorough record and detailed resolution, the Appellate Division’s decision to exercise its original jurisdiction was proper, as was its decision to reinstate the board’s resolution granting Himeji’s application.
LAND USE AND PLANNING
26-2-0419 State of New Jersey, by the Commissioner of Transportation v. Shalom Money Street, L.L.C., App. Div. (Espinosa, J.A.D.) (9 pp.) In this condemnation case, both the state and the property owner filed appeals from the commissioners’ award fixing just compensation for a temporary taking. The issue before us is whether the trial court may reinstate the commissioners’ award over the parties’ objection after dismissing their appeals sua sponte. We conclude the trial court may not do so. [Approved for publication.]
LAND USE AND PLANNING
26-2-0420 Waste Management of New Jersey Inc. v. Newark Zoning Bd. of Adjustment, App. Div. (per curiam) (12 pp.) Defendant city appeals from the order of the Law Division declaring that portions of the city's land use ordinances and redevelopment plan, on which basis the board denied plaintiff's application to construct a building which would accept and process regulated medical waste, were preempted by the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -174 (SWMA), and the Comprehensive Regulated Medical Waste Management Act, N.J.S.A. 13:1E-48.1 to -48.28 (CRMWMA), to the extent that they pertain to the licensing, location and operation of plaintiff's proposed medical waste processing facility. Looking to the language of the statutes, the panel affirms, concluding that given the comprehensive nature of the CRMWMA and that the DEP can authorize facility construction in a municipality without that municipality's consent, the Legislature clearly intended to include facility siting within those areas superseded.
27-2-0421 Heyert v. Taddese, App. Div. (Parrillo, P.J.A.D.) (65 pp.) We hold in this instance that a landlord’s raising a tenant’s rent in excess of the municipality’s rent-control ordinance is a violation of the Consumer Fraud Act (CFA) by the occurrence of an affirmative act of misrepresentation. As such, plaintiff need not show actual deceit or fraud nor prove an intent to commit an unconscionable commercial practice and, therefore, a landlord’s mistaken reliance on counsel’s advice is not cognizable under the CFA’s strict liability standard. We also reject a series of challenges attacking Hoboken’s rent-control ordinance as unconstitutionally vague as it applies to condominiums, violative of the landlords’ civil rights under 42 U.S.C.A. § 1983, and amounting to an impairment of contract and a regulatory taking. Lastly, we conclude that the landlords’ appeal of the Rent Leveling Board’s 2005 legal base rent determination was untimely, and further uphold the lower court’s remand to the board for reconsideration of the grant of the landlords’ hardship application to consider the effect of the second mortgage on the landlords’ expected return on investment. [Approved for publication.]
04-2-0422 Spadaccini v. Main, App. Div. (per curiam) (4 pp.) Plaintiff Dino Spadaccini and defendant Kevin Main (Main) practiced law as Spadaccini Main from April 2002 through July 2010. Main and his wife, defendant Lisa Marin Main (Marin Main), purchased real property in 2002. The July 2010 transfer of this property from Main and Marin Main, jointly, to Marin Main alone, forms the basis for Spadaccini's filing of the complaint in this matter for, among other things, relief based on the Uniform Fraudulent Transfer Act (UFTA). In light of the resolution of all aspects of defendants' marital relationship in a divorce action, the trial judge granted summary judgment in favor of Marin Main. The UFTA action brought by plaintiff against Main and Marin Main has its genesis in malpractice liabilities incurred by Spadaccini Main. In this action, plaintiff asserted that Main avoided his responsibility for his share of the firm's losses by transferring his interest in the property owned by Main and his wife but conveyed, in the interim, to Marin Main alone. The appellate panel affirms, agreeing with the essence of the trial judge's disposition of the summary judgment motion. The panel discerns from the judge's decision that he held that what may have been fraudulently conveyed – Main's share of the proceeds resulting from the sale of the property – was restored to Main and, in the context of the divorce action, was placed in escrow and subjected to plaintiff's claim for satisfaction of its claims against Main. Plaintiff was entitled to no greater relief than that.
LEGAL PROFESSION — ATTORNEY FEE RECOVERY
04-4-0423 Gelber v. Heck, Chancery Div.-Bergen Cy. (Doyne, A.J.S.C.) (11 pp.) Before the court is what is denominated as a motion in aid of litigant’s rights supplementing an award of attorney’s fees brought by plaintiff’s attorney, Donald F. Burke, Esq., on behalf of plaintiff, Steven Gelber. Plaintiff also, in effect, brings a motion for reconsideration, although not so named. Burke brings this motion based on the court’s order awarding plaintiff $12,000 in attorney’s fees as the prevailing party in the underlying Open Public Records Act (“OPRA”) matter. Plaintiff’s motion in aid of litigant’s rights must be denied as moot as plaintiff has been paid the $12,000 pursuant to the court’s order. While plaintiff did not receive payment within the terms of the order—plaintiff received payment within thirty-seven days instead of thirty days—the court is not inclined to provide further relief as this delay was de minimis and adequately explained. Second, plaintiff shall not be awarded additional “supplemental” fees as his motion for reconsideration is untimely. Plaintiff failed to make an application within the “unrelaxable” twenty (20) days following receipt of the order as set forth in R. 4:49-2. Finally, even if plaintiff’s motion for reconsideration was timely, it would be denied substantively as it fails to meet the standard pursuant to R. 4:49, and in general is inappropriate given the initial award, Burke’s lack of candor, and the overall intention of OPRA’s fee shifting provisions.
29-2-0424 Parker v. Batarseh, App. Div. (per curiam) (25 pp.) In this medical malpractice case, plaintiffs appeal from three orders dismissing the complaint against defendants for failure to comply with the Affidavit of Merit statute. It is undisputed that plaintiffs failed to serve a timely affidavit of merit (AOM) on the doctor defendants, except for Cornwell. Plaintiffs' counsel, who presents herself as a solo practitoner, certified that she did not serve timely AOMs due to her own injuries which required two hospitalizations and interrupted her ability to work for eight weeks. The panel rejects the application of estoppel and laches as to the doctor defendants except Cornwell, finding that they acted diligently by filing their motions to dismiss timely and did not engage in conduct causing plaintiffs to change their position to their detriment. It also concludes that plaintiffs have demonstrated substantial compliance with the affidavit of merit statute by sufficiently demonstrating lack of prejudice, a series of steps taken to comply with the AMS, a general compliance with the purpose of the AMS, reasonable notice of the claims, a reasonable explanation regarding why there was not strict compliance with the AMS, and serving AOMs from qualified experts. It therefore reverses the orders as to the individual doctors.
37-2-0425 Chickara v. Jersey Central Power & Light, App. Div. (per curiam) (4 pp.) In this action alleging that defendant was negligent in terminating electric service to the deceased, who required the use of an electrical breathing device and who died a few days after the power was turned off, the panel affirms the trial court's denial, without prejudice, of defendant's motion to dismiss or transfer the matter to the Board of Public Utilities. The panel concludes that that the judge properly held that because some aspect of the suit may fall within the BU's primary jurisdiction does not necessarily mean that the BPU has exclusive jurisdiction over all issues and that there was no abuse of discretion where the judge indicated that she will again consider whether any such issue should be referred to the BPU after further development of the record.
FEDERAL COURT CASES
07-7-0426 Heine v. City of Garfield, Dist. Ct. (Mannion, U.S.M.J.) (7 pp.) Plaintiff Ellen Heine filed a motion to amend her pleading to file a third amended complaint in this civil rights action. Plaintiff sought to add several additional plaintiffs against the City of Garfield. Defendant opposes the amendment as futile and because Plaintiff is not an attorney authorized to file for others. The Court finds the proposed complaint in this matter requires re-pleading based on Rule 10(b). Further, there is no short and plain statement of claims showing that the putative plaintiffs are entitled to relief as required by Rule 8(a)(2). Instead, the putative plaintiffs appear to be witnesses to the claims asserted by plaintiff Heine. The Court denies Plaintiff’s motion to amend her pleading. [Filed May 29, 2013]
07-7-0427 Smalls v. Riviera Towers Corp., Dist. Ct. (2 pp.) Prior to the conclusion of briefing on defendants' pending motions to dismiss, pro se plaintiff attempted to filed second and third amended complaints adding additional defendants. Because, having already amended the complaint once, plaintiff is ineligible to amend again without first seeking defendants’ consent or requesting leave of the court, which she has failed to do, both the second amended complaint and the third amended complaint are stricken. [Filed June 10, 2013]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-0428 The Travelers Indemnity Company of America v. Coronation Sheet Metal Co., Inc., Dist. Ct. (Linares, U.S.D.J.) (5 pp.) Plaintiff The Travelers Indemnity Company of America is an insurance company that is incorporated and has its principal place of business in Connecticut. Plaintiff insured property (the “Property”) in Newark, New Jersey belonging to the law firm of Genova, Bums & Giantomasi (Genova), Plaintiff’s subrogor. Defendant Coronation Sheet Metal Co., Inc. is a New Jersey corporation with its principal place of business in Union, New Jersey. Defendant serviced the Property’s HVAC system; thereafter, pipes burst causing water damage. Plaintiff made payments to or on behalf of Genova in excess of $75,000. Plaintiff filed a complaint against Defendant as subrogee of Genova, claiming the water damage to the Property resulted from Defendant’s negligence. Plaintiff invokes the diversity jurisdiction statute as the basis for federal subject matter jurisdiction. Defendant filed a motion to dismiss the complaint based on lack of jurisdiction. There is no dispute that the amount in controversy exceeds $75,000 and there is diversity of citizenship between Travelers and Coronation. Nonetheless, Defendant argues there is no diversity of citizenship because Plaintiff’s rights are no greater than those of Genova, which does business in New Jersey. This argument lacks merit. As Genova’s subrogee, Plaintiff is entitled to seek recovery in its own name without adding any other party. Although Genova is Plaintiffs subrogor, it is not itself a party to this litigation. Thus, Genova’s citizenship is irrelevant to determining whether diversity jurisdiction exists. The Court finds federal subject matter jurisdiction exists and denies Defendant’s motion to dismiss. [Filed May 30, 2013]
EDUCATION — JURISDICTION
16-7-0429 Drexel University v. Obado, Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) Plaintiff, an educational institution located in Pennsylvania, filed a state court action against defendant in connection with a student loan. That action resulted in a judgment against defendant that was affirmed on appeal and certification was denied. Pro se defendant now moves to remove the matter to federal court, claiming a denial of his right to equal protection. The court remands the matter to state court, finding that under the Rooker-Feldman doctrine, it lacks subject matter jurisdiction over this matter which is, in essence, a prohibited appeal of the state court judgment. [Filed June 10, 2013]
17-7-0430 EPEC Polymers, Inc. v. NL Industries, Dist. Ct. (Shipp, U.S.D.J.) (24 pp.) Plaintiff EPEC Polymers, Inc. owns land in Woodbridge Township, New Jersey, along the shore of the Raritan River (the “EPEC Site”). The EPEC Site was used for the production of chemical products by EPEC and its predecessors in interest. This lawsuit concerns the “Central Wetlands,” which cover approximately 45 acres of the EPEC Site. Across the river, within the Borough of Sayreville, lies property formerly owned by defendant NL Industries and its predecessors that was also used for production of chemical products. EPEC predecessor entered into an agreement with the Army Corps for the placement of dredge spoils removed from the Raritan River on the Central Wetlands. Plaintiff contends that the source of the Radiological Contamination is the Radiological Materials discharged by Defendant into the Raritan River and removed to the Central Wetlands by the dredging process. Plaintiff’s complaint seeks to hold Defendant liable. Defendant’s motion to dismiss is granted with prejudice with respect to Plaintiff’s common law trespass count. Plaintiff’s common law private nuisance claim states a prima facie cause of action. Plaintiff’s count asserting CERCLA cost recovery pursuant to 42 U.S.C. § 9607(a), based upon both owner/operator and arranger liability, states a prima facie cause of action. Plaintiff’s CERCLA contribution claim pursuant to 42 U.S.C. § 9613(f), is dismissed with prejudice. Plaintiff’s CERCLA declaratory judgment count states a prima facie cause of action. Plaintiff’s common law indemnification claim is dismissed without prejudice. [Filed May 28, 2013]
23-7-0431 National Union Fire Ins. Co. of Pittsburgh PA v. Evanston Ins. Co., Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) Plaintiff, the excess liability insurance carrier for Budget Rent-A-Car, moves for summary judgment in this action against Evanston, Budget's primary insurer, seeking attorney fees and costs and indemnification for plaintiff's share of the damages in an underlying action against Budget that resulted in a settlement. Evanston opposes the motion and moves for summary judgment. It also objects to the court's consideration of evidence offered in support of plaintiff's motion. Noting that the objections have not been properly presented, but finding that they should be considered, the court orders Evanston to raise the objections anew, upon a proper notice of motion, and denies the motions for summary judgment. The court orders that Evanston, when moving anew to strike plaintiff's evidence, must set forth the factual basis for each objection and provide meaningful legal analysis. [Filed June 10, 2013]