ADMINISTRATIVE LAW – UNEMPLOYMENT COMPENSATION
01-2-5683 Montes v. Board of Review, App. Div. (per curiam) (6 pp.) Here, where appellant's employer reasonably accommodated the restrictions imposed on him by his physician, and appellant did not establish that the employer denied him the necessary breaks or forced him to violate the push-pull restrictions, and appellant claimed that he left work because of the side-effects of his medication but offers no proof to support his contention nor did he provide the certification required by N.J.A.C. 12:17-0.3(d), and he sought no further accommodation from his employer, the record supports the board's finding that he left work voluntarily without good cause attributable to work and was ineligible for unemployment compensation.
11-2-5684 Brolley Electrical, Inc. v. Ernest Bock and Sons, Inc., Law Div. (Gloucester County) (8 pp.) In this dispute between a general contractor and a subcontractor for moneys allegedly due, the court denies the subcontractor's motion for summary judgment and grants the general contractor's motion finding that, pursuant to the clear and unambiguous "pay when paid" clause and "condition precedent" language in the parties' contract, no payment is due to the subcontractor until the general contractor is paid by the owner. [Decided May 18, 2009]
FAMILY LAW – ALIMONY – DIVORCE FROM BED AND BOARD
20-2-5685 Pipitone v. Pipitone, App. Div. (per curiam) (9 pp.) Finding that the Family Part judge erred in concluding that N.J.S.A. 2A:34-6 mandates that an award of alimony entered upon conversion to an absolute divorce, entered years after a bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order, and that the arbitrator intended the alimony award to be prospective, the panel reverses the order making the alimony award retroactive and remands for the limited purpose of entering an order awarding prospective alimony. The panel affirms the orders granting defendant's former attorneys a charging lien and requiring defendant to vacate the marital home which is being sold.
20-2-5686 Rosengarten v. Rosengarten, App. Div. (per curiam) (8 pp.) Defendant Sheri Rosengarten filed an application for an increase in alimony, counsel fees, discovery, mandatory economic mediation and a plenary hearing. In support of her contention of changed circumstances, defendant offered evidence documenting the disparity in the parties' lifestyles, a rise in the cost of living since the divorce and the alleged depletion of her assets. The appellate panel affirms Judge Jacobson's denial of defendant's application. Contrary to defendant's argument, there is no per se rule regarding inflation; inflation is a change in circumstances only if it "substantially affects [the] supported spouse's ability to maintain a lifestyle comparable to the marital standard of living." Furthermore, only after the dependent spouse has made the requisite prima facie showing of changed circumstances should the supporting spouse's "'ability to pay become a factor.'" The denial of counsel fees is affirmed where defendant has the ability to pay the fees from her own assets.
26-2-5687 Berkeley Square Association Inc. v. Zoning Board of Adjustment of the City of Trenton, App. Div. (Stern, P.J.A.D.) (21 pp.) After a property owner satisfies its burden of proving the existence of a nonconforming use at the time a zoning ordinance was amended, the objector to issuance of permits for rehabilitation of a building as a nonconforming use has the burden of going forward on the issue of abandonment before a property owner must meet its burden of persuasion as to continuation of the nonconforming use. [Approved for publication.]
LAND USE — USE VARIANCES — AESTHETIC FACTORS
26-2-5688 Darst v. Blairstown Township Zoning Board of Adjustment, App. Div. (Sabatino, J.A.D.) (36 pp.) Although a land use board ordinarily may not impose aesthetic conditions on a site plan, we sustain their imposition in the context of this bifurcated application. We do so because the use variance the board of adjustment had granted earlier to the applicants was founded on “special reasons” that included certain positive aesthetic factors relating to the placement of self-storage containers on the property. The board relied on the applicants’ representations in the use-variance phase that they would install rows of a certain kind of container near the front of the property, and the board was justified in rejecting the applicants’ later attempt in the site-plan phase to substitute a different kind of container that comparatively had visual drawbacks. We invalidate, however, the board’s attempt to shorten the two-year period assured to the applicants under N.J.S.A. 40:55D-52 for completing paving, landscaping and other “conditions subsequent” to the approved site plan. [Approved for publication.]
TAXATION — FAILURE TO PAY TAXES — LIENS AGAINST PROPERTY
35-5-5689 John Trebour Trustees v. Randolph Township, Tax Ct. (Bianco, J.T.C.) (11 pp.) The court held that the mandate to pay taxes in N.J.S.A. 54:3-27 is specific to the property subject to appeal, rather than all taxes that the taxpayer may owe at the time of filing his or her complaint. The court found this interpretation to be consistent with legal precedent that holds property taxes to be liens against the property rather than personal obligations, the legislative history of N.J.S.A. 54:3-27, and reasonable when viewing N.J.S.A. 54:3-27 in pari materia with other related statutes. In addition, the court held that R. 8:3-9 permits a taxpayer to withdraw a count in his or her complaint pertaining to property on appeal that is subject to a delinquency, even after the taxing municipality has filed a motion to dismiss for failure to pay taxes on that parcel. [Decided Oct. 1, 2009.] [Approved for publication.]
TAXATION — PARTIAL REASSESSMENT — TAX APPEAL DEADLINES
35-5-5690 Bear’s Nest Condominium Association v. Bergen County Board of Taxation, Tax Ct. (Pizzuto, J.T.C.) (6 pp.) An appeal to the Tax Court from a county board acceptance of a partial reassessment under Chapter 101 filed after the deadline for filing individual tax appeals was found untimely. [Decided Oct. 19, 2009.] [Approved for publication.]
35-2-5691 Home Depot, U.S.A., Inc. v. Director, Division of Taxation, App. Div. (8 pp.) The panel affirms the Tax Court's summary judgment dismissal of plaintiff's claim challenging defendant's denial of a refund of sales tax paid on uncollectible credit card purchases. Agreeing with the Tax Court that appellant presented an insufficient basis to create a genuine issue of material fact entitling it to a plenary hearing and that the matter was ripe for summary judgment, the panel concludes that here, where it is undisputed that plaintiff recovered from the finance companies with which it contracted an amount more than sufficient to pay the sales tax during the refund period and, regardless of whether its customer defaulted on the credit card obligation, it received the same payment with respect to the transaction, and paid the same service fee to the finance companies, it was not eligible for a refund under the Sales and Use Tax Act.
CRIMINAL LAW AND PROCEDURE – CHILD SEXUAL ABUSE
14-2-5692 State v. Corradi, App. Div. (per curiam) (21 pp.) Defendant Louis Corradi, III, was arrested on June 16, 2006, based on allegations that, at some time between December 21, 2004, and March 21, 2005, he engaged in unlawful sexual activity involving a four-year-old girl. Here, Corradi appeals his conviction on one count of third-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a). The conviction was based upon a guilty plea that he sought unsuccessfully to withdraw prior to sentencing. Because the appellate panel determines that the motion to withdraw the guilty plea should have been the subject of an evidentiary hearing, the panel vacates the order denying defendant's motion to withdraw his plea and remands to the Criminal Part.
CRIMINAL LAW AND PROCEDURE – CONTAGIOUS DISEASE
14-2-5693 State v. Roberts, App. Div. (per curiam) (14 pp.) Defendant Donna Roberts appeals from an order imposing a penalty for one violation of N.J.S.A. 4:22-26(l), which establishes penalties for persons who shall "[w]illfully sell, or offer to sell, use, expose, or cause or permit to be sold or offered for sale, used or exposed, a horse or other animal having the disease known as glanders or farcy, or other contagious or infectious disease dangerous to the health or life of human beings or animals . . . ." The Law Division judge's findings of fact and conclusions of law do not articulate facts or credibility determinations that support a finding that Roberts knew or was "practically certain" that her puppy had coccidia when he was sold. Because the record offers no support for such a finding, especially given the incubation period between exposure and the appearance of symptoms, the appellate panel reverses the judgment.
CRIMINAL LAW AND PROCEDURE – DRUNK DRIVING – CONDITIONAL GUILTY PLEAS
14-2-5694 State v. Denisi, App. Div. (per curiam) (5 pp.) Since, when defendant entered his conditional guilty plea to driving under the influence, he reserved only the right to appeal whether police had reasonable suspicion of a motor vehicle offense sufficient to justify a stop of his car or the probable cause to believe he had been driving under the influence required to arrest him and request that he submit to a breath test, the trial court erred in allowing him to raise for the first time on appeal his argument that the results of the breath test should have been suppressed because the police failed to advise him of his right to independent testing as required by N.J.S.A. 39:4-50.2(c) and the remand to the municipal court for a hearing on that argument is reversed.
BANKRUPTCY – MOTIONS TO WITHDRAW REFERENCES
42-7-5695 In re Bayonne Medical Center, The Official Committee of Unsecured Creditors of Bayonne Medical Center v. Evans, U. S. Dist. Ct. (Linares, U.S.D.J.) (7 pp.) The court denies defendant-Evans' motion to withdraw the reference pursuant to 28 U.S.C. sec. 157(d), the cross motion to withdraw the reference of the trustee defendants joining in Evans' motion, and the cross motion filed by the accounting firm joining in Evans' motion without prejudice to reinstatement after the Bankruptcy Court has concluded all pre-trial proceedings, finding, inter alia, that where the bankruptcy proceedings have been ongoing for two years and are still at their initial stages, given the bankruptcy judge's experience with the proceedings, he is best suited to oversee the pre-trial managerial matters of the adversary proceeding . [Filed October 20, 2009]
CIVIL PROCEDURE – UNTIMELY SERVICE OF PROCESS
07-7-5696 Law v. Schonbraun McCann Group, LLC, U. S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) In this action alleging employment discrimination, the court grants defendant's motion to dismiss pursuant to Rule 12(b)(5) for insufficient service of process, finding that plaintiff has failed to show good cause for failure to comply with the time limit requirement of Rule 4(m) for the service of a summons and that a discretionary extension of the time for serving a summons is not warranted under the circumstances here, including that plaintiff was initially represented by an attorney who had engaged in misconduct sufficient to warrant suspension and that she is now proceeding pro se, since she has already been granted extensions, the delay here was not insignificant, and the expiry of the statute of limitations does not weigh in her favor. [Filed October 19, 2009]
CIVIL RIGHTS – POLICE – FREE SPEECH
46-7-5697 Aiellos v. Zisa, U. S. Dist. Ct. (Martini, U.S.D.J.) (20 pp.) In this civil rights action filed by police officers alleging that defendant-police chief and others violated their constitutional rights by engaging in a pattern of extortion seeking, among other things, political contributions, and by retaliating against those who refused to donate, the court grants defendant-police captain's motion to dismiss the claims alleging RICO violations since plaintiffs fail to articulate any injury that they suffered in consequence of defendant's acquisition or maintenance of control of the alleged RICO enterprise (here, a government office) apart from the pattern of racketeering itself. It denies the motion with respect to the 42 U.S.C. sec. 1983 claim of violations of free speech and freedom of association rights and the claim of conspiracy to violate First Amendment rights, finding that the complaint alleges specific well-pled facts which, if proven, would establish that Padilla took or threatened to take retaliatory adverse actions. [Filed October 20, 2009]
12-7-5698 Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., U. S. Dist. Ct. (Hillman, U.S.D.J.) (31 pp.) In this action arising out of disputes among the parties who had joined together to create RCM Digesters, in which the main issue is the validity of the Separation Agreement executed to dissolve that entity and its effect on the parties' prior agreements and future duties, the court denies plaintiffs' motion for summary judgment on defendants' counterclaims arising under, inter alia, California and New Jersey law, regarding plaintiffs' copying of defendants' computer files, finding, among other things, that defendants' litigation hold did not authorize plaintiffs to copy the files, plaintiffs' conduct is not protected by the litigation privilege, they did not "own" data created after the date the parties' joint venture ended but that material issues of fact exist regarding the data created before that date, plaintiffs' computer expert damaged data when he made password changes but not when he deleted back-up images, money damages are for the jury to decide, and material issues of fact preclude summary judgment on the conversion claim. [Filed October 14, 2009]
DEBTOR/CREDITOR – PROMISSORY NOTES
14-7-5699 Khrakovskiy v. Denise, U. S. Dist. Ct. (Arleo, U.S.M.J.) (22 pp.) In this action for breach of contract, unjust enrichment, and fraud, arising out of defendants' failure to repay loans memorialized by three promissory notes, and the parties' factoring agreements, the court grants plaintiff's motion for summary judgment on the counterclaims for usury, tortious interference with contract and prospective economic advantage, breach of contract, breach of the covenant of good faith and fair dealing, and fraudulent inducement, finding that the loans were made to the corporation, not the individual guarantor, precluding the assertion of usury as a counterclaim and there is no evidence that the interest rate on the notes exceeded 25%, the threshold rate for criminal usury under New York law; and that defendants offered no evidence to prove that plaintiff intentionally and maliciously interfered with their entitlement to monies and that such interference caused the monies to be withheld, that they performed their obligations under the factoring agreements by repaying the loans before plaintiff declared them to be in default or that they would have made repayment had plaintiff waited until after the grace period, to show how plaintiff's alleged breach of the factoring agreements injured them or that he acted in bad faith or with an ill motive, and that they materially relied on plaintiff's alleged material misrepresentation to honor the grace period as a condition of their execution of the factoring agreements. [Filed October 19, 2009]
19-7-5700 Stansbury v. Brother International Corporation (USA), Dist. Ct. (Bongiovanni, U.S.M.J.) (19 pp.) Defendant Brother International Corporation (USA) ("BIC") moves for reconsideration of the Court's order finding BIC has the "legal right, authority or ability" to obtain documents requested by Plaintiffs and which directed BIC to obtain the Documents and to produce them. BIC argues that reconsideration is appropriate because new evidence shows that BIC is unable to obtain the documents requested by Plaintiffs. Here, the Court finds that when concluding that BIC has control over the documents, the Court did not overlook any controlling decisions or material facts. BIC's disagreement with the Court's decision that Plaintiff's satisfied their burden of proving control is not an appropriate basis for granting reconsideration. [Filed October 23, 2009]
19-7-5701 Major Tours, Inc. v. Colorel, Dist. Ct. (Schneider, U.S.M.J.) (16 pp.) Plaintiff's complaint alleges that Defendants engaged in racial profiling and discrimination when they inspected plaintiffs’ buses. Defendants’ present motion addresses plaintiffs’ request for electronic discovery. Defendants seek a protective order regarding plaintiffs’ request for copies of e-mail communications from the back-up tapes or archived e-mails maintained by the New Jersey Department of Transportation (“NJDOT”). Defendants claim the emails are “inaccessible” due to the cost and burden to retrieve them. Plaintiffs contend it is inequitable for defendants to argue it is costly and burdensome for them to retrieve their emails when they were under a duty to preserve them. The Court will not order defendants to search all of their backup tapes for the requested e-mails. However, if plaintiffs insist that the search be done, the Court orders defendants and plaintiffs to share the cost of searching the NJDOT’s December 2007 backup tapes (de-duplication). If plaintiffs request defendants to search the MVC’s March, 2006 backup tapes, then plaintiffs shall pay all costs to retrieve and search the tapes, including defendants’ cost to review their e-mails for relevancy and privilege. [Filed October 20, 2009]
LABOR AND EMPLOYMENT – AGE DISCRIMINATION
25-7-5702 Frankel v. Peake, U. S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) In this action alleging violation of the Age Discrimination in Employment Act in the failure of defendant-Secretary of the Department of Veterans Affairs to hire plaintiff as Chief of Ophthalmology at the VA Healthcare Systems facility in East Orange, the court grants defendant's motion for summary judgment, finding that plaintiff has not shown that defendant's reasons for not hiring him were pretextual or motivated by discrimination and he has not raised any material issues of fact necessitating a trial. [Filed October 20, 2009]
45-7-5703 Sorber v. Velez, Dist. Ct. (Thompson, U.S.D.J.) (8 pp.) Plaintiffs are applicants for Medicaid benefits who each possessed resources in excess of the amount at which they would be ineligible for Medicaid benefits under the Medicaid Act. Before applying for benefits, each Plaintiff transferred a substantial sum of money to his or her blind or disabled child. The state asserted that only those transfers that were made to an irrevocable trust established for the sole benefit of a disabled child are eligible for an exemption from the transfer penalty rules. Here, the Court grants Plaintiffs' motion for a preliminary injunction, finding Plaintiffs have adequately demonstrated that they will suffer two forms of irreparable harm—a serious risk of discharge from nursing facilities and an inability to recover improperly withheld benefits after a trial on the merits. Further, Defendants have not identified any harm they will suffer beyond the out-of-pocket expenses required to pay Plaintiffs’ benefits. Balancing the hardships weighs in favor of granting a preliminary injunction, as does the public interest. [Filed October 23, 2009]
