01-2-5718 I/M/O Zahl, App. Div. (per curiam) (8 pp.) The panel finds that this appeal of the denial of his petition to the board of medical examiners to reconsider its earlier action revoking appellant's license to practice medicine in this State or to vacate its earlier order based on a newly acquired letter of interpretation from a medicare official is markedly out of time. It also comments on the merits of the appeal, noting that the findings and conclusions made at every level were founded on more that the medicare overpayments and that, therefore, the medicare official's interpretation that a finding of "not without fault" is not necessarily being synonymous with fraudulent conduct is irrelevant to the multiple findings of deceitful conduct that support the discipline imposed.
43-2-5719 Lucca Contracting, Inc. v. Targan, App. Div. (per curiam) (14 pp.) Plaintiff Lucca Contracting, Inc. and defendants/third-party plaintiffs Donald G. Targan and Edward DiNicolantonio (collectively, Targan) entered into a contract for Lucca to perform site work at a project known as Pine Creek Drive in Hamilton Township. Targan hired third-party defendant, Duffy, Dolcy, McManus & Roesch (DDMR), to provide certain surveying and engineering services to develop the site. Under the contract between Lucca and Targan, Targan was required to pay $224,500 in four draws. Targan paid the first and second draws but failed to pay the third and fourth draws. Here, the appellate panel affirms a judgment returned against Targan for breach of contract and the trial court's order denying their motion to mold the verdict.
20-2-5720 Hrycak v. Hrycak, App. Div. (per curiam) (45 pp.) In these two consolidated matrimonial appeals, plaintiff Michael P. Hrycak seeks review of various orders the Family Part issued after his divorce trial. The appellate panel affirms the trial court's award of primary residential custody of the parties' two minor children to their mother, defendant Rita Hrycak. However, the panel remands the issues concerning the court-approved relocation of the children to California with defendant, pending the development of a detailed parenting plan and a reexamination by the trial court of whether such a parenting plan feasibly allows the children to maintain an adequate relationship with plaintiff. The panel also remands to the trial court issues concerning the sale of the marital residence and the related home equity line of credit.
25-2-5721 DiFulvio v. Board of Review, App. Div. (per curiam) (4 pp.) Finding that the board's conclusion that appellant left work voluntarily without good cause attributable to the work is supported by sufficient credible evidence in the record, despite her claim that she left because of anxiety caused by the stress of giving young children haircuts, which claim the Appeals Examiner did not credit, the panel affirms its determination that she is not eligible for unemployment compensation.
25-2-5722 Astorga v. Board of Review, App. Div. (per curiam) (6 pp.) Finding that the record amply demonstrates that appellant resigned to care for a sick relative, a circumstance the Board of Review correctly determined to be a disqualifying event, and that it correctly found that the employer's requirement that appellant, an accountant, work extra hours during the audit period was not a change in working conditions, the panel affirms the decision holding her disqualified from receiving unemployment benefits.
31-3-5723 Barunas v. Hunterdon Medical Center, Law Div.-Hunterdon Cy. (Buchsbaum, J.S.C.) (8 pp.) This matter arises out of the alleged negligence and malpractice of Hunterdon Medical Center, Dr. Nimish Mehta and Nurse Susan Tepper for their failure to adequately treat and for premature discharge of the plaintiff. Dr. Mehta serves as an emergency room physician at Hunterdon Medical Center. After filing suit, plaintiff experienced difficulty obtaining an affidavit of merit as to Dr. Mehta. His certification states he attempted to contact several doctors before obtaining the affidavits at issue. In lieu of an affidavit from a certified emergency room physician, plaintiff offered affidavits from Dr. Shields and Dr. Powers. Both doctors have emergency room experience but neither is a board certified emergency room physician. Since plaintiff demonstrated both good faith efforts to find an expert from the same subspecialty and the suitability of the affidavits provided, the Court will grant his application for a waiver pursuant to N.J.S.A. 2A:53A-41(c). The hearing ordered is therefore unneeded. Plaintiff's motion for reconsideration is granted. Defendant's motion to dismiss is denied.
52-3-5724 Geier v. Township of Plumsted, Law Div.-Ocean Cy. (Grasso, A.J.S.C.) (9 pp.) Plaintiff Mitch Beier is a write-in candidate in the Township committee race in Plumsted. Plaintiff sought two items from the Township Clerk, and was denied access. The Township maintains a free email alert list to which citizens may subscribe and receive information. Plaintiff sought this email address subscription list as well as all tort complaints filed against the township in the last two years. Plaintiff was denied the email list and was sent the tort complaints with personal information redacted. Plaintiff filed the Order to Show Cause without immediate restraints, seeking a declaration that defendants have committed violations of OPRA, compelling the unredacted tort filings, and compelling defendants to supply the email address list to plaintiff. Here, the court finds in favor of plaintiff and declares the email subscription list a government record subject to release under OPRA, as well as the address of a tort claimant. The court will continue the matter of civil penalties to allow the parties to supplement the record.
39-2-5725 Rader v. Omni Financial Services, Inc., App. Div. (per curiam) (22 pp.) This matter arises from a workers' compensation claim petition filed by Matthew Rader. Appellant Continental Casualty Company (CNA) appeals and Omni Financial Services, Inc., t/a OmniStaff (Omni) crossappeals from two orders of the Division of Workers' Compensation. One of the orders determined that petitioner was jointly employed by Quality Medical Transport, Inc. (QMT) and Omni, and Omni's affiliates, subsidiaries and related entities. That order further determined that Omni and its affiliates, subsidiaries and related entities were insured by CNA and that CNA was liable for payment of medical and disability benefits to Rader. The second order dismissed claims against the State of New Jersey Uninsured Employers Fund. Here, the appellate panel affirms both orders, finding the judge of compensation correctly determined that Omni was QMT's professional employment organization (PEO), pursuant to N.J.S.A. 34:8-67 to -79, at the time of Rader's injury and, thus, a co-employer. The panel remands for a modification of the first order to delete references to Omni's affiliates, subsidiaries and related entities.
04-8-5726 Wilson v. Jacobs, Third Circuit (per curiam.) (4 pp.) Appellant Tony A. Wilson passed the July 2007 New Jersey Bar Examination. The New Jersey Committee on Character advised Wilson that, pursuant to regulations governing admission to the New Jersey Bar, it intended to hold a hearing regarding his application. The Committee also requested that Wilson provide additional information, including the status of his bar applications in other states. The Committee has not yet held a hearing on Wilson's applications nor has it made any decisions or recommendations as to the status of his application. Wilson filed his complaint in the District Court, alleging that Appellee violated his due process rights by relying on information the Florida Board of Bar Examiners and the Connecticut Bar Examining Committee, both of which denied Wilson admission to their respective states' bars. The Third Circuit agrees with the District Court that Wilson's case is not yet ripe for adjudication and affirms the District Court's granting of Appellee's motion to dismiss. The parties do not have adverse interests nor is there a conclusive judgment since the Committee has not yet acted on Wilson's bar application. [Filed October 16, 2009]
42-8-5727 In re Victor Mondelli, Third Circuit (Fuentes, U.S.C.J.) (6 pp.) In May 2007, the Bankruptcy Court approved a plan whereby Debtor-Appellant Mondelli would satisfy a portion of his debts by mortgaging his property in Berkeley Heights. Mondelli obtained the loan from Jack Silverman Realty & Mortgage Co. ("JSRM") and used the loan proceeds to pay his creditors. Atypically, the mortgage agreement with JSRM was accompanied by a ninety-nine year ground lease to another company, Berkeley Realty Partners ("BRP"). The present dispute arose when BRP attempted to obtain a mortgage on the property, invoking the provision of the lease requiring Mondelli to subordinate his interest. Here, Mondelli appeals the decision of the District Court affirming the Bankruptcy Court's order enforcing the mortgage and lease. The Third Circuit affirms the District Court's order dismissing Mondelli's appeal from the Bankruptcy Court, finding BRP's right to repurchase would not affect Mondelli's ability to redeem his mortgage. Also, even if the right of first refusal did clog the equitable right of redemption, the remedy would be to render the provision unenforceable, not to invalidate the entire lease. Lastly, while the subordination clause might affect Mondelli's ability to obtain other financing at a favorable rate, the clause does not prevent him from actually redeeming his mortgage, and thus cannot be considered a clog to that essential right. [Filed October 20, 2009]
07-8-5728 Kanoff v. Better Life Renting Corp., Third Circuit (Chagares, U.S.C.J.) (7 pp.) Barbara Kanoff appeals from the District Court's order denying her motion to extend the time to file a notice of appeal. The local rules required that notices of appeal be electronically filed. Kanoff's counsel attempted to timely file the notice in hardcopy form, but due to an incorrect address, when it was received by the Clerk, it was no longer timely. The Third Circuit finds the District Court did not abuse its discretion in ruling that counsel's failure to file the notice of appeal electronically was not an instance of "excusable neglect" within the meaning of Rule 4(a)(5)(A)(ii). [Filed October 28, 2009]
07-7-5729 Thompson v. Eva's Village and Sheltering Program, Dist. Ct. (Wigenton, U.S.D.J.) (21 pp.) Pro se Plaintiff Steven Thompson filed a motion for reconsideration and to strike in which he asserts that an April 1, 2009 Order, denying his in forma pauperis application on the basis of the October 20, 2008 Letter Order filed in Thompson v. Eva's Vill. & Sheltering Program, is erroneous. He asserts that his complaint should be filed without the payment of the filing fee. He also filed a Motion for Investigation Because of Intentional Fraud upon the Court by Officers of the Court. Here, the court grants Plaintiff's motion for reconsideration and vacates the April 1, 2009 order. The court finds the Complaint is frivolous, malicious, fails to state a claim for which relief may be granted and seeks monetary relief against Defendants who are immune from such relief. Because no amendment could cure the deficiencies in the complaint, it is dismissed. [Filed October 28, 2009]
11-7-5730 Century 21 Real Estate L.L.C. v. Mills First, Inc., Dist. Ct. (Walls, U.S.D.J.) (27 pp.) Plaintiff Century 21 filed a Complaint against Defendant Mills First, Inc., alleging that Mills First violated the Franchise Agreements between the parties by terminating Century 21 franchises before their expiration dates, and violated the Lanham Act by engaging in unlawful use of Century 21 names, symbols, and marks. Here, the Court grants Century 21's motion for final judgment by default. Mills First is ordered to immediately and permanently discontinue all use of Century 21 names, marks, and symbols; Mills First is ordered to allow Century 21 to examine the books and records of the six franchises to determine whether Century 21 is entitled to any unpaid fees or contributions of which it is unaware; Century 21 is granted breach of contract damages in the amount of $172,900.23, which is comprised of $48,436.26 for unpaid franchise fees and $124,463.97 for liquidated damages. Century 21's request for attorneys' fees and costs is denied without prejudice and with leave to refile. [Filed October 27, 2009]
21-7-5731 McMullen v. Maple Shade Township, Dist. Ct. (Kugler, U.S.D.J.) (10 pp.) Defendant Maple Shade Township moves to dismiss the Amended Complaint of Plaintiffs Joseph McMullen and Christopher Obchinetz, which brings federal claims pursuant to 42 U.S.C. § 1983 for alleged violations of Plaintiffs' rights under the Fourth and Fourteenth Amendments, as well as claims for violations of various state constitutional, statutory, and common law rights. At issue here is the preemptive effect of the New Jersey Alcoholism Treatment and Rehabilitation Act ("ATRA") on the New Jersey Home Rule Act of 1917, as well as some 270 local ordinances enacted thereunder. New Jersey's Home Rule Act authorizes municipalities to, inter alia, make and enforce ordinances to "[p]revent vice, drunkenness and immorality" and to "[r]estrain and punish drunkards . . . ." ATRA provides, in pertinent part, that "no county, municipality, or other jurisdiction within [New Jersey] shall adopt an ordinance . . . creating an offense of public intoxication or any equivalent offense," and that "any existing ordinance . . . creating such an offense is . . . repealed." All of Plaintiffs' claims currently before the Court arise from arrests made and prosecutions pursued under allegedly invalid public intoxication ordinances. Finding Plaintiffs' Amended Complaint is based on state law claims and fails to state a cognizable federal claim, the Court grants Defendant's motion to dismiss. [Filed October 28, 2009]
24-7-5732 The Prudential Insurance Company of America v. Bennett, Dist. Ct. (Greenaway, U.S.D.J.) (11 pp.) Plaintiff Prudential Insurance Company of America filed an Interpleader Complaint seeking a determination of the disbursement of death benefits. This matter comes before the Court on the motions filed by plaintiff, seeking entry of default judgment against defendants, Cynthia Bennett, Everett Bennett, Laura Christine Bennett, Elizabeth Livingston, and Mulhearn Funeral Home, Inc. Plaintiff has failed to demonstrate that this Court has personal jurisdiction over defendants, who reside in Louisiana and have no apparent contact with New Jersey. Plaintiff has alleged no facts to show minimum contacts with the forum on the part of Defendants sufficient to establish personal jurisdiction. Plaintiffs' motions are denied. [Filed October 27, 2009]
23-8-5733 G-I Holdings; Heyman v. Reliance Ins. Co., Third Circuit (Ambro, C.J.) (34 pp.) When Reliance, from which plaintiff had purchased Director and Officer coverage, began experiencing financial difficulties, plaintiff, to protect itself, split its initial coverage between Reliance and Hartford. After Reliance went into liquidation, plaintiff sought coverage for three fraudulent conveyance actions against its CEO, two of which were filed during Hartford's policy period. The court affirms the District Court's denial of coverage finding, inter alia, that the two policies did not cover the same period, the relationship between the insurers did not support a reasonable expectation of coverage, the policy's interrelated wrongful acts provision is applicable to bar coverage, and Hartford is not judicially estopped from invoking that provision. [Filed October 26, 2009] [Precedential]
45-8-5734 Abulkhair v. Commissioner of Social Security Administration, Third Circuit (per curiam.) (5 pp.) In 2002, pro se appellant Assem Abulkhair filed an action in District Court for review of the Social Security Administration's Appeals Council's decision that he was ineligible for disability benefits. Here, Abulkhair appeals the District Court's order of December 11, 2007, denying his motion to reinstate an appeal. The order stated, in part, that the District Court "had previously denied such a reopening and that such denial was proper and that no basis exists for either a reopening or a reconsideration of the prior decision." The Third Circuit vacates the District Court's order, concluding the District Court should have construed Abulkhair's motion as seeking review of the 2007 decision rather than as a motion to reopen. The circuit panel remands with instructions for the District Court construe Abulkhair's submission as a new civil action filed under 42 U.S.C. § 405(g). [Filed October 26, 2009]
14-8-5735 Gardner v. Grandolsky, Third Circuit (per curiam) (14 pp.) The Bureau of Prisons' regulation categorically excluding felons whose offenses involved possession of a firearm from eligibility for a sentence reduction upon completion of a substance abuse treatment program is not arbitrary and capricious under the Administrative Procedure Act and the District Court's denial of plaintiff's petition for a writ of habeas corpus on that basis is affirmed. [Filed October 26, 2009] [Precedential]
