ADMINISTRATIVE LAW — LONGSHOREMAN LICENSE
01-2-5736 In the Matter of Smith, App. Div. (per curiam) (13 pp.) After a hearing before an administrative law judge ("ALJ"), the Waterfront Commission of New York Harbor revoked appellant Christian Smith's license to work as a longshoreman. This discipline was based upon three discrete grounds. The appellate panel here concludes the Commission unduly relied upon one of those grounds, appellant's admission of past cocaine use, in ordering revocation and in rejecting the ALJ's recommended lesser sanction of a six-month suspension. Because the Commission apparently overlooked appellant's self-help in obtaining drug treatment as a potential mitigating factor, the panel vacates the order of revocation and remands this matter to the Commission for reconsideration.
23-2-5737 Cotugno v. Euro Lounge, App. Div. (per curiam) (9 pp.) Interpreting the terms of the commercial general liability policy issued to defendant-lounge, the panel affirms the trial court's determination that the policy exclusion for assault and battery does not apply to bar coverage here where plaintiff, a patron, was escorted from the premises by security personnel and tripped over a parking block, fracturing his ankle, since bodily injury resulting from the use of reasonable force to protect persons is not excluded from coverage.
36-2-5738 Kennedy v. City of Bayonne, App. Div. (per curiam) (7 pp.) Plaintiff Lauren Kennedy suffered a comminuted displaced intra articular fracture of the distal radius of her right wrist as a result of a fall on ice and snow on a sidewalk located in the Kill Van Kull Park in Bayonne. Here, the appellate panel affirms the Law Division's order granting summary judgment to defendant City of Bayonne for plaintiffs' failure to vault the Tort Claims Act (TCA) threshold. A fully healed fracture will not meet the tort claims threshold absent "objective evidence of permanent substantial impairment." There is no such evidence here.
TORTS — WRONGFUL DEATH — WORKERS' COMPENSATION
36-2-5739 Montalvo v. Lincoln Ave. Corporation, Inc., App. Div. (per curiam) (13 pp.) In this wrongful death action, plaintiff appeals summary judgment in favor of defendant Lincoln Avenue Corporation, Inc. Plaintiff's husband, Oscar Montalvo, was fatally shot while he was performing his duties as superintendent of residential properties owned by Lincoln Avenue. Lincoln Avenue took the position, accepted by the Law Division, that it was a joint employer of Montalvo and therefore protected by the exclusive remedy provisions of the Workers' Compensation Act. The issue was, and is, essentially whether the rental value of the decedent's apartment, which was part of the decedent's remuneration for his services as superintendent of apartments managed by T.R. Murnick and owned by Lincoln Avenue, constituted compensation only from Murnick or from Murnick and Lincoln Avenue jointly. The appellate panel affirms the grant of summary judgment, agreeing with Judge Winard's determination that Lincoln Avenue and T.R. Murnick are joint employers.
38-2-5740 I/M/O Will of Riley, App. Div. (per curiam) (6 pp.) In this appeal by the executrix of the award of counsel fees to plaintiff-unsuccessful proponents of a purported codicil to the decedent's will and of the denial of her application for sanctions against plaintiffs, the panel affirms the fee award and the decision regarding sanctions, finding that the probate judge did not abuse her discretion, but remands to the Probate Court for verification that the litigation is being funded by plaintiffs and not a third-party and of the amount, if any, that has been paid to counsel by plaintiffs and the amount, if any, still owed to him to ensure that counsel is or has been paid the full amount of the award and that Rule 4:42-9(a)(3) is not being used to reimburse fees paid or payable by a non-party.
07-7-5741 Cincerella v. Egg Harbor Township Police Department, Dist. Ct. (Kugler, U.S.DJ.) (9 pp.) This action arises out of the arrest and detention of Plaintiff Mario P. Cincerella. Plaintiff originally filed suit against defendants Egg Harbor Township Police Department, the State of New Jersey, Chief of Police John J. Coyle, and John Does Probations Officers. Plaintiff's amended complaint added as defendants Officers Gary Rzemyk, Charles Davenport, Edward Bertino, Paul Roden, and Casey Simerson ("the Defendants"). In previous decisions, the Court dismissed all defendants except Davenport, Roden, and Bertino. Presently before the Court is the defendants' Motion for Summary Judgment based on a statute of limitations defense. Because the Court finds that plaintiff's failure to name the defendants in the original Complaint was not the result of a mistake of identity, the defendants' motion is granted and the case is dismissed. [Filed October 28, 2009]
13-7-5742 In Regard to the Matter of: Bayside State Prison Litigation, Dist. Ct. (Bissell, Special Master) (26 pp.) On the complaint of John Marchetti concerning claims against correction officers, the Special Master finds that there excessive, unnecessary and sadistic force imposed on Mr. Marchetti. The acts of striking Mr. Masrchetti went well beyond the necessity of any proper law enforcement needs or any proper exercise of discipline or any other legitimate penalogical purpose. Furthermore, there was clearly the demonstration of an evil motive and intent on behalf of the officers to sadistically inflict punishment sufficient to support a judgment for punitive damages.
24-7-5743 Thomason Auto Group, LLC v. Ferla, U. S. Dist Ct. (Linares, U.S.D.J.) (13 pp.) In this action arising out of defendants' alleged orchestrated plan to file bankruptcy petitions to drive two corporate entities in which plaintiff had a sizable investment and with which he had a distributorship agreement out of business, asserting numerous claims including RICO violations, fraud in the inducement, unjust enrichment, and intentional and negligent misrepresentation, the court grants defendants' motion to transfer venue to the United States Bankruptcy Court for the Central District of California, finding that this matter is related to the bankruptcy proceeding since the facts, parties and claims brought here and in the Bankruptcy Court are inextricably intertwined, plaintiff's claim for a jury trial does not preclude the transfer, and that, in the interests of justice, the matter should be transferred. [Filed October 23, 2009]
