Daily Decision Service Alert: Vol. 21, No. 187 - September 25, 2012

 

 

07-2-7759 Hobyak v. Hobyak, App. Div. (per curiam) (9 pp.) Plaintiff Lisa Hobyak and defendant Michael Hobyak were engaged in matrimonial litigation in Pennsylvania. While that action was pending - and may still be - Lisa filed this action on her own behalf and on behalf of Rycoja LLC, a New Jersey limited liability company of which she owns 70% and Michael owns 30%, against Michael and Pennco Institutes Inc., a tenant of Rycoja and of which Michael is president, asserting claims for Michael's alleged improper conduct as Rycoja's administrative member and seeking his disassociation from the LLC. Michael and Pennco appeal the judgment entered in favor of Lisa in this action claiming, inter alia, that principles of comity required the stay of the action. The panel affirms, finding that, inter alia, principles of comity did not require a stay because, while there is no doubt that the Pennsylvania action encompassed equitable distribution claims and that one of the parties' assets was Rycoja, this suit presented causes of action not normally litigated in matrimonial courts and involved a party, Pennco, which may not have been subject to the jurisdiction of the Pennsylvania courts. Moreover, with this suit's complete adjudication in the trial court, there is no adequate remedy available to appellant.   

 

11-2-7760 Precision Mirror & Glass, Inc. v. Liberty View Construction Corp., App. Div. (per curiam) (20 pp.) Defendant Liberty View Construction Corp. appeals from an order, entered after a bench trial, granting a $115,775 judgment in favor of plaintiff Precision Mirror & Glass, Inc. and dismissing defendant's counterclaim. Plaintiff sued defendant, a general contractor, on a book account for the delivery and installation of mirrors and glass shower enclosures in a newly-constructed residential complex on the Jersey City waterfront. Defendant filed a counter-claim for breach of contract and violation of the CFA. The appellate panel affirms the judgment in favor of plaintiff, rejecting defendant’s arguments that the verdict was against the weight of the evidence, the trial judge misapplied the Uniform Commercial Code (UCC), and the judge misconstrued the New Jersey Consumer Fraud Act (CFA).

 

11-2-7761 Carlton Hotel Associates Inc. v. Newark, App. Div. (per curiam) (12 pp.) Plaintiff-providers of temporary and emergency housing filed this breach of contract action alleging that defendant, which through its Department of Health and Human Services administered an Emergency Assistance Program pursuant to the Work First New Jersey General Public Assistance Act until June 2008 when responsibility was transferred to the county, failed to pay them for services provided from September 2007 to February 2008. The panel affirms the grant of defendant's motion for summary judgment finding that the judge correctly found that defendant is not equitably estopped from asserting that there was no contract between the parties as municipal bodies have only those power specifically delegated to them, the Act did not provide defendant with authority to enter into a perpetual contractual relationship with plaintiffs to administer the EA Program, and there was no justifiable and reasonable reliance here.

 

17-2-7762 Capital One Bank (USA), N.A. v. Palomino, App. Div. (per curiam) (3 pp.) Capital One Bank (USA), N.A. filed a complaint against Palomino in the Special Civil Part demanding judgment in the amount of $938.81 stemming from Visa credit card purchases. Palomino filed an answer indicating she did not owe the money. Capital One then filed a motion for summary judgment attaching only a certification from an authorized agent with a computer-generated report to substantiate the debt. Palomino responded to interrogatories by certifying that she never used a Capital One Visa account. The judge granted summary judgment in favor of Capital One. Palomino then filed a motion for reconsideration, directing the judge to the Appellate Division’s recent decision, LVNV Funding, L.L.C. v. Colvell, which reiterated the proof required to obtain a judgment on a revolving credit card debt. In response to the motion for reconsideration, Capital One supplied the judge with two past-due credit card statements from 2010, which reflected only a previous balance and the addition of fees and interest. The judge denied Palomino's motion for reconsideration. The appellate panel reverses the grant of summary judgment and remands, where Palomino has certified that she does not owe the debt and Capital One does not identify any specific transactions.

 

26-2-7763 In The Matter Of Gloucester County Utilities Authority Waste Water Management Plan, App. Div. (per curiam) (22 pp.) Silvergate Associates, OHI NJ Inc. and the Elk Township Municipal Utilities Authority filed separate appeals from the final decision by the Department of Environmental Protection (DEP) approving the Wastewater Management Plan (WMP) submitted by the Gloucester County Utilities Authority. Silvergate and OHI are landowners who seek to develop their properties in Elk Township's Planned Unit Development district. Silvergate and OHI claim that by approving the WMP, the DEP removed portions of their properties from the Authority's sewer service area. The appellate panel affirms in part, and reverses and remands for reconsideration of one aspect of the DEP's decision that appears to have been based on incorrect factual information. The appellate panel cannot determine on this record whether the DEP would have taken different action as to approval of the WMP if it had considered accurate infiltration and inflow (I/I) figures as represented by Silvergate rather than the vastly understated figure of 353,000 gpd stated by the DEP in its decision. This matter is remanded to the DEP to determine whether the I/I factual information it relied upon was accurate and, if inaccurate, whether correction of that data affects its approval of the WMP.

 

31-2-7764 Mingay v. RAD Data Communications, Inc., App. Div. (per curiam) (13 pp.) Plaintiff Deborah Mingay was injured while on her way to work, when she slipped and fell on ice in the parking lot of her office. This commercial property was owned by defendant RAD Data Communications, Inc. Deborah was employed by Radbit Computers, Inc., who leased office space from RAD Data. Deborah collected workers' compensation benefits from her employer. Deborah filed a complaint alleging negligence against RAD Data and Borst Landscape & Design, the company responsible for maintaining the premises. RAD Data filed an answer asserting that Deborah had received workers' compensation benefits from her employer and her complaint is barred by its immunity provisions. Plaintiff moved for summary judgment to strike defendant's immunity defense. RAD Data cross-moved for summary judgment. The trial court granted summary judgment to RAD Data on the grounds that RAD Data and Radbit were "joint employers" of Deborah. Since she had received workers' compensation benefits, her claim was barred by the immunity provision. The appellate panel reverses, finding Deborah was not employed by RAD Data and the trial court misapplied the law.

 

56-2-7765 I/M/O Brennan, App. Div. (per curiam) (9 pp.) Appellant appeals from a final decision of the New Jersey Transit Employee Retirement Plan's Committee denying his request to adjust his estimated monthly pension benefit because of an earlier clerical error as to his pension benefit service date. The panel affirms, finding that the Committee acted properly when it recalculated appellant's estimated monthly pension benefit using the correct service date where NJTERP exercised reasonable diligence in correcting the error which was found and corrected before his retirement became final; it did not act to harm appellant but to fulfill its fiduciary duty to ensure that its members receive only the benefits to which they are entitled; and appellant never contributed anything toward his pension prior to the date he was hired by NJT. Further, NJTERP is not equitably estopped from recalculating appellant's benefit for the same reasons., although he had been given periodic statements that incorrectly indicated that the date he was hired by the company that was purchased by NJT was the date on which he pension benefits began to accrue rather than the date he began to work for NJT. Also, appellant did not change his position in reliance on the incorrect information that had been given to him where he did not retire based on the incorrect information given to him and the inconvenience caused by the mistake is outweighed by the strong public interest in protecting the fiscal integrity of public employee pension plans. 

 

29-2-7766 Balmaceda v. Pelosi, App. Div. (per curiam) (11 pp.) Defendant Ahmad Khalili, M.D. appeals the denials of his motions to dismiss and for reconsideration in this action alleging that he committed malpractice in his capacity as chairman of Bayonne Hospital's Obstetrics and Gynecology Department by failing to adopt protocols that would have prevented plaintiff's obstetrician from using a vacuum extractor to pull the infant's head out of the Caesarean incision which procedure allegedly lead to the child's death. Khalili argues that his dismissal from a prior suit- which was dismissed without prejudice with consent of the parties - alleging that he had negligently treated plaintiff and the infant, pursuant to N.J.S.A. 2A:53A-40 barred this action. The panel finds that the dismissal was an erroneous order because Khalili failed to file a motion to dismiss with the affidavit of non-involvement as required by Rule 1:6-2(b)(2) , that it was interlocutory, that the court erred in denying plaintiff's motion for reconsideration of it, and that there was nothing inappropriate in the judge in this case acknowledging the previous error and not allowing the improperly-entered order to cause an unjust result.  

 

52-2-7767 Alfano, Jr. v. Margate City, App. Div. (per curiam) (9 pp.) Plaintiff made a request under the Open Public Records Act (OPRA), for police reports generated in connection with an incident involving a bicyclist falling from the Margate Bridge. Upon the advice of the county prosecutor's office, the Margate Police Department advised plaintiff that the report was exempt from disclosure because it was a "criminal investigatory record" not accessible under OPRA. Plaintiff filed a complaint and order to show cause against Margate City, the Chief of Police and the City's custodian of records, alleging violations under OPRA. Because the Margate Police had concluded its investigation with no charges being filed against any party, the trial judge found that the report did not constitute a criminal investigatory record that is exempt from disclosure under OPRA. However, the judge found plaintiff was not entitled to the police report because disclosure would violate the privacy expectations of the individuals referred to in the report, and dismissed the complaint. In so ruling, the judge rejected plaintiff's offer to accept a redacted copy of the report with the names of all of the individuals redacted. The appellate panel finds the trial judge erred in dismissing plaintiff’s OPRA claim by refusing to provide him with a redacted copy of the police report. The panel reverses the order dismissing plaintiff's complaint and remands for the trial court to redact the report to remove the identifying information. On remand, the court shall also address plaintiff's request for counsel fees.

 

01-14-7768 State in the Interest of A.W., Sup. Ct. (Hoens, J.) (60 pp.) Considering the totality of the circumstances, A.W.’s father willingly and voluntarily left the interview room, the questioning comported with the highest standards of fundamental fairness and due process, and the confession was made knowingly, intelligently, and voluntarily; therefore, A.W.’s confession is admissible.

 

 

07-7-7769 Stone v. The New Jersey Administrative Office of the Courts, Dist. Ct. (Rodriguez, U.S.D.J.) (11 pp.) In connection with matters filed in the Superior Court of New Jersey, Plaintiff, who proceeded pro se, contends he sought, but did not find, “ADA information so that he could address his requests correctly to the court system.” Plaintiff alleges the judiciary failed to effectively communicate the ADA procedures promulgated by the New Jersey Supreme Court or ADA policies administered by the Supreme Court’s Administrative Office of the Courts. He stresses that he did not have Internet access. Plaintiff alleges that he did make requests for accommodation to the judges handling his cases but those requests were denied. Assuming Plaintiff suffers from a disability, Plaintiff has not alleged that he was excluded from participation in, or denied the benefits of, a public entity’s services, programs, activities, or accommodations or was otherwise discriminated against by the public entity. Nor has Plaintiff connected any such exclusion, denial of benefits, or discrimination to his alleged disability. Thus, Plaintiff’s allegations do not state plausible claims. In addition, it appears this matter is an appeal of state court decisions, and violates the Rooker-Feldman doctrine. The Court grants Defendant’s motion to dismiss. Finding amendment would be futile, the Court denies Plaintiff’s motion for leave to file an amended complaint. [Filed September 5, 2012]

09-7-7770 Martina v. LA Fitness International, LLC, Dist. Ct. (Walls, U.S.D.J.) (7 pp.) This putative consumer class action concerns membership and service fees charged by Defendant LA Fitness International. Plaintiff entered into a Membership Agreement with LA Fitness and paid $287.81 to join the health club, which included an initiation fee and the first and last month’s dues. The Membership Agreement also authorized LA Fitness to charge Plaintiff monthly dues until she terminated her membership. Since Plaintiff’s cancellation notice was not postmarked 30 days prior to the next billing date, as required, LA Fitness charged her credit card one last time. Thus, Plaintiff paid for two months’ worth of dues after she decided to terminate membership and mailed the cancellation notice. Count I of the complaint alleges violations of the New Jersey Consumer Fraud Act (“CFA”), including the Health Club Services Act (“HCSA”). Count II alleges violations of the Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). LA Fitness moves to dismiss. Plaintiff’s main contention is that LA Fitness’s cancellation policy is designed to induce an extra month’s worth of membership payments, which is supported by the narrow restriction on the mode of cancellation which suggests an intent to place barriers on the process. Plaintiff has alleged sufficient facts for a CFA claim. The Court need not reach the HCSA issues. Plaintiff has also stated a plausible cause of action under TCCWNA based on the CFA claim. The motion to dismiss is denied. [Filed September 4, 2012]

 

17-7-7771 Ford Motor Company v. Edgewood Properties, Inc., Dist. Ct. (Salas, U.S.D.J.) (54 pp.) This action arises out of the demolition of a Ford plant in Edison, New Jersey, and the distribution of contaminated concrete from the site. Ford and Edgewood Properties entered into a contract whereby Ford agreed to provide concrete in exchange for Edgewood’s hauling it off the site. Edgewood brought the concrete to properties it was developing. The parties later determined the concrete was contaminated. Ford brought claims against Edgewood. Edgewood asserted cross-claims, counter-claims, and a third-party complaint, including claims against Arcadis, the company retained as Ford’s Industrial Site Recovery Act consultant. Arcadis moves for summary judgment on: Count I under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”); Count III Negligence; Count IV Civil Conspiracy; Count V under New Jersey RICO; and Count VII under the New Jersey Spill Act. It is unclear to what extent Arcadis was involved in the supervision of off-site distribution of contaminated concrete; the extent to which Arcadis participated in site meetings in which potential recipients were discussed; the extent to which Arcadis interacted with prospective recipients on the Edison Site when suitability was discussed; and the extent to which Arcadis knowingly or purposefully enabled the off-site distribution of contaminated concrete. Edgewood and its fellow opponents have satisfied their burden of raising genuine disputes of material fact as to each of these issues. Arcadis’s motion for summary judgment is denied. [Filed August 31, 2012]

 

14-7-7772 D.O. v. Borden, Dist. Ct. (Hillman, U.S. D.J.) (5 pp.) Plaintiffs, who filed this action on behalf of their minor children alleging, inter alia, that defendants violated their equal protection rights by disregarding the Attorney General Guidelines for Stationhouse Adjustment of Juvenile Delinquency Offenses when their children were charged with minor alcohol-related offenses while they were juveniles, the court denies plaintiffs' motion for summary judgment on their equal protection claim against the borough, finding that discovery should be completed prior to consideration of plaintiffs' motion particularly because their other claims , for which they are not seeking summary judgment at this time, are significantly intertwined with their equal protection claim against the borough and because they are seeking to certify a class action as to all their claims. [Filed September 24, 2012]

 

21-7-7773 Hand v. The United States of America, Dist. Ct. (Wolfson, U.S.D.J.) (17 pp.) Defendants, the United States of America, United States Parole Office, United States Parole Commission, and the Federal Bureau of Prisons (collectively “the Government”) move to dismiss Plaintiff’s Complaint, arguing that the Court does not have subject matter jurisdiction to hear this case because the Government is insulated from suit by sovereign immunity and that Plaintiff Colleen Hand has failed to state a claim upon which relief can be granted. Plaintiff filed her complaint on behalf of herself and as Administratix of the Estate of Angela Bellifemini. Her claims stem from Bellifemini’s murder, allegedly committed by Alexander Antoniades, who was under supervised release at the time of Bellifemini’s death. Hand alleges that the Government was negligent in its supervision of Antoniades, and in particular, that the Government should have informed the district court of Antoniades’s violation of his supervisory release, and that such negligence contributed to Bellifemini’s death. Because the discretionary function exception of the Federal Tort Claims Act applies, sovereign immunity is not waived and the Court does not have subject matter jurisdiction to address Plaintiff’s complaint. Defendants’ motion to dismiss is granted. Plaintiff’s complaint is dismissed. [Filed September 7, 2012]

 

23-7-7774 In re Camden Cases, City of Camden v. State National Ins. Co., Dist. Ct. (Schneider, U. S. M.J.) (12 pp.) Plaintiff city filed this declaratory judgment action contending that its insurer owes it a defense and indemnification in 68 cases filed against it alleging that the police officer defendants falsified their police reports, planted evidence and testified falsely and asserting claims under 42 U.S.C. section 1983 for violation of their civil rights. Certain of those plaintiffs have moved to intervene in this action contenting that have an important interest in the coverage case because its outcome will determine the extent of the city's available insurance coverage and hence the extent of their potential recoveries. The court denies their motion, finding that movants are foreclosed from intervention by Liberty Mut. Ins. Co. v.Treesdale Inc. Their interest in maximizing Camden's insurance coverage does not create a sufficient interest to support intervention as of right, and since Camden and the movants share the same interest in maximizing Camden's insurance coverage, movants' interests are adequately protected. Movants' contingent financial interest in Camden's insurance policies is also insufficient to create a common question of law or fact supporting permissive intervention, and permissive intervention would significantly complicate Camden's declaratory judgment action and would result in confusion and prejudice. [Filed September 24, 2012]

 

25-7-7775 Faust v. Northfield Board Of Education, Dist. Ct. (Hillman, U.S.D.J.) (13 pp.) Plaintiff filed a complaint alleging that defendant Northfield Board of Education violated the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA), plaintiff’s procedural due process rights, and her First Amendment rights. Plaintiff also alleged that defendant made defamatory statements about her. Defendant filed a motion to dismiss plaintiff’s original complaint. Plaintiff filed her response attaching a proposed amended complaint 42 days after defendant filed its motion and, therefore, requires the opposing party’s written consent, or leave of court. In her response, plaintiff agreed to dismiss her NJLAD, CEPA and Weingarten due process claims, but requested leave to file an amended complaint as to her First Amendment retaliation and defamation claims. Defendant has not shown that plaintiff should be barred from filing an amended First Amendment claim on grounds of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment. Defendant has shown, however, that the portion of plaintiff’s defamation claim that accrued 90 days or more before plaintiff filed her notice of claim is barred under the New Jersey Tort Claims Act and amendment of those claims is therefore futile. Plaintiff will be permitted to file an amended complaint as to any non-dismissed claims. Plaintiff will be permitted to assert any defamation claim that accrued within 90 days of filing her notice of claim. [Filed September 4, 2012]

25-7-7776 Iwanicki v. Bay State Milling Co., Dist. Ct. (Cecchi, U.S.D.J.) (10 pp.) In this breach of contract action, plaintiff alleges that he was fired without cause in violation of defendant's express and implied promises regarding his continued employment on which he relied to his detriment in not pursuing a workers' compensation claim. The court grants defendant's motion to dismiss without prejudice because plaintiff has failed to identify the contract that was allegedly breached and does not assert that the promises allegedly violated by defendant constituted a contract. Further, even if plaintiff's claim is construed as one under section 301 of the Labor Management Relations Act, it fails because he has failed to plead exhaustion of the collective bargaining agreement's grievance procedures and he has not pled that the union breached the duty of fair representation. If plaintiff's claim is construed as one for promissory estoppel, it fails because he does not elaborate as to the clear and definite promise allegedly made by defendant. Plaintiff also fails to state a claim for age discrimination under the Age Discrimination in Employment Act and even if he had, it would fail as untimely filed. [Filed September 21, 2012]

 

Note: In the 9-24-12 alert, case 31-2-7749, Faika v. Saini, was incorrectly spelled. The correct case name is Feika v. Saini. We apologize for any inconvenience.