Daily Decision Service Alert: Vol. 21, No. 222 ? November 14, 2012

 

20-2-8177 L.F. v. S.T.C., App. Div. (per curiam) (11 pp.) Defendant, who is serving a 20-year sentence, appeals from the Family Part order denying his motion for telephonic and monthly video conference visitation with his three and four-year old children. The panel affirms substantially for the reasons expressed below. It adds that the court did not err in failing to conduct a plenary hearing on defendant's second motion for visitation made five weeks after the order denying visitation which was made after a plenary hearing. Further, the court did not err in not ordering a psychological evaluation to determine the children's best interests where plaintiff's concerns for their psychological and emotional welfare were clearly presented and defendant did not ask the trial judge to order a psychological evaluation. 

 

20-2-8178 Podlas v. Podlas, App. Div. (per curiam) (15 pp.) Defendant-husband appeals from various rulings in his matrimonial dissolution trial and the final judgment of divorce. The panel affirms substantially for the reasons expressed below. It adds, inter alia, that the judge did not abuse his discretion in denying defendant's motion for recusal as the judge's comments at the case management conference did not reflect a prejudgment; the judge did not err in precluding certain evidence as it represented a needless presentation of cumulative evidence; although the judge erred in precluding husband from producing an expert on wife's employability based on the absence of a report since husband was under no duty to produce a report because the wife conducted no discovery, the error was harmless because husband presented no proof beyond his bare allegation that his wife was working as a nanny for her daughter and son-in-law; and although the judge's findings were lacking in detail, there is substantial credible evidence in the record to show wife's need for alimony and husband's ability to pay. 

 

20-2-8179 Tamirie v. Yacob, App. Div. (per curiam) (12 pp.) Plaintiff-mother appeals the orders allowing defendant-father to recoup from her airfare costs that he expended on a planned holiday trip intending to visit the children and compelling her to reimburse him for a portion of his counsel fees. The panel affirms, holding that the airfare requirement should be sustained because mother does not provide any legal explanation as to why father should not be able to offset that cost against his child support obligation, the offset has already been accomplished, rendering the issue moot, and the record provides ample justification for the reimbursement decision in light of mother's unjustified interference with father's parenting time. The panel finds that the counsel fee award was warranted where the court reasonably took into account mother's financial circumstances, her bad-faith actions, and the need to deter her further bad-faith conduct.

21-3-8180 Bailey v. Hunterdon County Agricultural Development Board, Law Div.-Hunterdon Cy. (Buchsbaum, J.S.C.) (13 pp.) Plaintiff alleges that defendant, Hunterdon County Agriculture Development Board (CADB), held meetings in violation of the Open Public Meetings Act (OPMA). Plaintiff seeks a summary judgment to void and remand the meetings to the CADB to be heard de novo. Addressing similar conduct in Polillo v. Dean, the Supreme Court invalidated only the final governmental action, holding that it was unnecessary to invalidate each public meeting held in violation of the notice requirement where the spirit of the OPMA was not undermined by the defendant’s failure to provide sufficient notice. The court finds that the remedy provided in Polillo is appropriate here. The hearing held on May 22, 2012 was part of the decision making process; yet although in violation of the notice requirements of the OPMA, it did not include any formal action that can be voided. The August 2012 meeting is also in violation and did contain formal action taken by defendant. As such, the findings and Resolutions passed at this meeting are deemed void. Defendant may conduct another meeting, in accordance with the OPMA, to memorialize its findings and take formal action. Defendant may consider the evidence at the prior meetings, provided notice is given to the public detailing which meetings will be considered and the aspects of the existing record that will be utilized.

25-2-8181 Flecker v. Statue Cruises, LLC, App. Div. (per curiam) (31 pp.) Plaintiff appeals from the order denying his motion for summary judgment and granting defendants' cross-motion for summary judgment, dismissing his complaint against his employers, Statue Cruises, L.L.C. and Terry MacRae, pursuant to the New Jersey Wage and Hour Law (NJWHL), and the Conscientious Employee Protection Act (CEPA). Plaintiff also appeals from the order compelling him to undergo an independent medical examination (IME) and the order denying class certification on the CEPA claim. The appellate panel reverses as to the dismissal of plaintiff's CEPA claim, finding a jury could reasonably conclude the changing justifications proffered by defendants were after-the-fact explanations crafted to disguise retaliatory motives. The panel also reverses the dismissal of plaintiff's Wage and Hour claim and remands to the trial court to determine whether application of the NJWHL is preempted by the Fair Labor Standards Act. Upon remand, the court must make specific factual findings that include a determination to what extent, if any, Statue's operations extend into federal waters, as well the nature and scope of Statue's operations in New Jersey and New York. The panel affirms the remaining orders.

29-3-8182 Stagg v. Summit Medical Group, Law Div. (Hunterdon Cty.) (Buchsbaum, J.S.C.) (7 pp. ) In this medical malpractice action arising out of injury plaintiff sustained to her left arm while being transported to the recovery room after surgery at an ambulatory surgical center operated by Summit Medical Group, plaintiff moves to be permitted to call as an expert witness on her behalf Mary Zimmerman, R.N., who was previously identified by one of the defendants in discovery as an expert witness who could potentially be called to testify on his behalf. Finding Fitzgerald v. Stanley Brothers Inc. applicable, the court grants plaintiff's motion to call Zimmerman as an expert witness to the extent that plaintiff may request, but not demand, her testimony. [Filed October 26, 2012]

34-2-8183 Deutsche Bank National Trust Company v. Russo, App. Div. (Reisner, P.J.A.D.) (14 pp.) We affirmed the trial court’s order denying the foreclosure defendants’ 2011 motion to vacate a default judgment that was entered in 2009. Defendants contended that plaintiff lacked standing because it filed the foreclosure complaint before obtaining an assignment of the mortgage, although it obtained an assignment before the judgment was entered. Defendants further argued that because plaintiff lacked standing, the trial court lacked subject-matter jurisdiction over the case. We concluded that, due to defendants’ unexcused, years-long delay in asserting the standing defense, dismissal of the foreclosure complaint would not be an appropriate remedy. Therefore, in this context, lack of standing would not constitute a meritorious defense for purposes of the motion to vacate the foreclosure judgment. We also held that, in our state court system, standing is not a jurisdictional issue. Therefore, a foreclosure judgment obtained by a party that lacked standing is not “void,” and defendants’ reliance on Rule 4:50-1(d) (judgments void for lack of jurisdiction) was misplaced. [Approved for publication.]

 

36-2-8184 Deane v. Winding River Park Ice Skating Rink, App. Div. (per curiam) (15 pp.) In this action filed pursuant to the New Jersey Tort Claims Act (TCA), plaintiff appeals from the order granting defendant Township of Toms River summary judgment and dismissing plaintiff's complaint for personal injuries. Plaintiff brought this action for an injury she sustained as a result of a fall at an ice skating rink owned and operated by the Township during an event called "Santa Skate." During the event, individuals dressed as Santa Claus and elves skated with the other patrons. One to two seconds after plaintiff saw an elf distributing candy on the rink, two children suddenly skated in front of her toward the elf. To avoid the children, plaintiff turned quickly to her left, lost her balance, and fell, breaking her arm. The appellate panel concludes that the trial judge appropriately granted summary judgment in favor of the Township. Plaintiff has provided no evidence that the Township or its employees had actual knowledge that the Santa Skate involved the distribution of candy or that the elf was distributing candy before plaintiff's fall. Moreover, when a dangerous condition is created within seconds of the accident, no reasonable jury could find that the Township had actual or constructive notice of the condition.

 

14-2-8185 State v. Hammond, App. Div. (per curiam) (2 pp.) Following his conviction in municipal court of driving while intoxicated, and of failing to display clear license plates, defendant William Hammond filed a notice of appeal. Due to ensuing confusion about whether defendant had also timely and properly filed an indigency application in lieu of the filing fee, the Law Division entered an order dismissing defendant's appeal. Defendant appeals from that order. In light of evidence that defendant timely and properly completed an indigency application, the State submits that the case should be remanded for determination on its merits. The appellate panel accordingly reverses and remands for a trial de novo in the Law Division.

07-7-8186 Tariq-Shuaib v. City of Camden, Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) In this pro se action alleging violation of plaintiff's property rights under 42 U.S.C. section 1982 and his due process rights under 42 U.S.C. section 1983, the court grants defendant's motion to dismiss pursuant to F. R. Civ. P. 37 and dismisses the action with prejudice because plaintiff has consistently refused to attend depositions and has refused to provide responses to discovery requests despite court orders to do so and defendant has suffered prejudice as a result. [Filed November 13, 2012]

 

09-7-8187 Moulton v. LG Electronics, U. S. Dist. Ct. (Linares, U.S.D.J.) (7 pp.) Plaintiffs move for reconsideration of the order dismissing their first amended complaint with prejudice in this putative class action asserting claims for breach of express and implied warranty, violation of various consumer fraud protection statutes and unjust enrichment arising out of defendant's sale of allegedly defectively designed and manufactured plasma television sets which defects were known to defendant at the time of sale. The court denies the motion, finding that (1) with respect to plaintiffs' claims of breach of express warranty, plaintiffs failed to sustain their burden of establishing that the court misapplied controlling authority; (2) with respect to their fraud and intentional misrepresentation claims, plaintiffs have not established that the court overlooked dispositive facts that would warrant a grant of their motion and they have merely relitigated the issue of whether they have sufficiently pled these claims; (3) with respect to the unjust enrichment claims, plaintiffs make the same argument that they advanced in opposing defendants' motion to dismiss which was previously rejected. The court denies leave to amend the FAC, finding that plaintiffs do not argue that the court committed clear error in dismissing the FAC with prejudice or overlooked any factual or legal matters that would compel a different result. [Filed November 14, 2012]

 

21-2-8188 New Jersey Press Association v. Guadagno, Dist. Ct. (Pisano, U.S.D.J.) (15 pp.) This matter is before the Court on an Order to Show Cause by plaintiffs New Jersey Press Association, individually and on behalf of its Newspaper Members. Plaintiffs seek to enjoin Defendants from enforcing three New Jersey statutes (the “Election Laws”) and a Directive of the New Jersey Attorney General that collectively prohibit individuals from engaging in expressive activity within 100 feet of a polling place in the State of New Jersey on an election day. In particular, Plaintiffs request that they be permitted to take photographs of voters and conduct interviews of voters who are leaving a polling place within 100 feet of such polling place. Defendants oppose the request, arguing that the First Amendment does not require the State to permit solicitation of voters within 100 feet of a polling place and the balance of equities weighs in favor of the State. The Court finds that the Election Laws are reasonable restrictions under the First Amendment. Accordingly, the Plaintiffs’ request for a preliminary injunction is denied. [Filed November 13, 2012]

 

25-7-8189 IUE Multi-Employer Pension Fund v. M & C Vending, Inc., Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Plaintiff IUE Multi-Employer Pension Fund (the “Fund”) brings this action against Defendant M & C Vending, Inc. under ERISA. Eliot Faber, the President of M&C Vending, filed a motion to dismiss. Also before the Court is a motion for default judgment filed by the Fund. The Fund is an employee pension benefit plan and a multiemployer plan. M&C Vending is a company that was a party to a collective bargaining agreement and a corresponding Memorandum of Agreement (“MOA”), pursuant to which it was required to make periodic contributions to the Fund, and renew by a specified date. The Fund alleges that M&C Vending failed to timely sign a new MOA, constituting a complete withdrawal from the Pension Plan, and it is now obligated to pay withdrawal liability to the Fund. Faber asserts that M&C Vending did renew its agreements with the union, and attaches a copy of an MOA that appears to be signed by Faber and the union representative. Faber’s motion to dismiss is denied where the motion was not filed by a licensed attorney but by an individual acting pro se on a corporation’s behalf. The Fund’s motion for default judgment is denied because M&C Vending has a meritorious defense. The Court dismisses the action sua sponte, finding it lacks jurisdiction because the Fund failed to exhaust the administrative remedies mandated by the MPPAA. [Filed November 13, 2012]