Daily Decision Service Alert: Vol. 21, No. 223 ? November 15, 2012

 

12-2-8190 Jovanov v. Moschillo, App. Div. (per curiam) (9 pp.) Plaintiff Cando Jovanov and defendants Vincent Moschillo and his brother Mark Moschillo were business associates in connection with the Sunrise Gentlemen's Club, the sole asset of the Linvas Corporation. Mark filed suit against Jovanov alleging violation of the Oppressed Shareholder Statute in which Vincent was an important witness and which resulted in an order directing Jovanov to sell his shares to Mark. While Jovanov's appeal was pending, he filed this action against Vincent alleging that he failed to provide Jovanov with a mortgage loan closing check. Finding that this case arises from the same transactional facts and circumstances that were present in the prior action, the panel affirms the trial judge's conclusion that this action is barred by the entire controversy doctrine.

16-2-8191 Borough of Victory Gardens v. State of New Jersey, App. Div. (per curiam) (12 pp.) Plaintiffs appeal the final administrative decision of the Commissioner of the Department of Education adopting the tax apportionment ratio recommended by the Acting Executive County Superintendent for the County of Morris for the newly-formed Dover School District - which resulted from the merger of the non-operating Victory Gardens District and the Dover School District to which Victory Gardens sent its students - claiming that the school tax levy figures used to calculate the apportionment formula were falsely inflated by virtue of an anomaly in the school funding formula. Finding no competent evidence to support plaintiffs' claims of inflation, and in view of the deferential standard accorded to agency decisions and the substantial credible evidence in the record supporting the commissioner's decision, the panel affirms, and finding nothing in the record to show that the decision approving the new tax apportionment was arbitrary, capricious or unreasonable, the panel affirms. 

 

23-2-8192 Davis v. 1982 Springfield Avenue, LLC, App. Div. (per curiam) (17 pp.) Patricia Rivera rented office space in a commercial building owned by 1982 Springfield Avenue, LLC. Rivera purchased a comprehensive general liability policy from Farmers Mutual Fire Insurance Company of Salem County. Nadia Davis visited Rivera's law office, slipped on ice in the parking lot, and sustained injuries. 1982 Springfield maintained exclusive control over the location of the fall. Davis filed a personal injury complaint against 1982 Springfield, which tendered the defense to Farmers Mutual. Farmers Mutual declined to defend 1982 Springfield. Here, Farmers Mutual appeals from three orders. The appellate panel affirms the order granting Rivera's motion to amend her answer to assert cross-claims against Farmers Mutual. The panel reverses the order compelling Farmers Mutual to pay Rivera's attorney fees, half of the attorney fees incurred by Travelers Casualty Insurance Company of America and half of a settlement reached by Davis. The panel reverses the order requiring Rivera to provide indemnification to 1982 Springfield. 1982 Springfield was found solely negligent for causing the dangerous condition; Rivera has no contractual obligation to indemnify 1982 Springfield. Further, 1982 Springfield is not entitled to insurance coverage under the policy.

 

53-2-8193 Apotex Inc. v. Sanofi-Aventis, App. Div. (per curiam) (23 pp.) In this patent infringement action, plaintiffs (collectively “Apotex”) appeal the order granting summary judgment to defendants (collectively “Sanofi/BMS”) and denying their own motion for summary judgment. Because of its involvement in prior patent litigation, Sanofi/BMS was subject to consent decrees with the Federal Trade Commission (FTC) and stipulated injunctions with a consortium of State Attorneys General (the Consortium), which required review by either, or both, of any agreement that would settle patent litigation involving Sanofi/BMS. Prior to the FDA's approval to market the generic drug at issue here, the parties entered into a written settlement agreement (the March Agreement). The key legal issues here are whether the Consortium or the FTC objected to the March Agreement or the break-up fee provided therein, the basis for any such objection, and the timing of the objection. The resolution of these legal issues is dependent upon disputed facts which currently are based upon vague and contradictory deposition testimony, an informal e-mail, and the representations and arguments of counsel. The appellate panel finds genuine issues of material fact exist which should have precluded summary judgment for either party. The panel reverses the entry of summary judgment as to Sanofi/BMS's claims, affirms the denial of Apotex's motion, and remands or further proceedings.

 

25-1-8194 Headen v. Jersey City Board of Education, Sup. Ct. (LaVecchia, J.) (25 pp.) The Civil Service Act’s paid vacation leave provisions apply to career service, nonteaching staff employees of school districts that have opted to be part of the civil service system, including 10-month employees such as Valeria Headen. Because the act and its implementing regulations establish a floor for the amount of leave to be provided to such employees and a collectively negotiated agreement provided Headen with more than the minimum paid vacation leave to which she was entitled under the act, this matter was properly dismissed.

 

25-2-8195 Carneiro v. John Deere Dubuqueworks/Deere & Company, App. Div. (per curiam) (11 pp.) Plaintiff was seriously injured when he was struck by a backhoe while replacing underground water pipes at a construction site. At the time of the accident, plaintiff was employed by Central Pipe, Inc., a subcontractor hired by defendant P.M. Construction Corporation, the general contractor for the project and the owner of the backhoe. After the manufacturer of the backhoe, John Deere, was granted summary judgment, plaintiff settled his claims against P.M. and defendant Jesco, Inc., which sold the backhoe to P.M. Following a trial, the jury allocated ninety-five percent of the liability to P.M. and five percent to Jesco. P.M. appeals from the order of judgment, and a subsequent order denying its motion for judgment notwithstanding the verdict and a new trial. The appellate panel affirms, rejecting P.M.’s arguments that the trial court erred in permitting Jesco's expert to give impermissible "net opinion" testimony, and that the jury charge was deficient because the court failed "to instruct the jury on P.M.'s immunity as a general contractor."

 

31-2-8196 Kovalicky v. Marshall, App. Div. (per curiam) (7 pp.) Plaintiff, who fell down an allegedly dangerous stairway constructed by defendant Sugar at the Marshall defendants' residence, appeals from the denial of her request that the Marshalls, Hanover Insurance and Citizens Insurance Co. of America pay her the portion of a binding arbitration award assessed against Sugar and the dismissal of her complaint with prejudice. The panel affirms, finding that because there was no allegation of fraud, corruption or similar wrongdoing by the arbitrator, nor any public-policy issues, and the merits of plaintiff's claim were addressed in the binding arbitration, the arbitration claim cannot be vacated by a court. As to the merits of plaintiff's claim, the panel finds that the plain meaning of N.J.S.A. 2A:15-5.3 is that a party may recover the entire amount of damages from any party determined to be 60% or more responsible for total damages, not damages which the plaintiff is entitled to recover as molded by the contributory negligence assessed upon plaintiff, and because the Marshall defendants were only responsible for 39.06% of total damages, plaintiff cannot recover the total amount of her damages from them.

 

31-2-8197 Molina v. Nunez, App. Div. (per curiam) (3 pp.) Plaintiff Maria Molina appeals the Law Division's order dismissing her personal injury action against defendants Ana Nunez and Adalgiza Nunez. Molina sought damages for injuries allegedly resulting from a 2008 motor-vehicle accident. During discovery, Molina disclosed that she had suffered similar injuries in a 2004 motor-vehicle accident. Molina provided no medical evidence comparing the injuries resulting from each accident. Defendants moved for summary judgment, arguing that Molina had not provided a comparative medical analysis of her injuries, as required by Davidson v. Slater. Molina argued that such an analysis was not required. The motion judge, relying on Davidson, granted the motion and dismissed the complaint. The appellate panel affirms, finding Molina’s arguments to be without sufficient merit to warrant discussion in a written opinion.

33-2-8198 Hawkins v. Feder, App. Div. (per curiam) (21 pp.) Plaintiff, an African-American, filed this action alleging wage discrimination attributable to preferential hiring dates given to police officers with Irish ancestry resulting in those officers reaching the second step of the pay scale a year before plaintiff. Finding that the two-year limitations period for personal injury applies to plaintiff's claims under the Civil Rights Act and the Law Against Discrimination, and that the trial court did not err in concluding that the discovery rule did not toll the running of the limitations period, the panel affirms the dismissal of those claims as time-barred. Finding that Alexander v. Seton hall University permits plaintiff to proceed with an action to recover for disparate wages paid during the two-years preceding the filing of his compliant even though the discriminatory act giving rise to the disparity occurred outside the limitations period, the panel remands those claims for further proceedings.

52-2-8199 Paff v. Borough of Garwood, App. Div. (per curiam) (10 pp.) A former member of the Garwood Police Department was charged with committing two disorderly persons offenses. Both complaints stated the incidents leading to the charges were recorded by video surveillance cameras. Plaintiff submitted a request to defendant Borough of Garwood for information under the Open Public Records Act (OPRA), and his common law right of access to public records. This is an appeal by the Borough from the order granting plaintiff access to a DVD pursuant to his common law right of access. The Borough also appeals from an order awarding attorney's fees and costs to plaintiff. The appellate panel affirms the order granting plaintiff access to the requested DVD. The trial court appropriately balanced plaintiff's right to access against the Borough's interest in confidentiality and correctly concluded that plaintiff's interest in disclosure substantially outweighed the concerns raised by the Borough about the effect of the disclosure on the security of the clerk's office. Further, the trial court correctly determined that the DVD was not protected from disclosure by an expungement order, which was not in effect when the Borough denied plaintiff's request. Finding there were rational reasons for the Borough's decision, the panel reverses the order requiring the Borough to pay plaintiff's legal fees and costs.

 

50-2-8200 Frederick v. Smith, App. Div. (per curiam) (7 pp.) Pursuant to Rules 4:50-1(b) and -(c), plaintiffs, who claimed to have lost approximately $8,000,000 as a result of their investment in defendant Smith's unlawful Ponzi scheme, appeal the denial of their motion to vacate dismissal of their claims against Merrill Lynch, Pierce, Fenner & Smith, where Smith maintained his account, that it breached a duty owed to them. The panel affirms, finding that the FINRA-Merrill Lynch settlement that came about approximately two years after the dismissal of this action has no bearing on whether Merrill Lynch owed a duty to noncustomers such as plaintiffs; that neither Merrill Lynch nor its counsel misrepresented the existence or application of regulatory policies in this context; and that whether Merrill Lynch had established and implemented an antimoney-laundering program pursuant to federal law could not form

a basis for relief from the dismissal order because any such legal obligations existed as early as 2002 and were ascertainable by plaintiffs prior to the dismissal of their action against Merrill Lynch.

36-2-8201 Kelly v. Thomas, App. Div. (per curiam) (4 pp.) Plaintiffs, who were involved in an auto accident with a car driven by defendant Thomas, a state employee, and owned by the Department of the Treasury, appeal the denial of their motion for leave to file a late notice of claim and the denial of their motion for reconsideration. The panel affirms, finding that even if the delay between the accident and plaintiffs' receipt of the police report identifying Thomas as a state employee and the car as a state vehicle could be characterized as due to extraordinary circumstances, the longer delay between the receipt of the report and the filing of the motion cannot be so characterized. Thus, the judge did not abuse his discretion in denying the motion.

 

14-2-8202 State v. Carrigan, App. Div. (Sabatino, J.A.D.) (21 pp.) N.J.S.A. 2C:40-26(b), which became effective on Aug. 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver’s license is suspended or revoked for a second or subsequent conviction for driving while intoxicated (DWI) or refusal to submit to an alcohol breath test. Defendant was charged with that crime, on being found driving a car in September 2011 while his license was suspended due to multiple prior DWI offenses. The trial court dismissed the complaint, concluding that the application of N.J.S.A. 2C:40-26(b) to defendant violated ex post facto principles, essentially because his ongoing license suspensions had been imposed before the statute’s effective date. We reverse and conclude that a violation of N.J.S.A. 2C:40-26(b) comprises a new offense based on new conduct, and that the statute does not impose retrospective punishment for a prior offense. Hence, the law may be constitutionally applied to drivers with suspended licenses, such as defendant, who are caught driving after Aug. 1, 2011, regardless of whether their DWI-based suspensions were imposed before that date. [Approved for publication.]

 

14-2-8203 State v. Mitchell, App. Div. (per curiam) (10 pp.) Defendant appeals from an order dismissing her appeal from a judgment of a DWI conviction entered by the Ewing Township Municipal Court. Defendant's notice of appeal challenged the imposition of second-offender penalties because defendant's first DWI conviction allegedly resulted from a proceeding in which she was not represented by counsel. The Law Division judge erroneously determined that this issue had been resolved by the Law Division's judgment in defendant's appeal from her first DWI conviction. Nevertheless, it is clear from the record that, despite her claim to the contrary, defendant was represented by an attorney in the municipal court proceedings that resulted in the first DWI conviction, as well as in the appeal to the Law Division from that conviction. Thus, defendant's challenge to the repeat offender penalties imposed as a result of her second DWI conviction was entirely without merit. The appellate panel modifies the court’s order and affirms defendant's second DWI conviction and the sentence imposed as a result of that conviction.

25-8-8204 Schomburg v. Dow Jones & Company, Inc., Third Circuit. (per curiam) (9 pp.) Dean Schomburg appeals from the District Court’s orders dismissing his amended complaint against Dow Jones & Company, Inc. and denying reconsideration. Dow Jones employed Schomburg for some fourteen years until his employment terminated in 2008. Schomburg filed suit pro se against Dow Jones, apparently for racial discrimination, under Title VII. In an amended complaint, Schomburg also asserted claims for age discrimination and involuntary retirement under the Age Discrimination in Employment Act (ADEA); discharge in retaliation for union activities in violation of the National Labor Relations Act (NLRA); and wrongful discharge in violation of a collective bargaining agreement under the Labor Management Relations Act (LMRA). Dow Jones sought dismissal of Schomburg’s Title VII and ADEA claims on the sole ground that he had not filed suit within ninety days of March 8, 2011, the date on which he initially alleged he received his EEOC letter. Schomburg later asserted he received the EEOC notice on March 18, 2011, but inadvertently wrote the date as March 8 on the form complaint. The circuit panel finds the District Court should have allowed Schomburg to amend his complaint to allege a date that might make the claims timely and permit a resolution on the merits. The panel vacates the District Court’s order to the extent that it denied Schomburg’s motion to amend his Title VII and ADEA claims against Dow Jones and remands for the District Court to permit him to amend his complaint as to those claims only. [Filed November 14, 2012]

 

56-7-8205 Sundt v. Telcordia Technologies Inc., U. S. Dist. Ct. (Cavanaugh, U.S.D.J.) (11 pp.) Plaintiff, who was involved in the telecommunications industry for 35 years before his retirement, filed this action after Telcordia, his final employer, advised him that the amount that it had advised him was his monthly pension entitlement when he retired, which he has been receiving since his retirement, had been incorrectly calculated because it failed to consider a lump sum payment he had received form a prior employer and it reduced his monthly pension payment from $5091 to $971. The court grants defendants motion to dismiss count I, asserting breach of fiduciary duty, with prejudice because, inter alia, plaintiff has not asserted any facts that defendants acted in bad faith or were negligent in miscalculating his benefit and/or failing to discover the error. It dismisses count II, asserting equitable estoppel without prejudice because plaintiff has not demonstrated that there was either a network of misrepresentations by defendants or that he was particularly vulnerable and thus has failed to satisfy the extraordinary circumstances prong of the test set forth in Pell to establish a legally sufficient cause of action for equitable estoppel. [Filed November 14, 2012]

 

36-7-8206 Bryson v. The Diocese Of Camden, New Jersey, Dist. Ct. (Simandle, U.S.D.J.) (20 pp.) Defendant Diocese of Camden, New Jersey filed a motion to dismiss Plaintiff’s complaint, which asserts three counts against Defendant arising from sexual abuse Plaintiff allegedly suffered 40 years ago at the hands of Father Joseph Shannon, a priest in the Diocese. Father Shannon is not a defendant in this action. The complaint asserts liability under the New Jersey Child Sexual Abuse Act (CSAA); negligent retention and supervision of Father Shannon and failure to provide a safe environment for Plaintiff; and breach of fiduciary duty by failing to adequately supervise Plaintiff and warn him of the dangers posed by Father Shannon. In its motion, Defendant contends that it cannot be liable under the CSAA because it does not qualify as a passive abuser under state law, and Plaintiff’s claims are time-barred. The issues are whether Defendant fits the definition of “a person standing in loco parentis within the household” under the CSAA, and whether the relevant statutes of limitations are tolled by the CSAA, the discovery rule or by reason of insanity. The Court dismisses the CSAA claim, finding Defendant was not “within the household” for purposes of the statute. The Court denies Defendant’s motion to dismiss Plaintiff’s common law claims where Plaintiff has presented a plausible argument for tolling the statute of limitations, which requires a hearing. [Filed November 14, 2012]