Daily Decision Service Alert: Vol. 21, No. 227 ? November 21, 2012

 

05-2-8254 Williams v. Restaino, App. Div. (per curiam) (10 pp.) Defendant appeals from the denial of her motion for a new trial or remittitur after a jury verdict awarding plaintiff $1.2 million in compensatory damages for injuries sustained in a motor vehicle accident. Based on its independent evaluation of the record, the panel finds that the verdict is generous but concludes that there is sufficient credible evidence to support the jury's verdict. It therefore finds no miscarriage of justice and no basis for a new trial or remittitur.

 

07-2-8255 Feuer v. Mercedes, App. Div. (per curiam) (10 pp.) Defendant Hanover Insurance Company appeals, and plaintiffs Abraham and Sarah Feuer cross-appeal, from a November 16, 2011 order denying plaintiffs' motion to vacate an August 15, 2008 order granting summary judgment in favor of Hanover in this matter arising from an automobile accident. Although the 2011 order was entered in its favor, Hanover purports to "appeal" from dicta in the motion judge's opinion. Because Hanover prevailed on the 2011 motion, and because appeals are taken from orders, not from judicial opinions, the appellate panel dismisses Hanover's appeal. On the cross-appeal, the panel affirms the 2011 order, because plaintiffs did not file their motion within one year of the 2008 order, as would be required for a motion based on mistake or excusable neglect under Rule 4:50-1(a). Nor was their motion filed within a reasonable time after entry of the order, as is required for motions filed under Rule 4:50-1.

 

15-2-8256 Sandone v. Diana, App. Div. (per curiam) (15 pp.) Plaintiff appeals from the trial court's grant of summary judgment to defendants Popular Warehouse Lending LLC (Popular) and Popular Financial Services, Inc. (Popular Financial), and the denial of plaintiff's motion for reconsideration. Plaintiff asserted claims against defendants arising out of the repayment of loans that Popular made to Custom Mortgage Solutions, Inc. (CMS). Plaintiff claimed to be a creditor of CMS and alleged CMS's payment to Popular rendered CMS insolvent, and was a fraudulent transfer under the Uniform Fraudulent Transfer Act (UFTA). Plaintiff also claimed defendants tortuously interfered with his alleged contractual relations with CMS; and conspired to commit, and did commit a fraud against him. Plaintiff asserts the evidence creates a genuine issue of fact regarding whether Popular obtained payment from CMS by wrongfully invoking the possibility of criminal prosecution. He contends that a payment so obtained must be voided because it was an unfair preference, not made in good faith, and a fraudulent transfer under UFTA. The appellate panel rejects these arguments and affirms. Fatal to plaintiff's UFTA claim is that he is not a creditor of CMS, nor is CMS a debtor as to plaintiff. The Act does not apply to plaintiff's cause of action, because it only addresses fraudulent transfers by a debtor as to its creditors.

 

16-2-8257 Board Of Education Of The Borough Of Ramsey v. The Ramsey Teachers Association, App. Div. (per curiam) (10 pp.) The Ramsey Teachers Association appeals from the final agency decision of the Commissioner of Education, finding that by adopting a resolution which established salary guides for 2007-2008, 2008-2009, 2009-2010, and 2010-2011, respondent Ramsey Board of Education exceeded its authority by binding itself and future boards for a total of four years in violation of N.J.S.A. 18A:29-4.1, and declaring the fourth year of the salary policy null and void. The sole issue in this appeal is whether a collective bargaining agreement (CBA) that provides for a lump sum retroactive payment covering a two-year period and prospectively establishes the pay scale for the next two years is consistent with N.J.S.A. 18A:29-4.1. As its plain language directs, the statute operates to limit salary schedules to no more than three years and bars the implementation of any salary schedule beyond the third year. Here, where the salary policy binds the Board from its "effective date" rather than the date of its adoption, the appellate panel concludes that N.J.S.A. 18A:29-4.1 precludes implementation of the fourth year of the salary schedule. The fact that the Board bargained for the agreement in good faith is irrelevant. The panel affirms the final agency decision of the Commissioner.

23-2-8258 Med-X Medical Management Services v. Grinblat,, App. Div. (per curiam) (9 pp.) Defendant, a pedestrian, was struck by a motor vehicle and injured. Her automobile insurance policy with defendant State Farm Indemnity Company provided Personal Injury Protection (PIP) benefits. After her PIP benefits were exhausted, State Farm denied payment for any additional medical services. Plaintiff Med-X Medical Management Services filed a complaint against defendant, seeking payment. Defendant filed an answer and jury demand, as well as a third party complaint against State Farm and its agent. The trial court entered a jury trial order sua sponte, which required all parties to exchange and submit certain information. The court ruled that because defendant failed to comply with the order to the court’s satisfaction, she waived her demand for a jury trial. Following a bench trial, the court entered judgment in plaintiff's favor and dismissed defendant's third-party complaint. The appellate panel finds the trial court erred in concluding the demand for a jury trial had been waived based upon defendant's purported failure to comply with the pretrial order. The panel concludes that defendant was erroneously denied her right to a jury trial in Med-X's action against her and that she had no right to a jury trial on her third-party complaint. The judgment dismissing defendant's third-party complaint against State Farm is affirmed. The judgment in favor of Med-X is reversed and remanded.

 

26-2-8259 Preferred Pension Planning Corporation v. Board Of Review, Department Of Labor, App. Div. (per curiam) (5 pp.) Preferred Pension Planning Corporation (PPPC) appeals from a final agency decision of the Board of Review, Department of Labor, finding that it discharged its employee Melynie Pope, thereby entitling her to unemployment benefits. PPPC's president, business manager, and human resources director met with Pope to discuss her request to transfer from a full-time to part-time position. Pope informed them that if they did not permit a switch to part-time employment, she would continue working there for two to three months to train her replacement while seeking employment elsewhere. PPPC then produced a resignation form that provided Pope with three weeks' pay upon her "voluntary resignation." Pope signed the form, and was escorted to her vehicle immediately thereafter. The appellate panel affirms the Board’s decision where review of the record reveals sufficient credible evidence to support the conclusion that PPPC discharged Pope. She was not given the option to continue working. As such, the Appeal Tribunal and the Board reasonably concluded that Pope did not leave work voluntarily.

31-7-8260 Vinci v. Clifton Bd. of Educa., App. Div. (per curiam) (19 pp.)Plaintiffs Jonathan Vinci and his parents appeal from a judgment after a jury trial dismissing their complaint for personal injuries Jonathan suffered when he slipped and fell at an after-school event sponsored by defendant Home and School Association and held in the school's all purpose room. The panel affirms, finding that the trial court did not err in (1) dismissing by summary judgment the claim of dangerous condition of the property because the record did not establish a prima facie showing that the school board or the HASA had actual or constructive knowledge of the alleged dangerous condition (a puddle on the floor); (2) precluding the testimony of plaintiffs' liability expert because his report did not explain any authority for his conclusion that defendants had not provided adequate supervision of the event; (3) allowing the jury to deliberate on whether defendants' conduct was a proximate cause of the injuries because defendants disputed plaintiffs' claims that defendants' wrongdoing was the cause of Jonathan's fractured leg; and (4) denying plaintiff's post-judgment motion for judgment notwithstanding the verdict because plaintiffs were procedurally barred from making the motion, or their motion for a new trial on proximate cause and damages because the verdict was not clearly the product of mistake, passion, prejudice or partiality. The panel also finds no prejudicial error in defense counsel's suggestions that Jonathan's mother was responsible for the accident because she was not supervising her son. 

29-2-8261 Piscitelli v. Lipkin, App. Div. (per curiam) (7 pp.) In this action alleging claims of malpractice, abandonment, breach of contract and failure to refer against plaintiff's orthodontist, the court granted defendant's motion for summary judgment on the ground that plaintiff's expert's opinion was an inadmissible net opinion. Plaintiff appeals the denial of her motion for relief from judgment pursuant to Rule 4:50-1(f), to which she had appended a supplemental report from her expert purporting to explain the standard of care breached by defendant and its proximal cause in producing damages to her. Finding that plaintiff has failed to identify any exceptional circumstances which would justify relief under 4:50-1(f) or 4:24-1(c), the panel affirms. 

35-5-8262 Ciccarelli v. North Brunswick Twp., Tax Ct. (Menyuk, J.T.C.) (4 pp.) The complaint in this action appeals the judgment of the Middlesex County Board of Taxation affirming the assessment on plaintiff's single family residence. Plaintiff moves to compel defendant to answer interrogatories seeking information regarding the assessments of other properties that he believes have a higher market value than his but received lower assessments. The court denies the motion, finding that while plaintiff may be correct that assessments in the municipality are not uniform and that his house is assessed for a larger amount when compared with the assessments of houses of greater market value, that contention is not relevant to his appeal.

35-5-8263 Milric Plaza, LLC v. Wall Twp., Tax Ct. (Menyuk, J.T.C.) (4 pp.) Defendant filed motions to dismiss plaintiffs’ complaints based on plaintiffs’ failure to respond to a request for income and expense information made pursuant to N.J.S.A. 54:4-34 (“Chapter 91”). The facts are identical in these cases, as is basis of the opposition by the respective plaintiffs. Plaintiffs do not deny that they received the request and failed to respond. Rather, they contend that the defendant’s request was deficient because the covering letter stated that the information was to be used for the 2011 assessment year, while the January 10, 2011 assessment date for the 2011 assessment year had already passed at the time that the request was made. Plaintiffs maintain that taxpayers have no obligation to respond to a Chapter 91 request where the information could not possibly be used in formulating the assessments. The court finds the plaintiffs in these cases were entitled to rely on the assessor’s own statement in the covering letter that the information was to be used for the 2011 assessment year. As has become clear with the filing of these motions, the assessor intended to use the information for the 2012 assessment. Probably, the letter contained an inadvertent or typographical error. However, it is not the taxpayer’s burden to ascertain the assessor’s intent or purpose in sending a Chapter 91 request. Defendant’s motions are denied.

 

38-2-8264 I/M/O Fleischer, App. Div. (per curiam) (19 pp.) Plaintiff appeals the dismissal of her complaint challenging the will of her father. The panel affirms, finding that the court did not abuse its discretion in proceeding to decide certain defendants' motion to compel or dismiss on June 6, 2011, because plaintiff failed to file opposition to the motions and therefore was not entitled to argue in opposition and, moreover, plaintiff did not actually request an adjournment and the court was not required to decipher her ambiguous phone messages saying she could not stay for the hearing as a request for an adjournment. Nor did the court err in dismissing the August 16 complaint with prejudice pursuant to Rule 4:23-2 for failure to provide the birthday card which, she argued, was a holographic will, thereby preventing defendants from addressing an issue that was the essence of plaintiff's complaint. Nor did the court err in ordering plaintiff to pay counsel fees to defendants in light of her unjustifiable failure to comply with discovery.

 

07-7-8265 Fleming v. Advisory Committee on Judicial Conduct, Dist. Ct. (Simandle, U.S.D.J.) (10 pp.) In this action which the court describes as consisting of incomplete statements and farfetched allegations involving the alleged kidnapping of plaintiff's daughter pursuant to a conspiracy among a state judge and other judicial employees, pro se plaintiff is permitted to proceed in forma pauperis. The court reviews the complaint and dismisses it with prejudice, finding that it lacks subject matter jurisdiction where the complaint contains no jurisdictional statement and no federal or state statute giving a ground for relief; the court has no mandamus jurisdiction to compel a state court or official to act; judges, clerks and court divisions have judicial immunity for judicial and quasi-judicial acts; and the court does not have the power to bring criminal charges. [Filed November 19, 2012]

 

11-7-8266 Miller v. Butler, Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) Plaintiff Andrew Miller, through his limited liability company, Miller Energy, LLC, entered into an agreement with Defendant Dennis Butler to purchase and resell investments, forming Miller/Butler, LLC. Plaintiff’s business was located in Denver, Colorado, and Defendant’s business was located in Marlton, New Jersey. In 2006, Defendant solicited a wire transfer of $168,658.54 from Plaintiff, ostensibly to purchase a portfolio of Citibank-originated home loans (the “Citi File”). Defendant was to match Plaintiff’s contribution to buy the Citi File. Plaintiff wired the money, at Defendant’s request, to a Bank of America account in Marlton, New Jersey. Defendant told Plaintiff that he had in fact purchased the Citi File. But Defendant, according to Plaintiff, either paid a lesser sum for the Citi File or never bought it at all, and retained Plaintiff’s funds for himself. Meanwhile, Defendant gave Plaintiff false reports about the status of the Citi File. Plaintiff requested a full accounting for Miller/Butler LLC. Defendant refused. Plaintiff filed suit, alleging breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, accounting, fraudulent concealment by a fiduciary, equitable fraud, conversion, constructive trust, and unjust enrichment. Here, the Court denies Defendant’s motion to dismiss, which was based on statute of limitations grounds, that Miller is not a proper plaintiff, and that the Court lacks personal jurisdiction over Defendant. [Filed November 16, 2012]

11-7-8267 Wittorff v .Bank Of America, N.A., Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Defendant Bank of America, N.A. (“BA”), and Defendant Monumental Life Insurance Company (“MLIC”) filed motions to dismiss Plaintiff’s complaint. The complaint alleges that Plaintiff and her husband had a mortgage loan from BA and purchased two insurance policies, the “Borrowers Optional Protection Plan” (“BOPP”) from BA, and an accidental death policy (“ADP”) from MLIC. Plaintiff’s husband died on May 16, 2006 “as a result of medical negligence.” Defendants both denied Plaintiff’s claims. Plaintiff has conceded that she did not file a claim during the period required by the BOPP, and she did not initiate suit during the period required by the ADP. The Court finds Plaintiff has not pointed to any ambiguity in the contracts that could allow her to escape the express provisions which bar her claims. Plaintiff cites no law to support her position that her difficulty understanding the contracts defeats the operation of the express terms. Finally, even if the Court agreed that equitable tolling was available here – which it does not – and applied the discovery rule and allowed Plaintiff four years from the filing of her medical malpractice lawsuit to the filing of this one, Plaintiff’s claims still fail. Finding the complaint fails to state a valid claim for relief, the Court grants Defendants’ motions to dismiss. [Filed November 19. 2012]

16-7-8268 Archut v. Ross University School of Veterinary Medicine, Dist. Ct. (Cooper, U.S.D.J.) (34 pp.) Plaintiff , who has been diagnosed with certain processing impairments, filed this action against Ross University and its parent company alleging disability discrimination in violation of the Rehabilitation Act, the Americans With Disabilities Act, and the New Jersey Law Against Discrimination, and alleging common law claims of breach of contract. The court grants defendants' motion for summary judgment in their favor with respect to the discrimination claims because the anti-discrimination laws allegedly violated do not apply extraterritorially to conduct in St. Kitts, where Ross is located and because the statutes under which plaintiff brought her claims do not contain provisions holding parent companies liable for actions of their foreign subsidiaries. The motion is denied as to the common law claims of breach of contract until the parties address the jurisdictional issue under 28 U.S.C. section 1332. [Filed November 19, 2012]

 

24-7-8269 O’Neill v. CitiMortgage, Inc., Dist. Ct. (Rodriguez, U.S.D.J.) (7 pp.) This matter was originally filed in the Superior Court of New Jersey, Burlington County. Co-Defendant CitiMortgage (“CMI”) removed the action. Plaintiff Michael O’Neill filed a motion to remand, based on lack of federal subject matter jurisdiction. Plaintiff claims that Defendant Mortgage Access Corporation d/b/a Weichert Financial Services (“Weichert”) is not diverse from Plaintiff. Weichert filed a cross motion to dismiss for fraudulent joinder. In his complaint, Plaintiff alleges that Defendants CMI and Weichert are liable for failing to pay the homeowner’s insurance premium of Plaintiff’s assignor, Melissa Gilfillan. Plaintiff also asserts claims against Weichert and CMI for breach of contract, negligence and violation of N.J.S.A. § 17:16F-18. The Court denies Weichert’s motion to dismiss for fraudulent joinder. As to whether Plaintiff ultimately prevails on the negligence claim, the Court will not weigh the evidence in this limited jurisdictional review. The claims as plead and the evidence offered in support of removal do not discount the possibility that Plaintiff’s claims are colorable. Propriety of removal rests on the merits of Plaintiff’s claims, consideration of which must be remanded to the state court. Plaintiff’s motion to remand is granted. [Filed November 19, 2012]

 

25-8-8270 Brown v. Kessler Institute for Rehabilitation Inc., Third Cir. (per curiam) (4 pp.) Plaintiff, an African-American woman, appeals the judgment in favor of defendant in this action alleging retaliation disparate treatment, hostile work environment, and constructive discharge under Title VII of the Civil Rights Act of 1964. The court affirms, agreeing with the District Court that plaintiff has failed to meet her burden of proof on her claims since she failed to introduce any evidence to support her allegation that the actions of her co-worker and her employer were racially motivated. [Filed November 19, 2012]

 

25-7-8271 Teamsters Pension Fund Of Philadelphia And Vicinity v. R.E. Pierson Contracting Co., Inc., Dist. Ct. (Simandle, U.S.D.J.) (5 pp.) Before the Court is a motion for award of attorney fees and costs filed pursuant to the Employee Retirement Income Security Act (“ERISA”), brought by Plaintiff Teamsters Pension Fund of Philadelphia and Vicinity and Plaintiff Welfare Fund of Philadelphia and Vicinity in connection with a default judgment entered against Defendant R.E. Pierson Contracting Co., Inc. Plaintiffs are multi-employer benefit funds. Plaintiffs collect contributions from various employers towards retirement funds for union members. Defendant is an employer who was required to contribute to the Pension Fund and failed to make payments for certain fringe benefits. The Court granted Plaintiff’s motion for default judgment to recover the fringe benefits. Here, the Court grants Plaintiffs' motion for award of attorney fees and costs. [Filed November 20, 2012]

 

25-7-8272 Sarno v. Wal-Mart Stores East L.P., Dist. Ct. (Pisano, U.S.D.J.) (9 pp.) In this action alleging violation of the New Jersey Conscientious Employee Protection Act and the New Jersey Law Against Discrimination and asserting a common law claim for wrongful termination, the court grants defendant's motion to dismiss the CEPA claim, finding that the claim was not brought within the applicable statute of limitations where it was filed more than one year after the two disciplinary actions and the failure to promote cited by plaintiff, and that the claims cannot be saved under the continuing violations doctrine because a failure to promote is quintessentially a discrete employment action, as are the retaliatory discipline actions, and that the claim therefore fails as a matter of law. [Filed November 20, 2101]

 

38-7-8273 Estate of Czaretzki v. Andrews, Dist. Ct. (Martini, U.S.D.J.) (3 pp.) In this action asserting claims for fraudulent convenyance, breach of fiduciary duty and conversion, in which plaintiff alleges that during the decedent's lifetime, her sister funneled money belonging to the estate into a personal account that she maintains with defendant National Bank of the Gulf Coast, plaintiff requests a temporary restraining order, and eventually a preliminary injunction, to ensure its money stays put while the court sorts out ownership and liability. Because plaintiff has failed to plead either its or defendants' citizenship and thus has failed to plead diversity, and as its claims fall within the probate exception, the court finds that it lacks subject matter jurisdiction and sua sponte dismisses the complaint and denies as moot the requests for a temporary restraining order and a preliminary injunction. [Filed November 19, 2012]

 

14-8-8274 United States of America v. Griffiths, Third Cir. (Chagares, C.J.) (10 pp.) Appellant pled guilty to having conspired to defraud the United States Environmental Protection Agency, to conspiring to transfer funds outside the United States with the intent to commit wire fraud, and to obstructing and impeding an official proceeding before the Securities and Exchange Commission. He appeals the sentence of 50 months imposed on him by the District Court. The court finds that appellant did not waive his contention that the court based his sentence on a clearly erroneous fact (that the greatest downward departure in a related case was 8 levels when in fact it was 10) by failing to raise the argument in his opening brief because he has offered an excuse for his failure (that he did not know to which defendant the court was referring and the extent of departures is not information readily available to counsel); the government does not argue that it would be prejudiced by the court's consideration of the issue since it had the opportunity to press its waiver argument in its supplemental brief, and a failure to consider appellant's argument would undermine confidence in the judicial system as it would require the court to ignore the District Court's reliance on a clearly erroneous fact. The court also concludes that had the District Court been aware that the greatest departure granted was actually 10 levels it likely would have calculated appellant's sentence differently. It therefore holds that, under either plenary or plain error review, resentencing is appropriate because the sentence imposed was based on a clearly erroneous fact. The court reminds the District Court than on resentencing it must follow the procedure outlined in United States v. Gunter. [Filed November 20, 2012]