Daily Decision Service Alert: Vol. 21, No. 230 ? November 28, 2012

 

20-2-8292 Y.A.B. v. A.C.B., App. Div. (per curiam) (17 pp.) In this post-matrimonial matter, plaintiff appeals the Family Part order vacating court-imposed restraints on the parenting time of defendant, her former husband and awarding defendant counsel fees. The panel affirms the parenting time decision, finding that the court did not err in not conducting a plenary hearing regarding the issue because plaintiff did not make a prima facie showing that a plenary hearing was necessary where she failed to show that he did not comply with the terms of the marital settlement agreement - which conditioned his parenting time on his undergoing psychological treatment and attending AA meetings, not on total abstinence - and she produced no evidence that his actions negatively impacted the safety or welfare of the children and she offered no competent proof that he consumed alcohol in their presence. The panel remands on the issue of counsel fees, finding that the fact that plaintiff did not produce sufficient proof to establish a prima facie case did not necessarily render her application frivolous and the motion judge's determination to that effect is conclusory at best and inadequate to support the award since it refers only to rules and case law without any analysis of the factors in Rule 5:3-5(c).

 

23-2-8293 Badiali v. New Jersey Manufacturers Insurance Group, App. Div. (Fisher, P.J.A.D.) (8 pp.) In a prior appeal, the court considered whether defendant New Jersey Manufacturers Insurance Group (NJM), an uninsured motorist (UM) insurer — barred by its policy from rejecting an arbitration award under $15,000 — was entitled to reject a $29,148.62 award when only liable to pay half. In adhering to D’Antonio v. State Farm Mut. Auto. Ins. Co., 262 N.J. Super. 247 (App. Div. 1993), which considered the same situation in an underinsured motorist (UIM) setting, the court concluded that the insurer was bound to the award and, therefore, affirmed a judgment that precluded NJM’s demand for a trial de novo. Badiali v. N.J. Manufacturers Ins. Grp., No. A-4870-09 (App. Div. Feb. 28, 2011). In this subsequent action, plaintiff sought damages from NJM, arguing that NJM litigated in bad faith in advocating that its policy did not preclude a rejection of the arbitration award. The court affirmed the summary judgment entered in favor of NJM, holding that NJM’s position was fairly debatable because it found support in an earlier unpublished decision of this court. [Approved for publication.]

 

26-2-8294 Harborhead Condominium Association, Inc. v. Zoning Board Of Adjustment Of Point Pleasant Beach, App. Div. (per curiam) (26 pp.) Plaintiff, Harborhead Condominium Association, Inc., appeals from the Law Division's order sustaining variances and site plan approval issued to the owners of an adjacent beachfront restaurant. The Zoning Board of Adjustment of Point Pleasant Beach granted the restaurant's land use application, over Harborhead's objection, following nine public hearings. Like the trial court, the appellate panel finds that the Board had more than ample grounds to find that the restaurant owners met the requirements under the Municipal Land Use Law for both (d)(2) and (d)(3) variances. The proposed expansion of the restaurant's seating capacity in the upper and lower decks was well-suited to its beachfront location, particularly given the long-standing use of the site as a restaurant. The owners took obvious pains to contain the noise levels emanating from the facility. There was no opposing expert witness who countered their noise expert's finding of compliance with the noise ordinance. Moreover, the Board imposed many sensible conditions upon the approval, not only to abate noise but also to assure adequate parking. The appellate panel affirms the approvals, finding the Board's decision was reasonable, and neither arbitrary nor capricious.

31-2-8295 The Mercadien Group v. Maffei, App. Div. (per curiam) (20 pp.) Defendants Dr. David Maffei and his wife Leona Maffei, appeal from an order granting summary judgment and dismissing their counterclaim, which alleged professional negligence by their accountant, third-party defendants Esmond S. Druker, C.P.A., and the accounting firm employing Druker, plaintiff the Mercadien Group. Relevant to the issues raised on appeal are the allegations contained in the second count of the counterclaim alleging professional negligence by Druker and Mercadien in handling defendants' tax affairs, which caused Dr. Maffei to dismiss the disability benefits action he had filed. Because Dr. Maffei could not demonstrate he qualified for total disability benefits under the policy, he was unable to demonstrate a nexus between Mercadien and Druker's failure to timely prepare tax returns and the dismissal of the disability litigation. This lack of connection is fatal to presentation of a professional negligence claim against Mercadien and Druker. Accordingly, the motion judge properly granted third-party defendants' motion for summary judgment.

 

52-3-8296 Paff v. Atlantic City Alliance, Inc., Law Div.-Atlantic Cy. (Savio, J.S.C.) (8 pp.) Seven of Atlantic City’s casino licensees incorporated the Atlantic City Alliance, (ACA) a not-for-profit corporation. Thereafter, ACA and Casino Redevelopment Authority (CRDA) entered into a “Public-Private Agreement for Marketing Atlantic City” which purpose was to provide a framework to develop and implement the full-scale broad based marketing program referred to in N.J.S.A. 5:12- 221(a)(1). Here, the court granted the defendant’s application to dismiss an order to show cause for the release of records filed by the plaintiff. The question presented was whether ACA is a “public agency” as defined by the Open Public Records Act (OPRA). The court has analyzed N.J.S.A 47:1A-1.1 to determine if OPRA’s definition of public agency complies with the form and function of the ACA. The court has also reviewed N.J.S.A. 5:12-221(a), which directs CRDA to enter into a “public-private partnership” with a not-for profit corporation. Finally, the Court has reviewed all relevant case law, including the New Jersey Supreme Court’s decision in Fair Share Housing Center v. New Jersey State League of Municipalities. In granting the defendant’s application, the court concluded that the facts of the case do not support a conclusion that ACA is either a public body or a public agency.

 

46-7-8297 Coleman v. Camacho, Dist. Ct. (Cooper, U.S.D.J.) (8 pp.) Plaintiff, pro se prisoner William Coleman, brings this action alleging that defendants, while acting as employees of the Long Branch Police Department, detained and assaulted him. Coleman apparently asserts an excessive force claim under the Fourth and Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C. § 1983. Defendant Jason Roebuck has denied the allegations and moves to dismiss the Amended Complaint, insofar as it is asserted against him, under two theories. First, Roebuck argues the Amended Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 8(a)(1) because it does not provide a statement of the grounds for the Court’s jurisdiction. Second, he argues that the Amended Complaint should be dismissed pursuant to Rule 8(d)(1) and Rule 10(b) because it does not provide “simpl[e] statement[s]” in numbered paragraphs. The Court finds that because Coleman has pleaded sufficient operative facts to demonstrate that his claim arises under federal law, he has pleaded sufficient operative facts to establish the Court’s jurisdiction and no statement of jurisdiction is necessary. Also, the Amended Complaint, insofar as it is asserted against Roebuck, is clear and contains enough information to permit response. The motion to dismiss is denied. [Filed November 27, 2012]

15-7-8298 Wong v. American Credit And Collections, LLC, Dist. Ct. (Wolfson, U.S.D.J.) (10 pp.) Plaintiff filed a motion requesting default judgment and attorney's fees and costs on Plaintiff's Fair Debt Collection Practices Act (FDCPA) claim. Plaintiff claims that Defendant American Credit and Collections, LLC is a “debt collector” that violated the FDCPA through its communications with Plaintiff regarding an unpaid debt Plaintiff did not believe she owed. Plaintiff disputed the debt in several letters to Defendant, but instead of responding to any of the letters, Defendant continued to seek the debt and reported the debt on Plaintiff’s credit report. The Court finds that the facts plead in Plaintiff’s complaint concerning Defendant’s debt collection practices are sufficient to state a cause of action under the FDCPA. Further, the Court finds it is appropriate to enter to default judgment in favor of Plaintiff. As to attorney fees, the Court awards statutory damages of $1,000, and finds that Plaintiff is also entitled to the reasonable fees and costs Plaintiff requested. Plaintiff's motion for default judgment against Defendants is granted. Plaintiff may recover the sum of $4,854.10 which includes $1,000.00 in statutory damages, $3,461.50 in attorney's fees, and $392.60 in costs. [Filed November 28, 2012]

 

24-7-8299 Cardona v. Dow Jones & Company, U. S. Dist. Ct. (Wolfson, U.S.D.J.) (3 pp.) Plaintiff filed a pro se complaint in state court alleging that he was discriminated and retaliated against in violation of the New Jersey Law Against Discrimination and alleging several tort and contract related allegations. Defendants removed the action on the basis of federal question jurisdiction pursuant to 28 U.S.C. sections 1441 and 1446 and, for the state law claims, by virtue of supplemental jurisdiction pursuant to 28 U.S.C. section 1367. Plaintiff then retained counsel and filed an amended complaint asserting only state law causes of action under the NJLAD and he moves to remand the matter. Finding that plaintiff did not remove the federal claims solely to prevent jurisdiction, the court declines to apply a strict "time of filing" rule in determining jurisdiction. Because the amended complaint does not allege any cause of action arising under federal law and the parties are non-diverse, the court finds that it lacks subject matter jurisdiction and remands the matter. The court adds that, even if the federal claims alleged in the original complaint are sufficient to confer subject matter jurisdiction, the case must be remanded because plaintiff has dismissed all federal claims and there are no extraordinary circumstances justifying retaining supplemental jurisdiction over the state law claims. [Filed November 27, 2012]

 

34-7-8300 United States v. Gallagher, U. S. Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) In this mortgage foreclosure action, the government seeks summary judgment in its favor against certain defendants (the SJ defendants) pursuant to Rule 56(a) and entry of default against certain other defendants (the DJ defendants) pursuant to Rule 55(b). Summary judgment against the SJ defendants is denied because the government has not shown that it is entitled to such relief as a matter of law, either by reference to the rule or to applicable statutes and case law. Default judgment is denied without prejudice against the DJ defendants because neither the first amended complaint nor the second amended complaint was served on these defendants and default was entered on the basis of the complaint. Because the government failed to bring the second amended complaint against still other defendants, the court deems the government to have voluntarily terminated them from the action and orders the clerk to designate the action terminated as against them. [Filed November 26, 2012]