Daily Decision Service Alert: Vol. 22, No. 11 ? January 16, 2013

 

 

07-2-8730 Probola v. Long & Foster Real Estate, Inc., App. Div. (per curiam) (26 pp.) Plaintiffs Gary and Beth Probola appeal from an order dismissing their second amended class action complaint, with prejudice, for failure to state a claim. Plaintiffs alleged various causes of action against defendant Long and Foster Real Estate, Inc., resulting from a $345 "Document Fee" charged in addition to the agreed commission paid for brokerage services upon the sale of their residence. The complaint alleged defendant's conduct violated the New Jersey Consumer Fraud Act, the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act, and constituted a breach of the fiduciary duties owed by real estate brokers to their principals. On appeal, plaintiffs challenge as error the trial judge's analysis of their proofs and the conclusion that the facts alleged failed to set forth a basis for relief. The appellate panel disagrees and affirms. However, the panel agrees with plaintiffs’ alternative argument that the judge erred in dismissing the complaint with prejudice and modifies the order to provide that plaintiffs' complaint is dismissed without prejudice.

 

11-2-8731 Sayles v. G&G Hotels Inc., App. Div. (Fisher, P.J.A.D.) (15 pp.) In this appeal, the court reviewed a dispute between defendant G&G Hotels Inc. and defendant Howard Johnson International Inc. triggered when two individuals fell through a third-floor window of G&G’s Atlantic City hotel. G&G and HJI had previously entered into a license agreement, which allowed the former’s use of the latter’s brand name and, also, obligated the former to broadly indemnify the latter. In affirming the summary judgment that obligated G&G to indemnify HJI, the court held that even though a better provision could have been crafted, the provision in question required indemnification for claims “when the active or passive negligence” of HJI is “alleged or proven,” thus distinguishing this case from Ramos v. Browning Ferris Indus. of S. Jersey Inc., 103 N.J. 177 (1986), and its progeny. [Approved for publication.]

 

25-2-8732 In The Matter Of Persaud, App. Div. (per curiam) (11 pp.) Dr. Thakur Persaud appeals from the decision of the Civil Service Commission, which denied his appeal of his non-appointment from the eligible list for the position of Health Officer in the City of Paterson. Paterson is classified as a distressed city pursuant to the Special Municipal Aid Act; therefore in order to receive Special Municipal Aid, Paterson entered into a Memorandum of Understanding (MOU) with the Division of Local Government Services (DLGS). Under the MOU, DLGS required Paterson to impose a hiring freeze or obtain a DCA waiver. Persaud concedes that a waiver was not obtained from DCA for his appointment, but argues that a waiver was not necessary because a Health Officer is an essential employee and he was willing to work for less salary than the provisional Health Officer, thus no additional budget appropriation was necessary. The Commission's acceptance of DCA's interpretation of the MOU, specifically that a DCA waiver was required before permanently appointing Persaud as Health Officer, was not arbitrary, capricious, or unreasonable and it was supported by substantial credible evidence in the record. The appellate panel affirms, finding the lack of an approved DCA waiver sufficient reason for the Commission's determination that Persaud was never appointed as Health Officer.

 

35-5-8733 Schepps v. Township of Evesham, Tax Ct. (DeAlmedia, J.T.C.) (11 pp.) Plaintiffs Mark and Laura Schepps challenge the assessment on their single-family residence in Evesham Township for tax year 2009. The Burlington County Board of Taxation issued a judgment affirming the assessment. Plaintiff presented only Mr. Schepps as a witness. He proffered as evidence the written report of an expert appraiser. Because plaintiffs elected not to present the appraiser as a witness, the court declined to accept into evidence the opinions stated in the expert’s report. The court did accept as evidence three comparable sales included in the expert’s report. The court permitted Mr. Schepps to testify over the objection of the municipality to his opinion testimony. The court finds the testimony provided with respect to adjustments is not reliable. Further, Mr. Schepps was not qualified as an expert witness and cannot offer opinion testimony on an area in which specialized knowledge will assist the trier of fact. The court concludes that plaintiffs did not raise a debatable question regarding the correctness of the assessment. The presumption of validity was not overcome and the assessment is affirmed.

 

36-2-8734 Khutorsky v. Macy's Inc., App. Div. (per curiam) (7 pp.) Plaintiffs appeal from the trial court's grant of summary judgment to defendant Bloomingdale's Inc. in this negligence action seeking damages for injuries plaintiff-husband suffered while handling a kitchen knife on display in the store. The panel affirms, substantially for the reasons expressed below, including that the threat of cutting one's self with a knife is so patently obvious that Bloomingdale's had no duty to provide a warning or lock up the knives on display and there can be no finding of negligence because the husband's actions, not Bloomingdale's conduct, was the proximate cause of the accident. The panel also rejects plaintiffs' claim that the store was negligent in the manner in which it displayed the knives.

03-7-8735 Santomeno v. United States Mineral Products Company, U.S. Dist. Ct. (McNulty, U.S.D.J.) (16 pp.) Charles Santomeno filed a motion to vacate, and United States Mineral Products Company d/b/a Isolatek International filed a motion to confirm an arbitration award in favor of Isolatek. The Award was rendered by an arbitrator in accordance with the arbitration provision in Santomeno’s employment contract. The arbitrator found that Santomeno breached his Employment Agreement and awarded Isolatek recoupment of salary and benefits paid. In his motion, Santomeno argued that the arbitrator exceeded his authority under the agreement by awarding recoupment of amounts paid outside the limitations period in the arbitration provision. In analyzing the appropriate recoupment period, the arbitrator acknowledged the Employment Agreement provided for a one year limitations period to file arbitration claims and that a failure to file within that period would constitute a waiver of those claims. However, the arbitrator applied the New Jersey discovery rule and doctrine of equitable tolling to find that Santomeno concealed disloyal acts, thus tolling the limitations period. Finding the arbitrator acted within the authority the Employment Agreement granted him, the Court grants Isolatek’s cross-motion to confirm the award and denies Santomeno’s motion to vacate the award. [Filed January 7, 2013]

 

07-7-8736 Rivera v. Teen Mania Ministries Inc., U. S. Dist. Ct. (Wigenton, U.S.D.J.) (2 pp.) Defendant New Jersey Sports & Exposition Authority moves to dismiss, contending that the summons and complaint were not served within 120 days after being filed. Finding that the motion is not persuasive because plaintiff served the summons and complaint within the timeframe authorized by the court and because defendant does not show any prejudice resulting from the delay in service, the court denies the motion. [Filed January 15, 2013] 

46-7-8737 Fairview Ritz Corp. v. Borough of Fairview, U. S. Dist. Ct. (Hammer, U.S.M.J.) (21 pp.) In this action alleging that police unconstitutionally conducted a search of plaintiff's fitness center and day spa on suspicion of prostitution activities and unlawfully revoked its business license, defendants seek sanctions for alleged discovery abuses by plaintiff. At issue is a 20-page document that was originally in the files of plaintiff's accountant when defendants served a subpoena on the accountant and is now purportedly lost. The court finds that spoliation occurred where plaintiff had control of the document when its counsel unilaterally removed the document from plaintiff's accountant's files believing it to be privileged, the evidence is relevant, there has been actual withholding of the evidence, and plaintiff's duty to preserve the document was clear and that the failure to do so was spoliation. The court finds that defendants are entitled to an adverse inference and fees and costs. [Filed January 14, 2013]

17-7-8738 Queens West Development Corp. v Honeywell International Inc., U. S. Dist. Ct. (Arpert, U.S.M.J.) (15 pp.) This action seeks recovery of costs incurred by plaintiffs to investigate and remediate historic environmental contamination of a site in Long Island City, New York from Honeywell, whose predecessors allegedly owned and/or operated an industrial facility at the site. Plaintiff now seek to file an amended complaint substituting AvalonBay Communities for the now dissolved plaintiff Avalon Riverview II as a plaintiff asserting its own CERCLA costs recovery claim and its own common law restitution claim. The court concludes that AvalonBay's claims relate back to the filing of the original complaint and that whether the claims pled in the complaint were timely should be determined with respect to the claims of all plaintiffs on the basis of a more fully developed factual record and it reject's defendant's claim that the proposed amendment would be futile as time-barred. The court also rejects defendant's argument that AvalonBay's proposed claim for restitution is preempted by CERCLA, finding that Federal Rule of Civil Procedure 8(d)(2) permits alternative statements of a claim. The court denies plaintiffs' request to supplement factual allegations, finding that pleadings that amplify or supplement factual allegations based on recent discovery serve little or no purpose, especially where, as here, defendants concede that plaintiffs' pleadings satisfy the general notice requirements. [Filed January 15, 2013]

 

23-7-8739 Blue Ribbon Fuel Corporation v. American Safety Indemnity Company, U.S. Dist. Ct. (Dickson, U.S.M.J.) (5 pp.) The DeVitas are homeowners insured by State Farm Fire and Casualty Co. The DeVitas contracted with Blue Ribbon Fuel Corp. for the supply of heating oil under a Service Agreement, which provided Blue Ribbon would reimburse the DeVitas for the cost of replacing their underground oil storage tank (UST), and for any contamination remediation costs in the event of a UST failure. When the DeVitas’ UST failed a tank test and contamination was discovered due to a leak in the UST, Blue Ribbon removed and replaced the UST. However environmental remediation was required and Blue Ribbon advised the DeVitas that it had contracted with American Safety Indemnity Co. (ASI) to underwrite the Service Agreement and ASI was refusing to pay the claims. State Farm filed a motion to intervene in the underlying action brought by Blue Ribbon against ASI seeking a declaratory judgment that ASI is responsible for indemnifying Blue Ribbon. The Court will be called upon to interpret the terms of the Service Agreement and to decide whether a confirmed tank failure occurred within the period of the Service Agreement. Thus, the Court grants State Farm’s motion to intervene as subrogee of the DeVitas’ rights against Blue Ribbon and/or ASI to the extent those entities are obligated to contribute to the remediation of the DeVitas’ property. [Filed January 7, 2013]

53-8-8740 Winstead v. Jackson, Third Cir. (per curiam) (11 pp.) In this copyright case alleging that defendant Jackson's album/CD featuring songs and lyrics Jackson wrote and a companion film which Jackson wrote, starred in and directed violate plaintiff's copyright for his book, and asserting claims for copyright infringement and state law claims of unfair competition, conversion, misappropriation, and unjust enrichment, plaintiff appeals the District Court's dismissal of his copyright infringement claim. He does not appeal the dismissal of his state law claims. The Third Circuit affirms, finding that there was no actionable copying of plaintiff's book by defendants because, while the book and defendant's work share similar themes and setting, the story of an angry and wronged protagonist who turns to a life of violence and crime has long been part of the public domain and to the extent that the album and film contain the same elements as the book, they are to be expected when two works express the same idea about "the streets" or explore the same theme, and a lay observer would not believe that the album and film copied protectable aspects of the book. Moreover, the book and defendant's works are different with respect to character, plot, mood and sequence of events. [Filed January 11, 2013]

 

25-7-8741 Bossert v. Tropicana Products Inc., U. S. Dist. Ct. (Chesler, U.S.D.J.) (15 pp.) After plaintiff, a union member, was discharged, the union grieved the discharge and demanded arbitration. The union authorized the union attorney to enter into a valid and binding settlement agreement, which he did prior to the hearing. However, when other union members learned of the terms of the settlement - which reinstated plaintiff and eliminated the groundman and engineer positions from the bargaining unit - they circulated a petition opposing it and the union executive board subsequently voted to reject the settlement. In response to the union attorney's request, the arbitrator refused to reopen the grievance and set a new hearing date, ruling that the dispute was not arbitrable because it had been settled. The union has not acted to enforce the settlement reinstating plaintiff. Plaintiff filed suit asserting counts for, inter alia, breach of the settlement agreement, breach of the duty of fair representation, civil conspiracy, and confirmation of the arbitration award. The court grants defendants' motions for summary judgment, finding that (1) the breach of the settlement claim is a hybrid claim under the Labor Management Relations Act and is preempted by the act; (2) the civil conspiracy claim is dependent on the collective bargaining agreement is thus is preempted by the LMRA; (3) the breach of the duty of fair representation claim fails because plaintiff does not argue that the union discriminated against him and its conduct in authorizing settlement and then rejecting the settlement and refusing to enforce it and the arbitration award that found that the parties had entered into a valid settlement was not in bad faith or arbitrary because the law gives the union the discretion to resolve disputes in ways that benefit the collective rather than an individual member and the unions decision was a rational one that benefitted the collective at plaintiff's expense; and (4) the confirmation count fails because plaintiff lacks standing to pursuant the claim in light of the determination that the union has not breached its duty of fair representation. [Filed January 14, 2013] 

 

32-7-8742 Cooper v. Bristol-Myers Squibb Co.,U.S. Dist. Ct. (Wolfson, U.S.D.J.) (27 pp.) Plaintiff brings the instant suit against Defendants, Bristol Myers-Squibb Company (“BMS”), Sanofi-Aventis U.S., L.L.C., Sanofi-Aventis U.S., Inc., and Sanofi-Synthelabo, Inc., alleging that he suffered injuries as a result of Defendants’ design, development, manufacture, testing, packaging, promoting, marketing, distributing, labeling and sale of their prescription drug Plavix, an anti-clotting medication. Plaintiff’s Amended Complaint asserts various Alabama state and common law claims against Defendants, including failure-to-warn, defective design, manufacturing defect and negligence. Based on the “learned intermediary doctrine” under Alabama law, the Court grants Defendants’ motion for summary judgment.  [Filed January 7, 2013]

 

Additional opinion approved for publication: DDS No. 35-5-8339, Target Corp. v. Township of Toms River, decided on Nov. 29, 2012, has been approved for publication as of Jan. 14, 2013. The full squib is repeated below for ease of reference:

 

35-5-8339 Target Corp. v. Township of Toms River,Tax Ct. (DeAlmeida, P.J.T.C.) (12 pp.) This is the court’s opinion with respect to motions concerning a parcel of real property in Toms River. Plaintiff Target Corp., one of six tenants at the subject property, filed complaints challenging the assessments on the property for tax years 2009 and 2010. Plaintiff SDD Inc., the owner of the subject property, also filed complaints challenging the assessments for those tax years. Target, which is responsible for the payment of taxes associated with the portion of the property that it leases, moved to consolidate the appeals. SDD opposed the motion and cross-moved to intervene in the Target appeals for the purpose of seeking dismissal. SDD argues that as owner of the property it has the right to control the challenge to the assessments. Lowe’s Home Centers Inc., another tenant, moves to intervene. While the motions were pending, SDD submitted to the court a fully executed stipulation of settlement between SDD and the municipality, reducing the assessment on the property for both tax years. Concluding that SDD has the controlling interest in challenging the assessments on the property for tax years 2009 and 2010, the court grants SDD’s motion to intervene in the Target appeals and grants its motion to dismiss those appeals. The court will enter judgments resolving the SDD appeals in accordance with the stipulation of settlement. Target’s motion is dismissed as moot. Lowe’s motion to intervene is denied. [Decided Nov. 29, 2012.] [Approved for publication.]