Daily Decision Service Alert: Vol. 22, No. 12 ? January 17, 2013

 

21-3-8743 Booker v. Rice, Law Div. (Essex Cty.) (Carey, P.J. Cv.) (15 pp.)This matter comes before the Court upon two verified complaints in lieu of prerogative writ in support of applications by way of Order to Show Cause. Plaintiffs, Mayor Cory Booker and several other members of the Municipal Council of Newark, seek a declaratory judgment that the abstentions of Councilmen Ronald C. Rice and Darrin Sharif with regard to the appointment of Shanique Davis Speight to the Council were rightfully decreed to be “negative” votes which created a “tie” vote that allowed the Mayor to cast his own vote. Plaintiffs Ras Baraka and the remaining Council members filed their own application to invalidate such actions by the Council and Mayor in the appointment of Speight. The court finds that the actions of the Mayor Booker plaintiffs were in violation of the council rules and the Municipal Vacancy Law. It therefore voids the council's declaration of a tie vote, nullifies the mayor's vote, and invalidates Speight's appointment. It also lifts the tolling of the 30-day period for the council to fill the vacancy as of the date of the opinion.

 

20-2-8744 Atherholt v. Hunter, App. Div. (per curiam) (11 pp.) Plaintiff mother appeals from the Family Part order that transferred residential custody of the parties’ son, M.H., to defendant father. The judge found a change in circumstances based on M.H.'s age, M.H.'s preference to reside with his father, the educational opportunities offered by the high school in Delaware that defendant proposed, and because at M.H.'s "age, a father would have more input into what a son's going through." In 2010, the judge denied defendant's motion to change custody without prejudice instead of setting a date for a hearing after receipt of the custody neutral assessment. What occurred also contravened Rule 5:8-6, which requires the court to set a hearing date within six months after the last responsive pleading where the custody of children is a genuine and substantial issue. M.H.’s expressed preference to reside with his father and attend the high school in Delaware created a genuine and substantial dispute regarding his welfare. No formal motion was necessary; the judge had the authority to sua sponte consider the change in custody issue. However, he was required to hold a plenary hearing and consider the factors set forth in N.J.S.A. 9:2-4.The appellate panel reverses and remands for a plenary hearing before a different judge.

20-2-8745 Hadjikonstantinou v. Hadjikonstantinou, App. Div. (per curiam) (15 pp.) In this heavily litigated matrimonial action, plaintiff appeals two orders, both of which the appellate panel affirms. The first order, which modified plaintiff's child support obligation in light of the parties' daughter's marriage, ordered him to pay a share of orthodontic expenses, and denied plaintiff's motion to compel the disclosure of additional financial records is affirmed because plaintiff's contention that defendant concealed additional income is based solely on his speculation and the judge did not abuse his discretion in denying plaintiff's motion for additional discovery or in fixing the amount of child support based on the parties income tax returns and W-2 forms. Nor did the judge abuse his discretion in ordering plaintiff to pay a share of the children's orthodontic expenses which, based on the proof submitted by defendant, appeared reasonable and necessary, despite her failure to provide plaintiff with notice of treatment. The second order, which provided that plaintiff pay defendant $1575 in counsel fees for one cross-motion is affirmed because there was no abuse of discretion where the motion came after a contentious history of motion practice and plaintiff did not challenge the amount of time or the reasonableness of the amount and considering the parties' respective incomes.

 

23-2-8746 Rosen v. Earle, App. Div. (per curiam) (6 pp.) Plaintiff, a passenger, had sued defendants, owners and operators of motor vehicles involved in a collision, for damages for injuries allegedly sustained by her. She also named as a defendant, appellant Citizens United Reciprocal Exchange (CURE), which had issued an insurance policy to defendant Stacy Carlucci, the owner of one of the vehicles, and sought a declaratory judgment that it was obligated to extend liability insurance coverage under the policy. CURE filed responsive pleadings alleging Carlucci and defendant operator, William Richards, had made material misrepresentations or omissions that permitted it to void an endorsement to the policy. The liability case settled and a stipulation of dismissal with prejudice was filed in that action. The severed indemnification case also settled and a notice of dismissal of the severed action was filed. CURE acknowledges it is not seeking relief for the parties in the underlying case but, nonetheless, urges the court to render a decision "in the public interest" to prevent the recurring issue of insurance fraud. The appellate panel is not persuaded this is a matter of significant public importance and dismisses the appeal as moot.

 

25-2-8747 Police Benevolent Association Local No. 249 v. County of Burlington, App. Div. (per curiam) (13 pp.) Defendant appeals from the Law Division's order setting aside an arbitrator's decision that upheld the county's requirement that Officer West, a member of plaintiff PBA local who had applied for and received permission for intermittent family leave due to his son's medical condition, which permission was based on a doctor's certification, produce a doctor's note each time he called out sick to care for his son. Finding that while in the public sector, an arbitrator's award will be confirmed so long as the award is reasonably debatable, in rare circumstances a court may vacate an arbitration award for public policy reasons and here, the Law Division judge properly determined that the county's requirement improperly interfered with West's rights under the FMLA. The Law Division order is affirmed.  

35-1-8748 Prime Accounting Dep’t v. Twp. of Carney’s Point, Sup. Ct. (Patterson, J.) (37 pp.) Bocceli’s misdesignation of the plaintiff did not deprive the Tax Court of subject-matter jurisdiction. The tax appeal complaint was timely, accurately described the property, and put the township and the public on notice that the 2008 assessment for the property was disputed by the taxpayer. The defect in the complaint did not prejudice the township and can be corrected by an amended complaint that relates back to the filing of the original complaint.

 

14-2-8749 State v. Juarez-Gonzalez, App. Div. (per curiam) (6 pp.) Defendant, who was indicted for sexual assault and pled guilty to third-degree criminal restraint and who was sentenced in 2003 to three years' probation, and in 2006 was taken into custody by the United States Immigration and Customs Enforcement because of his conviction, and who litigated his deportation through the federal courts, appeals the denial, without oral argument or a hearing, of his first petition for post-conviction relief, filed more than seven and one-half years after his sentencing. Given the presumption in favor of oral argument and the general requirement that judges place the reasons for their decisions on the record, the panel reverses and remands to allow the judge to reconsider and allow oral argument, or provide a statement of reasons as to why oral argument was denied.

14-2-8750 State v. Pheasant, App. Div. (per curiam) (15 pp.) After the denial of his motion to suppress evidence of marijuana that police seized from his vehicle without a warrant, defendant entered into a guilty plea to third-degree manufacturing, distributing or dispensing of marijuana. He was sentenced to a three-year custodial term, concurrent to any sentence that may be imposed arising from defendant's violation of probation on a prior conviction in Texas. Defendant's present conviction was conditioned on his right, which he has now exercised, to appeal the trial court's suppression ruling. Because the trial court's analysis erroneously co-mingled the respective and discrete elements of the "inevitable discovery" doctrine and the "independent source" doctrine under the Fourth Amendment, the appellate panel remands for further consideration of the suppression motion and a renewed analysis of the applicable standards. The State only invoked before the trial court the inevitable discovery exception. The State did not invoke the independent source exception. Although it has not specifically requested to do so, the appellate panel declines to allow the State on remand to attempt to justify the search under the independent source doctrine.

 

42-7-8751 In re Reilly, U.S. Dist. Ct. (Shipp, U.S.D.J.) (9 pp.) The parties appeal an order entered by the Bankruptcy Court that an asset in the form a Tevis claim of Appellee Susan M. Reilly (the "Debtor") was abandoned to her by the Chapter 7 Trustee, Appellant Barry W. Frost (the "Trustee"), upon the entry of the final decree closing her bankruptcy action pursuant to 11 U.S.C. § 554(c). The Bankruptcy Court found that the abandonment was not revoked when the Trustee reopened the bankruptcy action pursuant to 11 U.S.C. § 350. Appellant contends the reopening of a bankruptcy action pursuant to§ 350(b) should lead to an automaticrevocation of a "technical abandonment" made pursuant to § 554(c). The Trustee would then be entitled to settle Debtor's claim for the benefit of the estate. The Bankruptcy Court, however, ruled that a technical abandonment is analogous to a filing of a notice of abandonment and is, therefore, irrevocable. As such, Trustee was barred from settling Debtor's claim. The Court finds that a technical abandonment is not automatically revoked upon reopening of the bankruptcy action. The Court finds that an analysis pursuant to Federal Rule of Civil Procedure 60(b) is the appropriate standard to employ to determine if the technical abandonment should be considered revoked. The Court remands to the Bankruptcy Court for such analysis. [Filed January 8, 2013]

 

07-7-8752 Miloseska v. Liberty Travel, U. S. Dist. Ct. (Linares, U.S.D.J.) (9 pp.) In this action arising out of injuries that Menka Miloseka allegedly suffered while vacationing in the Dominican Republic at the Barcelo Bavaro Palace Deluxe Resort and alleging that, inter alia, defendant Liberty Travel, a New Jersey citizen, made false representations about the condition of the hotel on which Menka relied to her detriment, originally filed in state court and removed to federal court by defendants on the basis of diversity of citizenship, plaintiff moves to remand the matter pursuant to 28 U.S.C. section 1447. The court adopts the report and recommendation of the magistrate judge recommending that the matter be remanded and grants the motion, finding that the claims asserted against Liberty Travel are not wholly insubstantial and/or frivolous in light of New Jersey law that imposes some limited duty of care on a travel agent to warn of known dangers and dangers of which it should be aware and that, therefore, Liberty Travel was not fraudulently joined [Filed January 16, 2013]

53-7-8753 Jersey Media Group Inc. v. Sasson, U.S. Dist. Ct. (Martini, U.S.D.J.) (6 pp.) Plaintiff North Jersey Media Group Inc. (NJMG) is a news reporting company. NJMG employed a reporter to write an article on the trial of Ken Zisa and Kathleen Tiernan. NJMG also employed photographers who took photographs of Zisa and Tiernan. NJMG has applied for, but has not yet received, certificates of copyright registration in the Zisa Article, the Zisa Photograph, and the Tiernan Photograph (the “Zisa Works”). NJMG claims Defendant Victor Sasson posted entries and photographs on his internet blog which used the Zisa Works without NJMG’s permission. NJMG also claims that, without authorization, Sasson published a September 11 photograph for which NJMS owns a certificate of copyright registration. NJMG’s complaint asserts claims for copyright infringement of the September 11 photograph, the Zisa Article, the Zisa Photograph, and the Tiernan Photograph. Defendant filed a motion to dismiss the counts relating to the Zisa works, asserting that because NJMG has only applied for, but not yet received, certificates of copyright registration for each of those works, NJMG has failed to state a prima facie claim of copyright infringement. Adopting the “registration approach,” the Court finds NJMG’s applications are insufficient to state a claim for copyright infringement of the Zisa Works. Until NJMG holds a certificate of copyright registration, NJMG cannot state a prima facie claim of copyright infringement for those works. Defendant’s motion is granted. [Filed January 4, 2013]

 

36-7-8754 Denisco v. Boardwalk Regency Corp., U. S. Dist. Ct. (Simandle, U.S.D.J.) (40 pp.) Plaintiffs Cheryl Denisco and her mother-in-law Marie Denisco, and their respective husbands, filed this action alleging that defendant Ventura, an aesthetician, used unsterilized needles while giving the women facials at the Qua Spa at Caesar’s Atlantic City, possibly exposing them to blood-borne diseases such as HIV and Hepatitis. The complaint also named as defendants Boardwalk Regency Corp., spa manager Rahier, spa supervisor Mens and lead aesthetician Giannini. Plaintiffs, who spent months fearing they might contract diseases and receiving medical tests and preventative treatment, seek damages for assault and battery, negligence, intentional and negligent infliction of emotional distress, and punitive damages. Boardwalk Regency, Rahier, Giannini and Mens move for summary judgment. Ventura moves to preclude expert testimony and limit plaintiff's damages. Defendants also move to preclude expert testimony and limit damages. Corporate defendants' motion for summary judgment is granted as to the claim for negligent hiring and denied for all other claims brought by plaintiffs because they raise genuine issues of material fact regarding their claims. Ventura's motion, and corporate defendants' cross-motion, to limit plaintiff's damages for emotional distress to the one-year window of anxiety is granted as to Cheryl and Marie. Expert testimony related to emotional damages is likewise limited to the one-year window. [Filed January 15, 2013]