Daily Decision Service Alert: Vol. 22, No. 26 ? February 7, 2013

 

01-2-8949 Sevell's Auto Body Co., Inc. v. Borough Of Roselle Park, App. Div. (per curiam) (11 pp.) Plaintiff Sevell's Auto Body Co., Inc. was licensed by defendant Borough of Roselle Park to tow vehicles deemed legally subject to removal and impoundment by the municipality. Plaintiff is statutorily authorized to charge a fee to store impounded vehicles. The issue in this appeal concerns the amount of storage fees plaintiff is entitled to receive from the Borough when such vehicles are sold by the municipality at public auction. Plaintiff filed this action seeking a judicial declaration that under N.J.S.A. 39:10A-5, it is entitled to recover the total amount of its "expenses of possession" of impounded vehicles. Plaintiff also sought a writ of mandamus compelling the Borough to pay plaintiff the total price received for vehicles sold at public auction. The Borough argues that plaintiff's fees are limited by N.J.S.A. 40:48-2.50, which sets out the "fees to be paid to an operator by a municipality for the storage of removed motor vehicles." The appellate panel finds the trial court appropriately held that N.J.S.A. 40:48-2.50 limits the payment due to a tow operator when an abandoned vehicle is sold at public auction pursuant to the statutory procedures governing the sale of abandoned vehicles. The Borough's obligations to plaintiff are limited to $400 per vehicle.

 

03-2-8950 Harrison v. Jones, App. Div. (per curiam) (11 pp.) This matter arises from a construction project. Third-party plaintiffs (the Joneses) appeal from an order denying their motion to modify an arbitration award, and granting a motion by plaintiffs Albert Harrison and A & M Harrison Construction Co. to confirm the award. After the trial court granted partial summary judgment to the Joneses, they agreed to submit the remaining issues to binding arbitration. The arbitrator refused to award the Joneses damages or counsel fees on the claims under the Consumer Fraud Act (CFA). The Joneses argue that the trial court erred by refusing to award them the damages and fees. The Joneses failed to establish any basis in the Arbitration Act for the relief they are seeking. The motion judge found that A & M committed certain technical violations of the CFA and the home improvement regulations, but the arbitrator determined that the Joneses sustained no monetary loss as a result of those violations. The arbitrator awarded the Joneses $45,800 under the terms of the construction contract, not for any loss sustained as a result of A & M's statutory and regulatory violations. Thus, the record supported the arbitrator's determination that the Joneses were not entitled to treble damages under the CFA. Moreover, the arbitrator's refusal to award the Joneses counsel fees was not a basis for modifying the award.

 

15-2-8951 Nemirovskiy v. Talker, App. Div. (per curiam) (3 pp.) Defendant appeals from a Special Civil Part judgment entered in favor of plaintiff in the amount of $6,575 plus fees and costs of $57. Plaintiff once dated defendant's sister. During that relationship, he permitted defendant to use his credit card to pay a tuition fee totaling $6,575. Plaintiff claimed he loaned the money to defendant. When defendant refused to repay the loan, plaintiff commenced the Special Civil Part action. At trial, defendant disputed plaintiff's testimony that the tuition payment was a loan to her. She claimed plaintiff had borrowed $7,000 from her mother, and that instead of repaying her mother, plaintiff made defendant’s tuition payment. Defendant's mother testified and corroborated defendant's testimony. Defendant also presented the testimony of her sister's friend. The trial judge believed plaintiff but did not find defendant and her witnesses credible. Based on his credibility determinations, he found in favor of plaintiff. The scope of appellate review of a judgment entered in a non-jury case is limited and the appellate panel affirms the judgment in favor of plaintiff, finding no reason to disturb the judge's findings.

 

20-4-8952 Benjamin v. Benjamin, Ch. Div., Family Pt. — Ocean Co. (Jones, J.S.C.) (11 pp.) Having another job in place is not a prerequisite for a custodial parent wishing to relocate with a child to another state, but the likelihood of being able to establish a financially stable household is a relevant factor in considering a relocation application. [Decided Oct. 19, 2012.] [Approved for publication.]

 

20-2-8953 Alvarez v. Ball, App. Div. (per curiam) (5 pp.) Defendant appeals from a Family Part order denying her motion to vacate a previous order that she states vacated the obligation of plaintiff, her former husband, to pay child support. Finding that defendant has failed to include in her appendix the documents necessary to inform its appellate review, the panel dismisses the appeal.

25-2-8954 Fik-Rymarkiewicz v. University of Medicine and Dentistry of New Jersey, App. Div. (per curiam) (24 pp.) Plaintiff, a molecular biologist formerly employed by defendant, appeals the order dismissing, first without prejudice and then with prejudice, her complaint alleging employment discrimination, hostile work environment and retaliation in violation of the Law Against Discrimination and denying her reconsideration. The panel affirms, fully satisfied that, by continuously refusing to produce specified tax returns and then unilaterally redacting them and by refusing to disclose the name of her immigration attorney, plaintiff failed to produce fully responsive discovery, despite being ordered by the court to produce that information, that her refusal to comply was deliberate and contumacious, and that, under the totality of the circumstances, the sanctions imposed were not unjust or unreasonable.

36-2-8955 Afiriyie v. Bank of America, App. Div. (per curiam) (53 pp.) This appeal and cross-appeal arise out of an incidentin which plaintiff, upon attempting to cash a check at a bank's branch office in a supermarket, was erroneously accused of criminal conduct and briefly arrested. The jury found the bank and its branch manager liable to plaintiff for defamation, wrongful dishonor of a negotiable instrument, and malicious prosecution and awarded $710,000 in damages. The trial court set aside the verdict and ordered a new trial. Both parties seek relief. The panel affirms the order directing a new trial on liability and damages. It finds no error in the trial court's denial of defendants' motion for summary judgment, concluding that plaintiff had sufficient evidence to enable a fact-finder to conclude that she was entitled to relief on the three claims at issue. It also sustained the trial court's denial of defendant's motions for judgment at the close of plaintiff's case in chief and at the close of evidence at the end of the trial. The panel finds that the jury instructions on the defamation claim were flawed in that the trial court did not charge the jury on the privilege applicable to the bank manager's statements to the police, including the heightened burden of proof to overcome the qualified privilege and on the wrongful dishonor claim because they did not charge the jury that emotional distress damages could not be awarded on such a claim and that these flaws warrant a new trial at which the jury will be provided with revised instructions and a revised verdict sheet.

 

14-2-8956 State v. Brewster, App. Div. (Ashrafi, J.A.D.) (19 pp.) This postconviction relief appeal addresses Padilla v. Kentucky, 130 S.Ct. 1473 (2010); State v. Nunez-Valdez, 200 N.J. 129, 138 (2009); and Rule 3:22-12, the limitations period for filing a PCR petition as amended in 2010. We hold that defendant did not establish factually a prima facie case of ineffective assistance of counsel by alleging that his attorney at the time he pleaded guilty in 1998 to marijuana charges failed to predict correctly that a federal deportation complaint would be filed against him in 2010. The warning contained in Question 17 of the plea form that defendant “may” be deported was correct and sufficient advice. Also, the PCR was untimely filed under R. 3:22-12, in particular, because an attorney told defendant no later than in 2007 that his conviction would cause immigration problems. [Approved for publication.]

 

14-2-8957 State v. Gibson, App. Div. (Ostrer, J.A.D.) (18 pp.) We hold that in a driving-under-the-influence prosecution, N.J.S.A. 39:4-50, due process and fundamental fairness preclude a trial court, absent a defendant’s consent, from relying on the evidence heard in a pretrial suppression hearing as proof of guilt in the trial on the merits. In this case, defense counsel objected to reliance on the suppression hearing record and moved to dismiss in the absence of other proofs. The court nonetheless found defendant guilty of DUI solely on the basis of evidence elicited at the pretrial hearing to suppress the fruits of a motor vehicle stop and subsequent arrest. We reverse the conviction and order entry of a judgment of acquittal. [Approved for publication.]

07-7-8958 Rogers v. Morrice, U.S. Dist. Ct. (Simandle, U.S.D.J.) (5 pp.) Plaintiff Plaintiff, representing herself, has filed a motion to reopen her case as well as an application to proceed in forma pauperis. This action alleges that Plaintiff and her late husband were victims of a fraudulent foreclosure on their New Jersey residence. Plaintiff’s initial application to proceed in forma pauperis was denied without prejudice for failure to complete the application, and the Court administratively terminated the case. Here, the Court grants Plaintiff’s motion. Plaintiff’s complaint is 217 pages long and includes 377 numbered paragraphs and 438 footnotes. In addition, Plaintiff references and attaches 195 pages of exhibits. Plaintiff alleges federal and state RICO claims, fraudulent concealment, aiding and abetting, reckless manslaughter, theft, fraud and negligence against 29 named Defendants. The complaint does not comply with the “short and plain statement” requirement of Rule 8(a). The Court will dismiss Plaintiff’s overlong complaint without prejudice and administratively terminate the case, subject to reopening upon Plaintiff’s filing of an Amended Complaint that complies with all relevant state and federal rules. Claims that are improper on their face because they are brought under criminal statutes that do not provide for civil remedies are dismissed with prejudice. [Filed January 29, 3013]

 

11-8-8959 Dombroski v. J. P. Morgan Chase Bank, N.A., Third Circuit (McKee, C.J.) (5 pp.) In this action alleging that the contractual disclaimer in Chase's Code of Conduct is not sufficiently prominent and clear to preclude formation of a contract between Dombroski and Chase, Dombroski appeals the District Court's order denying leave to amend his amended complaint on the ground that a second amendment would be futile. The panel affirms, finding that the language was sufficiently prominent and clear to negate the attempt to claim that the Code of Conduct was a contract that Chase breached. However, concluding that the lower court misinterpreted G-I Holdings Inc. v. Reliance Ins. Co., in denying Dombroski's judicial estoppel claim, the court holds that the District Court erred in holding that judicial estoppel does not apply based on Chase's unsuccessful assertion of a contradictory position in prior litigation. [Filed February 4, 2013]

 

25-7-8960 Spence v. LaHood, U.S. Dist. Ct. (Simandle, U.S.D.J.) (17 pp.) Plaintiff alleges she was terminated from her job at the Federal Aviation Administration (FAA) because of discrimination on the basis of religion, race and national origin. Plaintiff is an African-American Muslim who wears a traditional head covering in public in accordance with her religious beliefs. She brings this action against the FAA, the United States Department of Transportation (DOT), and U.S. Secretary of Transportation Ray LaHood. While filling out her job application online, she checked a box that she was eligible for a “derived veteran’s disability preference,” because her spouse resigned from the military due to an in-service injury. After she began working, an error was discovered related to her preference. Plaintiff was terminated before her probation period expired because she did not qualify for the preference. The Court grants Defendants’ motion to dismiss all counts against the FAA and the DOT, leaving Ray LaHood as the sole defendant because he is the head of the employing agency. The Court dismisses with prejudice all claims against the FAA and the DOT and all claims under § 1981 and the New Jersey Law Against Discrimination (LAD). The sole remaining claim is a hostile work environment under Title VII. Because Plaintiff fails to plead facts that form a plausible basis for relief, the motion to dismiss the hostile work environment claim is granted without prejudice. [Filed January 29, 3013]

25-7-8961 Treusch v. Center Square Supermarket LLC, U.S. Dist. Ct. (Simandle, U.S.D.J.) (39 pp.) In this action asserting claims for breach of contract, breach of fiduciary duty and gender discrimination arising out of plaintiff's discharge from employment by defendant Center Square after he was accused of sexual harassment and defendant Local 152's alleged failure to adequately represent him and arbitrate his grievance, the court grants defendants' motion for summary judgment, finding that the claims for breach of contract and breach of fiduciary duty arise under section 301 of the National Labor Relations Act and, because they were filed more than six months after his final appeal to the Union was denied, are time barred. His NJLAD claim is dismissed because plaintiff has not put forth sufficient evidence to establish a prima facie case for reverse gender discrimination against either defendant and no rational jury could find that he was discriminated against in violation of the act. [Filed January 31, 2013]