Daily Decision Service Alert: Vol. 22, No. 27 ? February 8, 2013

 

 

11-3-8962 Waterford of Parsippany Property LLC v. MLMT 2005-C1P1 Parsippany Property LLC, Law Div. (Morris Cty.) (Hansbury, J.S.C.) (5 pp.) Finding that plaintiff sufficiently pleaded facts supporting his contentions that defendant, as guarantor, failed to adequately capitalize Waterford, the court finds that he states a claim for breach of the loan agreement that would trigger his right to recourse under that agreement. Further, plaintiff has sufficiently pleaded that defendant breached the loan agreement by filing a contesting answer and counterclaim. Accordingly, the motion to dismiss is denied. [Filed January 28, 2013]

16-2-8963 Bacher v. Bd. of Educa. of Mansfield Twp., App. Div. (per curiam) (2 pp.) Plaintiff appeals the final administrative decision of the Acting Commissioner of Education upholding the board's action reducing her salary to comply with the salary cap provisions of N.J.A.C. 6A:23A-1.2 and -3.1(e)(2). The panel affirms for the reasons stated in N.J. Ass'n of School Administrators v. Cerf.

 

20-2-8964 Loos v. Brown, App. Div. (per curiam) (6 pp.) The appellate panel reverses a family judge's determination — reached without benefit of an evidentiary hearing and in the face of competing certifications — that prohibited the primary custodial parent's (mother) removal of the parties' child from New Jersey to North Dakota. In denying relief, the trial judge placed too much weight on the impact removal would have on the father's rights and interests. The judge should not have assigned weight to any of the circumstances contained in the parties' competing certifications because the facts were largely disputed. The judge should have recognized that the mother had satisfied the burden of presenting a prima facie case, placing the burden of going forward on the father to "produce evidence opposing the move as either not in good faith or inimical to the child's interest." Once the mother presented a prima facie case, the judge should have scheduled an evidentiary hearing to resolve the parties' many factual disputes. The panel remands for an evidentiary hearing.

23-2-8965 Gap, Inc. v. Travelers Insurance Company, App. Div. (per curiam) (19 pp.) This insurance coverage case returns after remand. On remand, Judge DeCastro found that defendant Travelers Insurance Company was not required to provide liability insurance coverage to plaintiff Gap, Inc. in the underlying negligence action. Plaintiff contracted with Apex Xpress, Inc. to make deliveries to its stores. One of the delivery men, Jose Otero, was injured when he was struck in the eye with a bungee cord which plaintiff’s employees attached to a rack used to move boxes. Plaintiff settled Otero's claim against it and filed a declaratory judgment complaint seeking to require defendant to provide indemnification under an insurance policy issued to Apex for the delivery truck. Through a retroactive endorsement, plaintiff was named as an additional insured as required by Apex's contract with plaintiff for any claims resulting from Apex's conduct. However, plaintiff is not entitled to indemnification because Apex's conduct did not cause Otero's injury. Plaintiff's own negligent acts are not covered by the endorsement. The appellate panel finds the judge properly concluded that plaintiff's negligent act of improperly attaching unsafe bungee cords to the rack was not a "use" of the Apex truck for the purpose of triggering coverage under the automobile liability insurance policy defendant provided to Apex.

 

25-23-8966 Roth v. Board of Adjustment of the Township of Hillsborough, Law Div.-Somerset Cy. (Buchsbaum, J.S.C.) (22 pp.) Plaintiff purchased the subject property in 2001 with the intent of using it as a contractor storage yard for the storage of vehicles, equipment and, materials for his landscaping business and for contractor tenants. The permitted uses at that time and today do not incorporate such activity. A dispute arose over the extent of Plaintiff's use of the property and prosecution was initiated against him. He applied to Hillsborough Township for a use variance and/or certification of his activities as a nonconforming use. After 13 days of hearings, the Zoning Board of Adjustment adopted a resolution, which denied the nonconforming use certification but granted a use variance subject to a number of conditions. Plaintiff sought relief in lieu of prerogative writs in the Superior Court. The court remanded the matter for a clarifying resolution as to the Board's basis for its ruling. Such a resolution was adopted and the matter has now returned to the court. The court finds that there is a permitted nonconforming use on the site that has not been abandoned which allows it to continue to be operating for plaintiff’s landscape business, even if some parts of the business are operated by tenants. The court determines that a number of the conditions may be imposed. Others are inappropriate given the scope of the nonconforming use as determined by the court, while others should be left to site plan approval.

 

27-3-8967 Georgia King Village v. Simmons, Law. Div. Special Civil Part, Landlord/Tenant (Fast, J.S.C.) (10 pp.) Plaintiff seeks the eviction of defendant and her minor children based on a guest of her household - her children's father - having engaged in criminal activity - a fight with another tenant. Finding that the guest did engage in a fight and that his participation constituted a threat to the right of peaceful enjoyment of the premises by other residents, and after evaluating plaintiff's consideration of the factors included in 24 C.F. R. 5.852 , the court enters a judgment for possession. [Filed February 5, 2013]

 

04-2-8968 Malden Real Estate v. Cycle Craft, Inc., App. Div. (per curiam) (4 pp.) Plaintiff Malden Real Estate appeals from that part of the amended order and final judgment which awarded counsel fees to defendant Cycle Craft, Inc. In the underlying case, the Appellate Division affirmed the trial judge's dismissal of defendant's counterclaim for damages under the Consumer Fraud Act, reversed the denial of defendant's request for counsel fees, and remanded for a determination of the reasonable fees defendant incurred "solely in the effort to enforce its rights pursuant to the settlement order." On appeal, plaintiff contends the judge erred in (1) denying it an opportunity to review the billing invoices; (2) failing to compel defendant's counsel to properly isolate fees attributable solely to defendant's effort to enforce its rights under the settlement order; and (3) exceeding the scope of the remand and awarding an unreasonable fee. The appellate panel reverses and remands for further proceedings. It is error for the court to award counsel fees based solely on an affidavit of services and in camera review of counsel's files without affording the adverse party an opportunity to review those files and examine counsel with respect to the necessity of the services and the reasonableness of the fees requested.

36-2-8969 Jean-Gilles v. Robert Wood Johnson University Hospital at Rahway, App. Div. (per curiam) (8 pp.) Plaintiff filed this action when, after going to the emergency room with severe stomach pains and arriving incoherent and unable to control her physical movements, and being placed in a small room with her husband to wait for a bed, she suffered a broken arm when her husband attempted to restrain her. She alleged that the hospital was negligent in leaving her unattended with only her husband and by failing to restrain her. She appeals the order dismissing her complaint with prejudice for failing to comply with the affidavit of merit statute. Agreeing with the trial judge that the common knowledge exception was not applicable and that an affidavit of merit was required, the panel affirms the dismissal.

 

14-2-8970 State v. Fowler, App. Div. (per curiam) (25 pp.) Defendant Fowler appeals from his judgment of conviction and sentence. The charges against defendant and a codefendant, Lathan, were based on evidence uncovered during searches of two dwellings and observations of defendants' conduct. The judge submitted the charges based on defendant's and Lathan's possession of a controlled dangerous substance (CDS) to the jury with limiting instructions — that defendant possessed or constructively possessed only the drugs found at one dwelling and that Lathan possessed or constructively possessed only the drugs found at the second dwelling. The jury was not charged on joint possession. The jury found defendant guilty and acquitted Lathan. On appeal defendant argues the judge should have severed Lathan’s trial, precluded certain evidence and declared a mistrial. Defendant also maintains that his sentence is excessive. The appellate panel affirms defendant's conviction but remands for resentencing where the judge incorrectly believed he was required to impose a five-year mandatory parole disqualifier on the extended term he imposed on the school zone violation.

 

03-7-8971 Hautz Construction, LLC v. H&M Department Store, Dist. Ct. (Wolfson, U.S.D.J.) (11 pp.) In this breach of contract action, Plaintiff alleges that Defendants failed to make payments owed for subcontract work performed during construction of a store in New Jersey. The suit was initially brought in state court where Defendants unsuccessfully moved to compel arbitration. Once the suit was removed to the District Court, the Court granted Defendants’ motion for reconsideration. Relying on the forum selection clause in the parties’ subcontract, the Court held Plaintiff’s claims were subject to arbitration in Wisconsin, Wisconsin law governed and Plaintiff had not demonstrated unconscionability under Wisconsin law. Plaintiff now moves for reconsideration, arguing that since state court judge’s ruling did not address Wisconsin as a potential situs, and Defendants’ moving papers did not address the issue, he should be granted leave to supplement his arguments. The Court denies Plaintiff’s motion, finding he raised the issue of situs in his briefing, and had a full and fair opportunity to address the issue. Plaintiff’s proposed facts do not relate to procedural unconscionability. As to substantive unconscionability, Wisconsin courts have found it reasonable for a forum selection clause to designate the headquarters of one of the parties as the situs for the arbitration. [Filed January 30, 2013]

 

07-7-8972 Brazenor v. Kwasnik, U. S. Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Plaintiff moves to remand this action to the Superior Court of New Jersey and for costs pursuant to 28 U.S.C. section 1447(c). Defendant removed the matter almost one year after receiving service and three days before oral argument on a pending motion against him for sanctions. Finding that defendant's petition is inexcusably late and procedurally defective, there is no federal question jurisdiction, and plaintiff's state law claims are not preempted by the pending bankruptcy proceeding, the court grants plaintiff's motion to remand. It also grants plaintiff's motion for costs incurred as a result of the removal because defendant removed the action with complete disregard for the statutory criteria and for an impermissible purpose. [Filed February 6, 2013]

 

07-7-8973 Abbott v. Tacconelli’s Pizzeria, LLC, Dist. Ct. (Simandle, U.S.D.J.) (25 pp.) Plaintiff Rhonda Abbott, who is hearing impaired and disabled, alleges she was denied service at Tacconnelli’s Pizzeria because of the presence of her service dog. Gregory Lasky, who is a paraplegic and uses a wheelchair and service dog, is a “tester” who visits public accommodations to test if there are barriers to access for the disabled; he joined the suit after he was unable to enter the pizzeria because of snow piled on the curb. Plaintiffs sued the pizzeria and Vincent Tacconelli, the owner and manager; Lasky also sued Best Properties, LLC, the landlord of the strip mall, for violations of the New Jersey Law Against Discrimination and the Americans with Disabilities Act. After a settlement was reached, Abbott changed attorneys and now asserts that the settlement cannot be enforced because her former attorney did not have authority to settle the case, and the settlement agreement itself is unenforceable because essential terms are missing. Defendants move to enforce the settlement agreement. Finding that Abbott’s former attorney had actual authority from Abbott to settle the case, and no essential terms are missing from the agreement, the Court grants defendants’ motion to enforce settlement. [Filed January 30, 2013]

46-70-8974 Cluver v. Borough Of Sayreville, Dist. Ct. (Shipp, U.S.D.J.) (24 pp.) Plaintiff was issued a summons for driving a motor vehicle with tinted windows. Subsequently, Plaintiff's ophthalmologist requested and Plaintiff received a medical exemption permitting him to have tinted windows. When presented with the medical exemption card, the Sayreville Municipal Court dismissed the summons. Counsel sent a letter to Sayreville stating the summons was issued without probable cause, which was forwarded to the Middlesex County Municipal Joint Insurance Fund. Following an investigation, Detective Anderson concluded probable cause existed that Plaintiff had committed a fraud on the court by having the summons dismissed based on the after-acquired exemption card, and attempted to commit insurance fraud using an altered version of the card. Plaintiff was arrested but it was later revealed that the card submitted to the court was not altered and had the issuance date on it. The criminal charges against Plaintiff were dismissed. Plaintiff filed a complaint alleging federal claims pursuant to 42 U.S.C. § 1983, malicious abuse of process, violation of his rights under the New Jersey Civil Rights Act, and civil conspiracy. Here, the Court grants the motions for summary judgment filed by Defendants Borough of Sayreville, Prosecutor Blanda, and Detective Anderson. [Filed January 30, 2013]

 

09-7-8975 Ciser v. Nestle Waters North America, Inc., Dist. Ct. (Martini, U.S.D.J.) (5 pp.) Plaintiffs Ciser Computer Consulting (“CCC”) and Gary Ciser, its owner, bring this putative class action against Defendant Nestlé Waters North America, Inc., alleging violations of the New Jersey Consumer Fraud Act (“NJCFA”), and an unnamed common law, as well as unjust enrichment arising out of certain late payment fees. Nestlé Waters filed motion to dismiss for lack of standing and failure to state a claim upon which relief can be granted. The Court finds that Ciser has standing but CCC does not. Ciser paid CCC’s bills, so CCC did not suffer an injury that could be redressed. The Court dismisses CCC’s claims without prejudice for lack of standing. Ciser, on the other hand, has standing to bring his NJCFA claim and common law claims. Underlying each of the counts in the complaint is an argument that Nestlé Waters’ late fees were unenforceable. On the facts alleged, this argument fails. Because Ciser’s allegations are conclusory, the Court dismisses his claims without prejudice for failure to state a claim upon which relief can be granted. [Filed January 31, 2013]

 

51-7-8976 Rodriguez v. Shanahan, Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Petitioner, an alien detained in connection with removal proceedings and currently confined at Monmouth County Correctional Facility, has submitted a petition for a Writ of Habeas Corpus challenging his pre-removal-period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of respondents. The Court holds that Petitioner’s detention is governed by 8 U.S.C. § 1226(a) because the Department of Homeland Security (“DHS”) did not take Petitioner into custody when he was released from criminal incarceration for a removable offense and grants the Writ of Habeas Corpus directing the Immigration Judge conduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2) to determine if Petitioner is a flight risk or danger to the community. [Filed January 30, 2013]

25-8-8977 White v. Cleary, Third Cir. (Smith, C.J.) (8 pp.) Plaintiff, a teacher and formerly a cheerleading coach, filed this action alleging hostile work environment under Title VII and the New Jersey Law Against Discrimination, retaliation under the First Amendment, Title VII and the NJLAD, and unequal pay under 29 U.S.C. section 206 arising out of defendants' refusal to reappoint her as cheerleading coach or appoint as the school's affirmative action officer. She appeals the District Court's grant of defendants' motion for summary judgment. The court affirms, finding that the Title VII and NJLAD hostile work environment claims fail because White cannot show intentional discrimination; her retaliation claims fail because she cannot show a causal link between her protected activities and the adverse action she cites and she cannot show that her speech was a substantial or motivating factor in retaliatory action or satisfy the balancing test in Pickering v. Bd. of Educ. [Filed February 6, 2013]

 

25-7-8978 Montvale Surgical Center LLC v. Horizon Blue Cross Blue Shield of New Jersey Inc., U. S. Dist. Ct. (Chesler, U.S.D.J.) (11 pp.) This is an action alleging the improper underpayment of healthcare benefits under defendant Ironworkers District Council of North Jersey Welfare Fund, a self-funded welfare benefit plan governed by ERISA and administered by defendant BCBS for services provided to a plan participant by plaintiff, an outpatient ambulatory surgery center and out of network provider. The complaint asserts claims for breach of contract, promissory estoppel, negligent misrepresentation and unjust enrichment. The court converts defendants' motions to dismiss into motions for summary judgment and grants the motions, finding that ERISA preempts the complaint and that amendment to proceed under ERISA section 502(a) is futile because plaintiff, who did not submit a second level appeal to the fund's Board of Trustees, failed to exhaust his administrative remedies under the plan and failed to make a clear and positive showing that exhausting the administrative remedies would have been futile. [Filed February 5, 2013]