Daily Decision Service Alert: Vol. 22, No. 46 ? March 8, 2013

 

 

10-2-9247 Metropolitan District Of The Christian And Missionary Alliance v. Community Church Of Paramus Of The Christian And Missionary Alliance, Inc.App. Div. (per curiam) (16 pp.) Defendants appeal from the order granting summary judgment to plaintiff declaring that plaintiff shall have title to the certain real property and to all personal property of defendant Community Church of Paramus of the Christian and Missionary Alliance, Inc. Defendants argue that plaintiff's decision to close the Community Church and acquire title to its real and personal assets is arbitrary and contravenes the expressed policies of plaintiff's organization. Defendants ask the court to intervene in a dispute between them and the Christian and Missionary Alliance (CMA). This is a matter of "church government" which the Supreme Court has declared must be free of "secular control or manipulation" under the First Amendment. The court cannot parse the ecclesiastical constitution and rules of the CMA and the Metropolitan District and then apply neutral principles to determine whether the district executive committee properly interpreted and applied such constitution and rules. In disputes involving a church governed by a hierarchical structure, courts defer to the result reached by the highest church authority. Defendants argue that enforcement of the reversionary clause in the CMA constitution amounts to approval of an unjust forfeiture. The appellate panel disagrees, finding that application of the reversionary clause, which the Community Church expressly approved and adopted when it elected to become an accredited church of the CMA, is neither unjust nor inequitable.

 

61-2-9248 United Arab Shipping Company v. Transworld Logistics Group, Inc., App. Div. (per curiam) (20 pp.) This appeal is primarily governed by the Carriage of Goods by Sea Act (COGSA). Defendant Transworld Logistics Group, Inc. appeals from summary judgment orders dismissing its counterclaim and awarding plaintiff United Arab Shipping Company damages, plus attorneys' fees and costs. Transworld contends that United Arab failed to deliver twelve containers because their contents became ineligible for importation due to the automobiles' ages at the time they physically arrived in Iraq. United Arab never received payment for the shipping charges and commenced this action against Transworld. Transworld filed a counterclaim, seeking damages reflecting the value of lost cargo. The Law Division concluded that United Arab had unequivocally earned the right to be paid once the containers arrived at the destination port, regardless of their timeliness vis-à-vis Iraqi import deadlines. The appellate panel affirms the dismissal of Transworld's counterclaim, except for its count seeking recoupment, a defense recognized under the COGSA as not being subject to statutory one-year limitation. Transworld can assert a claim for damages by way of a recoupment, even though an affirmative action for damages would be barred. The panel reverses the grant of summary judgment in favor of United Arab, finding that material fact questions permeated the summary judgment process.

25-2-9249 In the Matter of Andriani, App. Div. (per curiam) (17 pp.) This is an appeal and cross-appeal from a final decision of the Civil Service Commission, finding appellant Angelo Andriani, a Hoboken police lieutenant, guilty of conduct unbecoming, and imposing discipline of a 180-day suspension. The discipline stemmed from an incident at Tampa International Airport involving Transportation Security Administration officials during which Andriani identified himself as a police officer and showed his badge although he was under suspension for an unrelated disciplinary matter. Appellant complains the findings and penalty are arbitrary and capricious. The City of Hoboken contends the evidence also supports the dismissed charges of violating the "under suspension" rule, untruthfulness and neglect of duty, warranting removal from office. The appellate panel affirms the decision, finding the ALJ and Commission appropriately concluded that Andriani's actions are more properly classified as constituting conduct unbecoming a public employee. Also, the Commission reasonably found that removal of Andriani was too severe a discipline given the absence of any prior adjudicated rule infraction and his otherwise commendable service record.

 

27-2-9250 Beauchamp v. Siddiqui, App. Div. (per curiam) (5 pp.) In this action by a tenant against his landlord filed after the tenant lost his balance and fell at the junction of the driveway and the lawn while clearing snow accumulation and salting the driveway, the panel affirms the grant of defendants' motion for summary judgment, finding that defendants were residential, not commercial, landlords, the standard of care required the lessor to disclose a condition involving an unreasonable risk of physical harm to persons on rental premises, and here, plaintiff-lessee was actually familiar with the allegedly dangerous condition, which relieved the landlord of any legal liability arising from the incident. 

 

34-2-9251 Wilson v. MD Sass Municipal Finance Partners-V, L.L.C., App. Div. (per curiam) (6 pp.) Plaintiff Merrick Wilson appeals from an order granting summary judgment to defendant MD Sass Municipal Finance Partners-V, LLC, which purchased a Tax Sale Certificate at a public auction that was secured by property owned by Wilson. Ultimately, MD Sass filed a foreclosure complaint and submitted to the Township's Tax Office an affidavit detailing the fees and costs incurred in connection with the tax sale certificate. MD Sass then recorded a lis pendens with regard to the property. In his complaint, Wilson alleged that MD Sass failed to serve him with the required pre-litigation notice, and charged excessive fees to release the property from the tax lien. The record shows that MD Sass mailed Wilson the notice of its intention to file the foreclosure complaint by certified mail, at an address in Yardley, Pennsylvania. Wilson acknowledged the address was his last known address. Wilson also acknowledged that he received the summons and complaint in the foreclosure action, which was served upon him at the Yardley, Pennsylvania address. The fact that the notice of intent to file the foreclosure action was returned as unclaimed is irrelevant. MD Sass satisfied the requirements of the rule by mailing the notice to Wilson, and was not required to effectuate service by any other means. Also, the costs for which MD Sass sought reimbursement were supported by statutory authority.

 

35-5-9252 31-37 Union Place LLC v. Summit, Tax Ct. (Brenna, J.T.C.) (5 pp.) Defendant moves to dismiss plaintiff's complaint challenging the tax year 2011 tax assessment on its commercial property. Finding that plaintiff's challenges to the tax assessments on the property for 2010, 2011, and 2012 are separate actions, that plaintiff has submitted some meaningful discovery and has provided one set of standard interrogatory answers and supplemental interrogatory answers but that the year to which the answers apply is disputed, and that one year's standard interrogatory answers are not responsive for all other years at issue, the court denies without prejudice defendant's motion to dismiss the 2011 complaint but orders plaintiff to submit fully responsive and certified answers by that year by April 15, 2013. It also denies without prejudice plaintiff's motion to reinstate its 2010complaint because plaintiff has not complied with the terms of reinstatement because it has not sufficiently establish that is has provided the required discovery.  

 

36-2-9253 Schack v. City of Bayonne, App. Div. (per curiam) (9 pp.) Defendant-city appeals the Law Division order denying its motion for summary judgment dismissing the complaint filed by the administratrix ad prosequendum of the estate of Barbara Mack who was struck and killed in an accident at a city intersection at which there had been problems before the accident, which had been included in an application submitted by the city for improvements to various crosswalks within the city, and from which the crossing guard had been removed some three months before the accident. The panel reverses, agreeing with the city that N.J.S.A. 59:2-3(d) extends immunity entitling it to summary judgment because removal of the crossing guard was the product of a policy decision balancing budget concerns against personnel needs that is immunized by the statute unless the decision was palpably unreasonable which the panel finds was not the case here. The panel also holds that 59:4-6 protects public entities from liability for injuries caused by the plan or design of public property.

 

36-2-9254 Tufaro v. Headquarters Plaza, App. Div. (per curiam) (22 pp.) Defendant Schindler Elevator Company appeals from a $4.8 million final judgment against this personal injury action filed after plaintiff was involved in an incident in which an elevator malfunctioned, and the denial of its motion for a new trial. The panel reverses and remands having no confidence that the one-paragraph jury instruction on proximate cause, the cursory explanation of the verdict summary form, and counsels' summations made it clear to the jury that it was obliged to resolve the contested factual issue of proximate cause and that, therefore, it lacks conviction that the verdict was properly reached, thereby resulting in a miscarriage of justice.

 

36-2-9255 Wellinghorst v. Arnott, App. Div. (per curiam) (10 pp.) Plaintiff, who filed this action after tripping over the edge of a trench that had been cut in the roadway, appeals the pretrial order barring her expert from testifying at trial after the trial judge concluded that the expert had rendered a net opinion. The panel affirms because the expert provided no facts to support his conclusion that the patch covering the trench sank due to being improperly backfilled and compacted beyond his experience and thus his opinion was not derived from a sound and well-founded methodology that is supported by some expert consensus in the field. The panel also rejects plaintiff's claim that an expert was not necessary to assist the jury in resolving the disputed issues because whether the trench was properly backfilled and compacted is beyond the ken of the average juror.

 

14-2-9256 State v. Roberts, App. Div. (per curiam) (19 pp.) Defendant, who pled guilty to kidnapping pursuant to a plea agreement under which the charge of aggravated sexual assault was dismissed, appeals the denial of his motion for post-conviction relief. The panel reverses and remands, finding merit to defendant's claim of ineffective assistance of PCR counsel who argued that 2005 DNA results were inconclusive despite the fact that the 2005 report, on its fact, excluded defendant's DNA from the vaginal specimens. The panel concludes that at the least, the effective representation of defendant at the evidentiary hearing required PCR counsel to call a witness whose qualifications would have permitted any confusion, if it existed, to be put to rest and that the failure to do so is inexplicable. It also finds that the victim's recent statement and the 2005 DNA tests are newly discovered evidence that cast doubt on the integrity of defendant's kidnapping conviction. 

59-7-9257 In re Ductile Iron Pipe Fittings (“DIPF”) Direct Purchaser Antitrust Litigation, Dist. Ct. (Thompson, U.S.D.J.) (37 pp.) This case concerns antitrust violations allegedly committed by manufacturers and distributors of ductile iron pipe fittings (“DIPF”). Direct Purchaser Plaintiffs allege that each defendant conspired to fix DIPF prices in violation of Section 1 of the Sherman Act, and that Defendants McWane, Inc. and Sigma Corporation violated Sections 1 and 2 of the Sherman Act through acts to unlawfully maintain McWane’s monopoly control of the domestic DIPF market and otherwise restrain trade. Here, the Court denies Defendants’ motion to dismiss the amended complaint. The Court finds that Direct Purchaser Plaintiffs’ allegations that entry into the market is impeded by the need to build a distribution network in the face of McWane’s rebate policies and exclusive dealing contracts are sufficient at the pleading stage to show barriers to entry. Direct Purchaser Plaintiffs have further adequately pled a Section 2 actual monopolization claim. Direct Purchaser Plaintiffs’ allegations are sufficient to show that McWane excluded Sigma from entering the domestic DIPF market after McWane provided certain financial inducements to enter into the alleged scheme. Thus, the Court finds that Direct Purchaser [Filed March 5, 2013]

 

42-6-9258 In re Lombardi, Anderson v. Lombardi, U. S. Bankruptcy Ct. (Ferguson, U.S.B.J.) (3 pp.) The court denies plaintiff's motion for summary judgment on counts I and II of her complaint against the debtor, because: (1) reading count I as seeking a declaratory judgment regarding the scope of the debtor's discharge under 11 U.S.C. section 1328, the count fails to define the essential term "retirement accounts" which prevents any meaningful review by the court of plaintiff's claim of a non-dischargeable property right in such accounts, and (2) count II, which states that defendant willfully and maliciously, with intent to destroy plaintiff's property rights in his retirement accounts, contumaciously refused to transfer to her the property right conferred in state court," also fails to define "retirement accounts." [Filed March 4, 2013]

 

42-6-9259 In re 710 Long Ridge Road Operating Company II, LLC, U. S. Bankruptcy Ct. (Steckroth, U.S.B.J.) (25 pp.) Five debtors, each a Delaware limited liability company operating a sub-acute and long-term nursing care facility in Connecticut, move pursuant to 11 U.S.C. section 1113(e) for an order authorizing them to implement interim modifications to collective bargaining agreements with the New England Health Care Employees Union, District 1199 SEIU. The court grants the motion, finding that the facilities care for hundreds of patients, employ 1100 union and non-union workers, and, if they comply with economic and work-related provisions of the expired collective bargaining agreements, which have been continued in effect through injunctive relief granted by the District Court, the debtors will be forced to immediately implement closure plans and begin relocating patients, and thus, that the interim modifications sought in the motion are essential to the continuation of the debtors' business and to avoid irreparable damages to the estate. The modifications are authorized for six weeks. [Filed March 4, 2013]

 

11-7-9260 Sitexpedite v. Nexxcom Wireless, LLC, Dist. Ct. (Dickson, U.S.M.J.) (7 pp.) This is a breach of contract and fraud action brought by plaintiff Sitexpedite. Plaintiff alleged that it entered into various contracts with Defendant Nexxcom Wireless, LLC whereby Plaintiff was to perform work relating to the installation of wireless cell antennas in New Jersey and California. Defendant filed a motion to dismiss the complaint, or in the alternative, to transfer venue to the District Court for the Southern District of California. Defendant argued that transfer is appropriate because the majority of work was performed in California, California is more convenient for non-party witnesses, many of whom live in California and none of whom live in New Jersey, the convenience of the parties is greater in California because neither party is located in New Jersey and Nexxcom is located in California, and New Jersey has a lesser interest in this matter being litigated in New Jersey. Having found this action could have been brought in the Southern District of California, the Court finds the § 1404(a) factors, as well as private and public interest factors, weigh in favor of transfer. Defendant’s motion to transfer is granted and Defendant’s motion to dismiss is denied as moot. [Filed March 5, 2013]

53-7-9261 Genetic Technologies Limited v. Reprogenetics LLC, Dist. Ct. (Dickson, U.S.M.J.) (8 pp.) In this action arising out of the alleged infringement of a patent entitled Intron Sequence Analysis Method for Detection of Adjacent and Remote Locus Alleles as Haplotypes, which patent has been asserted in multiple federal court actions across the country, the court grants defendant's motion to stay the matter pending re-examination by the United States Patent and Trademark Office of the patent, holding that a stay will not prejudice or disadvantage plaintiff, will simplify the issues for trial and conserve judicial resources, and is warranted based on the stage of this litigation. [Filed March 5, 2013]

25-7-9262 Middlesex Surgery Center v. Horizon, Dist. Ct. (Chesler, U.S.D.J.) (9 pp.) This lawsuit arises out of a billing dispute between Plaintiff Middlesex Surgery Center (MSC), a healthcare provider, and Defendant, a self-funded multi-employer welfare benefit fund, for services provided to one of the Fund’s insureds (“Laura M.”). On behalf of Laura M., MSC filed a claim with the Fund, which the Fund denied on the grounds that the procedure was not medically necessary. MSC brought suit alleging causes of action under the Employee Retirement Income Security Act (“ERISA”), and a state law breach of contract claim. MSC’s breach of contract claim is dismissed with prejudice because it is preempted by ERISA. The Fund seeks to dismiss the remainder of the complaint on the grounds that MSC has no power to sue under ERISA. The Court agrees, finding there is nothing in the language of the purported assignment that suggests that the parties intended a full transfer of rights to take place. Instead, the language reads as a grant of a power of attorney for the limited purposes of allowing MSC to representthe patient-insured in appealing the Fund’s decision through the Department of Banking and Insurance’s Independent Health Care Appeals Program. Nor did the Fund waive any defense that MSC lacks a valid assignment by engaging in a claims review process. The complaint is dismissed with prejudice. [Filed February 28, 2013]

 

14-7-9263 United States v. Giordano, U. S. Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Defendant, who pled guilty to cnspiracy to receive and solicit money to influence the operations of an employee benefit plan, embezzlement of pension funds, and income tax evasion, and who was sentenced to 20 months in prison and three years of supervised release and ordered to pay restitution of $800,000, moves to vacate the writ of garnishment attached to his social security checks and to obtain money previously garnished. The court denies the motion because the court's sentencing order specified that restitution be due immediately and, therefore, pursuant to 18 U.S.C. section 3663(f)(3), Giordano's restitution has no time limit and his restitution obligation did not end when his probation term ended. [Filed March 4, 2013]