Daily Decision Service Alert: Vol. 22, No. 47 ? March 11, 2013

 

12-2-9264 Grand Central Properties, L.L.C. v. Sudler Tinton Falls, L.P., App. Div. (per curiam) (11 pp.) In this partnership dissolution case, defendants appeal from an order granting plaintiff's motion to enforce a settlement agreement and denying defendants' motion for the return of $37,500 it had distributed to plaintiff. Defendants contend the judge erred by amending the parties' settlement agreement to require them to pay plaintiff a share of the profits they derived after December 31, 2010 from their management of three properties that would ultimately be conveyed to plaintiff. They assert there was a factual dispute as to whether there was a firm December closing date and, even if there was, whether plaintiff should now be entitled to share in the profits derived from defendants' management of the three properties. Defendants argue the provision that permitted them to retain any profits until the closing occurred was part of an integrated agreement and they would not have taken on the other responsibilities if they were not going to be allowed to retain these profits. Because these factual contentions should not have been resolved on the basis of the parties' competing certifications, and the judge should have conducted a hearing to ascertain the intent of the parties at the time the settlement was made, the appellate panel reverses the order and remands for a plenary hearing.

 

46-2-9265 Whitest v. Penwal Management, App. Div. (per curiam) (7 pp.) Appellant, an African-American tenant of a multi-unit apartment building, appeals the final agency decision of the Acting Director of the New Jersey Division of Civil Rights finding no probable cause to substantiate his allegations that Paramus Affordable Housing and Penwal Management engaged in housing discrimination in violation of the Law Against Discrimination by subjecting him to differential treatment because of his race and because he is a Section 8 recipient. Concluding that there is no documented proof that appellant suffered from differential treatment or adverse action, the panel holds that the record amply supports the Division's determination and affirms.

 

20-2-9266 McNight v. McNight, App. Div. (per curiam) (8 pp.) Defendant, who was not represented at trial but was represented before and after trial, appeals from the division of marital debt in her final judgment of divorce, arguing that the trial court improperly ignored the credit card debt incurred in her name during the marriage. The panel affirms, finding that defendant was given wide latitude in her testimony and that she discussed at length her financial difficulties during the marriage but did not delineate any debt incurred in her name and that the trial judge did not abuse his discretion by refusing to allow defendant to reopen her case when he was rendering his decision, especially in light of the weakness of the proofs she was prepared to submit.

23-2-9267 Essex Insurance Company v. Pine Towers Group, App. Div. (per curiam) (10 pp.) Defendant appeals from an order granting plaintiff-insurer's motion for summary judgment in this declaratory judgment action seeking a declaration that Pine Towers was not entitled to a defense and indemnification in the underlying negligence action by an employee of a subcontractor hired to work on a building project on which Pine Towers was the general contractor. Although the lawsuit was settled and the issue of whether Essex had to indemnify Pine Towers for the employee's claims became moot, defendant argues that it was entitled to coverage and therefore should be permitted to recover its attorney fees and costs. The panel construes the relevant policy provisions and affirms, finding that Pine Towers was not entitled to coverage because plaintiff's commercial general liability policy did not cover claims for bodily injury of subcontractors working on the project, or claims involving the alleged negligent supervision of a construction site.

 

25-2-9268 Inuoe v. Board of Review, App. Div. (per curiam) (9 pp.) Claimant appeals from the Board of Review's decision that he was ineligible for unemployment benefits because the corporation that he owned and employed him had not been dissolved and remained a viable entity. Based on the clear language of the applicable regulation and statute, claimant was ineligible for the benefits he received, as Inoue Corp. did not dissolve until 2011, long after claimant's benefit period. Nor was there substantial compliance with the law. For many months after claimant ceased working, his corporation remained a viable entity, retaining a valuable asset, its liquor license. Even after the liquor license transfer, it is unclear from the record when Inoue Corp. transferred its remaining assets, including proceeds of the license transfer, and closed its bank accounts. The appellate panel finds no error in the Board's decision to affirm the determination of ineligibility.

 

25-2-9269 LeBlanc v. Board of Review, App. Div. (per curiam) (13 pp.) Appellant, a part-time dental hygienist who worked three and one-half days per week and who was offered only two days per week after returning from a second maternity leave, appeals the final determination of the Board of Review that reversed the decision of the Appeal Tribunal - which had held that she did not leave work voluntarily without good cause attributable to the work but rather that the work was not suitable and that she had good cause for her refusal to continue to work the reduced hours - and disqualified her for unemployment benefits because she voluntarily left her job. Because appellant was not afforded the opportunity to make either an oral or written argument to the Board, the panel reverses and remands. 

 

26-2-9270 Rudy's Airport, LLC v. The City Of Vineland, App. Div. (per curiam) (13 pp.) 26-2-9270 Rudy's Airport, LLC v. The City Of Vineland, App. Div. (per curiam) (13 pp.) Plaintiff appeals from the orders denying its motion for summary judgment and granting summary judgment to defendants, the City of Vineland and the City of Vineland Planning Board. Plaintiff contends that the 2008 Master Plan, when originally enacted, failed to comply with the requirements of Vineland's City's Land Use Ordinance (LUO). It asserts, therefore, that the Master Plan was invalid. Also, plaintiff argues that the subsequently enacted LUO cannot be reconciled with the Municipal Land Use Law (MLUL), and any attempts by Vineland to do so were legally ineffective. Vineland and the Board argue that the new LUO was consistent with the MLUL and validly adopted by the Council and as a result, the Master Plan as ultimately adopted complies with the LUO and the MLUL. The appellate panel finds, contrary to plaintiff's argument, Ordinance 2009-61 was not inconsistent with the Master Plan. Ordinance 2009-61 required the Board to pass a Master Plan consistent with the MLUL; it did so. The Council's adoption of Ordinance 2009-61 was the result of the Board's referral. Plaintiff’s argument that Ordinance 2009-61 was legally defective because the Master Plan was itself void since it did not comply with the LUO - and that any attempt to "re-adopt" the Master Plan was also void - rests upon plaintiff's assertion the Master Plan, when originally enacted, conflicted with the LUO then in effect. However, once the Master Plan was adopted, Vineland was authorized by the MLUL to amend its zoning ordinance.

 

26-2-9271 T-Mobile Northeast LLC v. Township Of Scotch Plains Zoning Board Of Adjustment, App. Div. (per curiam) (18 pp.) Plaintiffs T-Mobile Northeast, LLC and New York SMSA Limited Partnership, d/b/a Verizon Wireless appeal from an order dismissing their complaint in lieu of prerogative writs, which challenged the denial of their application by the Township of Scotch Plains Zoning Board of Adjustment for site plan approval and use variances. The applicants sought to install a 125 foot tall monopole, about six feet in diameter, in the Hillside Cemetery, which is located in an R-1 Residential Zone. The appellate panel vacates the order of dismissal and reverses and remands for the entry of an order requiring the Board to approve applicants' application. The Board's summary rejection of applicants' expert's opinion and blind acceptance of the Board members' and neighbors' "facts" failed to comply with governing law. Additionally, the Board rejected the applicants' and its own expert's testimony concerning storm water management. Therefore, the Board acted in an arbitrary, capricious, and unreasonable manner in crediting those "facts." The trial judge also erred in discrediting applicants' expert's opinion and in summarily accepting the unsworn, unsupported statements of Board members and neighbors attesting to the lack of a gap in coverage.

 

04-1-9272 Nostrame v. Santiago, Sup. Ct. (Hoens, J.) (32 pp.) Competition for clients among attorneys must be conducted in adherence to the Rules of Professional Responsibility and the means used to induce a client may be neither improper nor wrongful. Any claim that an attorney has engaged in behavior that would constitute a form of tortious interference with the attorney-client relationship of another must be specifically pleaded. Plaintiff’s complaint lacks that specificity, and the court rejects plaintiff’s application to be permitted to engage in discovery in the hope of finding the requisite factual basis for his claim as both unnecessary and unwarranted.

 

04-2-9273 Roper v. Stein, App. Div. (per curiam) (8 pp.) Plaintiffs Angela Roper, Esq., and the law firm of which she is the senior partner, Roper & Twardowsky, L.L.C., appeal from an order dismissing their complaint for failure to state a claim. Defendants Pashman Stein, Janice DiGennaro Esq., and Rivkin Radler, L.L.P. cross-appeal from an order denying their motions for counsel fees for plaintiffs' filing of an allegedly frivolous complaint. The dispute arises out of an attorney malpractice litigation filed in another jurisdiction in which Kenneth Thyne, Esq., an associate of the Roper firm, filed an application for admission pro hac vice. His adversaries filed an ethics complaint against him with the Office of Attorney Ethics asserting that his application contained certain false statements and the OAE pursued a grievance against Roper for attesting to Thyne's signature knowing that his application contained false statements, which was dismissed. Plaintiffs allege that their adversaries pursued the ethics grievance for the purpose of interfering with the Roper firm's ability to represent its clients in the malpractice lawsuit. The panel affirms, finding that the suit is barred by the absolute immunity provided by Rule 1:20-7(f) and by the litigation privilege, and that the trial judge did not abuse his discretion in denying counsel fees, agreeing that the complaint was not frivolous because it sought a change in the law (an exception from immunity for law firms that use the ethics complaints as a litigation tactic to harass their adversaries) on an issue to which the justices historically have not been unanimous.

 

36-2-9274 Conlon v. The Home Depot U.S.A., App. Div. (per curiam) (27 pp.) In this personal injury case, plaintiffs Matthew and Susan appeal from that part of an order vacating a $325,000 jury award for future medical bills. Defendants Home Depot U.S.A., Inc., and Wooded Acres, Inc., cross-appeal from other paragraphs of the order awarding plaintiffs approximately $734,000 in damages for past medical expenses, pain and suffering and loss of consortium. The panel reverses on plaintiffs' appeal, finding that, given the evidence of plaintiff's past medical expenses and his treating physician's very specific testimony concerning the types of medical problems he was likely to develop in the future and likely treatments required, there was sufficient evidence to sustain the award for future medical bills. The panel affirms on defendants' cross-appeal, finding no abuse of discretion in the trial judge's allowing plaintiffs' engineering expert to testify in light of the prejudice to plaintiffs where defendants waited 16 months to object that his report was untimely, and agreeing with the trial court that the report was not a net opinion.

 

36-2-9275 Guarino v. IMC Mortgage Co., App. Div. (per curiam) (6 pp.) Plaintiff commenced this action alleging he sustained personal injuries at 286 Grant Avenue in Jersey City due to the negligent conduct of defendants. General Insurance sought summary judgment arguing that the policy issued to IMC Mortgage provided liability coverage only for those insured premises properly identified by the insured and that there was no record of the insured ever identifying the Grant Avenue premises as a property to be covered by the existing endorsement for liability coverage. Plaintiff appeals the grant of General Insurance's motion. The panel affirms for the reasons expressed below: there is no evidence that the insured ever sought liability coverage for the Grant Avenue property and it is unreasonable to draw an inference that because General Insurance paid a vandalism claim pursuant to the portfolio securities policy endorsement, the insured did in fact take the required steps to obtain coverage for the property pursuant to the real estate owned liability coverage endorsement. 

 

39-2-9276 Ader v. Lebanon Township, App. Div. (per curiam) (9 pp.) In this workers' compensation case, Kenneth Ader appeals from the order of the Judge of Compensation dismissing his petition to receive compensation for injuries allegedly sustained while performing his duties as a volunteer emergency medical technician for the Township of Lebanon. The court of compensation found that appellant did not give timely notice of the incident to his employer as required under N.J.S.A. 34:15-17. On appeal, appellant argues that the court of compensation erred by failing to consider that the delay in seeking compensation was due to his unawareness of a causal link between the accident and the injuries he sustained. Appellant argues that the court of compensation should have tolled the running of the statute. The appellate panel disagrees and affirms. The record supports the findings of the Judge of Compensation that a reasonable person facing appellant's circumstances would have been aware that he sustained a work-related compensable injury on November 18, 2008. Where appellant did not report it to his employer until one year later, he failed to give timely notice to his employer.

14-2-9277 State v. Jones, App. Div. (per curiam) (24 pp.) Defendant appeals from a judgment of conviction of one count of receiving stolen property and two counts of theft. As persuasive as the State's admissible evidence was, the State relied on testimony and insinuation suggesting defendant's involvement in a rash of burglaries in the vicinity of his home that ended when he was arrested. The prosecutor stressed the prejudicial and inadmissible testimony in questioning the State's witnesses and in his summation. Despite the repetitious insinuations of defendant's prior criminality, the jurors were never directed, in accordance with the model charge, that they could not find the defendant guilty simply because the State offered evidence that he/she committed other crimes, wrongs, or acts. The prosecutor exacerbated the prejudice by reinforcing the evidence of defendant's propensity in his summation. Because the State's persistent focus on defendant's propensity to burglarize casts significant doubt on the fairness of the trial and the reliability of the verdict, the appellate panel reverses.

 

14-2-9278 Smith v. New Jersey State Parole Board, App. Div. (per curiam) (10 pp.) Plaintiff James Smith appeals from the New Jersey State Parole Board's final decision denying parole and establishing a future parole eligibility term (FET) of sixty months. In April 1970, after pleading guilty to the July 5, 1969 shotgun murders of two police officers, Smith was sentenced to two consecutive terms of life imprisonment. During his four-decade incarceration, Smith was cited on three occasions for engaging in prohibited acts, only one of which was a serious "asterisk" infraction. The denial of parole was the seventh time Smith failed to win release after becoming eligible for parole in 1993. The decision to deny parole was not arbitrary and capricious and was supported by ample evidence, including that Smith is serving two consecutive life sentences, he exhibited insufficient insight into his violent personality characteristics, and he minimized his conduct that resulted in the convictions. The appellate panel affirms the denial of parole, but reverses and remands for reconsideration of the FET. There is no logical explanation for why an increase in Smith's FET was required. Moreover, the Parole Board has not explained the effects, if any, of Smith's aging, his overall health, and the circumstance that he is wheelchair-bound. These factors must be addressed in an analysis of recidivism.

 

14-2-9279 State v. Morris, App. Div. (per curiam) (17 pp.) Defendant, a non-citizen from Jamaica, appeals from the trial court's order, after a non-testimonial hearing, denying post-conviction relief (PCR) in connection with his 2004 guilty plea to fourth-degree contempt. He argues that his trial attorney was ineffective by affirmatively misadvising him about the potential immigration consequences of his plea. The appellate panel reverses and remands for an evidentiary hearing, finding defendant has established a prima facie case that his attorney provided ineffective assistance by misinforming him, through the plea form, about the potential of deportation. Defendant further established a prima facie claim of prejudice, that is, as a result of the alleged ineffective assistance of counsel, he would not have pled guilty and would have insisted on going to trial.

 

07-7-9280 Dover v. Resort Companies Inc., Dist. Ct. (Martini, U.S.D.J.) (2 pp.) Plaintiffs, who are residents of New Jersey, filed this action after they rented a time share in Virginia and Derrick Dover fell and sustained an injury on the property. The court grants defendants' motion to transfer venue to the Western District of Virginia, finding that venue is proper only in that district because all of the defendants are residents of Virginia, the only event giving rise to the claim - the slip and fall - occurred in that district, and the property that is the subject of the action is in Virginia. [Filed March 6, 2013] 

 

07-7-9281 National Collegiate Athletic Association v. Christie, Dist. Ct. (Shipp, U.S.M.J.) (15 pp.) In this action seeking to enjoin the Governor, the Director of the New Jersey Division of Gaming Enforcement, and the Executive Director of the New Jersey Racing Commission from implementing N.J.S.A. 5:12-1 et seq., the Sports Wagering Law, the court finds that plaintiffs - the National Collegiate Athletic Association, National Basketball Association, National Football League, National Hockey League, and Office of the Commissioner of Baseball doing business as Major League Baseball - have demonstrated, based on undisputed material facts, standing to challenge the law. The court finds that the facts of the case fit within the matrix of harm outlined in Meese and Doe, which cases persuade the court that plaintiffs have demonstrated standing due to an injury-in-fact traceable to the law. The court therefore denies defendants' motion to dismiss in full and their motion for summary judgment insofar as it challenges plaintiffs' standing. [Filed December 21, 2012]

10-7-9282National Collegiate Athletic Association v. Christie, Dist. Ct. (Shipp, U.S.M.J.) (45 pp.) In this action seeking to enjoin the Governor, the Director of the New Jersey Division of Gaming Enforcement, and the Executive Director of the New Jersey Racing Commission from implementing N.J.S.A. 5:12-1 et seq., the Sports Wagering Law, in which defendants have filed a cross-motion challenging the constitutionality of the Professional and Amateur Sports Protection Act, 28 U.S.C. section 3701, the court finds that the PASPA is a reasonable expression of Congress' powers and does not violate the United States Constitution. It is a rational expression of Congress' powers under the Commerce Clause; it does not violate the Tenth Amendment because it does not force New Jersey to take any legislative, executive or regulatory action and it does not raise the political accountability concerns outlined by the Supreme Court's Tenth Amendment jurisprudence; and Congress had a rational basis to enact PASPA in the manner it chose. It does not violate due process or equal protection principles, nor does not violate the equal footing doctrine. Plaintiffs' motion for summary judgment is granted. [Filed February 28, 2013]

 

11-7-9283 Duraport Realty Three, LLC v. Trinity Products, Inc., Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Plaintiff Duraport Realty Three, LLC filed an Amended Complaint against Defendants Trinity Products, Inc., Robert Griggs, and Vincent Hasen for claims arising out of a Land/Lease Agreement. The Amended Complaint alleges breach of contract, quantum meruit, violation of two New Jersey statutes and fraud. Defendants move to dismiss Count Five, which alleges fraud in the inducement. Under Count Five, Duraport alleges that Trinity, Griggs and Hasen induced Duraport to enter into a re-negotiated agreement despite Defendants’ knowledge of false representations made to Duraport. Defendant argues that Count V does not sufficiently state a claim for fraud in the inducement as Plaintiff does not allege the required elements with particularity. The Court agrees and grants Defendant’s motion is granted without prejudice. [Filed February 28, 2013]

25-7-9284 McCarty v. Holt, Dist. Ct. (Cecchi, U.S.D.J.) (12 pp.) Plaintiffs Stephen McCarty and the Concept Group Network were members of the Nutmeg Welfare Benefit Plan and Trust for the purpose of investing in an employee welfare benefit plan. Michael Millman formed the Trust, and periodically acted as the Trustee or Manager. Millman was also an agent of the Lincoln Financial Group, which issued insurance policies for the benefit of the Trust members. Defendant Steven Holt is an attorney who served as trustee from March 7, 2008 to March 28, 2008. In 2005, McCarty made an insurance premium payment of $200,000 to the Trust to fund Plaintiffs’ Welfare Benefit Plan. Millman retained $50,000 of the contribution. On March 28, 2008, Holt denied Miliman’s attempt to make an unauthorized withdrawal from the Trust. Millman terminated Holt as Trustee, appointed himself and made the unauthorized withdrawal. Plaintiffs sought to withdraw from the Trust and Millman retained $186.442.38 of Plaintiffs’ money. Plaintiffs filed a complaint against Holt for breach of fiduciary duty, breach of contract, and negligence with respect to his position as trustee of the Trust. The Court grants Holt’s motion to dismiss where Plaintiffs’ claims are preempted by ERISA; none of the alleged illegal and improper actions took place while Holt was a trustee; and Holt was a directed trustee and only had limited fiduciary responsibility during his time as trustee. [Filed February 27, 2013]