Daily Decision Service Alert: Vol. 22, No. 48 ? March 12, 2013

 

23-3-9285 Schaefer v. Vannucci, Law Div. (Hunterdon Cty.) (Buchsbaum, J.S.C.) (8 pp.) Plaintiff, involved in an accident while driving a vehicle registered to his business address - which is also his parents' residence and, he claims, his residence although he is married and his wife resides at and owns a different residence - and insured by defendant Farm Family Insurance Company, contends that Farm Family is obligated to provide him PIP coverage under the terms of its policy as a named insured. He also claims that he is not subject to the limitation on lawsuit option provided in his wife's NJM auto insurance policy and is instead subject to the no limitation on lawsuit option in the Farm Family policy. The court grants plaintiff's motion for summary judgment, finding that, where the policy lists his sole proprietorship as the named insured, a corporation cannot operate a motor vehicle, and plaintiff and his father are listed on the declarations page as authorized drivers, he is in fact the named insured under the Farm Family policy, entitled to coverage under that policy, including its no limitation on lawsuit tort option. NJM's cross-motion for summary judgment is granted in part in that plaintiff is not entitled to PIP coverage from it since he seeks full PIP coverage under his Farm Family insurance policy and is entitled to such coverage. [Filed March 8, 2013]

25-2-9286 Department Of Children And Families, Institutional Abuse Investigation Unit v. R.O., App. Div. (per curiam) (28 pp.) R.O., a former child care counselor at Bonnie Brae Residential Facility, a treatment facility for youths, appeals from the final decision of the Department of Children and Families Institutional Abuse Investigation Unit that he physically abused a thirteen-year-old resident by pushing and choking him. He argues the agency's decision was erroneous because its acting commissioner made her own findings of fact instead of giving deference to the Administrative Law Judge (ALJ), misapplied case law, and violated the residuum evidence rule. The appellate panel disagrees and affirms. The credible evidence, including eyewitness testimony, R.O.’s own admissions, and reports created during the regular course of business, supported the conclusion that R.O. failed, as a matter of law, to exercise a minimum degree of care when he failed to follow proper protocol in responding to an unruly resident, and exposed H.J. to a substantial risk of harm. The testimony describing the counselors' training in Professional Crisis Management protocol and in using restraints satisfied the residuum rule and provided sufficient credible evidence to support the agency's finding of abuse.

 

25-2-9287Spar Marketing Service Inc. v. New Jersey Dep't of Labor and Workforce Development, App. Div. (per curiam) (13 pp.)Petitioner Spar Marketing Services, Inc. appeals from a final administrative action by the Commissioner of the Department of Labor and Workforce Development affirming the initial decision of the administrative law judge requiring petitioner to pay, after reassessment, employer contributions for unemployment and

temporary disability insurance benefits for individuals found to be its employees during one audit period. The panel affirms, finding that the merchandisers used by petitioner were its employees, not independent contractors, subject to the imposition and payment of unemployment and temporary disability assessments because petitioner failed to sufficiently show that they were engaged in an independently established business and thus failed to satisfy subsection (C) of the ABC test.

 

35-5-9288 Route 21 Associates v. Township of Belleville,Tax Ct. (Sundar, J.T.C.) (61 pp.) Plaintiff Route 21 Associates challenged the assessments imposed by Defendant Township of Belleville on vacant land for tax years 2008, 2009, and 2010. The court accepted each party’s two witnesses, one in real estate appraisal and one in environmental remediation, as experts, and admitted their reports into evidence. Both valuation experts agreed that the subject property’s unimpaired value should first be determined by using the sales comparison approach and that the unimpaired value should be reduced by the costs of remediation. The environmental experts agreed that a 6% discount factor should be applied to the subject property’s 10 year remediation costs and that the unimpaired value should be reduced by the discounted costs, plus the actual or already expended environmental costs, plus 10% for entrepreneurial risk. They differed in the method of offsetting the actual and projected costs for the unimpaired value. Belleville moved to dismiss on the ground that Route 21’s experts each provided an impermissible net opinion. The court rejects that contention and denies Belleville’s motion. The court determines the subject property’s fair market value as impaired and then applies the Chapter 123 ratio as required.

 

36-1-9289 D.D. v. University of Medicine and Dentistry of New Jersey, Sup. Ct. (Hoens, J.) (61 pp., including dissent by LaVecchia, J.) Neither attorney inattention nor incompetence constitutes an extraordinary circumstance sufficient to excuse failure to comply with the 90-day filing deadline under the TCA; plaintiff’s medical proofs were insufficient to meet the extraordinary circumstances standard; and the doctrine of substantial compliance cannot serve to relieve a claimant of the TCA’s written-notice requirement.

 

53-7-9290 Jazz Pharmaceuticals, Inc. v. Roxane Laboratories, Inc., Dist. Ct. (Salas, U.S.D.J.) (10 pp.) Defendant Roxane Laboratories, Inc. appeals Magistrate Judge Waldor’s opinion denying its motion for leave to supplement its invalidity contentions. Roxane argues Judge Waldor committed clear error in finding that (a) Roxane did not have good cause for supplementing its invalidity contentions; (b) Roxane did not make a timely application to the Court; and (c) Plaintiff Jazz Pharmaceuticals, Inc. would be unduly prejudiced. Roxane also alleges Judge Waldor erred in finding that Roxane’s proposed materials were not prior art. Finally, Roxane contends Judge Waldor misapplied the law in applying the Local Patent Rules. The Court affirms Judge Waldor’s finding that Defendant did not act with the requisite diligence. Moreover, not only must the party prove that it was diligent throughout the course of discovery, but also that it was diligent in its search for relevant prior art. On appeal, Defendant merely restates reasons why it purportedly took five months to seek leave to amend. Judge Waldor did not err in finding Defendant’s reasons unavailing. Defendant’s diligence argument is premised on contentions that were considered and rejected by Judge Waldor, or arguments that could have been made prior to that ruling. Defendant does not meet the “clear error” standard required for reversal. The Court affirms the order denying Defendant’s motion. [Filed February 28, 2013]

25-7-9291 Gonzalez v. Astrue, Dist. Ct. (Cavanaugh, U.S.D.J.) (19 pp.) Plaintiff Reina Gonzalez appeals from the final decision of the Commissioner of Social Security, denying her claims for a period of disability and disability insurance benefits under Title II of the Social Security Act, her application for supplemental security income under Title XVI of the Act, and upon the decision of the Administrative Law Judge (“ALJ”) after two remands. Plaintiff argues that the ALJ’s determination of disability onset was arbitrary and that a medical expert was needed. The ALJ determined that Plaintiff was disabled on March 9, 2007 due to severe osteoarthritis in the hips, back and shoulder. Plaintiff argues that because such a disease is progressive, the ALJ’s determination of onset date was arbitrary. The Court finds that the ALJ should have called upon a medical expert to analyze Plaintiff’s conditions to determine the severity of Plaintiff’s arthritis. The final decision entered by the ALJ is reversed and remanded.

 

25-8-9292 Montone v. City of Jersey City, Third Cir. (Vanaskie, C.J.) (40 pp.) Plaintiffs, all present or former sergeants in the Jersey City Police Department all of whom ranked within the top eleven slots on the 2003-2006 promotion list, filed this action alleging thatJersey City, the Jersey City Police Department, Jersey City Mayor Jerramiah Healy, and former Jersey City Police Chief Robert Troy failed to promote them to lieutenant in retaliation for exercise of First Amendment rights in violation of 42 U.S.C. § 1983 and New Jersey state law; specifically, that during Troy's tenure as police chief, no promotions were made to lieutenant in retaliation for Montone's active support of Healy's opponent in a mayoral election. Plaintiffs appeal the District Court's grant of defendants' motions for summary judgment. The Third Circuit reverses, finding that The District Court misapplied the summary judgment standard, improperly dismissed evidence of a culture of political patronage, and erred in giving substantial weight to evidence of the promotion of one Manzo supporter; and erred in concluding that Montone's gender discrimination complaints did not involve matters of public concern. It finds that the Asriab plaintiffs have standing to bring an action for First Amendment political affiliation retaliation even though the retaliation was directed towards Montone and that the District Court erred in granting summary judgment for defendants on the Astriab plaintiffs' claim because there is a genuine issue of material fact as to whether Montone's political conduct was a motivating factor in defendants' decision not to promote the Astriab plaintiffs. [Filed March 8, 2013] [Precedential]