STATE COURT CASES
 
ADMINISTRATIVE LAW — PUBLIC EMPLOYEES — ACCIDENTAL DISABILITY BENEFITS
01-2-7840 Zutell v. Police and Firemen’s Retirement System, App. Div. (per curiam) (9 pp.) Plaintiff, a county corrections officer, appeals the Police and Firemen’s Retirement System’s denial of her application for accidental disability benefits for failure to establish that her disabling condition was a direct result of a traumatic event. The panel affirms, finding no basis to conclude that the board’s adoption of the ALJ’s findings that the injury to plaintiff, who had a pre-existing knee injury that required two prior surgeries which resulted in frequent episodes of the knee “popping” and giving way, was precipitated by the normal work effort of running to respond to a code and that she therefore had failed to meet her burden under Richardson, was arbitrary or capricious as those findings were supported by substantial credible evidence in the record.
 
FAMILY LAW
20-2-7841 Riccioli v. Riccioli, App. Div. (per curiam) (4 pp.) Defendant appeals from that part of a post-judgment order that denied her motion to resume the use of her maiden name and awarded counsel fees to plaintiff. The court reverses the denial of the name change, finding that it came just two years after the divorce was made final and was not barred by any time limitation imposed by the Legislature. It affirms the award of counsel fees, finding that while most of the relief sought in defendant’s motion was rendered moot while it was pending, she did not withdraw her motion and the trial court did not abuse its discretion in making the award.
 
FAMILY LAW — CHILD ABUSE
20-2-7842 New Jersey Division of Youth and Family Services v. S.N.W., App. Div. (Fisher, P.J.A.D.) (17 pp.) The mere fact that a parent appeared inebriated is not necessarily determinative of whether that parent was providing a minimum degree of care. As a result, the court vacated an order based solely on a determination that the parent had abused or neglected her 20-month-old and 5-month-old children by appearing inebriated. The court concluded that the trial judge failed to determine the parent’s degree of culpability, particularly in light of uncertainty about whether the parent had exceeded the prescribed amount of Xanax she was then taking and whether that circumstance prevented her from being able to provide a minimum degree of care. [Decided Oct. 2, 2012.] [Approved for publication.]
 
PHYSICIAN/PATIENT — MEDICAL MALPRACTICE — LIMITATIONS ON ACTIONS
29-2-7843 Urban v. Naame, App. Div. (per curiam) (12 pp.) Plaintiff appeals the order granting summary judgment dismissing as untimely her medical malpractice complaint against defendant doctor, medical group, and hospital alleging negligence in the repair of her broker ankle. Finding that the motion judge erred in interpreting plaintiff’s deposition testimony as admitting that she was aware of possible malpractice in February 2008 as her vague suspicion that something was wrong did not amount to objective evidence that would have caused a reasonable person to suspect malpractice, that the discovery rule should be applied here where plaintiff acted promptly in seeking a second opinion and she filed her suit less than two years after she first consulted with the second doctor, and that the statute of limitations began to run on the date of her last appointment with defendant-doctor, the panel reverses, holding that the complaint was filed within the statute of limitations.   
 
PUBLIC EMPLOYEES
33-2-7844 Cheloc v. Board Of Education Of The City Of Elizabeth, App. Div. (per curiam) (16 pp.) Appellant Helen Cheloc appeals from the Acting Commissioner of Education’s order finding that she failed to sustain her burden of establishing that she accrued tenure rights, and that the Board of Education of the City of Elizabeth’s removal of Cheloc from her Director of Administration position did not violate any tenure rights, as she never possessed such protection. Because Cheloc never acted as a school business administrator on a full time basis, she does not meet the statutory prerequisites set forth in N.J.S.A. 18A:17-2(a) to qualify for tenure. Cheloc’s teaching staff theory under N.J.S.A. 18A:28-5 fares no better where no teaching staff member may acquire tenure in any position in the public schools if he or she is not the holder of an appropriate certificate for such position. While Cheloc’s duties on certain matters arguably may have triggered the need for a school business administrator’s endorsement, the Director of Administration was not a position that called for such certificated job credentials and was not listed under the State Board of Education regulations. The appellate panel affirms the Acting Commissioner’s conclusion that tenure was not achieved.
 
PUBLIC EMPLOYEES — TERMINATION
33-2-7845 Cross v. Board Of Education Of The Borough Of Elmwood Park, App. Div. (per curiam) (7 pp.) Petitioner Taea Cross appeals from the final decision of the Acting Commissioner of Education upholding respondent Board of Education of the Borough of Elmwood Park’s termination of her employment as a bus driver/utility worker for the district. Cross contends that the Board terminated her in violation of her tenure rights. The Board contends that she was not a tenured employee. The appellate panel affirms the Commissioner’s final determination that Cross was employed under a fixed-term contract and therefore was not a tenured employee. Further, as a part-time utility worker, Cross was not entitled to tenure under her CBA.
 
CRIMINAL LAW AND PROCEDURE — SENTENCING
14-2-7846 State v. Hernandez, App. Div. (per curiam) (12 pp.) In this appeal, defendant argues the trial judge erred in denying his motion for acquittal on the kidnapping charge, there was insufficient evidence to convict him of kidnapping, the prosecutor made inappropriate statements during his summation, the judge improperly imposed consecutive terms, and the sentence was excessive. The appellate panel finds no merit in defendant’s arguments impacting defendant’s conviction but remands for reconsideration of the sentence. The judge did not exceed his discretion in imposing consecutive terms on the kidnapping and aggravated sexual assault convictions. However, the judge erred in considering the effect of NERA in fixing the length of the prison terms imposed. Also, the judge’s findings regarding aggravating factor one (the nature and circumstances of the offense), and aggravating factor two (the gravity and seriousness of the harm inflicted on the victim), suggest an inappropriate double-counting because these factors should be given weight in the analysis only when the circumstances of the offense and the gravity of the harm were more serious than others of their class.
 
FEDERAL COURT CASES
 
CONTRACTS — CONFIDENTIALITY AGREEMENTS
11-7-7847 Best Sign Systems Inc. v. Chapman, U. S. Dist. Ct. (Arpert, U.S.M.J.) (23 pp.) In this action alleging breach of a confidentiality agreement, defendants move to quash third-party subpoenas issued by plaintiff in connection with its motion to have defendant held in contempt for violating the parties’ consent order agreeing to a permanent injunction restraining defendant from using or disclosing specified information. The court denies the motion, finding that they have failed to sustain their burden of showing that any of the required or permissive reasons to quash the subpoenas at issue in toto exist. However, the court finds that the subpoenas should be circumscribed as specified and that to protect confidential and/or trade secret information, any information obtained by plaintiff should be subject to the attorneys’ eyes only protective order previously set forth by the court. [Filed September 26, 2012]
 
CORRECTIONS — MEDICAL CARE
13-8-7848 Lopez v. Correctional Medical Services Inc., Third Cir. (Roth, C.J.) (9 pp.) Plaintiff, a state prison inmate, filed this 42 U.S.C. section 1983 action alleging that the company to which the state had delegated responsibility for providing inmate medical care had violated his Eighth Amendment right to be free from cruel and unusual punishment by exhibiting deliberate indifference to his serious medical needs stemming from his Hepatitis C infection. The District Court’s grant of summary judgment to the New Jersey Department of Corrections and its employees and the CMS defendants is affirmed because plaintiff presents no evidence that the DOC defendants had personal involvement in the alleged unconstitutional failures to adequately diagnose, treat and inform plaintiff of his HCV, no evidence that any of the CMS personnel had such personal involvement until after he learned of his diagnosis, and no evidence that CMS had policies to deny inmates testing and treatment for HCV or to intentionally keep infected inmates uninformed of their HCV status. [File September 26, 2012]
 
HEALTH — ERISA
22-7-7849 Advanced Rehabilitation LLC v. UnitedHealth Group Inc., Third Cir. (Hardiman, C.J.) (10 pp.) Plaintiffs, health care providers who do not participate in UnitedHealth’s provider network, filed this class action alleging that defendant violated the Employee Retirement Income Security Act and state law by refusing to reimburse them for performing manipulation under anesthesia. They assert claims for breach of contract and breach of fiduciary duty. They appeal the District Court’s grant of defendant’s motion to dismiss for failure to state a claim and its denial of their motion for reconsideration and for leave to file a second amended complaint. The court affirms, finding that the court did not err in dismissing the amended complaint since plaintiffs’ implicit claim that MUA treatments are covered by UnitedHealth plans is merely a naked assertion that stops short of the line between possibility and plausibility of entitlement to relief, and that the amended complaint does not make specific factual allegations from which it can infer that MUA procedures were covered as medically necessary or consistent with national medical standards and considered by medical literature to be safe and effective. Nor did the court err in denying the motion for leave to amend because the proposed complaint would not have shown a plausible entitlement to relief as it adds only conclusory allegations that MUA was medically necessary. [Filed September 25, 2012]
 
INTELLECTUAL PROPERTY — PATENTS
53-7-7850 Industrial Technology Research Institute v. LG Corporation, Dist. Ct. (Linares, U.S.D.J.) (9 pp.) Plaintiff, a scientific research institution based in Taiwan, commenced this cause of action alleging patent infringement claims against various LG entities. Plaintiff now moves to dismiss Defendants’ Fourth Counterclaim and to strike Defendants’ Eleventh Affirmative Defense. At issue is Defendants’ claim that the patent-in-suit is unenforceable due to inequitable conduct by Plaintiff in the form of a material false representation or omission before the United States Patent and Trademark Office (“PTO”). Plaintiff argues that all counterclaims and/or affirmative defenses based on such inequitable conduct should be dismissed and/or stricken because the allegations upon which they are based fail to meet the pleading standard of Rule 9(b), as interpreted by the Federal Circuit in Exergen Corp. v. Wal–Mart Stores, Inc. The Court finds that Defendants have alleged sufficient facts from which the Court may “reasonably infer” that a particular inventor both knew of invalidating information that was withheld from the PTO and withheld such information with the intent to deceive the PTO. Plaintiff’s motion is denied.[Filed September 25, 2012]
 
INTELLECTUAL PROPERTY — TRADEMARK INFRINGEMENT
53-7-7851 International House of Pancakes LLC v. Parsippany Pancake House Inc., U. S. Dist. Ct. (Martini, U.S.D.J.) (9 pp.) Plaintiff filed this trademark infringement action after defendant, which had operated pursuant to a franchise agreement with plaintiff, continued to so operate after the expiration of the 60- day notice that plaintiff was terminating the agreement based on defendant’s failure to substantially comply with the terms of the agreement because its president had pled guilty to a felony charge of endangering the welfare of a child. The court grants plaintiff’s motion for a preliminary injunction, finding that it is likely that, having given the notice, plaintiff will prevail on its claim that its termination was properly effected under the Franchise Practices Act and is likely to prevail on its claim that defendant’s continued use of its marks is unauthorized and constitutes trademark infringement. [Filed September 25, 2012]
 
JURISDICTION
24-7-7852 Metropolitan Life Insurance Company v. Bank One, N.A., Dist. Ct. (Wigenton, U.S.D.J.) (17 pp.) Defendants filed a motion to transfer venue of the two captioned actions, Metropolitan Life Insurance Co., et al. v. Bank One, et al. and Lloyds TSB Bank, Inc. v. Bank One, et al., to the United States District Court for the Southern District of New York pursuant to a forum selection clause and 28 U.S.C. § 1404(a). MetLife and Lloyds brought these two securities fraud actions against Credit Suisse as well as several other institutional and individual defendants. The two MetLife plaintiffs are New York and Delaware corporations, respectively, with their principal places of business in New York. Lloyds is a British company with its principal place of business in London, England. Credit Suisse is a New York company, with its headquarter in New York. The Court finds the forum selection clause in the Participation Agreement is not enforceable. Nonetheless, this case has significant ties to New York, and, on balance, the competing public and private interests weigh in favor of transferring this action to the District Court for the Southern District of New York. Credit Suisse’s motions to transfer venue is granted. [Filed September 25, 2012]
 
PRODUCT LIABILITY — NEGLIGENCE
33-7-7853 Calender v. NVR, Inc.Dist. Ct. (Hillman, U.S.D.J.) (20 pp.) James and Diane Calender brought this action against Defendant NVR, Inc., trading as Ryan Homes, for injuries James sustained from a fall which allegedly occurred while he was exiting the attic of a home he had recently purchased. The home was designed, manufactured, constructed, and sold by NVR. Three causes of action remain: (1) a failure to warn claim under the New Jersey Products Liability Act (“PLA”); (2) a claim for breach of implied warranty; and (3) a claim for negligence. Defendant filed a motion for summary judgment. With respect to Plaintiffs’ claims for negligence and breach of implied warranty, the Court finds Defendant is entitled to summary judgment because these claims are subsumed under the PLA, which constitutes the exclusive remedy for personal injury claims arising out of the use of a product under New Jersey law. With respect to Plaintiffs’ failure to warn claim, the Court finds no duty to warn existed because the dangers of falling while attempting to enter or exit the attic through the access panel in the ceiling of the home were open and obvious. Defendant’s motion for summary judgment is granted. [Filed September 26, 2012]
 
PUBLIC EMPLOYEES — POLICE — DISCRIMINATION
33-7-7854 Andriani v. City of Hoboken, U. S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Pro se plaintiff, formerly a lieutenant in the Hoboken Police Department, who was the subject of a law suit by several Hispanic police officers alleging that he subjected them to racist slurs and other offensive conduct motivated by racial hatred which was dismissed with prejudice after the parties indicated that they had settled the matter, and who was terminated for, among other reasons, the conduct that formed the basis for the litigation, later filed this action alleging that defendants discriminated against him and asserting claims under Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. The court grants defendants’ motion to dismiss, finding that the settlement which resulted in the dismissal of the prior litigation is a final judgment, there is privity between the defendants in the earlier suit and this matter, the two actions relate to the same set of underlying events, and that, therefore, this action is barred under the doctrine of claim preclusion. [Filed September 24, 2011] 
 
PUBLIC EMPLOYEES — POLICE — EXCESSIVE FORCE
33-7-7855 Wahl v. Earle, U. S. Dist. Ct. (Irenas, S.U.S.D.J.) (10 pp.) Plaintiff filed this 42 U.S.C. section 1983 action against Gloucester Township, the police department, the chief of police and two individual officers alleging, inter alia, use of excessive force during his arrest, false arrest, false imprisonment, supervisory liability and conspiracy to violate constitutional rights. Defendants’ motion to dismiss is denied as to the state law claims as plaintiff has sufficiently demonstrated his compliance with the Tort Claims Act notice requirements. Their motion to dismiss as to the conspiracy claim is granted since the complaint does not adequately plead facts supporting the conspiracy claim. The Fifth Amendment due process claims are dismissed since the suit concerns only state action. The Fourteenth Amendment claim is dismissed because it is based on the same alleged facts supporting his Fourth Amendment excessive force claim. [Filed September 26, 2012]
 
TAXATION — REAL ESTATE TAXES
35-7-7856 Yiu v. United States of America, Dist. Ct. (Hayden, U.S.D.J.) (6 pp.) This case involves the 2001 sale of real property by Plaintiffs, the Yius. The Yius are foreign nationals who resided in Taiwan at the time of the sale, so the United States withheld 10% of the sale price of the house ($290,000). After the Yius filed their joint 2001 tax return, which stated that they were entitled to a refund of the $290,000, the IRS refunded only $145,000. The IRS advised Mrs. Yiu to file the necessary form under her taxpayer identification number to recover the remaining $145,000. Mrs. Yiu did so but the IRS advised that it had disallowed the claim for the remaining amount because it deemed the claim to have been filed “more than 3 years after” the Yius filed their tax return. The Yius filed suit, seeking recovery of the $145,000 that had been withheld, attorney’s fees and costs, and alleging the United States’ imposition, collection, and retention of those funds were unlawful actions. The United States filed a motion for partial summary judgment, seeking an order fixing the tax basis of the property at the original purchase price. The Yius contend that the tax basis is higher because of the improvements that they made to the home and the fees and costs incurred in transferring the property. The Court finds that the Yius evidence supports their contention that the property’s tax basis has increased beyond the purchase price and denies the United States’ motion. [Filed September 26, 2012]