STATE COURT CASES
 
ADMINISTRATIVE LAW — SECTION 8 HOUSING
01-2-7995 In the Matter of Loring, App. Div. (per curiam) (9 pp.) Appellant, a participant in the Section 8 Housing Choice Voucher Program, appeals the Department of Community Affairs’ denial of his application for an increase in his subsidy voucher from a one-bedroom allowance to a three-bedroom allowance. Where the DCA denied the application and an administrative law judge found insufficient basis to justify additional living space and affirmed the DCA decision, and Loring then requested another administrative hearing to contest DCA’s rejection, characterizing his request as a new request for an exception and not as one for reconsideration, the panel affirms the denial. The ALJ considered all of Loring’s evidence, including that in the supplemental submission pertaining to his disability, there is sufficient evidence to support his determination that nothing supported the position that appellant qualified for a three-bedroom voucher, and appellant is not entitled to a second administrative hearing to relitigate the same factual and legal issues. [Decided Oct. 17, 2012.]
 
ADMINISTRATIVE LAW — UNEMPLOYMENT COMPENSATION — PUBLIC EMPLOYEES
01-2-7970 Ackley v. Bd. of Review, App. Div. (per curiam) (9 pp.) Ackley, a senior probation officer in the Family Division, appeals from the Board of Review’s decision upholding an Appeal Tribunal’s ruling that she was ineligible for unemployment benefits from Oct. 25, 2009, through Oct. 31, 2009, as she did not report in accordance with regulations, and from Nov. 8, 2009, through Dec. 19, 2009, because she had been suspended from her employment for misconduct connected with work. The panel affirms, finding that the board properly concluded that she was not unemployed under N.J.S.A. 43:21-19(m)(1)(A) during the period she was deemed on personal leave and permitted to use her accrued vacation, sick and administrative leave and that she did not show good cause for late filing. Further, appellant’s refusal to work and her admittedly disruptive workplace behavior resulting in her suspension were a clear disregard of her employer’s interests, which constitutes misconduct under N.J.S.A. 43:21-5(b). [Decided Oct. 15, 2012.]
 
ARBITRATION AND MEDIATION — WILLS AND ESTATES
03-2-7971 Rutigliano v. Rutigliano, App. Div. (per curiam) (12 pp.) Plaintiff and defendant are brothers and beneficiaries of their mother’s will. After her death, plaintiff filed a complaint against defendant in which he asserted that defendant had fraudulently induced their mother to change her will to leave property she owned to defendant’s two children. Defendant denied the allegations. The court ordered the parties to attend nonbinding mediation. Plaintiff appeals from an order enforcing a settlement reached at the conclusion of a mediation session. He argues the judge erred by permitting defendant to disclose the terms of the settlement for the court’s review so it could determine whether the parties had reached an enforceable settlement. Guided by the recent decision in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., the appellate panel holds that the trial judge properly enforced the settlement and considered defendant’s testimony because the parties waived the confidentiality provisions of the Uniform Mediation Act. [Decided Oct. 15, 2012.]
 
ATTORNEY/CLIENT — LEGAL MALPRACTICE
04-2-7972 Vasquez v. Macri, App. Div. (per curiam) (12 pp.) In this legal-malpractice action, plaintiff appeals from the order dismissing her complaint against her former attorney Marc Macri and the law firm of Sokolich & Macri. Defendants’ motion was granted based on plaintiff’s failure to produce an expert opinion articulating the standard of professional care applicable to defendants in the course of representing plaintiff in the purchase of her home. The court rejected plaintiff’s invocation of the common-knowledge doctrine, finding that a reasonable lay juror was not capable of determining an attorney’s responsibilities in connection with representing a buyer of residential property. The appellate panel reverses. The discrete claim asserted by plaintiff concerns Macri’s failure to ensure that the seller delivered to her, at or before the closing of title, a certificate of continued occupancy (CCO). The viability of plaintiff’s claim is not dependent on establishing Macri’s negligence, because in his deposition testimony, Macri conceded that (1) the borough requires a CCO on the transfer of title; (2) as attorney for the buyer, he was responsible for ensuring that plaintiff obtained clear title to the property; and (3) he mistakenly believed the seller’s agent obtained and delivered to him a CCO at the time of closing. Based on these undisputed facts, lay jurors can determine whether Macri should be held liable for any monetary damages incurred by plaintiff as a proximate cause of his failure to deliver clear title. [Decided Oct. 15, 2012.]
 
CIVIL PROCEDURE — SUBSTITUTED PARTIES
07-2-7950 Struss v. Hilly, App. Div. (per curiam) (7 pp.) In this action asserting employment-related claims against Impraxxa, plaintiff’s former employer, Hilly, its chairman, and various other corporate entities and John Doe defendants, the court entered a judgment against Impraxxa on the breach-of-contract claim. A subsequent order held Impraxxa liable on the CEPA claim and dismissed all remaining claims and defendants with prejudice. Plaintiff moved for reconsideration of the ruling that Hilly was not individually liable under CEPA and the state wage and hour law. The court issued an order permitting him to withdraw the motion after Hilly’s suicide but refused to sign a proposed provision permitting him to refile after the appointment of an administrator or executor and to substitute Hilly’s estate. In November 2010, the judge issued an amended final judgment. Plaintiff appeals from the order denying his June 2011 motion to substitute Hilly’s estate for Hilly. The panel affirms for the reasons expressed below, including that the amended final judgment was a final order and that plaintiff had not filed a motion for reconsideration within the time permitted and, thus, there were no claims or parties pending in this matter. [Decided Oct. 12, 2012.]
 
CONSUMER FRAUD — ATTORNEY FEES
09-2-7996 Lee v. Receivable Management Services, App. Div. (per curiam) (10 pp.) Plaintiffs appeal from the order denying their motion for reconsideration of the final judgment requiring them to pay defendant TNCI frivolous-litigation sanctions of $20,948.50. TNCI claimed plaintiffs owed $1,931.78 for telephone and Internet services. Plaintiffs never paid TNCI; instead, they filed a complaint against TNCI and other defendants. In a letter, TNCI advised plaintiffs that their Consumer Fraud Act claim was frivolous and interposed in bad faith. TNCI also stated that it would not seek frivolous-lawsuit sanctions if plaintiffs dismissed the CFA claim with prejudice and the parties exchanged mutual releases. Plaintiffs did not dismiss the CFA claim; instead, they filed an amended complaint. The litigation was clearly frivolous because plaintiffs’ CFA claim had no merit. Even if plaintiffs had an initial objectively reasonable and good-faith belief in the merit of the CFA claim, the litigation became frivolous, and, therefore, sanctionable, when they continued prosecuting a meritless claim after receiving TNCI’s letter. The trial court appropriately found that the letter was a “safe harbor letter” that complied with Rule 1:4-8(b), and plaintiffs should have withdrawn the CFA claim because they suffered no ascertainable loss and TNCI had offered to settle the claim. The trial court properly granted TNCI’s motion for frivolous-lawsuit sanctions, and properly denied plaintiffs’ motion for reconsideration. [Decided Oct. 17, 2012.]
 
CORRECTIONS
13-2-7951 Ransome v. New Jersey Department of Corrections, App. Div. (per curiam) (9 pp.) Appellant Kenneth Ransome is an inmate at the New Jersey State Prison (NJSP). He appeals from a final administrative determination of the New Jersey Department of Corrections (DOC) finding him guilty of three prohibited acts: two counts of *.704, perpetrating a fraud, and one count of *.803/*.215, attempting to commit or aiding another to commit possession with intent to distribute or sell. The charges arose out of an extensive Special Investigation Division (SID) probe into a drug-smuggling operation at NJSP headed by another inmate. The conduct forming the basis for all three charges occurred prior to May 15, 2008. Ransome was not charged with these violations until June 17, 2011, and claims that this lengthy delay violated his due process rights. The present record fails to demonstrate the “exceptional circumstances” required by N.J.A.C. 10A:4-9.8(b) to justify the three-year delay in charging Ransome. The appellate panel vacates the sanctions and remands the matter to the hearing officer for further proceedings to determine whether exceptional circumstances justified the delay in charging appellant. [Decided Oct. 12, 2012.]
 
CRIMINAL LAW AND PROCEDURE
14-2-7959 State v. Briston, App. Div. (per curiam) (27 pp.) Defendant, convicted of aggravated manslaughter and weapons offenses, appeals from the denial of his postconviction relief petition and of his request for an evidentiary hearing. The panel affirms the denial of defendant’s PCR petition as modified to permit defendant to file a late notice of appeal from his resentencing based on his claim that he asked his attorney to file a timely notice of appeal but she failed to do so. [Decided Oct. 12, 2012.]
 
14-2-7986 State v. Hertz, App. Div. (per curiam) (12 pp.) Defendant appeals from her conviction following a trial de novo in the Law Division for violating Lincoln Park Municipal Ordinance 144-4, the littering ordinance, and from the amount of the fines imposed. The panel finds that the record contains sufficient credible evidence to uphold the Law Division’s finding that defendant violated the ordinance as there can be no doubt that she deposited a trash bag containing litter on occupied private property. The panel reverses as to the amount of the fine as the judge incorrectly believed that $500 was the minimum fine he could impose. [Decided Oct. 16, 2012.]
 
14-2-8005 State v. Guavara, App. Div. (per curiam) (10 pp.) Defendant, convicted of second-degree aggravated assault, third-degree aggravated assault, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon arising out of the stabbing of the victim in the abdomen, claims that the jury should have been instructed on the offense of causing significant bodily injury. The panel rejects his claim, finding no factual basis for the jury to conclude that defendant attempted to cause significant bodily injury. As to the sentence, the panel finds that the third-degree charge of possession of a weapon (count three) should have merged into the second-degree aggravated-assault charge (count one), and that the trial court failed to qualitatively evaluate the aggravating and mitigating factors, failed to state why aggravating factor two applied, and failed to explain how it determined defendant’s sentence. Therefore, defendant’s conviction on count one is affirmed but the matter is remanded to merge count three into count one and to reconsider defendant’s sentence. [Decided Oct. 17, 2012.]
 
CRIMINAL LAW AND PROCEDURE — SEARCH AND SEIZURE
14-2-7988 State v. Height, App. Div. (per curiam) (13 pp.) Following denial of his suppression motion, defendant pleaded guilty to third-degree possession of CDS (Xanax). Defendant appeals, challenging the denial of his suppression motion. At the suppression hearing, testimony was offered that an anonymous caller contacted the police and expressed the belief that “subjects” at a specified address in Neptune were “smoking crack cocaine and there is a child there.” Two police officers responded to the address, and a child opened the door. An adult babysitter then came to the door. The officers entered the apartment and found drug paraphernalia. Three adults in the apartment were arrested, defendant was searched, and the officers found in his possession Xanax tablets for which he did not have a prescription. In denying defendant’s motion to suppress, the judge found the police lawfully entered the apartment pursuant to the community-caretaking doctrine. The appellate panel reverses and remands, finding there was no objectively reasonable basis for the police to enter the apartment under the community-caretaking doctrine. Once the officers found there was inadequate evidence to corroborate the 9-1-1 call and determined the child’s safety was not at issue, they had fulfilled their community caretaking function. A warrant supported by probable cause was required to search the apartment or occupants. The evidence obtained through that warrantless search must be suppressed. [Decided Oct. 16, 2012.]
 
14-2-8006 State v. Eastman, App. Div. (per curiam) (10 pp.) By leave granted, the state appeals from an order suppressing evidence seized during a warrantless search of defendant’s vehicle following an accident. The vehicle, with defendant’s credentials inside, was inaccessible due to downed electrical wires when defendant was arrested for driving under the influence and taken to police headquarters. Later, Trooper Ferrara found a wallet on the ground; inside was defendant’s driver’s license, but no insurance card or registration. Trooper Ferrara then searched defendant’s glove compartment, where he found defendant’s credentials and also what appeared to be illegal drugs, later confirmed to be cocaine. Following his indictment for possession of a controlled dangerous substance, defendant moved to suppress the evidence. Defendant argued the trooper had no legitimate reason to search the glove compartment because he had defendant’s driver’s license and license plate number, and had ample time to verify the information he needed through his mobile data terminal. Also, defendant could have been taken back to the scene to retrieve his documents. The record gives no indication that exigent circumstances existed, nor did the trooper have an independent basis for probable cause or a reasonable articulable suspicion to search defendant’s vehicle. The appellate panel affirms the order under review. [Decided Oct. 17, 2012.]
 
EDUCATION
16-2-7937 New Jersey Dep’t of Education Complaint Investigation C2012-4341, App. Div. (per curiam) (11 pp.) The Fair Lawn Board of Education appeals from a final determination of the Department of Education, Office of Special Education, that determined the district was required by N.J.A.C. 6A:14-4.8 to provide T.S., who has neo-natal encephalopathy with severely compromised post-natal growth and neurological development, with no fewer than 10 hours per week of home instruction by a certified teacher. The panel affirms substantially for the reasons stated in the OSE’s complaint investigation report. The panel notes, inter alia, that the record supports the OSE’s determination that T.S.’s home instruction is governed by N.J.A.C. 6A:14-4.8, rather than 6A:16-10.1 as asserted by the board, because he requires home instruction as a result of a disability rather than a “chronic medical condition.” [Decided Oct. 11, 2012.]
 
16-2-7997 In the Matter of the Tenure Hearing of Bruno, App. Div. (per curiam) (15 pp.) Appellant, a teacher in the South Hunterdon Regional School District, appeals from the Department of Education commissioner’s decision affirming an administrative law judge’s decision that she had engaged in multiple acts of unbecoming conduct warranting her suspension for one year without pay and the forfeiture of her salary increment for the following school year. The commissioner also required that, as a condition of re-employment, appellant provide a medical report from a new cardiologist selected by the board of education. The panel affirms, finding that the record supports the conclusion that she engaged in conduct unbecoming a teacher where she failed to supervise students on at least two occasions, changed student hotel accommodations for a field trip without consulting with or advising her superiors, did not have a lesson plan or class list available when she was absent, refused to meet with her principal for a routine postobservation meeting, and continually failed to participate in requested medical and psychiatric exams despite having initially claimed that she could not meet with her principal without a medical person present. The panel also finds that on the facts, the one-year suspension and forfeiture of a salary increment was not an excessive penalty. [Decided Oct. 17, 2012.]
 
FAMILY LAW
20-2-7973 Albinson v. Marra, App. Div. (per curiam) (12 pp.) In this postdivorce matrimonial case, defendant appeals from three orders finding him in violation of litigant’s rights for failing to maintain life insurance for the parties’ unemancipated son and imposing various sanctions. The appellate panel finds no abuse of discretion in the judge’s sanction restraining defendant from “transferring title, encumbering, selling or otherwise affecting his home” to coerce defendant into compliance with prior orders. Nor was the sanction of $10,000 an abuse of discretion. However, the judge did not make sufficient findings regarding her reasons for modifying the judgment of divorce to permit plaintiff to claim the child as a tax exemption each year, as opposed to alternating years. The panel affirms the imposition of sanctions, but remands for further proceedings regarding the parties’ tax-exemption status. [Decided Oct. 15, 2012.]
 
20-2-7985 Sefack v. Sefack, App. Div. (per curiam) (7 pp.) Defendant appeals from a postjudgment order that fixed the amount plaintiff was required to pay toward child-support arrears on a weekly basis and denied her request to incorporate an agreement between the parties whereby plaintiff surrendered his right to claim the younger child as a dependent for tax purposes in lieu of providing health insurance coverage into an order. The panel affirms the order regarding payment of arrears, finding no abuse of discretion in the award. The panel reverses the trial court’s order that the parties alternate claiming the younger son as a dependent as the order does not acknowledge the parties’ agreement, documented in plaintiff’s notarized statement, to modify this term or identify any reasons why it should be disturbed. [Decided Oct. 16, 2012.]
 
FAMILY LAW — ATTORNEY/CLIENT — DOMESTIC VIOLENCE
20-2-7974 State v. S.J., App. Div. (per curiam) (12 pp.) On leave granted, defendant appeals from the Family Part’s interlocutory order disqualifying his attorney from representing him in connection with a domestic-violence contempt proceeding because the alleged victim of the domestic violence previously had consulted his law partner and had sent her matrimonial file to him. Where the only basis on which the state moved for defense counsel’s disqualification was the hearsay certification of the assistant prosecutor, and it presented no certification from the victim to explain the basis for her perceived conflict of interest and details of her conversation with the partner and thus presented no specific allegation of information the victim claims to have conveyed to the partner and no specific claim or information alleged to be significantly harmful, or harmful in any way, and defendant presented detailed certifications from the partner and his associate indicating one initial consultation and that the file had not been opened or reviewed because the victim decided against retaining the firm, the panel finds that the state failed to show by competent evidence that the firm received information from the victim’s former attorney that could be significantly harmful to her in the current representation of defendant and that, in fact, the evidence presented belies that conclusion. The panel therefore reverses the disqualification. [Decided Oct. 15, 2012.]
 
FAMILY LAW — CHILD SUPPORT — SPOUSAL SUPPORT
20-2-7998 Cannell v. Cannell, App. Div. (per curiam) (11 pp.) In this postjudgment matrimonial matter, plaintiff appeals from the Family Part order denying his motion to reduce his alimony payments to defendant and increasing his child-support payments; the order denying his motion for reconsideration; and the order further increasing his child-support payments for his younger child. The appellate panel finds defendant did not present a prima facie case of changed circumstances based on his diminution of income warranting a decrease in alimony or child support. However, as to child support, defendant submitted a budget that attributed one-half of her household expenses to the child and her entire share of the child’s college expenses, which defendant was obligated to pay. The trial judge appeared to accept defendant’s budget without making any determination regarding the accuracy or appropriateness of the alleged needs. The appellate panel affirms the denial of a decrease in alimony but remands for the trial judge to make clearly delineated and specific findings addressing the statutory factors in N.J.S.A. 2A:34-23 for his determination of discretionary child support. [Decided Oct. 17, 2012.]
 
FAMILY LAW — DOMESTIC VIOLENCE
20-2-7952 J.L. v. W.K.J., App. Div. (per curiam) (8 pp.) Defendant appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act. The panel affirms, agreeing with the trial court’s findings that defendant’s contacts with plaintiff, his former girlfriend, constituted harassment, that his repeated communications were done in a manner likely to cause her to be annoyed or alarmed, that an FRO was necessary to protect plaintiff from further acts of domestic violence, and that plaintiff was not required to establish that she had a reasonable fear of injury or death to justify entry of a restraining order to protect her from further harassment. [Decided Oct. 12, 2012.]
 
20-2-7999 R.I. v. J.I., App. Div. (per curiam) (9 pp.) Defendant appeals from a final restraining order on a complaint by her husband under the Prevention of Domestic Violence alleging simple assault, harassment and terroristic threats. Finding that the judge determined that J.I. assaulted her husband but did not clearly articulate the factual basis for that determination or address the need for the restraining order, the panel remands so the judge may amplify and clarify the findings of fact and legal conclusions. [Decided Oct. 17, 2012.]
 
FAMILY LAW — QUALIFIED DOMESTIC RELATIONS ORDER — PENSIONS
20-4-7975 Lieder v. State, Ch. Div. — Bergen Co. (Doyne, A.J.S.C.) (14 pp.) Defendant Deanna Camlet filed a motion for summary judgment seeking to resolve plaintiff Tina Lieder’s claims that pursuant to a property settlement and support agreement (PSSA) executed at the time of her divorce from Donald Lieder, she is entitled to specific performance granting plaintiff 39 percent of the remainder of Donald’s deferred compensation retirement benefit. The state, as the party that disbursed the remainder of Donald’s compensation fund to defendant, was named as a party. While the parties were engaged in settlement negotiations, the state located a previously unknown qualified domestic relations order (QDRO) that specifically states that payments to plaintiff would no longer occur once either plaintiff or Donald died. Based on the language of the PSSA and the accompanying QDRO, plaintiff is not entitled to any further pension payments following Donald’s death. Defendant, as the primary beneficiary, is entitled to the remaining balance. Defendant’s motion for summary judgment is granted. [Decided Oct. 12, 2012.]
 
FAMILY LAW — SPOUSAL SUPPORT
20-2-7938 Foley v. Foley, App. Div. (per curiam) (11 pp.) Alleging long-term unemployment, defendant ex-husband appeals from an order of the Family Part denying his motion to reduce his alimony obligation pursuant to a judgment of divorce. At the time of the divorce trial, only five-and-a-half months had passed since defendant lost his job, and the trial judge concluded the time lapse was not sufficient to consider the unemployment more than temporary. That decision should not preclude defendant from arguing 10 months later that the entire period of unemployment should be taken into account in assessing changed circumstances. Further, the present economic circumstances, including higher unemployment rates, should have been considered in determining whether defendant made a prima facie showing of prolonged involuntary unemployment. At the time of the Family Part’s decision on the postjudgment motions, defendant had been unsuccessful for about 15 months in finding new comparable employment. The appellate panel concludes that the Family Part denied defendant’s motion under a misconception of the relevant period of unemployment. The panel reverses and remands for reconsideration and potentially for an evidentiary hearing to determine whether defendant has proved changed circumstances under Lepis v. Lepis. [Decided Oct. 11, 2012.]
 
FAMILY LAW — SPOUSAL SUPPORT — CHILD CUSTODY
20-2-7953 Iudici v. Iudici, App. Div. (per curiam) (19 pp.) Defendant appeals from parts of several Family Part orders that required him to pay plaintiff $10,000, the balance owed for his purchase of her interest in their former marital residence; terminated the parties’ obligation to arbitrate the cost of any damages allegedly caused by the plaintiff to the marital residence; denied his applications to modify alimony and child support; denied him a custody hearing; denied his motions for counsel fees and costs, and awarded plaintiff counsel fees. Both parties breached the arbitration provision, disregarded its terms, and ignored a court order that was intended to compel their compliance. Because the parties ignored orders and disregarded the property-settlement agreement arbitration provision for nearly four years, the court acted within its discretion by terminating the parties’ obligation to arbitrate. The court did not modify the parties’ agreement, but instead refused to enforce it based on the parties’ own conduct. Because the circumstances may have changed since the court denied defendant’s motions to modify his alimony and support obligations, the court may order discovery, conduct a hearing, or take whatever action it determines, in its discretion. The matter is also remanded to determine whether defendant is entitled to a hearing concerning custody and for further consideration of the attorney fee issues. [Decided Oct. 12, 2012.]
 
GOVERNMENT — ELECTION LAW
21-3-7939 Empower Our Neighborhoods v. Guadagno, Law Div. — Mercer Co. (Jacobson, A.J.S.C.) (37 pp.) Before the court is a motion for a preliminary injunction filed by plaintiff Empower Our Neighborhoods and motions to dismiss filed by the defendants, the lieutenant governor, Secretary of State and chief election official of the state, clerk of New Brunswick and the Middlesex County clerk, for lack of standing. EON asks the court to enjoin the enforcement of election laws requiring circulators of recall petitions and local partisan party candidate nominating petitions to be registered voters in the district where the candidate is running for public office or in which an effort to recall an existing officeholder is contemplated or has been initiated. Plaintiff’s application seeks a preliminary injunction against enforcement of several election statutes that limit the persons qualified to act as circulators, pending completion of this litigation, which also includes a challenge to requirements to place initiatives and referenda on ballots. The court finds that EON has standing to challenge the laws restricting individuals who may circulate election petitions based on the impact that those laws have on its membership, their declared interest in improving government and their desire to engage in the type of political activity prohibited by the statutes and because there is a weighty public interest at stake. The court also finds that EON is not required to join all of the county and municipal clerks for this matter to proceed. Therefore, defendants’ motions to dismiss for lack of standing and failure to join indispensable parties are denied. Plaintiff’s motion for a preliminary injunction enjoining enforcement of N.J.S.A. 19:13-7, 19:27-9(a), and 19:27A-8(h), pending completion of this case or further court order, insofar as they require petition circulators for independent candidates in local partisan elections and for recall efforts to be registered to vote in the relevant district is granted as the issues raised present a well-settled legal right, EON has a reasonable probability of success of the merits, and the petition circulation requirements continuously violate EON and its membership’s First Amendment freedoms of speech and association is sufficient to give rise to a finding of irreparable harm. [Decided Oct. 3, 2012.]
 
GOVERNMENT — GUN PERMITS
21-2-7940 In the Matter of the Application of Even-Esh for Permit to Carry a Handgun, App. Div. (per curiam) (2 pp.) Even-Esh appeals from the denial of his application to renew a permit to carry a handgun. Because he has moved from Middlesex County where he resided when he was denied the permit to carry, and the statutory scheme for the issuance of gun permits calls for applicants to reside in the county in which they seek permission, the panel holds that he must reapply in his new county of residence and dismisses the appeal as moot. [Decided Oct. 11, 2012.]
 
INSURANCE — CIVIL PROCEDURE — NOTICE
23-2-7976 Sandax Inc. v. First Jersey Ins. Co., App. Div. (per curiam) (8 pp.) In this bad-faith action against plaintiff’s insurer for failure to settle a personal-injury action against plaintiff, First Jersey appeals from the denial of its motion for reconsideration of an order compelling it to pay an excess judgment and awarding counsel fees. The panel reverses, finding that Sandax’s counsel’s attempted service of the order to show cause papers on the attorney who First Jersey had appointed to represent Sandax in the personal-injury action was insufficient since that attorney was involved only in the personal-injury action and did not represent First Jersey in the bad-faith action and that, therefore, First Jersey did not receive proper notice pursuant to Rule 4:67-3. Moreover, counsel for Sandax did not serve the OTSC and verified complaint in accordance with Rules 4:4-3 and 4:4. [Decided Oct. 15, 2012.]
 
LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION
25-2-7954 Jackson v. Board of Review, App. Div. (per curiam) (7 pp.) Appellant Nzinga Jackson appeals from an order of the Board of Review affirming a decision of the Appeal Tribunal that she was disqualified for unemployment compensation benefits because she left work voluntarily without good cause attributable to the work. Jackson was employed by Verizon New Jersey from Feb. 25, 2008, to Sept. 4, 2010. She resigned from her position after having accepted a voluntary severance package. Jackson contended that she accepted the package because her union representative told her she was going to be laid off. As it turned out, due to the number of employees that accepted the separation package, Verizon did not lay off any employees. Jackson’s argument that she was effectively terminated finds no support in the factual record. She was never threatened with the prospect of imminent termination. Instead, she made a personal decision to voluntarily leave work to secure a beneficial early resignation package. The threat or possibility of a layoff is an insufficient basis to trigger the right to receive benefits. The board’s decision that Jackson was ineligible for unemployment benefits was supported by substantial, credible evidence, and the appellate panel finds no reason to disturb it. [Decided Oct. 12, 2012.]
 
LAND USE — VARIANCES
26-2-7955 Pepitone v. The Zoning Board of Adjustment of the Town of Westfield, App. Div. (per curiam) (9 pp.) Plaintiffs appeal from the order that granted summary judgment to defendant Westfield Zoning Board of Adjustment, and dismissed the complaint in lieu of prerogative writs with prejudice. Plaintiffs own property in Westfield located in the RS-12 single-family residence zone. There is a one-car detached garage on the property. Plaintiffs’ property became nonconforming with the passage of an amendment to Westfield’s land-use ordinance that requires each dwelling in the RS-12 zone have at a minimum a two-car garage. Plaintiffs sought to construct an addition to their home without also constructing a two-car garage. The board found that plaintiffs established the requirements for a “C” variance, and granted the variance. Nonetheless, plaintiffs filed a complaint in lieu of prerogative writs, arguing in part that the board’s decision harms their property rights. The appellate panel finds the trial court correctly granted summary judgment to the board, finding that the zoning officer and board correctly interpreted the ordinance, and variance relief was the correct remedy. The judge concluded that plaintiffs were estopped from alleging a deprivation of property rights or continuing harm because they did not challenge the ordinance, and the matter was moot because plaintiffs applied for and were granted a variance, which resolved the dispute. [Decided Oct. 12, 2012.]
 
NEGLIGENCE — SLIP AND FALL
31-2-7942 Crespo v. City of Newark, App. Div. (per curiam) (10 pp.) Plaintiff Maria Crespo appeals from the summary judgment dismissal of her personal-injury complaint against defendant Kemsco Construction and Equipment Company. In 2006, Kemsco entered into a construction contract with Newark to provide excavation services as part of a road-widening project. On April 30, 2007, Crespo was walking in the intersection when she stepped into a hole in the crosswalk, causing her to fall. The appellate panel declares the existence of a duty of care to comply with the rigors of restoring the crosswalk to a safe means of crossing the street. The mere happening of an accident does not alone give rise to an inference of negligence. Kemsco’s work was completed more than one year prior to Crespo’s fall, and the effects of traffic, weather, and other environmental conditions were capable of contributing to the circumstances, and may have superseded any negligence involving Kemsco’s pavement restoration. However, that determination was not appropriate for summary judgment disposition. The panel also rejects Kemsco’s position that it was immunized from negligence when Newark accepted its work. Also, plaintiff’s expert’s opinion demonstrated a failure to abide allegedly relevant construction standards. The appellate panel reverses and remands. [Decided Oct. 11, 2012.]
 
PHYSICIAN/PATIENT — MEDICAL MALPRACTICE — INDEPENDENT CONTRACTORS
29-2-7943 Monk v. O’Connell, App. Div. (per curiam) (22 pp.) The deceased sought emergency medical care at Virtua/West Jersey Hospital, where he was attended by defendant Dr. O’Connell, who was working at Virtua under a contract between it and Emergency Physician Associates Inc. The deceased died later that day as a result of a massive dose of narcotic pain killers that suppressed his respiratory system. Plaintiff, his widow, as administrator of his estate and individually sued EPA, asserting it was vicariously liable for O’Connell’s alleged negligence. Plaintiff appeals the trial court’s grant of EPA’s motion for summary judgment after concluding that O’Connell was an independent contractor and not EPA’s employee and that it was not vicariously liable for his actions. Applying the control test, the panel concludes that the undisputed facts indicate an employment relationship. It reaches the same conclusion applying the relative-nature-of-the-work test. It therefore reverses and remands. [Decided Oct. 11, 2012.]
 
PUBLIC EMPLOYEES — POLICE — TERMINATION
33-2-7944 Wahba v. Franklin Township, App. Div. (per curiam) (6 pp.) This appeal and cross-appeal arise from the township’s decision to discharge plaintiff, formerly a police officer in the township. The primary issue is whether the Law Division properly applied the 45-day limitation-of-actions provision in N.J.S.A. 40A:14-147. Plaintiff challenges the trial court’s finding that the municipality filed disciplinary charges within the 45-day statutory period following the disposition of an investigation by the prosecutor’s office. The township cross-appeals from the trial court’s dismissal of certain other disciplinary charges against Wahba that were untimely filed. The panel affirms, substantially for the reasons expressed below, agreeing with the judge that the prosecutor’s investigation did not close until the prosecutor received a computer back from the forensic analyst and allowed the township to pick up its copy of the prosecutor’s file, and that the charges from 2008 therefore were timely filed. The panel also agrees with the Law Division judge that the township had sufficient information in 2005 to bring departmental charges stemming from alleged ticket-fixing and that those charges therefore were untimely. [Decided Oct. 11, 2012.]
 
33-2-7956 In the Matter of A.M., App. Div. (per curiam) (7 pp.) A.M. appeals from the final decision of the Civil Service Commission terminating his employment as a senior police officer with the Department of Human Services after adopting the administrative law judge’s findings of fact but rejecting the ALJ’s recommendation of a six-month suspension, which recommendation had modified the appointing authority’s sanction of outright removal. The panel affirms, noting its limited scope of review and finding that removal for conduct unbecoming a public employee — assaulting his wife — did not exceed the commission’s authority nor was it so disproportionate as to shock the conscience. [Decided Oct. 12, 2012.]
 
REAL ESTATE
34-3-8001 Adams Associates, L.L.C. v. Eastern Savings Bank, Law Div. — Hudson Co. (Sarkisian, J.S.C.) (24 pp.) This case arises out of a loan secured by a mortgage that was originally held by Eastern Savings Bank that was sold to plaintiff Adams Associates, L.L.C. Defendant N.J. Title issued a title policy to ESB on the mortgage in the original transaction. The loan was procured through fraud and was later declared invalid and the default judgment of foreclosure was vacated. Plaintiff is suing to recover its losses from both ESB and N.J. Title. Plaintiff’s complaint, as assignee of ESB against the mortgagors, the Pasquale Limited Partnership, was dismissed. N.J. Title has denied coverage of the loss. Plaintiff is now suing to recover its losses from ESB and N.J. Title. The court denies N.J. Title’s motion for summary judgment and grants plaintiff’s motion for summary judgment, finding that the policy at issue is a first-part policy for direct coverage that insures plaintiffs against loss caused by defects of title to, or liens or encumbrances on, realty in which the insured has an interest and the plain language of the policy indicates that plaintiff’s loss is covered, and plaintiff has a valid estoppel argument against N.J. Title where N.J. Title assumed plaintiff’s risks in the underlying action without a reservation of rights. Plaintiff’s motion for summary judgment against ESB is denied and ESB’s motion for summary judgment against plaintiff is granted because it is clear that the assignment to plaintiff was made without recourse or warranty. [Decided Oct. 15, 2012.]
 
REAL ESTATE — MORTGAGE FORECLOSURE
34-2-8002 Mortgage Electronic Registration Systems Inc. v. Rader, App. Div. (per curiam) (10 pp.) Plaintiff, as nominee for the mortgage lender, filed this foreclosure action after defendants defaulted on their residential mortgage payments. Defendants appeal from the order denying their motion to vacate the final default judgment and a writ of execution and from the denial of their motion for reconsideration. Finding that although plaintiff failed to comply with Rule 4:64-2’s requirement that the party instituting a foreclosure action must attach to its complaint evidence of indebtedness on which the claim is based, this is not a situation where MERS did not have possession of the note when the complaint was filed and, since the original mortgage identified MERS as the nominee for the original mortgagee and for its successor and assigns and there is no evidence that it ever assigned its interest to another party and the original mortgagee’s transfer of the mortgage to Bank of New York Mellon is of no consequence, the panel holds that the judge properly concluded that plaintiff had standing to initiate the action. Further, the panel says dismissal on standing grounds would be inappropriate because defendants did not raise the issue promptly and did so only after substantial time had passed and after plaintiffs, in good faith, participated in efforts to resolve the litigation through mediation. Further, the judgment is not void because Sharon Rader did not receive the notice of intent to foreclose because the Fair Foreclosure Act does not require that she receive notice since she did not execute the note and was not personally obligated to pay the note. [Decided Oct. 17, 2012.]
 
TAXATION
35-5-7957 Adamar of New Jersey Inc. v. City of Atlantic City, Tax Ct. (DeAlmeida, P.J.T.C.) (18 pp.) In these matters that have been consolidated for trial, plaintiffs, related or successor companies that own and operate the Tropicana Casino and Entertainment Resort, challenge the assessments placed on the real property that constitutes the casino hotel by the municipal tax assessor for tax years 2008 through 2011. Although not convinced that the income approach is the preferable method for determining the value of property on which the owner operates a casino hotel, the court determines that if the income approach is used to determine the value of a casino hotel, the presumption of competent management — which has been applied to the rental income earned at apartment houses and hotels — would apply, at least with respect to the rental income earned at the hotel component of the facility. [Filed Oct. 9, 2012.]
 
TORTS — FRAUD
36-2-7958 R.P. v. B.Y., App. Div. (per curiam) (13 pp.) The primary issue in this appeal is whether a complaint alleging a defendant fraudulently induced a plaintiff to terminate a pregnancy by making false promises to her, which he did not keep, states a cause of action on which relief can be granted. The appellate panel finds the motion judge correctly granted defendant’s motion to dismiss, concluding that plaintiff’s complaint was barred by the New Jersey Statute of Frauds amendment, the public policy of the Heart Balm Act, and overall public policy prohibiting a contract requiring an abortion. Plaintiff’s decision to have an abortion may have been influenced by defendant, but she made the ultimate decision to terminate her pregnancy. Plaintiff’s claim is damnum absque injuria — a wrong for which there is no remedy. [Decided Oct. 12, 2012.]
 
TORTS — NEGLIGENCE
36-2-8003 Harding v. Simon Pharmacy Inc., App. Div. (per curiam) (13 pp.) Plaintiffs Scott Simon and Arnold Simon appeal from an order granting summary judgment in favor of defendant Kinray Inc. Since 1996, Harding Pharmacy purchased prescription drugs, including controlled dangerous substances (CDS), from Kinray, a large-scale drug wholesaler and distributor. One of Harding’s owners, Myron Lesh, hired Marc Malajian as a clerk in the pharmacy despite knowing that Malajian had prior drug-addiction issues. Malajian stole a half-full bottle of Xanax that Scott Simon ingested at a party, causing him to lapse into a coma. Harding, while required by state and federal statutes and regulations to secure CDS from diversion, was lax in implementing those requirements. An audit of Harding by the Federal Drug Enforcement Agency (DEA) noted at least 92 regulatory violations. However, none of those violations involved any alleged wrongdoing by Kinray. Judge Harz correctly granted summary judgment to Kinray, concluding that Kinray owed no common-law duty to Scott, a third party with whom it had no special relationship. Further, state and federal statutes did not impose on Kinray a legal duty that plaintiffs could enforce in a tort action. Finally, even if a duty existed, Kinray’s allegedly negligent actions did not proximately cause Scott’s injury. [Decided Oct. 17, 2012.]
 
TORTS — NEGLIGENCE — ATTORNEY FEES
36-2-7946 Wong v. Ronetco Supermarkets Inc., App. Div. (per curiam) (10 pp.) In March 2002, plaintiff Patricia Wong fell in a parking lot and injured her wrist. Several months later, plaintiff retained the services of Paul Selitto, Esq., to pursue a bodily injury claim. Selitto filed suit in April 2003. Plaintiff was diagnosed with reflex sympathetic dystrophy syndrome (RSD) and in August 2004, plaintiff suffered a catastrophic injury from a complication during an epidural catheter infusion in the course of treatment for her RSD. As a result, plaintiff fell into a coma and remains in a persistent vegetative state. Plaintiff’s brother, her appointed guardian, then retained Michael Noonan, Esq., of Nowell Amoroso Klein Bierman, P.A. (Nowell), and the file was transferred in June 2006. In this appeal, the appellate panel reviews the trial court’s order dividing the contingent fee between the two law firms generated from the multimillion-dollar settlement received by plaintiffs. In support of his argument that the award constituted an abuse of discretion, Selitto points to the fact that the file was in his office for almost four years yet he was awarded only 4 percent of the total fee. This argument assumes that Selitto should share in the fee attributable to the medical-malpractice part of the case. Like the trial court, the appellate panel discerns no basis for Selitto to claim any portion of the fee related to the medical negligence claims. The panel finds no basis to disturb the award. [Decided Oct. 11, 2012.]
 
WILLS AND ESTATES
38-2-8004 In the Matter of the Probate of the Alleged Will of Joan Pennella, App. Div. (per curiam) (15 pp.) Defendants Sam Pennella and Carol David appeal from an order admitting the May 24, 2010, will of decedent Joan Pennella to probate and dismissing a caveat filed against the will. After Joan died on July 17, 2010, her oldest son, Carl Pennella Jr., filed a complaint seeking to probate the 2010 will, to be appointed executor pursuant to the terms of the will, and to lift a caveat that Sam had filed. Defendants, two of Joan’s children, filed a contesting answer and a counterclaim alleging that Joan lacked testamentary capacity and Carl had exercised undue influence over her. The appellate panel finds no error in the trial court’s determination that Carl did not have a confidential relationship with Joan and that there was no proof of suspicious circumstances. Nor did the trial court err in its evidentiary rulings. According to Joan’s probate attorneys, every time they prepared a new will for her, they met with Joan privately, with no other relatives present, to be sure that she had testamentary capacity and understood the proposed estate plan, and that it represented her wishes. At the attorneys’ advice, Joan handwrote a letter explaining why she was largely disinheriting Sam and Carol. Defendants behaved in ways that their mother found quite distressing; her decision to largely exclude them from inheriting her estate should have come as no surprise to them. The appellate panel affirms, finding there is no credible evidence that Joan’s testamentary dispositions were the result of undue influence. [Decided Oct. 17, 2012.]
 
FEDERAL COURT CASES
 
AGENCY AND PARTNERSHIP
02-7-7977 United States Small Business Administration v. Herbst, U.S. Dist. Ct. (Thompson, U.S.D.J.) (8 pp.) Defendant Abraham Herbst moves to vacate a summary judgment in favor of plaintiff, the U.S. Small Business Administration (SBA) as receiver for Penny Lane Partners, L.P. The summary judgment results from an ancillary action brought by plaintiff to recover unfunded capital contributions defendant allegedly owed as a private limited partner of Penny Lane. In granting summary judgment, the court found defendant failed to present a cognizable legal or factual theory that would overcome his obligations under the limited partnership agreement (LPA). In contrast, the court found that plaintiff satisfied its initial burden of producing evidence of defendant’s commitments under the LPA. Here, the court finds that defendant has not met the standard required to vacate a ruling of summary judgment. Defendant’s affidavit is filled with numerous conclusory statements, little factual support, and no new evidence of fraud, misrepresentation or misconduct by plaintiff to warrant dismissal. Defendant’s motion to vacate summary judgment is denied. [Filed Oct. 10, 2012.]
 
02-7-7978 United States Small Business Administration v. Herbst, U.S. Dist. Ct. (Thompson, U.S.D.J.) (8 pp.) Defendant Jackie Herbst moves to vacate a summary judgment in favor of plaintiff, the U.S. Small Business Administration (SBA) as receiver for Penny Lane Partners, L.P. The summary judgment results from an ancillary action brought by plaintiff to recover unfunded capital contributions defendant allegedly owed as a private limited partner of Penny Lane. In granting summary judgment, the court found that plaintiff satisfied its initial burden of producing evidence of defendant’s commitments under the limited partnership agreement (LPA). Defendant failed to present a cognizable legal or factual theory that would overcome his obligations under the LPA. Here, the court finds that defendant has not met the standard required to vacate a ruling of summary judgment. Defendant’s affidavit is filled with numerous conclusory statements, little factual support, and no new evidence of fraud, misrepresentation, or misconduct by plaintiff to warrant dismissal. Defendant’s motion to vacate summary judgment is denied. [Filed Oct. 10, 2012.]
 
ATTORNEY/CLIENT — DISQUALIFICATION
04-7-7989 Cafaro v. HMC International, L.L.C., U.S. Dist. Ct. (Dickson, U.S.M.J.) (16 pp.) This is a securities fraud action alleging that defendant Robert Massimi, acting in concert with other named defendants, operated a day-trading hedge fund in which plaintiffs invested, HMC International, L.L.C., as a Ponzi scheme. This alleged Ponzi scheme gave rise to two actions in this district, this matter and Berk v. HMC International, L.L.C. Massimi, pro se, filed a motion to disqualify Beattie Padovano, L.L.C., and Patrick Monaghan from continuing to represent plaintiffs in this lawsuit based on an alleged conflict of interest. Massimi argues that there is a chain of legal representation that links a law firm that Massimi and his family used in the late 1990s in connection with a business venture to the Beattie firm and Monaghan. Massimi failed to present any evidence that the Beattie firm learned confidential information, nor did Massimi explain how any information disclosed is relevant or prejudicial to the claims in this matter. Further, there is no evidence that any such confidential information was actually received by the Beattie firm. Also, Monaghan did not join the Beattie firm until nearly three years after he ceased representing plaintiffs in the Berk matter. Lastly, Massimi’s allegations regarding his social relationship with Beattie fail to establish a conflict of interest. Defendant’s motion to disqualify the Beattie firm and attorney Monaghan is denied. [Filed Oct. 11, 2012.]
 
BANKRUPTCY
42-6-7979 In re Designline Construction Services Inc., U.S. Bank. Ct. (Ferguson, U.S.B.J.) (18 pp.) In this action filed by the trustee seeking to recover fraudulent transfers under 11 U.S.C. § 548(a)(1)(B) (count I) and to establish actual fraud under (a)(1)(A) (count II), the court denies defendants’ motion to dismiss for failure to join indispensable parties. The court grants in part and denies in part the trustee’s motion for summary judgment on count I, finding that the trustee established that the debtor had an interest in the property, the transfer of the interest occurred within two years of the petition, the debtor was insolvent at the time of the transfer, but that, with respect to the first transfer purportedly given for the possibility of obtaining an agreement to license the EFS technology, the trustee has not met his burden of showing that the potential of any value flowing to the debtor was not legitimate and reasonable and defendants have raised a genuine factual dispute regarding whether at the time of the debtor’s initial investment, it was legitimate to anticipate the debtor profiting; however, with respect to the last four transfers, the trustee has met his burden of showing that the value of what was given was not reasonably equivalent to what the debtor gave up. As to count II, the court denies summary judgment because, inter alia, the trustee has not established that the transfers were hidden and lack of reasonably equivalent value and insolvency standing alone are not enough to support a finding that defendants harbored an actual intent to defraud creditors through the transfers. [Filed Oct. 12, 2012.]
 
BANKRUPTCY — CHAPTER 7 — EXEMPTIONS
42-6-7947 In re Kiceniuk, U.S. Bank. Ct. (Lyons, U.S.B.J.) (10 pp.) The debtor filed for relief under Chapter 7. On Schedule B — Personal Property, Item 10, she listed “Annuity Prudential Variable Investment Plan” with a value of $12,188.23. On Schedule C — Property Claimed as Exempt, she claimed the full value of the annuity as exempt under 11 U.S.C. § 522(d)(10)(E). The trustee objected to the exemption and argued that the documentation provided to him by the debtor indicated that the annuity is not a retirement annuity. The court finds that the trustee has not presented sufficient evidence to rebut the presumption of validity. Additionally, the court finds that the annuity meets the three requirements of § 522(d)(10)(E) in that it is an annuity or similar plan, that the debtor’s right to receive payment is on account of age, and that the amount to be exempted is reasonably necessary for the debtor’s support. The trustee’s objection is overruled and the variable annuity may be exempted. [Filed Sept. 28, 2012.]
 
BANKRUPTCY — PREFERENCE CLAIMS
42-6-7948 In re Hudson Healthcare Inc., U.S. Bank. Ct. (Steckroth, U.S.B.J.) (7 pp.) Before the court for determination is the proper classification of a claim objected to by the Official Committee of Unsecured Creditors of Hudson Healthcare (the debtor). The proof of claim, filed by Carmella Flett, seeks payment for vacation pay or unused personal time off that accrued prior to the filing of the debtor’s bankruptcy petition. The committee objects to the priority classification of the claim and seeks to have it reclassified as a general unsecured claim. The committee argues Flett’s claim is not an administrative expense under 11 U.S.C. § 503(b)(1)(A) as the claim does not represent compensation for services provided postpetition, nor is it a priority claim under 11 U.S.C. § 507(a)(4) since not earned within 180 days prior to the debtor’s filing. Although Flett did not become entitled to the payment of vacation pay until postpetition, the pay represented compensation for services rendered prior to the bankruptcy filing. Therefore, her claim is not entitled to priority as an administrative expense under § 503(b)(1)(A). Nor is the vacation pay that accrued prepetition entitled to priority under § 507(a)(4) since the vacation pay is earned as it is accrued, in this case in 2010, outside of the 180-day period. The objection by the committee and the reclassification it seeks is granted. [Filed Sept. 17, 2012.]
 
CIVIL PROCEDURE — DISCOVERY — CONFIDENTIAL INFORMANTS
07-7-7960 Williams v. City of Trenton, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (5 pp.) Plaintiff, who was arrested on weapons charges after a confidential informant told police about a man with a gun, and who was held until his trial date because he was unable to post bail, filed this 42 U.S.C. § 1983 action alleging various civil rights violations after his attorney successfully moved to suppress the firearm and the charges against him were dismissed. Plaintiff now seeks the identity and testimony of the confidential informant. The court denies plaintiff’s motion to compel the informant’s identity, finding that plaintiff fails to meet the high burden required for disclosure since this case is not a criminal one and there is no defense-of-the-accused consideration, the participation of the CI does not rise to the level that would require disclosure since he was a mere tipster and was not a witness or involved in the transaction, and his status as a tipster is still active and there is substantial concern regarding his safety in light of plaintiff’s alleged participation in the Crips street gang. [Filed Oct. 11, 2012.]
 
CIVIL RIGHTS — CIVIL PROCEDURE — APPEALS
46-8-7961 Douris v. New Jersey, Third Cir. (per curiam) (15 pp.) Plaintiff, who alleges a number of disabilities, filed a complaint against New Jersey with claims arising from a ticket for failure to wear a seat belt. Before the state answered, plaintiff filed a first amended complaint, alleging he was injured when he tried to access two municipal courts in order to contest the ticket. He alleged the courts were not compliant with the Americans with Disabilities Act (ADA). Plaintiff also alleged that the Superior Court in Trenton was not ADA-compliant. In paragraph 20 of the amended complaint, plaintiff alleged that he was denied access to view a criminal trial in New Brunswick in violation of the ADA. Finding plaintiff could not relitigate his seat-belt ticket due to the Rooker- Feldman doctrine, and his other claims failed to state a claim, the district court dismissed the amended complaint with prejudice, except for the allegations in paragraph 20, which were dismissed without prejudice. The district court denied plaintiff’s motion to file a second amended complaint. Plaintiff argues that the district court should have allowed him to amend his complaint before dismissing his claims. The circuit panel agrees but declines to remand because plaintiff’s proposed amendment does not cure the defects of the complaint. The panel affirms the district court’s order. [Filed Oct. 2, 2012.]
 
CIVIL RIGHTS — CORRECTIONS
46-7-7962 Okorie v. Salem County Correctional Facility, U.S. Dist. Ct. (Simandle, U.S.D.J.) (6 pp.) Plaintiff, a federal prisoner, filed a complaint against the Salem County Correctional Facility and two corrections officers, alleging that he was assaulted by the officers and denied proper medical treatment while he was a pretrial detainee. The court dismissed claims against the correctional facility, and construed plaintiff’s remaining claims against the officers as alleging due process violations under Bivens. The court issued summonses for the officers but the summonses were returned unexecuted due to plaintiff’s failure to submit a required form, USM Form 285. Plaintiff now requests leave to extend time for service of the complaint and summons. The court rejects plaintiff’s argument that the lack of the required form in the prison library should be sufficient to find good cause. Nonetheless, in its discretion, the court will extend time for plaintiff to serve process effectively. Plaintiff is suing pro se and in forma pauperis. He was not alerted to a deficiency in his summonses until after the 120-day period had expired and the statute of limitations arguably has run. [Filed Oct. 2, 2012.]
 
46-7-7990 Pfeiffer v. Hutler, U.S. Dist. Ct. (Thompson, U.S.D.J.) (15 pp.) Plaintiff, a state inmate confined at the Ocean County Jail (OCJ) at the time he filed this complaint, seeks to bring this action in forma pauperis. The court grants the application and reviews the complaint. The court dismisses without prejudice the complaint, in its entirety, as against defendants, Warden Hutler, Chief Mueller, Officer DeMarco, Lt. Martin, and the unnamed correction officers at OCJ, for failure to state a cognizable claim. Plaintiff may seek leave to amend his complaint to cure the deficiencies in his claims against these defendants. Further, the complaint will be allowed to proceed against defendant Officer Brown. The alleged verbal harassment by defendant Brown would appear to be actionable based on plaintiff’s allegations of resulting physical harm. Namely, plaintiff alleges that Brown told other inmates of plaintiff’s sex-crime charges and, in particular, paid another inmate with extra food trays to physically assault plaintiff, which said inmate did. Plaintiff’s request for injunctive relief is dismissed as moot since plaintiff is no longer confined at OCJ. [Filed Oct. 12, 2012.]
 
CIVIL RIGHTS — TORTS — MEDICAL MALPRACTICE
46-7-7991 Brown v. Ancora Psychiatric Hospital, U.S. Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Pro se plaintiff filed this lawsuit on behalf of her son, an involuntarily committed patient at Ancora Psychiatric Hospital, alleging medical malpractice and cruel and unusual treatment in violation of the Eighth Amendment. Plaintiff seeks damages and prospective injunctive relief (establishment of a unit for the treatment of pica disorders). Plaintiff cites a multistate settlement that resolved claims against Janssen Pharmaceuticals for promoting “off-label” uses of the drug Risperdal in violation of federal regulations. Plaintiff asserts entitlement to some of the proceeds of this settlement because her son was given Risperdal for 19 years at Ancora and suffered adverse effects. Defendants Jennifer Velez, Allan Boyer, the New Jersey Department of Human Services (DHS) and Ancora filed a motion to dismiss. Plaintiff filed a motion for summary judgment. The court dismisses plaintiff’s § 1983 claims against Velez and Boyer for damages, but permits the claims for prospective injunctive relief to proceed. The court dismisses the complaint for lack of jurisdiction to the extent that it asserts state law claims against defendants. The New Jersey Tort Claims Act permits suit against public entities and their employees in state court but it does not expressly permit suit in federal court and does not constitute an Eleventh Amendment waiver. Plaintiff’s motion for summary judgment is denied as premature. [Filed Oct. 11, 2012.]
 
CONTRACTS
11-7-7980 Mapssy International Inc. v. Hudson Valley Trading Inc., U.S. Dist. Ct. (Walls, S.U.S.D.J.) (12 pp.) Plaintiff moves for default judgment in this action alleging that defendant breached the parties’ funding agreement and seeking enforcement of defendant-Rudolph’s personal guaranty of the funding agreement. Plaintiff also alleges that HVT converted property belonging to Mapssy when, after receiving from HVT’s customer’s payments on accounts of invoices and receivables previously transferred and sold by HVT to Mapssy, HVT failed to hold such property for Mapssy and instead converted it for the benefit of HVT and Rudolph. The court finds that insofar as HVT failed to timely remit to Mapssy commissions due under the agreement, HVT breached the agreement and that by stopping receivables made directly to Mapssy, HVT breached the funding agreement and Mapssy is entitled to the funds due for repayment of the debts left outstanding by HVT’s breach. Mapssy is granted default judgment and is entitled to the commissions and funds due it by HVT. Further, Rudolph’s commitment to guaranty performance by HVT of all its payment obligations is unambiguous and enforceable and Mapssy’s default judgment on his guaranty is granted. Mapssy’s claim of conversion is denied since the facts are not sufficient to establish whether Mapssy was entitled to receive the specific monies other than in relation to the collection of its debts. Mapssy is entitled to damages and attorney fees subject to the submission of detailed proof of defendant’s outstanding debts and billing account. [Filed Oct. 11, 2012.]
 
CONTRACTS — DEFAULT JUDGMENT — JURISDICTION
11-7-7963 J&H International v. Karaca Zucciye TIC. San A.S., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (16 pp.) J&H is suing KRC for failure to perform on a contract, breach of a contract for sale of goods, and breach of the implied covenant of good faith and fair dealing. J&H is a New Jersey corporation, with its primary place of business in New Jersey. KRC is a corporation formed under the laws of Turkey, with its primary place of business in Turkey. KRC moves to vacate a default judgment, and to dismiss J&H’s complaint based on lack of personal jurisdiction, insufficient service of process and forum non conveniens. The court grants KRC’s motion to vacate default, finding KRC has alleged facts that would constitute a complete defense if proved at trial, KRC’s reliance on a Turkish attorney’s advice was not unreasonable and does not constitute inexcusable or culpable conduct, and J&H has not shown it will be prejudiced if the default judgment is vacated. The court denies KRC’s motion to dismiss. [Filed Oct. 3, 2012.]
 
CONTRACTS — FRANCHISES — FORUM SELECTION
11-7-7992 TGA Premier Junior Golf Franchise, L.L.C. v. BP Bevins Gold, L.L.C., U.S. Dist. Ct. (Pisano, U.S.D.J.) (6 pp.) In this action seeking to enjoin defendants from operating a golf instruction business that plaintiff alleges violates the noncompetition covenant in the parties’ franchise agreement, defendants move to dismiss pursuant to Rule 12(b), contending that the forum-selection clause in the franchise agreement requires that the action be filed in a state or federal court in California. Finding that the forum-selection clause is clear and unambiguous and that there is no basis to conclude that it would be unfair, unjust or unreasonable to hold plaintiff to its bargain, the court grants the motion to dismiss. [Filed Oct. 12, 2012.]
 
CORRECTIONS — MEDICAL CARE
13-7-7964 Robinson v. Lee, U.S. Dist. Ct. (Thompson, U.S.D.J.) (10 pp.) Plaintiff, a state prison inmate, filed this action seeking damages after defendant-dentist allegedly left a drill bit imbedded in his gum, and then recommended that he required emergency follow-up treatment in a hospital but left without ensuring that he was taken to the hospital for appropriate follow-up treatment. The court dismisses the claims against the Department of Corrections as barred by the Eleventh Amendment. It permits the complaint to proceed against the dentist, finding that the allegations are sufficient to state a claim for deliberate indifference to a serious medical need against him. The claims against University Hospital are dismissed as plaintiff has failed to allege that the dentist’s conduct resulted from any policy or practice of the hospital and thus has failed to state a claim against it. [Filed Oct. 10. 2012.]
 
CRIMINAL LAW AND PROCEDURE — IMMIGRATION LAW
14-7-7984 Kporlor v. Hendricks, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (17 pp.) Petitioner, confined at the Essex County Correctional Facility, filed 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 and the Department of Homeland Security (DHS). The court finds that Congress clearly intended to give the attorney general the authority of mandatory detention under § 1226(c)(1) only if the government takes the alien into custody immediately when the alien is released from custody resulting from the removable offense. Because the attorney general did not take petitioner into custody when he was released from incarceration in 2000, but allowed him to live in the community for approximately a decade before taking him into custody in 2011, petitioner is not subject to the mandatory detention exception in § 1226(c)(1). Instead, petitioners preremoval-period detention is governed by 8 U.S.C. § 1226(a), which authorizes the immigration judge to release him on bond, if he finds that petitioner is neither a flight risk nor a danger to the community. The court grants the writ of habeas corpus, and directs that the immigration judge conduct a bond hearing. [Filed Oct. 9, 2012.]
 
DEBTOR/CREDITOR
15-7-8007 HICA Education Loan Corporation v. Ulett, U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) Plaintiff HICA Education Loan Corporation (HICA) filed this action against defendant Avril Ulett, seeking a judgment for an unpaid student loan. The court entered judgment in favor of plaintiff and against defendant. Plaintiff filed a motion for attorney fees and costs. Pursuant to the promissory note that forms the basis of plaintiff’s claims, defendant contractually agreed to pay collection costs to plaintiff in this case, thus, an award of reasonable attorney fees and costs is warranted. Plaintiff’s motion for attorney fees and costs is granted, and plaintiff is awarded $6,450 in attorney fees and $450 in costs. [Filed Oct. 11, 2012.]
 
DEBTOR/CREDITOR — ATTORNEY FEES
15-7-7965 Whitt v. Receivables Performance Management, L.L.C., U.S. Dist. Ct. (Pisano, U.S.D.J.) (9 pp.) The claims in this matter arise under the Fair Debt Collection Practices Act (FDCPA). Plaintiff alleged that defendant violated the FDCPA by failing to identify itself as a debt-collection agency during a telephone call and by continuing to contact plaintiff after defendant received a cease-and-desist email. Plaintiff accepted defendant’s offer of judgment of $1,001 plus reasonable attorney fees and costs. Plaintiff sent defendant a demand of $4,500 for attorney fees and costs. The parties engaged in negotiations regarding plaintiff’s demand but were unable to reach an agreement. Plaintiff filed an application seeking an award of $425 for costs and this motion seeking $3,750 in attorney fees. Defendant opposed plaintiff’s motion, arguing that the fees requested were unreasonable and excessive. Magistrate Judge Arpert issued a report and recommendation (R&R) recommending that plaintiff’s motion be granted in part. After a de novo review of the issues raised, the court adopts the R&R and grants plaintiff’s motion for an award of attorney fees of $2,835.07. [Filed Oct. 2, 2012.]
 
DEBTOR/CREDITOR — SETTLEMENT AGREEMENT
15-7-7966 44A Trump International Inc. v. Russell, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (5 pp.) Plaintiff 44A Trump International filed a motion to reopen its prior action (first action) against defendant Jesse Russell, and consolidate it with a pending action (second action) against defendants IncNetworks and Eric Magnelli, Esq. Plaintiff loaned Russell $560,000 and filed the first action against Russell alleging default on the loan. The parties negotiated a settlement agreement and Magnelli, plaintiff’s former counsel and escrow agent, informed the court that plaintiff and Russell had settled the action. The settlement did not include Russell personally; only his entity, IncNetworks. IncNetworks defaulted on the promissory note under the settlement agreement. Plaintiff filed the second action against IncNetworks and Magnelli, seeking to recover the balance of the promissory note and a release of collateral held in escrow. The court finds plaintiff voluntarily entered into the settlement agreement to resolve the first action. The settlement documents are silent with respect to Russell. The second action against IncNetworks solely involves IncNetworks’ alleged default based on the settlement documents. Thus, the second action against IncNetworks stems from separate circumstances and documents than the first action against Russell. Plaintiff failed to address any extraordinary circumstances justifying a need to reopen the first action against Russell. The court denies plaintiff’s motion to reopen the first action. The consolidation issue is moot. [Filed Oct. 4, 2012.]
 
GOVERNMENT — ELECTION LAW
21-7-7967 Democratic-Republican Organization of New Jersey v. Guadagno, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (30 pp.) Plaintiffs, who are candidates for various elected public office positions at the national and county levels who have satisfied all requirements to be placed on the November 2012 general election ballots, as candidates nominated by petition, challenge the “preferences” New Jersey provides to the two main political parties through placing them in the first two columns of the general election ballots and prohibiting the use of any part of their name by other, unaffiliated candidates. They allege that they have been denied placement together and on the left side of the ballot, as well the use of their slogan “Democratic-Republican.” They seek a preliminary injunction that declares unconstitutional N.J.S.A. 19:1-1, 19:5-1, 19:12-1, 19:14-2 and 19:13-4. The court finds that plaintiffs have failed to prove a likelihood of success on their claims that the challenged election laws are unconstitutional and therefore denies the motions for preliminary injunctive and declaratory relief. [Filed Oct. 10, 2012.]
 
INSURANCE — LIFE INSURANCE
23-7-7993 Calmon-Hess v. Harmer, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (24 pp.) This is a dispute between the deceased’s mother and his former wife regarding distribution of the proceeds of a life insurance policy under the Servicemembers’ Group Life Insurance Act. Finding that although there is evidence that the deceased, a Marine, was suffering from a mental illness, but that it is not sufficient to overcome the presumption of mental capacity, and that there is evidence that the deceased and his former wife were in a confidential relationship but no evidence that she exerted undue influence over him to designate her as his beneficiary and that the marital relationship negates any presumption of undue influence, and that the SGLIA pre-empts N.J.S.A. 3B:3-14, which revokes a beneficiary designation to a spouse in the case of a divorce, on which the deceased’s mother relies, the court grants the former wife’s motion for summary judgment. [Filed Oct. 15, 2012.]
 
INTELLECTUAL PROPERTY — TRADEMARK INFRINGEMENT
53-7-7968 Lorillard Tobacco Co. v. Tropical Grocery Store, U.S. Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) Plaintiff, the owner of trademarks and associated trade dress that are associated with the leading brand of menthol cigarettes, filed this action as a result of defendants’ alleged sale of counterfeit cigarettes bearing plaintiff’s registered marks, in violation of the Lanham Act. The court grants plaintiff’s motion for summary judgment, finding that plaintiff’s marks are valid and legally protectable as they are registered, defendants have not challenged their validity or legal status and the marks have achieved incontestable status, and defendants’ use of the marks is likely to cause consumer confusion since, inter alia, the marks on the products sold by defendants were identical to the marks owned by plaintiff. [Filed Oct. 11, 2012.]
 
JUDICIARY
48-8-7994 Peeples v. Citta, Third Cir. (per curiam) (5 pp.) Peeples appeals from the dismissal with prejudice of his 42 U.S.C. § 1983 action alleging that the judge who presided over his criminal trial violated various ethical canons by accepting a statement by his victim’s mother and by making certain comments at trial and acted with malicious intention to deprive him of his First Amendment right to free speech by imposing a retaliatory sentence. The Third Circuit agrees with the district court that plaintiff’s claims for damages are barred by the doctrine of judicial immunity and that plaintiff’s claim that the judge acted with malicious intention cannot overcome the immunity, and finds that the district court did not err in denying leave to amend the complaint because amendment would be futile. It therefore affirms the dismissal. [Filed Oct. 15, 2012.]
 
JURISDICTION
24-7-8008 Edelson V., L.P. v. Encore Networks Inc., U.S. Dist. Ct. (McNulty, U.S.D.J.) (6 pp.) Plaintiff Edelson V., L.P., a venture capital fund, brings this action against defendants, alleging fraud, negligent misrepresentation, unjust enrichment and breaches of fiduciary duty in connection with plaintiff’s equity investment in Encore. In his report and recommendation, Magistrate Judge Dickson recommended granting defendants Wesley Clover International Corp. and Terence Matthews’ motion for dismissal for lack of personal jurisdiction. Two subsidiary issues drew an objection from Edelson. First, Edelson requests an order clarifying that Edelson may take merits discovery as it would of any other nonresident nonparty, and that for purposes of the statute of limitations, any future amended complaint by Edelson relating to personal jurisdiction over Wesley Clover and Matthews would relate back to the filing of the original complaint. The court finds Edelson’s first request is superfluous. Further, Edelson’s request for an open-ended guarantee that any future complaint will relate back presents a hypothetical issue that is unripe and unsuitable for decision. The R&R is adopted in its entirety. The motion to dismiss is granted as to defendants Wesley Clover and Matthews only. [Filed Oct. 12, 2012.]
 
24-7-8009 Paintball Players Productions, L.L.C. v. Majesco Entertainment Company, U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) On review of its docket, the court sua sponte dismisses the complaint without prejudice for lack of subject-matter jurisdiction. Plaintiff has failed to meet its burden to establish jurisdiction. The complaint asserts exclusively state law claims under the court’s diversity jurisdiction. According to plaintiff Paintball Players Productions, L.L.C., defendant Majesco Entertainment Company is a Delaware corporation that has its principal place of business in New Jersey. It follows that Majesco is a citizen of both Delaware and New Jersey for purposes of diversity jurisdiction. Paintball Players purports to be a “company” owned by Greg Hastings, “founded in 2003 and incorporated under the laws of the State of Washington.” This information is not sufficient to establish citizenship for purposes of 28 U.S.C. § 1332. As a limited liability company, Paintball Players takes on the citizenship of each of its members. If Hastings is the only person or entity with an ownership interest in Paintball Players, then plaintiff’s citizenship is determined by Hastings’s domicile. Plaintiff does not say where Hastings is domiciled. If others have ownership interests in Paintball Players, their citizenship must be considered, as well. [Filed Oct. 11, 2012.]
 
JURISDICTION — VENUE — REAL ESTATE
24-7-7981 Braun v. Adler, U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) In this action for fraud and breach of contract arising out of plaintiff-New Jersey resident’s attempt to purchase property from defendants, the court grants defendants’ motion to dismiss for improper venue and transfers the matter to the Southern District of New York, finding that the majority of the events giving rise to this action occurred in New York, where all of the defendants reside and the property is located. [Filed Oct. 11, 2012.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION — CONTRACTS
25-7-7969 Johnson v. Public Services Enterprise Group, U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (16 pp.) Plaintiff, a student-intern enrolled in a training program at Essex County College for the purpose of work placement at Public Service Electric and Gas Co., filed this action asserting claims for breach of contract, employment discrimination and related torts after an offer of a temporary position was withdrawn. The court grants defendants’ motions for summary judgment, finding that (1) because the offer was conditioned on a satisfactory background check, there was no contract to breach when PSE&G rescinded the offer because his background check was deemed unsatisfactory; (2) although PSE&G may have miscategorized plaintiff’s background as unsatisfactory, a reasonable fact-finder could not infer that the finding itself was a post-hoc fabrication or that discrimination was more likely than not a determinative cause for PSE&G’s failure to hire; and (3) to the extent that the tort claims are lodged against the college, the claims are dismissed for failure to comply with the notice requirements of the New Jersey Tort Claims Act. [Filed Oct. 9, 2012.]
 
LABOR AND EMPLOYMENT — RACE DISCRIMINATION
25-7-7982 Nathan v. Princeton University, U.S. Dist. Ct. (Pisano, U.S.D.J.) (7 pp.) Pro se plaintiff filed a complaint alleging that defendant Princeton University engaged in employment discrimination against him in violation of Title VII when it failed to award him a bid for a wood flooring job and failed to hire him for a full-time position. Plaintiff’s first set of allegations fails as a matter of law because his allegations are time-barred and he has not exhausted his administrative remedies. Plaintiff’s claim is based on allegations that in 2000 he was denied the opportunity to bid on any wood flooring jobs due to his race and/or national origin. These allegations relate to conduct that took place outside the 300-day statute of limitations for filing an EEOC charge. Plaintiff’s second set of allegations fail as a matter of law because they fail to state a claim. Plaintiff fails to allege a prima facie case of discrimination against Princeton. Plaintiff does not allege any facts establishing that he is a member of a protected class. Even assuming plaintiff is, in fact, a member of a protected class, he alleges no facts that would raise an inference of discriminatory animus by defendant. [Filed Oct. 9, 2012.]
 
PENSIONS — ERISA
56-7-7983 Solis v. Winer Industries 401(k) Profit Sharing Plan, U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) Here, where there is no fiduciary or trustee actively administering the plan as required by §§ 402 and 403 of ERISA, and there are plan assets that need to be distributed for the benefit of plan participants, the court grants the secretary of the Department of Labor’s motion for default judgment appointing an independent fiduciary to the plan. [Filed Oct. 11, 2012.]
 
PUBLIC RECORDS
52-7-7949 American Civil Liberties Union of New Jersey v. Department of Justice, U.S. Dist. Ct. (Salas, U.S.D.J.) (21 pp.) The ACLU requested documents under the Freedom of Information Act (FOIA) related to the FBI’s “use of race and ethnicity to conduct assessments and investigations in local communities in New Jersey.” The request seeks records concerning the FBI’s collection, mapping and use of New Jersey communities’ racial or ethnic information. It also seeks the maps themselves. The ACLU filed this action, challenging the FBI’s response to its FOIA request and seeking an injunction to require the defendants to process the request. The court finds that the Department of Justice submitted an affidavit that sufficiently describes an adequate search designed to uncover all reasonably responsive documents. Defendant submitted an in camera declaration to the court in response to the ACLU’s request. Based on that declaration, without confirming or denying the existence of any exclusion, the court finds that if an exclusion was invoked, it was and remains amply justified. The court finds that defendants have met their burden to demonstrate why the materials at issue are not segregable. Therefore, the court denies plaintiff’s request for partial summary judgment and grants defendants’ motions for summary judgment. [Filed Oct. 2, 2012.]