STATE COURT CASES
CIVIL PROCEDURE
07-2-9351 Allied Steel Distribution and Service v. Stirrup Metal Products Corp., App. Div. (per curiam) (5 pp.) Plaintiff Allied Steel Distribution and Service filed a book account claim against defendant Stirrup Metal Products Corp. Stirrup Corp. claimed the products were defective. A default judgment was entered against defendant in plaintiff’s Special Civil Part collection action. Defendant appeals from the denial of a motion for reconsideration. Defendant moved to vacate the judgment, which the court denied by order entered Nov. 18, 2011. The court clerk’s office had previously informed Todd Stirrup, the owner of the closely held corporation, that he was required to file a formal motion in order to obtain court action. Nonetheless, he sought reconsideration by letter on Dec. 19, 2011, a procedure he had been cautioned was improper. Also, there is no evidence in the record that Stirrup Corp. served the letter on Allied. The court declined to treat the letter as a motion. Because defendant did not formally move for reconsideration until March 13, 2012, the court appropriately denied the motion as untimely. [Decided March 22, 2013.]
 
CRIMINAL LAW
14-2-9358 State v. Willis, App. Div. (per curiam) (29 pp.) Defendant appeals from his sentence and convictions for third-degree criminal restraint, second-degree sexual assault, and the disorderly persons offense of simple assault. These crimes were committed against one victim with a common objective and at the same time. The appellate panel affirms the convictions but finds the trial court erred when, without justification, it sentenced defendant to serve his flat four-year sentence for criminal restraint prior to his 10-year term (subject to NERA) for sexual assault. The panel finds a remand is necessary to address the order of sentences imposed. The panel remands for resentencing consistent with State v. Ellis, that is, that the sentence for criminal restraint is to be consecutive to the sentence for sexual assault. [Decided March 22, 2013.]
 
14-2-9384 State v. Reiter, App. Div. (per curiam) (19 pp.) Defendant Maria Reiter was convicted of driving while intoxicated in the East Brunswick Municipal Court. Defendant appeals from the denial of her postconviction relief (PCR) petition without a hearing. She claims that counsel in her municipal court trial was ineffective on several grounds, and that a PCR hearing was required. Defendant fails to establish a prima facie case for most of her claims of ineffective assistance of counsel. Defendant’s contention that trial counsel should have called her as a witness presents a different question, because that was not counsel’s decision to make. The appellate panel reverses and remands to the municipal court for an evidentiary hearing solely to determine whether trial counsel was ineffective in failing to consult properly with defendant about whether she should testify on her own behalf. After hearing her testimony, the court may consider its credibility and all other relevant factors, including those previously relied on by the PCR courts, in determining whether defendant has shown ineffective assistance of counsel. [Decided March 26, 2013.]
 
14-2-9398 State v. Riles, App. Div. (per curiam) (5 pp.) Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant plead guilty to possession of a controlled dangerous substance. To establish the validity of the search, the state produced a warrant that bears a signature that is wholly illegible scrawled over a signature line that states nothing other than “JUDGE OF THE.” Given that the warrant did not identify the person who issued it, the state failed to demonstrate that this search was conducted pursuant to a warrant issued by a judge. In light of the fundamental and apparent defect and in the absence of any effort by the state to establish that the error was technical, the judge had no basis for concluding that this defect was technical and not fatal. The state could not rest on the presumed validity of the warrant in this circumstance. Accordingly, the judge erred in denying this motion to suppress. Defendant is entitled to vacate his guilty plea. [Decided March 27, 2013.]
 
CRIMINAL LAW — BAIL
14-2-9399 State v. Thomas, App. Div. (per curiam) (12 pp.) In this bond forfeiture action, the city of South Amboy appeals the Law Division order vacating the bail forfeitures and declaring the bonds exonerated. The panel reverses, finding that the Law Division failed to consider the judiciary’s guidelines or the Hyers factors, instead using an unspecified “balancing test” to “do what is fair and just,” failed to explain why the certification submitted on behalf of respondent American Reliable Insurance Company, which was based on secondhand knowledge, was permitted to become part of the de novo record, and failed to articulate the reasons for deciding the appeal. [Decided March 27, 2013.]
 
CRIMINAL LAW — DRUNK DRIVING
14-2-9400 State v. Choi, App. Div. (per curiam) (13 pp.) Defendant, who was arrested for a variety of traffic offenses and pleaded guilty to driving while intoxicated, appeals the denial of his motion to suppress the evidence of his refusal to submit to a breath test, claiming that significant portions of the Korean translation of the standard statement, N.J.S.A. 39:4-50.2(e), were incorrect and incomprehensible. The panel affirms, finding that the record supports the findings that defendant spoke English well enough to understand the standard statement in English, that he understood his unconditional obligation to give a breath sample, but he knowingly declined to give the sample, and that it was therefore unnecessary to determine the adequacy of the Korean translation of the standard statement (which was subsequently revised). [Decided March 27, 2013.]
 
CRIMINAL LAW — PRISONERS — DUE PROCESS
14-2-9347 Hargrove v. N.J. Department of Corrections, App. Div. (per curiam) (7 pp.) The court finds no serious question of credibility or denial of fundamental fairness that would have given this prison inmate a right to a polygraph examination in a disciplinary proceeding concerning alleged possession of a weapon that was found in his cell. The hearing officer’s written decision confirms defendant was offered the opportunity to confront any witnesses against him, that he declined and that he failed to call any witnesses on his own behalf. [Decided March 21, 2013.]
 
CRIMINAL LAW — RIGHT TO COUNSEL — PRIVILEGE
14-2-9348 In re State Grand Jury Investigation, App. Div. (per curiam) (18 pp.) After the indictment of six individuals, a separate investigation was initiated and, more than a year later, grand jury subpoenas were served on each privately retained defense attorney for the indicted defendants — allegedly infringing on the indicted defendants’ constitutional right to counsel and invading the attorney-client privilege. Although the subpoenas targeted only postindictment activities, the appeals court, reviewing denial of a motion to quash, finds the state’s broad-stroke approach tips the scale in favor of caution in order to ensure that the defendants are not deprived of counsel of their choice. The court stays execution and enforcement of the subpoenas until the termination of the individualized proceedings in the indictment. [Decided March 21, 2013.]
 
CRIMINAL LAW — SEARCH AND SEIZURE
14-2-9349 State v. Moss, App. Div. (per curiam) (13 pp.) The court affirms denial of a motion to suppress evidence of a handgun that defendant tossed from the waistband area of his trousers while a police officer was approaching him. Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop-and-frisk. By continuing his grasp on his waistband, defendant invited the heightened attention that the officer was giving to him, which culminated in the officer’s attempt to detain him. [Decided March 21, 2013.]
 
CRIMINAL LAW — SENTENCING
14-2-9350 State v. Rodriguez, App. Div. (per curiam) (7 pp.) The court affirms denial of defendant’s motion for additional jail credits pursuant to Rule 3:21-8. Once a parole detainer is lodged against a defendant who has been arrested on new charges, he is no longer confined solely due to the new charges, and as such is not entitled to any additional jail credits for the time he remains in custody beyond that date. [Decided March 21, 2013.]
 
FAMILY LAW
20-2-9352 Bolton v. Coviello, App. Div. (per curiam) (11 pp.) Plaintiff appeals from portions of a Family Part postjudgment order declaring his younger son emancipated “effective on his twenty-second birthday” in January 2012, but continuing plaintiff’s obligation to contribute toward that son’s college expenses after that date. Here, the parties’ agreement and 2003 consent order each address their obligation to support their children’s college education. The agreement contains two key provisions. First, the agreement defers calculation of each parent’s support obligation for postsecondary education “until the children reach an appropriate age for determination.” Second, the agreement provides that, as long as a child is pursuing his college degree “with reasonable diligence and on a normally continuous basis,” emancipation will not occur until that child’s 22nd birthday. The later 2003 consent order further addresses the parents’ educational support obligations; however, it makes no mention of the prior agreement or its temporal limitations. The wording of the two documents is sufficiently ambiguous to require an evidentiary hearing, and the appellate panel remands for that purpose. [Decided March 22, 2013.]
 
20-2-9353 Department of Children and Families, Division of Youth and Family Services v. V.D., App. Div. (per curiam) (22 pp.) Defendant V.D. appeals from the division’s final decision, after a contested hearing before the Office of Administrative Law (OAL), affirming the substantiation of defendant’s abuse of her son B.H., and ordering that defendant’s name be placed on the child abuse registry. In so doing, the division’s director rejected the administrative law judge’s (ALJ) contrary initial decision. The appellate panel reverses and remands. On remand, the director shall disregard the unsupported finding that defendant was already armed with a belt and struck B.H. immediately on waking him. Instead, she shall defer to the ALJ’s finding that defendant was confronted with a defiant child when she struck him. If she deems necessary, the director may further remand to the OAL for additional findings as to the surrounding circumstances. [Decided March 22, 2013.]
 
20-2-9354 Fintland v. Fintland, App. Div. (per curiam) (8 pp.) Plaintiff appeals from the order of the Family Part granting defendant’s motion for a reduction in his alimony payments. She asserts procedural and substantive errors. The appellate panel reverses and remands, finding the motion judge failed to make adequate findings of fact and conclusions of law. Moreover, in making her assessment, she chose not to be guided by the Supreme Court’s holding in Lepis v. Lepis. The motion judge also failed to acknowledge the statutory factors set forth in N.J.S.A. 2A:34-23(a) and apply them to the facts of this case. On further review, should the court find that the defendant has proved a prima facie case of changed circumstances, it may order a plenary hearing. [Decided March 22, 2013.]
 
20-2-9355 Novak v. Novak, App. Div. (per curiam) (22 pp.) In this postjudgment matrimonial matter, defendant father appeals from the orders requiring him to contribute $31,804 toward previously incurred college expenses for his two children. The appellate panel reverses the orders and remands for the trial judge to conduct a plenary hearing. If he was not aware of and would not have approved his children’s more-expensive college choices, the father’s argument reaches only the difference between those costs and the costs of a less-expensive college choice. The Family Part found that father knew about his daughter’s choice to attend Northeastern and raised no objection. That finding is supported by the record and should not be disturbed on appeal. The only unresolved question is whether he also knew about his son’s choice to attend Penn State. The remand in this case should narrowly focus on that one question. [Decided March 22, 2013.]
 
20-2-9363 Ortiz v. Ortiz, App. Div. (per curiam) (20 pp.) Defendant appeals from the trial court’s order denying his motion to emancipate his two children as of their 18th birthdays, to modify the child-support obligation that remained before the second emancipation, and to terminate his alimony, and from the denial of his motion for reconsideration. The panel reverses, finding that, regarding child support, plaintiff’s proofs that the parties’ daughters remained dependent on their parents after reaching their 18th birthdays were insufficient to overcome the presumption of emancipation, that defendant established a prima facie case for emancipation based on the children’s ages, which should have entitled him to reasonable discovery, and that once the elder child was emancipated, defendant was entitled to a recalculation of child support for the remaining child and that if the remaining child were older than 18 and remained unemancipated, child support would need to be calculated by applying the factors in N.J.S.A. 2A:34-23a, not the child-support guidelines, unless she lived at home and commuted to college. As to defendant’s request to terminate alimony, the court finds that defendant made a prima facie showing of a significant and permanent change in circumstances (a VA determination that he suffered from a 40 percent permanent disability) sufficient to trigger a requirement that plaintiff file a CIS and the parties engage in appropriate discovery. [Decided March 25, 2013.]
 
20-2-9364 Trammell v. Trammell, App. Div. (per curiam) (8 pp.) Plaintiff appeals from a postjudgment order of the Family Part denying his motion to terminate his alimony obligations and his obligation to provide life insurance, vacate all alimony arrears, vacate the bench warrant for his arrest, and for other relief. The panel affirms, finding that plaintiff has not provided any credible evidence that would support his application for changed circumstances warranting modification of his financial obligations and that there is no reason to disturb the decision to arrest plaintiff and bring him before the court to make further appropriate determinations. [Decided March 25, 2013.]
 
20-2-9391 New Jersey Division of Youth and Family Services v. M.L., App. Div. (per curiam) (11 pp.) M.L., who is serving a life sentence for murder in Pennsylvania, appeals from the trial court order terminating his parental rights to S.L. and granting guardianship to DYFS. Because the trial court failed to undertake the necessary steps to produce M.L. at trial or, alternatively, failed to undertake the necessary steps to ensure his participation at trial through other means (such as adjourning the trial following the presentation of the state’s case to give M.L. an opportunity to review the direct and cross-examination of the witnesses with defense counsel and then permitting, if necessary, defense counsel a further opportunity to cross-examine witnesses based on that review, or permitting M.L. to testify on his own behalf by deposition), the panel reverses and remands for a new trial. [Decided March 27, 2013.]
 
20-2-9392 New Jersey Division of Youth and Family Services v. Y.Z., App. Div. (per curiam) (8 pp.) In this case of termination of parental rights, in which an appellate panel reversed the trial judge’s order dismissing DYFS’ guardianship complaint based on a finding that DYFS had failed to satisfy the fourth prong of the best-interests test after Y.Z. contested only the fourth prong, and remanded to enter an order terminating parental rights and to address continued therapeutic visitation between Y.Z. and the child; on Y.Z.’s petition for certification, the Supreme Court remanded the case for reconsideration in light of the fact that the child’s adoptive placement had fallen through and another placement was being proposed; and the trial court terminated Y.Z.’s visits with the child; and Y.Z. filed in the trial court a Rule 4:50 motion to set aside the guardianship judgment on the grounds that DYFS failed to satisfy the third prong due to errors in its decision to rule out Y.Z.’s aunt and grandmother as possible caretakers for the child and appealed the trial court’s denial of that motion; the panel concludes that given the changes in this case, a remand to the trial court is necessary to develop a record in order to re-evaluate the fourth prong and the visitation issue. However, it affirms the dismissal of Y.Z.’s appeal regarding the third-prong determination, finding that the trial judge correctly decided that he did not have jurisdiction to decide the motion due to the pending appeal of the order she sought to vacate. Moreover, consideration of a Rule 4:50 motion was outside the scope of the limited remand from the Supreme Court and the information presented by Y.Z. does not constitute newly discovered evidence for purposes of a Rule 4:50 motion. [Decided March 27, 2013.]
 
20-2-9393 Olt v. Olt, App. Div. (per curiam) (10 pp.) In this postjudgment matrimonial matter, defendant appeals from the order that granted his motion to modify child support based on changed financial circumstances. Defendant challenges the income imputed to him and the child-care costs deducted from the income imputed to plaintiff. Underlying the judge’s conclusion that defendant failed to seek employment outside the home health-care field was the implicit finding that defendant’s unemployment was voluntary. However, the judge made no factual findings regarding defendant’s documentation indicating he may have sought employment in other fields. In addition, the judge made a critical credibility about defendant’s proofs without conducting a plenary hearing. Thus, the appellate panel reverses the judge’s decision to impute income to defendant and remands for a plenary hearing on this issue. Also, the panel affirms the decision to deduct child-care costs from plaintiff’s imputed income before recalculating child support. However, because the judge made no factual findings as to how he arrived at $9,000 as the cost for child care if plaintiff worked full time, the panel reverses the $9,000 deduction and remands for reconsideration of the child-care costs. [Decided March 27, 2013.]
 
FAMILY LAW — PARENT/CHILD
20-2-9344 N.J. Division of Youth and Family Services v. R.R., App. Div. (per curiam) (15 pp.) The court affirms a Family Part judge’s determination, following a fact-finding hearing, that defendant R.R. abused her 7-year-old daughter, S.R., by striking her on several occasions, causing injuries to her head and face. There was no error in the judge permitting DYFS to attempt to prove child abuse by the clear and convincing standard of proof, instead of by a preponderance of the evidence, so that DYFS could argue defendant was collaterally estopped from arguing otherwise in a separate guardianship trial. Defendant received sufficient advance notice of DYFS’s intent to proceed in that manner, and the judge offered to give defendant as much time as she needed to adjust to that development. [Decided March 21, 2013.]
 
INSURANCE LAW — REAL ESTATE — ATTORNEYS
23-2-9345 Karpontinis v. Multi-Solutions Inc. and First American Title Ins. Co., App. Div. (per curiam) (10 pp.) The court affirms summary judgment dismissal of a suit alleging a title insurer that issued an insurance commitment and policy to the buyer and her mortgage lender was liable for the fraudulent conduct of the buyer’s attorney. Plaintiffs are not named insureds under the title insurance policy, and neither the policy nor the closing service letters extended coverage to them. In addition, there is no authority that permits a seller or nonparty to a real estate transaction to recover against a buyer’s title insurer under the theories of agency or apparent authority. [Decided March 21, 2013.]
 
LABOR AND EMPLOYMENT
25-3-9365 Farrell v. Toys “R” Us, Law Div. — Essex Co. (Vena, J.S.C.) (15 pp.) This action arises out of the employment and termination of plaintiff Michael Farrell with defendant Toys “R” Us (TRU). Plaintiff filed suit against TRU and Cary Regenye, the store manager, asserting claims under the New Jersey Law Against Discrimination, a claim for intentional infliction of emotional distress, and a prayer for punitive damages. The court granted summary judgment to defendants. In an unpublished decision, the Appellate Division reversed the court’s dismissal as to plaintiff’s aged-based hostile work environment, and as to plaintiff’s disparate-treatment claim. Here, defendants move for summary judgment as to the disparate-treatment claim. The court finds plaintiff’s claim for disparate treatment fails. First, merely parroting the phrase “disparate treatment” in the context of a claim for retaliatory discrimination is insufficient to allege a claim for disparate treatment based on age. In any event, there is no evidence that plaintiff suffered disparate treatment because of his age and defendant produced a legitimate, nondiscriminatory reason for plaintiff’s termination, which plaintiff has not rebutted. Plaintiff fails to make a prima facie showing for disparate impact because he cannot show that he was objectively qualified for the position. Defendants’ motion for summary judgment as to the disparate-treatment claim is granted. Defendants’ motion to strike plaintiff’s jury demand is granted where plaintiff signed a valid waiver, as is defendants’ motion to strike plaintiff’s prayer for punitive damages. [Decided March 22, 2013.]
 
25-2-9366 In the Matter of Cobb, App. Div. (per curiam) (18 pp.) Appellant Brian Cobb appeals from a decision of the Civil Service Commission upholding the action of respondent Village of Ridgewood to bypass Cobb for appointment from the certified police officer eligible list. The commission concluded that Cobb failed to meet his burden to prove Ridgewood’s decision to bypass him was improper. The appellate panel affirms, finding the commission’s decision is supported by substantial credible evidence. Cobb had no relevant work or professional experience and presented no recommendations at the time of interview. Cobb failed to make a prima facie showing of improper bypass through discrimination, retaliation or other wrongful motive. He offered no evidence of his superior qualifications and there were no disputed facts as to the qualifications of the eligible candidates ultimately selected. Moreover, Cobb’s claim of a disqualifying conflict of interest similarly finds no support in the evidence. Under the circumstances, the commission reasonably concluded that Ridgewood had properly exercised its discretion under the Rule of Three to bypass Cobb and to appoint other candidates that Ridgewood considered better qualified to fill the law enforcement position. [Decided March 25, 2013.]
 
25-2-9380 Alexander v. Celgene Corp., App. Div. (per curiam) (18 pp.) On her return from a bereavement leave, plaintiff was advised that her department and her position were being reorganized and she would have to apply to be hired into a new position and she was presented with a separation agreement and release that provided for benefits that exceeded those to which she ordinarily would be entitled and contained a release clause and an arbitration clause pertaining to all controversies or disputes arising out of or relating to the agreement, and she was given 21 days to execute it. She signed the agreement after being called to the human resource manager’s office on the 21st day. It became effective eight days later. She now appeals from the trial court’s order granting summary judgment to defendants and dismissing her complaint alleging discrimination and negligent infliction of emotional distress without prejudice to her assertion of any claims for relief through arbitration. The panel affirms, holding that the trial judge did not err in first determining that the release and arbitration clause were valid and enforceable against plaintiff — where she was given 21 days to review the agreement and advised that she should consult with counsel and they clearly reflect the parties’ intent to resolve all disputes regarding the agreement through arbitration — and that plaintiff’s fraudulent-inducement claim, which is directed to the entire agreement, should be determined by the arbitrator. [Decided March 26, 2013.]
 
25-2-9381 Harrison v. Board of Review, App. Div. (per curiam) (11 pp.) Harrison appeals from a final agency decision by the Board of Review, Department of Labor and Work Force Development, determining that she is ineligible to receive unemployment benefits. Harrison argues that she left her employment with Youth Consultation Service Inc. (YCS) for good cause attributable to her employment and not for personal reasons. She contends that the decision of the appeals examiner was arbitrary and capricious because he failed to make any credibility findings and precluded her from subpoenaing witnesses and presenting proof of her medical condition. Harrison argues that the entire rehearing process was flawed because the same appeals examiner presided, depriving her of a fair and neutral determination. Finally, she maintains that the proofs were sufficient to demonstrate that she was compelled to leave YCS for good cause and for reasons related directly to her employment. The appellate panel rejects these arguments and affirms. Harrison concedes that she resigned and was not terminated. The testimony fully supported the Appeal Tribunal’s factual determinations. Harrison failed to meet her burden of proving that she was entitled to unemployment benefits. The board’s decision was not arbitrary, capricious or unreasonable. [Decided March 26, 2013.]
 
25-2-9394 Doyle v. Lakewood Township, App. Div. (per curiam) (6 pp.) Plaintiff Anne Doyle appeals from the order of the Law Division dismissing her complaint challenging the termination of her employment as tax collector by defendant Lakewood Township. Doyle had appealed the decision to the Civil Service Commission, which declined jurisdiction because Doyle was a nontenured employee and was not entitled to civil service protection. She then filed the present action, seeking judicial review of the decision terminating her employment. The motion judge granted the township’s motion to dismiss where the Law Division lacked jurisdiction because Doyle was an at-will employee without civil service or other statutory job protection. Doyle concedes that she was not a tenured tax collector and, therefore, not entitled to the termination procedures set forth in N.J.S.A. 40A:9-145.8, which concerns the tenure rights of municipal tax collectors. Instead, she argues that she is entitled to judicial review of her termination pursuant to the procedures established by N.J.S.A. 40A:9-140.9, which she contends applies to any municipal employee. Because that statute applies only to municipal chief financial officers, the motion judge correctly dismissed the complaint as a matter of law. [Decided March 27, 2013.]
 
25-2-9395 Onesti v. Board Of Trustees, App. Div. (per curiam) (8 pp.) Petitioner Christopher Onesti, a former New Jersey Transit police officer, appeals from a final decision of the board of trustees of the Police and Firemen’s Retirement System. In 2006, during a firearms qualification test at a police department firing range, Onesti injured his hand while using a staple gun to reattach a paper target. The injury required several surgeries, and he was eventually diagnosed as being unable to perform his duties as a police officer. He applied for accidental disability retirement benefits. The board agreed that Onesti was totally and permanently disabled from performing his regular assigned duties, but denied accidental disability retirement and granted ordinary retirement benefits. In Brooks v. Board of Trustees, which was decided after the board decided Onesti’s case, the Appellate Division found that ordinary work-related accidents, although the result of a worker’s negligence, could qualify as traumatic events, and further concluded that an employee’s “simple negligence,” as opposed to “willful negligence,” was not a disqualifying factor. In this case, the board’s decision turned on its conclusion that Onesti’s injury did not stem from an accident that was “undesigned and unanticipated.” The appellate panel reverses and remands this matter to the board for reconsideration in light of Brooks. [Decided March 27, 2013.]
 
LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION
25-2-9396 Sharma v. Board of Review, App. Div. (per curiam) (6 pp.) Claimant, a Canadian citizen who is not a permanent legal resident of the United States and who had been working in this country pursuant to the North American Free Trade Agreement under the authority of an H1B Visa and a TN1 Visa, appeals the Board of Review’s decision finding him ineligible for unemployment benefits after he was laid off by the U.S. company for which he had been working and he could not promptly find another employer. The panel affirms because a nonimmigrant alien working in this country pursuant to NAFTA under an H1B or TN1 visa is not “available for work” between legally authorized jobs and because N.J.S.A. 43:21-4(i)(1) specifically provides that only permanent resident aliens and other permanent legal residents are eligible for unemployment benefits. [Decided March 27, 2013.]
 
LAND USE AND PLANNING
26-2-9382 Buckley v. Godlewski, App. Div. (per curiam) (20 pp.) Plaintiff appeals from a final Law Division judgment that upheld defendant borough of Stone Harbor Zoning Board of Adjustment’s decision to grant a second hardship variance under N.J.S.A. 40:55D-70c(1) to defendants. The variance permitted defendants to expand the dimensions of their duplex beyond those that the board had permitted when it granted defendants their first variance. Reviewing the record of defendants’ second variance application and determining the board misapplied relevant principles of land-use law, the appellate panel reverses and remands for further proceedings before the board. The board improperly considered defendants’ second variance application under the applicable statutory criteria before determining whether defendants had demonstrated changed circumstances or other good cause warranting reconsideration of their first variance application. [Decided March 26, 2013.]
 
LANDLORD/TENANT LAW
27-2-9367 Liberty House Nursing Home of Jersey City Inc. v. GRE Jersey City Inc., App. Div. (per curiam) (19 pp.) Plaintiff Liberty House Nursing Home of Jersey City Inc. appeals from a judgment dismissing its complaint with prejudice and entering judgment for defendant GRE Jersey City Inc. (GRE). GRE is the corporate successor to Medic Homes Developers Inc., an entity established in 1965 to develop nursing homes. In 1968, Medic entered into an agreement with Liberty House. Later, a dispute arose over the terms of a new lease and in 2005 the parties memorialized their discussions in a memorandum of lease. Liberty House filed this action seeking specific performance of the memorandum of lease. GRE filed an answer and counterclaim, seeking a declaration that it is the owner of the nursing home’s bed rights. The trial court concluded that GRE validly terminated Liberty House’s tenancy. The court found that the memorandum of lease did not create an enforceable agreement or provide Liberty House an option to renew and that on the termination of the lease, the right to seek a license to operate the facility reverted to GRE. On appeal, Liberty House argues that the memorandum of lease created an enforceable agreement. The appellate panel disagrees and affirms the court’s determination that the parties did not intend to be bound by the memorandum of lease, noting the document did not address material terms such as ownership of the bed rights. [Decided March 25, 2013.]
 
PRODUCTS LIABILITY — EVIDENCE
32-2-9368 Rosenberg v. Merck Sharp & Dohme Corp., App. Div. (per curiam) (29 pp.) In this action alleging that defendant’s drug Fosamax caused plaintiff to develop osteonecrosis of the jaw following a tooth extraction, plaintiff appeals from the jury verdict finding that she did not suffer from ONJ. The panel affirms, finding that (1) the trial judge did not err in excluding evidence of defendant’s 2010 addition of warning language on Fosamax’s label regarding ONJ because the arguably relevant purpose for use of the 2010 label related to whether Fosamax caused plaintiff to develop ONJ and whether Merck adequately warned of this alleged tendency, which issues were short-circuited by the jury’s finding that plaintiff did not suffer from ONJ, because under N.J.R.E. 407, evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct, and because, even if there were a colorable argument that the 2010 label contradicted defendant’s expert’s testimony, the record shows that the label’s limited probative impact on that testimony was greatly outweighed by its prejudicial impact; and (2) the trial judge did not err in denying plaintiff’s motion to amend her complaint to replace “osteonecrosis” with “osteonecrosis and/or jawbone problems,” made at the close of the evidence, because the proposed amendment actually contradicted the arguments and evidence presented at trial and entirely altered the foundation of plaintiff’s case and would have significantly prejudiced defendant. [Decided March 25, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-9383 Soho Properties, L.L.C. v. Centex Homes, L.L.C., App. Div. (per curiam) (27 pp.) In this action seeking to enforce the terms of the access easement agreement entered into with Centex’s predecessors, the panel affirms the Chancery Division’s decision on reconsideration granting interior lot owners who are parties to this suit a private right-of-way over an oval roadway traversing lands owned by third-party defendant-appellant/cross-respondent New Horizon Investment Corporation, agreeing with the judge’s determination that, although the county had not engaged in any formal process granting easement access, it conveyed the property in question subject to a private right to access over the roadway based on its grant of ownership and subdivision of the lands, and that reconsideration was well within the sound discretion of the court, not an abuse of discretion, and warrants affirmance. [Decided March 26, 2013.]
 
34-2-9369 Khusid v. Cocchia, App. Div. (per curiam) (7 pp.) Plaintiff Anatoliy Khusid appeals from a final judgment entered by the Special Civil Part, Small Claims Division that dismissed his complaint with prejudice and entered judgment of $513 for defendant Mary Ann Cocchia on behalf of Long Meadow Neighborhood Association Inc. on a counterclaim. The appellate panel affirms the court’s determination that, as a resident of Long Meadow, plaintiff was required to abide by the association’s governing documents and its rules and regulations that require, among other things, members pay certain fees and assessments. The court correctly found that plaintiff did not have the right to unilaterally stop paying the assessments, reduce any assessment or direct that his payments be applied one way or the other. Also, although plaintiff had the right to ask the association’s landscaper not to perform work near his unit, he did not have the option of having the association stop billing him for landscaping services. The association was entitled to the amounts due from plaintiff, including the late fees. [Decided March 25, 2013.]
 
34-4-9397 Waterfall Victoria Mortgage Trust v. Shaw, Ch. Div. — Bergen Co. (Doyne, A.J.S.C.) (17 pp.) In this mortgage foreclosure case, plaintiff has established its prima facie right to foreclose and has demonstrated that no genuine issue of material fact exists that would preclude summary judgment and the striking of defendant’s answer. Defendants’ primary arguments — that plaintiff does not have standing and that there was fraud in the origination of the loan — are insufficient to create a dispute as to any material fact. Plaintiff has standing as a nonholder in possession and defendants’ fraud claims relate to the mortgage broker, not the lender, and were voluntarily dismissed. The original loan was procured in December 2000. Regarding the purported deficiencies in the NOI, plaintiff possessed the note and had the right to foreclose at the time the NOI was issued. The labeling of the trust itself, as opposed to the trustee, is not a sufficient defect to invalidate the NOI in this case. Nine years of arrears on a mortgage is too long to allow minor technical or procedural concerns to override the compelling contractual right. Plaintiff’s motion for summary judgment is granted. Defendants’ answer is stricken and the matter shall be sent to the office of foreclosure as uncontested. Defendants’ motion for summary judgment is denied. [Decided March 25, 2013.]
 
TAXATION
35-3-9370 Advanced Realty Corp., L.L.C. v. Monroe Twp., Law Div. — Gloucester Co. (DeAlmeida, P.J.T.C., temporarily assigned) (20 pp.) The court interprets a five-year tax exemption and abatement agreement entered into by the parties pursuant to N.J.S.A. 40A:21-1 et seq. relating to what was originally to be a single office building with eight suites for medical professionals but which, prior to execution of the agreement, was converted to eight condominium units and common areas. The court concludes that the agreement did not begin to run on completion of the shell of the overall structure, but that separate five-year exemption and abatement periods began for each condominium as each unit was completed for its intended purpose. [Filed March 5, 2013.]
 
TORTS
36-2-9371 Banks v. Diaz, App. Div. (per curiam) (7 pp.) In this action alleging, inter alia, infringement of the right to medical privacy, which resulted in a settlement, defendants Diaz and Rouse seek review of two paragraphs in the court’s order dismissing the complaint with prejudice that enjoin them from having contact with plaintiff without her permission. The provisions were included in a proposed form of order by plaintiff’s attorney pursuant to the court’s instruction transmitted in an ex parte telephone conversation between the judge and plaintiff’s attorney in which neither defendants nor their attorneys took part. Finding no evidential basis to support the sua sponte injunctive restraints and a lack of appropriate notice permitting defendants an opportunity to argue as to why such restraints were unnecessary, the panel remands and directs the trial court to issue an amended order vacating the restrain provisions. [Decided March 25, 2013.]
 
TORTS — PREMISES LIABILITY
36-2-9357 Seyam v. Yunum, App. Div. (per curiam) (6 pp.) Plaintiff appeals from an order for summary judgment dismissing his claim for personal injuries. Plaintiff was injured while being chased by a police officer through defendant’s yard when he fell into an empty swimming pool that had been drained for repairs. The appellate panel affirms, agreeing with the trial court’s analysis that defendants had no duty to warn plaintiff of the hazard of their empty pool because they had no reasonable expectation that a police officer would break down their fence to enter their property, and because the fence was adequate warning and protection against injury to members of the public. [Decided March 22, 2013.]
 
FEDERAL COURT CASES
 
ADMINISTRATIVE LAW — SOCIAL SECURITY
01-7-9372 Moore v. Commissioner of Social Security, U.S. Dist. Ct. (McNulty, U.S.D.J.) (16 pp.) Plaintiff seeks review of defendant’s denial of her application for disability insurance benefits and supplemental security income based on morbid obesity, sleep apnea, migraine headaches, difficulty breathing, carpal tunnel syndrome, poor circulation and borderline intellectual functioning. Finding that the ALJ failed to properly consider the evidence of Moore’s intellectual disability and severe obesity at step three of the five-step analysis used to determine eligibility and that if the ALJ had properly considered this evidence, there is a strong possibility that Moore would have been found eligible for benefits, the court vacates the commissioner’s decision and remands for further findings. [File March 8, 2013.]
 
ANTITRUST
59-7-9401 In re Ductile Iron Pipe Fittings Indirect Purchaser Antitrust Litigation, U.S. Dist. Ct. (Thompson, U.S.D.J.) (11 pp.) This case concerns antitrust violations allegedly committed by manufacturers and distributors of ductile iron pipe fittings (DIPF). Indirect purchaser plaintiffs bring on behalf of themselves and all other similarly situated indirect purchasers 10 claims for relief. They seek damages and injunctive relief for alleged violations of §§ 1 and 2 of the Sherman Act, § 3 of the Clayton Act, as well as numerous state antitrust, consumer protection, and unfair-competition statutes. Indirect purchaser plaintiffs also seek relief for unjust enrichment. Defendants now seek to have the amended complaint dismissed. Indirect purchaser plaintiffs’ pleadings fail to show that any one of the indirect purchaser plaintiffs was actually injured by defendants’ conduct as alleged under any single claim. As indirect purchaser plaintiffs’ pleadings regarding antitrust impact are insufficient as to each claim, the amended complaint is dismissed with leave to amend. [Filed March 18, 2013.]
 
BANKRUPTCY
42-7-9385 Mullen v. T.D. Bank N.A., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Appellants appeal from a final decision of the bankruptcy court granting T.D. Bank’s motion for automatic stay relief with respect to the debtors’ real property. The court vacates the bankruptcy court’s order granting stay relief, concluding that in granting T.D.’s request, the bankruptcy court committed clear error by giving controlling effect to the terms of a consent order entered into by the parties over a subsequently confirmed modified Chapter 13 plan since the modified plan changed the financial obligations of debtors and the time period they would be given to sell their home. In so concluding, the court does not decide whether T.D. ultimately may be entitled to stay relief pursuant to 11 U.S.C. § 362(d). [Filed March 8, 2013.]
 
CIVIL PROCEDURE
07-7-9373 National Police Officers Solidarity Coalition Inc. v. O’Connor, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (6 pp.) This matter comes before the court, sua sponte, by its order to show cause why this action should not be dismissed for lack of standing. Plaintiffs Eric Washington and Michael Mirayes submitted a letter and affidavit in response. The order to show cause identified two issues relating to standing in this matter: (1) the National Police Officers Solidarity Coalition’s (NJPOSC) failure to enter an appearance through counsel, and (2) the ambiguity as to whether the injuries alleged in the complaint pertained to Washington, Mirayes or a combination thereof. The order to show cause indicated that, of the three named plaintiffs, Washington was the only signatory to the complaint. Washington stated that he had not suffered any injuries alleged in the complaint, but instead had filed the complaint on behalf of the alleged injuries suffered by Mirayes. The court finds Washington is not a proper party to the complaint and, as a nonlawyer, cannot appear for or represent Mirayes or NJPOSC. Because the complaint was signed only by Washington, in order for Mirayes and/or NJPOSC to proceed with this action, an amended complaint must be filed, which must be signed by the attorney appearing for NJPOSC, if it wishes to proceed, and by Mirayes or an attorney who has entered an appearance on Mirayes behalf. [Filed March 13, 2013.]
 
07-7-9374 Ramada Worldwide Inc. v. Okhee Dreams, L.L.C., U.S. Dist. Ct. (Salas, U.S.D.J.) (3 pp.) Plaintiff Ramada Worldwide Inc. filed a motion for default judgment. To date, defendants Okhee Dreams and Chang San Yu have not opposed Ramada’s motion. Thus, the court accepts the allegations of the complaint as true and admitted by defendants and finds that Ramada’s allegations establish breach of a license agreement. Plaintiff’s allegations also demonstrate that plaintiff is entitled to the attorney fees and costs incurred as a result of having to enforce its interests. The court concludes that entry of default judgment against defendants Okhee Dreams and Chang San Yu is warranted. First, defendants Okhee Dreams and Chang San Yu are culpable because they have not proffered a meritorious defense in response to Ramada’s claims. Second, Ramada has suffered economic loss as a result of defendants Okhee Dreams and Chang San Yu’s failure to respond and will continue to suffer if plaintiff’s motion for default judgment is not granted. [Filed March 12, 2013.]
 
CIVIL PROCEDURE — CREDITORS’ AND DEBTORS’ RIGHTS
07-7-9375 Brown v. First Premier Bank, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (3 pp.) The court grants defendant’s motion to dismiss this pro se complaint that was removed to the district court based on defendant’s contention that it involves the fair credit reporting act because, even construing the complaint liberally, it does not contain comprehensive statements that articulate a claim on which relief can be granted. [Filed March 6, 2013.]
 
CIVIL PROCEDURE — JURISDICTION
07-7-9376 Slevin v. J.C. Penney Corp. Inc., U.S. Dist. Ct. (3 pp.) Plaintiff originally filed this action in state court. JCP removed the action, invoking the court’s diversity jurisdiction. Obtaining JCP’s consent and leave from the magistrate judge, plaintiff filed an amended complaint joining additional defendants, including two New Jersey citizens. Because the joinder of these additional defendants destroyed subject-matter jurisdiction since complete diversity no longer exists between plaintiff and all defendants, the court remands the matter to state court. [Filed March 8, 2013.]
 
CIVIL RIGHTS
46-7-9360 Pongrac v. New Jersey Department of Corrections, U.S. Dist. Ct. (Shipp, U.S.D.J.) (10 pp.) Plaintiff, a state inmate, seeks to bring this Eight Amendment claim of denial of medical care under § 1983 action in forma pauperis. Plaintiff states that he is a diabetic and the medical staff of the Central Reception and Assignment Facility (CRAF) denied plaintiff insulin for 10 days. The CRAF medical staff allegedly told plaintiff that his medical records did not reflect that he was diabetic. The state grants plaintiff’s application and reviews the complaint, concluding the complaint may proceed in part. The New Jersey Department of Corrections is immune from suit in this action and the case is dismissed with prejudice as against it. The CRAF is not an entity cognizable as a “person” for purposes of a § 1983 suit and plaintiff’s allegations against it are dismissed with prejudice. Plaintiff’s allegations are sufficient to show a serious medical need at this preliminary stage. Moreover, plaintiff’s allegations that the CRAF medical staff refused to provide him his prescribed insulin for 10 days, together with their refusal to check his past medical records, suggests deliberate indifference. Further, the CRAF medical staff ignored plaintiff’s medical complaints despite the potential of serious risk to plaintiff’s health. The court will allow the claim of denial of medical care to proceed as against the CRAF medical staff. [Filed March 13, 2013.]
 
46-7-9386 Hamill v. North Wildwood City, U.S. Dist. Ct. (Simandle, U.S.D.J.) (24 pp.) Plaintiffs are disabled individuals who use wheelchairs and who brought this action against North Wildwood City and John Doe defendants alleging that certain sidewalks and curb cuts in North Wildwood City violate their rights under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794. The city moves for summary judgment against both plaintiffs, asserting that they lack standing because they did not suffer injuries-in-fact and because there is no concrete risk of future injury. The court denies defendant’s motions, finding that, construing all facts in plaintiffs’ favor, they have shown that they suffered injuries when they visited North Wildwood — they have provided sufficient evidence to show, at this procedural posture, that North Wildwood’s facilities are inaccessible and that they had actual notice, through their visual inspections, of inaccessibility and they need not engage in futile, and possibly unsafe, gestures to establish that they suffered an injury-in-fact — and, given the evidence that they are likely to return to North Wildwood, that they are likely to suffer injuries in the future. [Filed March 11, 2013.]
 
COMMUNICATIONS AND MEDIA LAW
57-7-9387 Joe Hand Promotions Inc. v. Waldron, U.S. Dist. Ct. (Kugler, U.S.D.J.) (17 pp.) This matter arises under 47 U.S.C. § 605 and 47 U.S.C. § 553 for the unlawful interception and exhibition of an Ultimate Fighting Championship (UFC) television broadcast. Plaintiff, Joe Hand Promotions Inc., a distributor of sports and entertainment programming, acquired the rights to distribute the “Machida/Shogun 2” UFC mixed martial arts match, including all undercard bouts (broadcast), that aired on May 8, 2010. The broadcast originated via satellite uplink, and was subsequently retransmitted to various cable systems and satellite companies. Plaintiff contracted with businesses in New Jersey to show the broadcast. Although defendants Robin Waldron, Charlynn Waldron and Mangia by the Greens Inc. did not enter into any such agreement with plaintiff, they nevertheless intercepted the broadcast signal and aired the program at their restaurant in Egg Harbor Township. Plaintiff filed suit. Before the court is plaintiff’s motion for default judgment and an award of statutory damages, costs and attorney fees. The court grants plaintiff’s motion for default judgment and enters judgment against defendants of $7,952.50, representing $1,200 in statutory damages, $2,400 in enhanced damages, $925 in costs, and $3,427.50 in attorney fees. [Filed March 13, 2013.]
 
CONSTITUTIONAL LAW
10-7-9361 Simmermon v. Gabbianelli, U.S. Dist. Ct. (Simandle, U.S.D.J.) (23 pp.) Plaintiff John G. Simmermon III and plaintiff A. Simmermon Corporation, d/b/a A-Jack’s Towing, brought this action against defendant Monroe Township and eight township officials, alleging discriminatory and retaliatory enforcement of towing and zoning laws against plaintiffs. Before the court are plaintiffs’ motion to amend the complaint and plaintiffs’ motion to amend/correct the court’s March 28, 2012, opinion and order granting summary judgment to defendants on plaintiffs’ claim of equal protection. Plaintiffs argue that the court applied the wrong test to their claim of equal protection because the court overlooked plaintiffs’ claim of selective enforcement and instead applied a rational basis test. The court’s March 28, 2012, opinion did not conduct a selective-enforcement analysis. If the court had done so, plaintiffs’ claim of equal protection would have survived summary judgment. The court will revise its March 28, 2012, order because, under the selective enforcement as opposed to the rational basis test, a reasonable jury could conclude that defendants violated the Equal Protection Clause in their treatment of plaintiffs. Plaintiffs’ motions are granted. [Filed March 18, 2013.]
 
CONSUMER PROTECTION
09-7-9377 Margolis v. Hydroxatone, L.L.C., U.S. Dist. Ct. (Waldor, U.S.M.J.) (7 pp.) The court denies plaintiff’s motion to consolidate this action alleging breach of contract, fraud, unjust enrichment and sending unordered consumer products arising out of defendants’ advertisement of free trials for their skincare products with an earlier-filed action asserting causes of action for violation of the New Jersey Consumer Fraud Act, breach of contract, unjust enrichment, declaratory relief and violation of the Utah Consumer Sales Practices Act, in which there is currently pending the parties’ joint motion for preliminary approval of a class settlement. Consolidation is unwarranted because it would result in prejudice to the parties in the earlier action by delaying consideration of the settlement, may require the parties to the earlier action to expend further costs by participating in further discovery, would not save judicial resources and efficiency since it would disrupt the two actions at different stages in litigation, and if the settlement does include Margolis and her putative class’s claims, they are not without a remedy as they can address claims of collusion and reverse auction in objections to the settlement. [Filed March 6, 2013.]
 
CONTRACTS
11-7-9402 Strassle v. Bimbo Foods Bakeries Distribution Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (13 pp.) In this action asserting claims for breach of contract based on defendant’s alleged refusal to allow plaintiffs, distributors of bakery goods, to buy and resell various types of bread products sold under specific brand names, and violations of the New Jersey Franchise Practices Act, defendant moves to dismiss the NJFPA claim and requests certain damages. Finding that plaintiffs have alleged facts sufficient to give rise to a plausible claim for relief under the NJFPA but that they are barred under their contract with defendant from recovering “lost profit” damages to the extent that those damages relate to potential profits on sales they planned to make to third-party retail customers, the court grants in part and denies in part defendant’s motion, dismissing the claim for an injunction, denying defendant’s motion to dismiss the NJFPA claim, and striking plaintiffs’ request for treble damages and their request for lost profit damages to the extent that they refer to those plaintiff planned to earn by selling goods purchased from defendant to third-party retailers. [Filed March 13, 2013.]
 
INSURANCE LAW — TITLE INSURANCE
23-7-9388 Hernandez v. Kretz, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (6 pp.) Defendant/third-party plaintiff Kretz seeks to amend his third-party complaint to add a new count against Stewart Title Guaranty Company and to add it as a third-party defendant, alleging that it is the parent company of existing third-party defendant Premier Title & Escrow and that it violated N.J.S.A. 46:10A-3 when it failed to issue a mortgage title insurance policy or to advise Kretz as mortgagor of his right to obtain insurance in his favor. Considering the statute, the legislative history, and case law interpreting it, the court finds that 46:10A-5 does not confer a private cause of action for a violation of 46:10A-3 and it denies defendant’s motion to amend. [Filed March 11, 2013.]
 
INTELLECTUAL PROPERTY
53-7-9403 Bradshaw v. American Institute for History Education, U.S. Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) In this action asserting claims for copyright infringement, breach of contract, and wrongful termination in violation of the Conscientious Employee Protection Act, arising out of plaintiff’s eventually unsuccessful negotiations with defendant-organization and its president regarding a proposal to create an interactive social studies website that defendant could market to school districts, the court (1) finds that even holding plaintiff to the more stringent standard outlined in Gee and found in Form 19 of the Federal Rules of Civil Procedure, plaintiff has stated a plausible claim for copyright infringement against the organization and it denies defendants’ motion to dismiss that claim; (2) finds that the wrongful-termination claim is untimely under CEPA and cannot proceed as a common-law cause of action because plaintiff has not pleaded that his termination was in violation of a clear mandate of public policy and it grants defendants’ motion to dismiss that claim; and (3) plaintiff has not pleaded facts sufficient to establish a claim of contributory infringement against the organization’s president in his individual capacity and it dismisses the claim for copyright infringement against that defendant. [Filed March 13, 2013.]
 
INTELLECTUAL PROPERTY — PATENTS
53-7-9362 T.F.H. Publications Inc. v. Doskocil Manufacturing Company Inc., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (12 pp.) This case arises out of plaintiff T.F.H. Publication’s claim that defendant Doskocil Manufacturing Company Inc.’s manufacture of its “Booda Bone” product line infringed on U.S. Patent No. 6,159,516 held by T.F.H. The court issued a final judgment of noninfringement and dismissal in favor of Doskocil. Doskocil now seeks an award of attorney fees on the grounds that this is an “exceptional case” under the Patent Act, 35 U.S.C. § 285. Doskocil argues that this case is exceptional and justifies an award of attorney fees for two reasons: first, that T.F.H. engaged in litigation misconduct, and second, that T.F.H. filed an objectively baseless claim in bad faith. The court finds that Doskocil has not demonstrated that T.F.H.’s claims were objectively baseless or that T.F.H. engaged in litigation misconduct. Thus, the court concludes that this is not an exceptional case under § 285 that merits an award of attorney fees. The court denies Doskocil’s motion. [Filed March 15, 2013.]
 
LABOR AND EMPLOYMENT — DISABILITY DISCRIMINATION
25-7-9389 Golembeski v. Moorestown Township Public Schools, U.S. Dist. Ct. (Kugler, U.S.D.J.) (12 pp.) Defendant Moorestown Township Board of Education filed a motion for summary judgment on plaintiff’s complaint asserting claims under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD). Plaintiff alleges that on the basis of her disability, defendant failed to renew her contract, failed to accommodate her disability during her subsequent employment in another capacity, retaliated against her, and did not hire her for another available position. The court finds plaintiff has established a prima facie case of discrimination in violation of the ADA based on defendant’s failure to re-hire her following the 2006-07 school year. Defendant has not offered any legitimate nondiscriminatory reason for the decision. The court also finds plaintiff has established a prima facie case of discrimination as to her ADA claim based on defendant’s decision not to hire her for the 2008-09 school year. Although defendant classifies the person who was hired as belonging to the same protected class as plaintiff, plaintiff challenges this categorization and draws distinctions between their disabilities. The resolution of this dispute requires a fact-based inquiry. Plaintiff may proceed with her ADA-based claims. However, the statute of limitations has lapsed for the state law claims. [Filed March 13, 2013.]
 
LABOR AND EMPLOYMENT — VENUE
25-7-9379 Spriggs v. Mercedes-Benz USA, L.L.C., U.S. Dist. Ct. (Falk, U.S.M.J.) (10 pp.) Plaintiff, a citizen and resident of Georgia, filed this action alleging that defendant, whose principal place of business is in New Jersey, discriminated and retaliated against her on the basis of race in violation of Title VII of the Civil Rights Act of 1964. Noting that the case could have been brought in the Southern District of Georgia, and balancing the Jumara factors, including that the alleged unlawful employment practice occurred in Georgia, the files and records relating to plaintiff are located in Georgia, all known witnesses are in Georgia, and that Georgia has a strong public interest in this case, the court grants defendant’s motion to transfer venue to the Southern District of Georgia. [Filed March 7, 2013.]
 
PRODUCTS LIABILITY
32-7-9404 Smith v. Depuy Orthopaedics Inc., U.S. Dist. Ct. (Pisano, U.S.D.J.) (28 pp.) This is a products liability action in which plaintiff had a total right knee replacement and a P.F.C. Sigma Rotating Platform Knee (RP Knee) was implanted in his body. Defendants Depuy Orthopaedics Inc. filed a motion for summary judgment. Plaintiff filed a cross-motion for a continuance. The issue is whether plaintiff’s claims are pre-empted because the RP Knee was subject to the Food and Drug Administration’s (FDA) premarket approval (PMA) process. The court grants defendants’ motion because plaintiff’s claims are pre-empted since the RP Knee was subject to the rigorous PMA process. The court denies plaintiff’s motion because further discovery would not preclude summary judgment. [Filed March 18, 2013.]
 
TORTS — JURISDICTION
36-7-9405 Barbosa v. McGorman, U.S. Dist. Ct. (Cooper, U.S.D.J.) (3 pp.) This action to recover damages for injuries sustained in a motor vehicle accident that occurred in New York originally was filed in New Jersey state court and then removed to the District of New Jersey. Plaintiff was a New York resident at the time of the accident but is now a citizen of Pennsylvania. Defendants are a New Jersey resident and a New York resident. The court transfers venue to the Eastern District of New York, finding that it would have been more properly brought within that district because, inter alia, the accident occurred there, one defendant resides there, and many of the nonparty witnesses and evidence will be found there, such factors outweigh the fact that one defendant is a New Jersey citizen, and plaintiff is not now and was not at the time of the accident a New Jersey citizen. [Filed March 13, 2013.]