STATE COURT CASES
ALTERNATIVE DISPUTE RESOLUTION
03-2-1173 Tagayun v. Americhoice of New Jersey Inc., App. Div. (per curiam) (13 pp.) Plaintiff-physician appeals the order compelling arbitration of her dispute with defendant, a health maintenance organization that maintains a network of physicians who provide medical services to its members, regarding defendant's nonrenewal of its Participating Provider Agreement with plaintiff. The panel finds that the parties executed the PPA which contains a valid arbitration clause and that plaintiff's adhesion contract argument lacks merit. Therefore, it finds that the judge did not err in compelling arbitration and it declines to issue a stay of the nonrenewal.
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION
03-2-1174 Bouie v. VK Realty Associates, App. Div. (per curiam) (5 pp.) Plaintiff appeals from an order denying his motion for reconsideration of an order dismissing his complaint with prejudice for failure to appear at a non-binding personal injury arbitration. On appeal, plaintiff's counsel argues that his office "was never notified of the arbitration." The appellate panel concludes that plaintiff's counsel received proper notice of the arbitration. Both defense counsel and the court notified plaintiff's counsel of the arbitration date. Plaintiff's counsel then received defense counsel's letter seeking an adjournment of the arbitration. Plaintiff's counsel responded the next day by writing the arbitration office and, as a result, the arbitration was not adjourned. Thus, the court did not err by dismissing the complaint without prejudice when plaintiff and his counsel failed to appear. The judge concluded plaintiff ignored the dismissal without prejudice because defendant's motion to dismiss the complaint with prejudice was unopposed. Plaintiff's counsel contended on reconsideration that he did not ignore this matter because he later moved to reinstate the complaint. The fact remains, however, that reinstatement of the complaint was conditioned on establishing good cause, and payment of the restoration fee. Here, plaintiff did neither. Therefore, the judge did not err by dismissing the complaint with prejudice and denying reconsideration.
CONTRACTS
11-2-1175 Spectraserv, Inc. v. The Middlesex County Utilities Authority, Law Div.-Middlesex Cy. (Francis, A.J.S.C.) (41 pp.) In this motion to dismiss, the court must decide whether the economic loss doctrine bars a plaintiff’s claim for purely economic losses resulting from negligence, against a defendant with whom the plaintiff has no contractual privity and where the plaintiff’s contract with a mutual contracting party includes a remedy for economic losses. This complex construction litigation arises from a contract between plaintiff Spectraserv, Inc. and the Middlesex County Utilities Authority (MCUA) involving the construction of improvements or modifications to a sludge pasteurization process at a processing facility in Sayreville. Due to numerous delays, setbacks and the ultimate termination of the construction project, Spectraserv filed a complaint alleging, inter alia, claims of negligence against the projects engineering and design professionals. The court finds that since the loss plaintiff seeks to redress in its contractual claims is duplicative of that it seeks to redress in its negligence claims, the negligence claims are barred by the economic loss doctrine. Therefore, the negligence claims are dismissed. Spectraserv can seek to recover its economic losses through its claims against the MCUA.
EDUCATION — LABOR AND EMPLOYMENT
16-2-1176 Halpern v. Marion P. Thomas Charter School, App. Div. (per curiam) (11 pp.) Plaintiff appeals the Law Division order granting defendant's motion for summary judgment dismissing her complaint for breach of contract with prejudice which was filed after defendant-charter school advised her in August 2010 that due to budgetary constraints, she would not be employed for the 2010-2011 school year despite having previously entered into a contract with her for that school year. Plaintiff, who had been employed pursuant to two previous 10-month contracts, alleges that the presumption of at-will employment was overcome by her employment contract, which specified a definitive duration of employment and did not contain a termination provision for the Charter School. The panel finds that there are genuine issues of material fact concerning the contractual intent of the parties, the precise meaning and significance of the specified term of employment, and issues regarding the meaning and intent of language in the school handbook precluding summary judgment. It reverses and remands.
ENVIRONMENTAL LAW
17-2-1177 New Jersey Department of Environmental Protection v. Bello, App. Div. (per curiam) (8 pp.) Defendant appeals from a decision by the Commissioner of the Department of Environmental Protection finding that he violated the Freshwater Protection Act by filling a freshwater wetlands transition area without authorization. The panel affirms substantially for the reasons expressed by the Commissioner, including that the construction permit that Bello had obtained to build a barn in a non-transition area had expired when he decided to construct the barn, but in the paddock area which was in a transition area, and even though he ultimately abandoned that plan, the grading and placement of fill in the transition area in contemplation of construction were regulated activities that required a transition area waiver which he did not obtain.
FAMILY LAW
20-2-1178 Burns v. Burns, App. Div. (per curiam) (21 pp.) Defendant appeals from the post-judgment Family Part order that denied his motion for a hearing concerning recalculation of his spousal and child support obligations. He contends the court erred by denying his motion on the grounds he had withheld financial information and filed a misleading case information statement. He also contends that the court abused its discretion by issuing a bench warrant for his arrest after he defied three court orders, which he asserts were issued without due process. Lastly, he challenges both the judgment the court entered against him for support arrearages and the counsel fees the court awarded to plaintiff. The appellate panel affirms, finding no abuse of discretion on the part of the trial court in attempting to secure defendant's support obligations and to force him to comply with its orders. Further, there is no basis to disturb the attorney fee award.
LABOR AND EMPLOYMENT
25-2-1179 Rosetti v. Board of Review, App. Div. (per curiam) (5 pp.) Appellant appeals from the decision of the Board of Review, affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to the work. Appellant was employed as a police officer by Waterford Township from September 2006 until he resigned on February 25, 2011. Appellant suffers from obsessive compulsive disorder (OCD). After he took two leaves of absence, the Township denied appellant's request for a third leave of absence and, because he did not want to return to work, appellant was given the option of resigning or being discharged. Appellant resigned. Appellant's OCD was a condition that existed prior to his employment as a police officer. Appellant provided no medical documentation stating that his condition was work-related or aggravated by his working conditions. Appellant's physician and the Township's doctor cleared appellant to return to work full-time. After two weeks, however, appellant told the Township he could no longer "effectively perform" his duties and he resigned from his job. The appellate panel finds no basis to interfere with the Board's decision that appellant was ineligible for unemployment benefits because he left work voluntarily, without any medical documentation to support his request for additional leave and, therefore, without good cause attributable to the work.
LABOR AND EMPLOYMENT
25-2-1180 White v. University of Medicine and Dentistry of New Jersey, App. Div. (per curiam) (12 pp.) Plaintiff – who was originally hired to work as an emergency medical technician and who was transferred to the dispatch center after she sustained injuries while on duty and who was ultimately terminated – appeals the Law Division's order granting summary judgment dismissing her clam for disability discrimination. The panel reverses and remands, finding that, affording plaintiff all reasonable inferences, a reasonable jury could find that defendant violated its obligations to provide reasonable accommodation and engage in an interactive process as required by the LAD and relevant case law.
LABOR AND EMPLOYMENT — WHISTLEBLOWERS
25-2-1181 Trivers v. City of Atlantic City, App. Div. (15 pp.) Plaintiff, an Atlantic City police officer, appeals from a summary judgment dismissing his complaint alleging violations of the Conscientious Employee Protection Act and the New Jersey Civil Rights Act. The panel affirms, finding that, with respect to the CEPA claim, while plaintiff established the first two elements of a CEPA action, he failed to establish the third – that he had suffered an adverse employment action – since, inter alia, his transfer to the patrol unit occurred before his whistleblowing activity and therefore cannot be considered an adverse employment action, the disciplinary charges that were dismissed by the hearing officer do not qualify, demanding that he surrender his service revolver during his stress leave was prudent, and under the facts here, the refusal to honor his request for a transfer to the detective unit was not retaliatory. The CRA claim fails because the right to notice and a hearing plaintiff claims he was denied prior to his transfer to the patrol division are procedural, not substantive, due process rights and thus the CRA does not apply.
LAND USE AND PLANNING
26-2-1182 Joseph Kushner Hebrew Academy, Inc. v. Township Of Livingston, App. Div. (per curiam) (52 pp.) Defendants Township of Livingston, Livingston Township Council, and Livingston Planning Board appeal from builder's remedies awarded to plaintiffs Squiretown Properties, LLC and Hillside-Northfield Partners, LLC. On September 1, 2009, the Township adopted a housing element and fair share plan as required by a February 2009 order. Defendants moved for reconsideration after the Supreme Court accepted certification on In re Adoption of N.J.A.C. 5:96 & 5:97 which invalidated COAH's third-round rules . The relief was denied. After trial, Judge Carey granted the builder’s remedy. He concluded that his earlier order fulfilled the first prong of the test that Hillside was a successful Mount Laurel litigant. The judge found that it was uncontested that Hillside satisfied the second prong that the project provide a substantial amount of affordable housing. Addressing the third prong, the judge concluded that Hillside engaged in good faith negotiations and was not barred from litigating the claim. The appellate panel affirms the award of a builder’s remedy. The panel rejects defendants’ arguments, including defendants' argument that Hillside and Squiretown were not entitled to builder's remedies because the Township remained in compliance with its adjusted second-round housing obligation and they have no further obligations because third round regulations were invalidated.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-1183 Marra v. Wells Fargo Bank, N.A., App. Div. (per curiam) (7 pp.) Plaintiff appeals from an order dismissing his complaint against Wells Fargo. In June 2009, plaintiff defaulted on his residential mortgage and approached Wells Fargo, his mortgage company, regarding a loan modification. Wells Fargo informed plaintiff that he might qualify for a loan modification under a federal Home Affordable Modification Program (HAMP), which entailed a two-step process. Wells Fargo would first verify plaintiff's income while it allowed plaintiff to participate in a Trial Period Plan (TPP). Then, if plaintiff qualified under the HAMP, Wells Fargo would finalize the loan modification terms. Wells Fargo deemed plaintiff unqualified for the HAMP, and the parties never reached the second step of the process. In May 2010, the parties agreed to a non-HAMP modified loan. In September 2011, plaintiff defaulted. Plaintiff filed a complaint against Wells Fargo seeking money damages and an order compelling Wells Fargo to enroll him in the HAMP program. The motion judge concluded that plaintiff is not entitled to a HAMP loan modification based on the TPP, rejected any suggestion that there is a private cause of action for denial of a HAMP application, and dismissed the complaint with prejudice. On appeal, plaintiff argues again that he was contractually entitled to a loan modification under the HAMP pursuant to the TPP. The TPP explained that it was the first step of a two-step process. Wells Fargo did not sign a HAMP modification agreement. The appellate panel affirms, finding that plaintiff is not entitled to a HAMP loan modification based on the TPP.
TAXATION
35-5-1184 Avila v. State of New Jersey, Department of Corrections, Tax Court (DeAlmeida, J.T.C.) (6 pp.) In this action seeking plaintiff's release from prison and the vacation of all fines and penalties imposed on him, which was served upon the Director of the Division of Taxation, although he is not named in the complaint as a defendant, the court sua sponte dismisses the complaint on the basis that it lacks jurisdiction over any of the claims raised by plaintiff. [Filed July 29, 2013]
TAXATION
35-5-1185 Rumbas Properties LLC v. Evesham Township, Tax Ct. (DeAlmeida, J.T.C.) (7 pp.) Plaintiff responded to a request from the tax assessor for income and expense information pursuant to N.J.S.A. 54:4-34, indicating that the property was owner-occupied and contained no rental units. However, during discovery in plaintiff's challenge to the tax year 2012 assessment, it became apparent that the property was occupied by plaintiff, a single member entity in which John Rumbas is the principal and which owns the property, and a separate entity, 380 Route 73 Inc., which trades as Motor Trans Transmissions and is solely owned by Mr. Rumbas. The latter pays the property expenses and pays plaintiff an amount equal to the mortgage payments and property taxes. Defendant moves to dismiss the challenge on the ground that plaintiff falsely responded to the Chapter 91 inquiry. The court finds that a tenancy existed at the property for purposes of N.J.S.A. 54:4-34, despite the corporate relationship between the landlord and tenant, and that by failing to report the income it received from 380 Route 73, plaintiff produced a false report. Defendant's motion is granted, subject to plaintiff's right to a reasonableness hearing pursuant to Ocean Pines Ltd. [Filed July 30, 2013]
TORTS
36-2-1186 Sherman v. Rutgers, The State University, App. Div. (per curiam) (16 pp.) Plaintiff and her husband appeal the summary judgment dismissing their personal injury action filed after plaintiff tripped and fell over a retaining wall while exiting Rutgers' Stadium, dislocating both arms and sustaining severe fractures requiring surgery. The panel affirms, finding that plaintiffs have failed to establish a prima facie case that defendant's property was in a dangerous condition, rendering it liable under the Tort Claims Act because plaintiff was not using defendant's property with due care in a manner in which it was reasonably foreseeable that the property would be used where she was not using the sidewalk to walk from one point to another but had begun to walk perpendicular to the sidewalk, not toward an entrance to the building but toward its opaque glass walls. Further, she produced no evidence that the sidewalk, even under the lighting conditions that existed on the night she fell, posed any risk of danger. The panel also says the trial court correctly found that defendant's conduct or omissions were not palpably unreasonable where in the years between completion of construction and the accident, there was no reported incident of any injury involving the retaining wall and adjacent drop-down into a well.
TRUSTS AND ESTATES
38-2-1187 In The Matter Of Zwerdling, App. Div. (per curiam) (9 pp.) These back-to-back appeals stem from a long-running probate dispute. First, the appellate panel finds no abuse of discretion in the decision to deny the recusal motion. The judge handled this tempestuous matter in an evenhanded manner, and the fact that she ruled against appellant and Matano, the attorney who litigated the probate matter, is not evidence of bias. The panel rejects the appeals of the orders that declined to remove the Public Guardian and initially denied Matano all counsel fees. Here, in considering whether to remove the Public Guardian, the probate judge had the benefit of familiarity with the history of the parties' long-standing dispute, having just permitted one of the co-guardians to resign. Given that the transition from the individual co-guardian to an institutional co-guardian was just completing, and there being little evidence of tangible harm to Zwerdling, retaining the Public Guardian was well within the authority of the judge. The order denying all counsel fees must be tempered by the judge's later order granting fees based on actions by Matano, largely related to real estate matters, which warranted the award of fees.
FEDERAL COURT CASES
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-1188 Northstar Marine, Inc. v. R&A Marine, LLC, Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) Plaintiff Northstar Marine, Inc. asserts claims against Defendants R&A Marine, LLC, R&A Marine, Inc., Raymond and Associates, LLC, and Raymond LaForce for breach of contract, unjust enrichment, and to pierce the corporate veil. Plaintiff alleges that defendants breached a Response Resource Agreement that contains a forum selection clause identifying the United States District Court for the District of New Jersey as the proper venue for disputes arising out of the Resource Agreement. Relying on this provision, and on the basis of diversity, Plaintiff filed suit in this Court. Defendants filed a motion to dismiss the complaint for lack of personal jurisdiction and lack of proper venue, or, in the alternative, to transfer the matter to the District Court for the Southern District of Alabama. Defendants contend that the parties’ relationship is not governed by the Resource Agreement, but by another set of agreements which contain no forum selection provision. Plaintiff has failed to oppose Defendants’ motion and, thus, has not carried its burden of establishing jurisdiction. Because Plaintiff failed to oppose Defendants’ motion or demonstrate the enforceability of the forum selection clause, the Court grants Defendants’ motion to dismiss for lack of personal jurisdiction. [Filed July 25, 2013]
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-1189 Kielty v. USAA Federal Savings Bank , Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) This is an action brought by Plaintiff against Defendant USAA Federal Savings Bank for violations of the Fair Credit Reporting Act (“FCRA”) and the Fair Debt Collections Practices Act (“FDCPA”). Defendant filed a motion to dismiss. Plaintiff, who is proceeding pro se, has not filed a response. Plaintiff’s complaint consists of an extremely brief statement on a New Jersey State court complaint form, and appears to allege violations of the FCRA based on Defendant’s purported failure to notify Plaintiff prior to recording negative information on his credit report on at least ten separate occasions. Plaintiff also alleges violations of the FDCPA based on at five instances of “harassment via phone calls” by Defendant. Plaintiff provides absolutely no factual support for claims, which is insufficient under Rule 8(a). The Court finds that Plaintiff has failed to state a claim and grants Defendant’s motion to dismiss. [Filed July 25, 2013]
INTELLECTUAL PROPERTY
53-7-1190 Content Extraction and Transmission LLC v. Wells Fargo Bank, Dist. Ct. (Shipp, U.S.D.J.) (24 pp.) Plaintiff claims ownership of three patents that focus on the processing of information and alleges that defendant infringed on those patents by processing check and cash deposits made b customers at automatic teller machines and by processing check deposits made from mobile electronic devices. The court grants defendant's motion to dismiss, finding that the three patents are invalid as abstract ideas not patentable under 35 U.S.C. section 101. [Filed July 31, 2013]
LABOR AND EMPLOYMENT
25-7-1191 Crovetti v .Washington Township, Dist. Ct. (Bumb, U.S.D.J.) (15 pp.) In this action filed by a female police officer asserting claims for discrimination, hostile work environment, and retaliation in violation of the New Jersey Law Against Discrimination, violation of the Conscientious Employee Protection Act, a 42 U.S.C. section 1983 claim for violation of the First Amendment, and intentional infliction of emotional distress, the court grants the motion of defendants-township and individual police officers for summary judgment dismissing the action. The First Amendment claim fails because the speech cited by plaintiff does not qualify as protected speech since the speech regarding the use of private cell phones was made pursuant to her official job duties and not as a public citizen and her complaint regarding discrimination related solely to her own claims, was not made in public, and did not relate to a matter of public concern. The court declines to exercise supplemental jurisdiction over plaintiff's state law claims, which are dismissed without prejudice. [Filed July 31, 2013]
LABOR AND EMPLOYMENT — DISCRIMINATION
25-7-1192 Photis v. Sears Holding Corp., Dist. Ct. (Pisano, U.S.D.J.) (20 pp.) In this employment discrimination case, Plaintiff suffered a seizure and alleges that Defendants Sears Holding Corporation and Kmart’s Human Resources Director terminated his employment due to disability and perceived disability discrimination. Defendants assert that they terminated Plaintiff because he violated the company’s Code of Conduct. The Court finds that Plaintiff has not established a prima facie case of discrimination based on a failure to accommodate because not only has Plaintiff failed to establish that he is disabled, Plaintiff never requested an accommodation. Because Plaintiff has not established a prima facie case of disability, perceived disability, or reasonable accommodation discrimination, he has failed to establish the first prong of the McDonnell Douglas test, and the Court is not required to discuss the other two prongs. However, the Court goes on to find that Defendants offered a legitimate, nondiscriminatory reason for Plaintiff’s termination and Plaintiff did not establish that reason was pretextual. Finally, Plaintiff has not established that his termination caused an intentional infliction of emotional distress. Defendants’ motion for summary judgment is granted. [Filed July 25, 2013]
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-1193 Santomenno v. John Hancock Life Insurance Company (U.S.A.) , Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Plaintiffs bring this action individually and on behalf of a putative class of plan participants against John Hancock Life Insurance Company (U.S.A.) and its affiliates under the Employment Retirement Income Security Act of 1974 (“ERISA”), for allegedly charging their retirement plans excessive fees. The Court finds that John Hancock was not acting as a fiduciary when taking any of the actions subject to complaint. Because fiduciary status is an essential element of all of Plaintiffs’ claims, the Court dismisses the complaint with prejudice. [Filed July 24, 2013]
LANDLORD/TENANT LAW
27-7-1194 St. James Apartments LLC v. Coinmach Corp., Dist. Ct. (Shipp, U.S.D.J.) (11 pp.) Plaintiff, whose sole partner is a Florida resident, seeks a declaratory judgment that certain disputed lease agreements with defendant, a citizen of both Delaware and New Jersey for purposes of federal diversity jurisdiction, are not legally binding and/or are otherwise unenforceable. The court finds that on the facts here, plaintiff's residential property manager had no actual authority or no apparent authority to execute the disputed commercial leases and, therefore, the leases are not enforceable. [Filed July 30, 2013]