01-2-1344 In the Matter of Akinola, App. Div. (per curiam) (7 pp.) Akinola appeals from the final administrative decision of the Civil Service Commission, which upheld the Department of Human Service’s removal of her from her position as a cottage training technician at the Woodbridge Development Center after finding that she had physically abused a developmentally disabled resident by pushing his head against a wardrobe when he accidentally poked her in the eye. The panel affirms, finding no grounds to substitute its vision of what constitutes appropriate conduct under the circumstances for those of the agency and that, considering the nature of appellant’s conduct in the context of deference to the commission, the sanction of removal was not shocking to a sense of fairness. [Decided Sept. 17, 2013.]
03-2-1345 Associated Financial Web Printing v. Kupchik, App. Div. (per curiam) (6 pp.) Plaintiff Associated Financial Web Printing appeals from trial court orders requiring plaintiff to submit its claims to arbitration, and denying reconsideration. Three individuals, William Miller, Michael McFadden and Christopher Kupchik, formed Associated Financial Web Printing (Associated) through an operating agreement that contained a comprehensive arbitration clause. All three individuals signed the agreement. Miller sued Associated, Kupchik, McFadden, a business owned by McFadden, and several other defendants. The complaint alleged that Miller was involved in a serious auto accident, and that while he was recovering, McFadden and Kupchik embezzled Associated’s assets, leading to Associated’s financial demise. In substance, this entire case is a dispute between Associated’s shareholders over alleged mismanagement of the company, and it falls within the ambit of the agreement’s comprehensive arbitration clause. Further, the doctrines of judicial estoppel and collateral estoppel bar Associated from relitigating the issue of arbitrability, where it was previously litigated and decided in Associated’s favor by Judge Hogan in Burlington County. [Decided Sept. 17, 2013.]
12-2-1346 Balsamo v. Ortuso, App. Div. (per curiam) (5 pp.) Plaintiff Joseph Balsamo commenced this action against his alleged partner, defendant Gail Ortuso, in the wake of their business’s failure. Balsamo alleges that Ortuso is liable for half the balance due on a line of credit that Balsamo personally guaranteed. On cross-motions for summary judgment, the trial judge held that Ortuso could not be held liable because the line of credit was obtained by Balsamo prior to the formation of the parties’ alleged partnership. The question is whether the line of credit was drawn on before or after formation of the alleged partnership. Because the facts relevant to this pivotal question are disputed, the appellate panel reverses. If Ortuso is found to be Balsamo’s partner — a question that presently defies summary judgment — she may ultimately be held personally jointly or severally liable for some portion of the balance due on the line of credit. Because the summary judgment motion was decided on a very narrow ground, the record’s limitations hamper the ability to expound on Ortuso’s potential liability. Resolving that question must start with an identification of the parties’ relationship, a matter the judge implicitly – and correctly – recognized was incapable of being determined at the summary judgment stage. [Decided Sept. 17, 2013.]
07-2-1330 Federated Financial Corp. of America v. Markoglu, App. Div. (per curiam) (5 pp.) Defendant appeals from the July 11, 2012, Special Civil Part order denying his motion to vacate an April 7, 2010, judgment entered against him finding that he owed plaintiff a credit-card balance. The motion to vacate was filed on May 22, 2012, after the Appellate Division decision of March 2, 2012, affirming the judgment. The panel affirms, finding that defendant’s attempt to invoke appellate jurisdiction to review the 2010 judgment a second time by filing a motion to vacate that judgment under Rule 4:50-1 was procedurally improper, as was his assertion of a claim of judicial bias not raised earlier. Further, defendant’s argument on appeal is unpersuasive as he has produced no evidence suggesting that the trial judge was biased or partial and his motion was untimely under Rule 4:50-2. [Decided Sept. 16, 2013.]
07-2-1358 Jost Imports Inc. v. Ciccone, App. Div. (per curiam) (3 pp.) Plaintiff, a car dealer, filed suit against defendant after two credit-card charges he made to purchase a car were rescinded, asserting claims based on six legal theories, including common-law fraud. Judgment was entered in favor of Jost. However, Jost subsequently moved for reconsideration, seeking an award of punitive damages and counsel fees. It appeals the denial of that motion. The panel affirms, finding that it is clear from a review of the trial judge’s oral opinion denying the motion that Jost failed to prove fraud and, in fact, did not attempt to do so, and that a motion for reconsideration is not an appropriate vehicle to supplement an inadequate record. [Decided Sept. 18, 2013.]
10-2-1315 Mohamed-Ali v. City of Newark, App. Div. (per curiam) (11 pp.) Plaintiff appeals from the order granting summary judgment to defendant. Plaintiff worked as a licensed taxi driver in Newark since 2000. On June 27, 2007, plaintiff had an altercation with a dispatcher at Newark Liberty International Airport. Plaintiff was informed by the Newark Division of Taxicabs that his license was being suspended immediately, pending a hearing. Following the hearing, the commission suspended plaintiff’s taxi license for six months. Plaintiff filed a complaint alleging that he had been deprived of his property interest in his taxi license without due process of law, contrary to 42 U.S.C.A. § 1983. He alleged that the notice of the hearing was insufficient, the hearing was inadequate and unfair, and he was denied his right to an appeal. He also alleged that the six-month suspension was not permitted by the municipal ordinance. He claimed damages due to the license suspension of loss of income plus related economic losses. Finding that plaintiff failed to demonstrate that his due process rights had been violated, the trial judge granted defendants’ motion for summary judgment and dismissed the complaint. On appeal, plaintiff reiterates his contentions that Newark deprived him of his property interest in his license without due process through the defective hearing notice, unfair hearing, excessive suspension, and denied stay. The appellate panel affirms, finding the record supports the judge’s finding that plaintiff had adequate notice of the charges against him and had the opportunity to hear the evidence against him and present his testimony and argue his case. [Decided Sept. 13, 2013.]
14-2-1323 State v. Garland, App. Div. (per curiam) (23 pp.) A grand jury returned an indictment charging defendant Raphael Garland and two co-defendants with second-degree conspiracy to commit robbery, first-degree armed robbery of Raheem Cottle, first-degree armed robbery of Donald McLaurin Green, first-degree murder of Cottle, first-degree felony murder of Cottle, second-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. Defendant was subsequently tried alone. On defendant’s motion at the conclusion of the state’s case, the judge entered a judgment of acquittal as to the robbery of Green. The jury found defendant guilty of conspiracy and first-degree robbery. However, it acquitted defendant of the remaining charges. On the record presented, the judge mistakenly exercised his discretion by admitting certain documents into evidence as “business records.” Because that error raises a reasonable doubt as to whether it led the jury to a verdict it otherwise might not have reached, the appellate panel reverses defendant’s conviction and remands the matter for a new trial. [Decided Sept. 13, 2013.]
14-2-1334 State v. Perez, App. Div. (per curiam) (26 pp.) The state appeals from the trial court’s vacation of defendant’s guilty plea to possession of a firearm by a person previously convicted of a crime enumerated in N.J.S.A. 2C:39-7(b), entered after the trial court reversed its prior ruling and granted defendant’s motion to suppress the firearm seized by police at defendant’s residence at the time of his arrest. The panel finds that the judge misapplied State v. Davila and that under the circumstances of this case, the police officers had both probable cause and exigent circumstances to conduct the limited search to locate and seize the shotgun that defendant had allegedly used to commit an act of domestic violence against his wife. The panel also holds that the judge violated his obligation under Rule 1:7-4(a) and (b) when he failed to provide any explanation for rejecting his prior material factual findings when he denied defendant’s motion to suppress. The panel reinstates the trial court’s original order upholding the validity of the limited warrantless search and the seizure of the shotgun. [Decided Sept. 16, 2013.]
14-2-1360 State v. Chesler, App. Div. (per curiam) (12 pp.) After consuming between six and eight beers, the then-17-year-old defendant got into his car, drove at almost twice the lawful speed limit, failed to stop at a stop sign and struck another motor vehicle, resulting in its driver’s death. In this appeal — following a summary remand by the New Jersey Supreme Court to the trial court for a statement of reasons for imposing the downgraded sentence — the state challenges the Law Division’s statement of reasons for the imposition of a custodial term of four years for second-degree vehicular homicide. The state contends that using defendant’s driving inexperience as the linchpin of the interest-of-justice prong of N.J.S.A. 2C:44-1(f)(2) was a misapplication of law. The appellate panel agrees with the state that Chesler’s inexperience in operating an automobile was not a significant and unique circumstance separate from mitigating factors that would require a downgraded sentence in the interest of justice. In its analysis, the remand court improperly focused on characteristics of the offender that do not uniquely relate to the offense to warrant a downgraded sentence. The remand court did not factor the severity of the crime into its analysis. Because the reasons expressed for the downgraded sentence do not justify the four-year term, the appellate panel reverses and remands for resentencing. [Decided Sept. 18, 2013.]
14-2-1361 State v. Wooden, App. Div. (per curiam) (13 pp.) Defendant appeals from his conviction for unlawful possession of a weapon that resulted from a guilty plea following the denial of a motion to suppress, arguing that the motion judge improperly ruled that there was sufficient evidence to justify the motor vehicle stop that led to the discovery of a bag of bullets on defendant’s person and a handgun in the car. The panel finds that it was error to exclude the testimony of a private investigator, who was offered by the defense to cast doubt on the trooper’s testimony that defendant was stopped for speeding, and remands for supplementation and reconsideration of the motion to suppress to allow defendant an opportunity to present the testimony of that witness. [Decided Sept. 18, 2013.]
21-2-1331 Gusciora v. Christie, App. Div. (per curiam) (45 pp.) In 2004, Assemblyman Reed Gusciora, Stephanie Harris, a registered voter in Mercer County, the Coalition For Peace Action, and New Jersey Peace Action filed a complaint alleging that the state’s use of direct recording electronic voting machines (DREs) violated two provisions of the New Jersey Constitution — Article II, § I, paragraph 3(a), conferring the right to vote on every citizen; and the guarantee of equal protection under law, found in Article I, paragraph 1 — as well as several provisions of election statutes contained in Title 19. Among other relief, plaintiffs sought to enjoin the state’s use of DREs until they were retrofitted or replaced with voting machines that included a voter-verified paper audit trail (VVPAT). In Zirkle v. Henry, the Law Division set aside an election in which DREs were used because of “human error in the programming of the voting machine.” Whether the lack of sufficient, mandatory pre-election testing of all DREs without a VVPAT amounts to a violation of Title 19 is a legitimate issue based on the results of the Zirkle litigation. Because the Zirkle litigation arose after the final order was entered in this case, there is no record to review regarding the state’s efforts to ensure mandatory pre-election testing of every DRE used such that the statutory requirements are met. The court thus remands the matter to the Law Division for a hearing that shall focus on whether the state has devised and implemented mandatory statewide pre-election testing procedures to provide reasonable assurance that programming errors will not go undetected. [Decided Sept. 16, 2013.]
20-2-1316 Howard v. Kopko, App. Div. (per curiam) (9 pp.) Defendant appeals from a postjudgment order substantially reducing his child-support obligation but requiring him to pay $20 per week in child support and an order requiring him to supply the medical reports he relied on in securing Supplemental Security Income benefits but limiting his responsibility for any costs thereof to $100. Defendant argues that the judge failed to accord him the benefit of the presumption of disability and erred in requiring him to produce and pay for his medical records. The panel affirms, finding that the judge correctly determined that defendant’s obligation to pay support could not be based on his SSI benefits; the judge did not deny defendant the benefit of the presumption of unemployability that arises from an administrative determination of disability as the judge has yet to consider whether defendant has met his prima facie burden of showing, on the record, that his disability renders him incapable of gainful employment; and the judge did not err in ordering production of the SSA records, which are necessary to allow plaintiff to learn the basis of defendant’s claimed disability. [Decided Sept. 13, 2013.]
25-2-1359 Sergent v. St. Helena School, App. Div. (Nugent, J.A.D.) (19 pp.) Plaintiff appeals from the order dismissing on summary judgment her complaint alleging that defendants, St. Helena School and the Diocese of Metuchen, breached the terms of her employment contract, and violated the New Jersey Law Against Discrimination, when they terminated her employment. Plaintiff argues the evidence she presented established a triable issue as to whether defendants terminated her employment because her performance was unsatisfactory, as they claim, or because she took a maternity leave, as she claims. Even if plaintiff established a prima facie case of pregnancy discrimination under the McDonnell Douglas construct, which the court finds she did not, she did not carry her burden of demonstrating that the school’s reason for terminating her position was pretextual. Plaintiff could not dispute that parents had sent letters questioning her teaching ability, or that the school was concerned about parents withdrawing their students. Also, the school did not breach plaintiff’s employment contract, which permitted the school to immediately discharge her for unsatisfactory performance. The standard was subjective. Plaintiff’s only attempt to show that the school’s reason for terminating her was disingenuous is the evidence she produced in support of her discrimination claim, which does not withstand scrutiny. The trial court properly concluded that plaintiff produced no evidence that the school exercised its subjective discretion in bad faith. [Decided Sept. 18, 2013.]
27-3-1333 Fogel 152-158 Realty v. Sport-A-Rama Corp., Law Div. — Essex Co. (Fast, J.S.C.) (6 pp.) This summary action for the eviction of defendants (a commercial tenant and subtenant) presents the issue of the application of R. 6:1-2(a)(4), amended effective Sept. 4, 2012. There is no reported opinion related to this subsection. It appears that defense counsel represents both the prime tenant and the subtenant in their endeavor to avoid eviction. The original complaint alleged nonpayment of rent by the prime tenant. Judge Wright signed an order for plaintiff to amend the complaint to add the subtenant as an additional defendant. Pursuant to Judge Wright’s order, the complaint has now been amended and all entities that may be adversely affected by any decision have been joined in this action. Inasmuch as all indispensable parties are now before the court, and all parties (landlord, prime tenant and subtenant) will have the right to appeal from an adverse decision, and because the single issue is whether any rent is now due and payable (and, if so, whether defendants are ready, willing and able to pay it), the motion before the court to transfer the case to the Law Division is denied. [Decided Sept. 12, 2013.]
04-2-1318 D’Agostino v. Drazin & Warshaw, App. Div. (per curiam) (16 pp.) Plaintiff appeals from the denial of his motion for reconsideration of the dismissal of his legal-malpractice action for failure to file an affidavit of merit. Defendant had represented plaintiff in an underlying personal-injury action. The panel affirms, finding that plaintiff’s complaint was not exempt from the affidavit of merit requirement based on the common-knowledge doctrine because the common-knowledge doctrine’s applicability cannot be discerned from the face of plaintiff’s complaint, as Hubbard requires, and because plaintiff’s objections to the adequacy of defendant’s investigation requires expert opinion, as do his claims that defendant failed to oppose certain motions in limine and failed to call plaintiff’s treating physicians as experts. The panel also rejects plaintiff’s claim that even if the affidavit of merit statute applied to him, he was prevented from complying because he lacked discovery from defendant since plaintiff never served formal discovery demands and there is no evidence that he requested specific records from defendant’s case file. Also, the panel finds that plaintiff’s claim of overcharges is not saved by characterizing it as a breach-of-contract claim not requiring an affidavit of merit. [Decided Sept. 13, 2013.]
34-2-1319 The Cooper Health System v. FMCF 3X, App. Div. (per curiam) (8 pp.) Appellant Executive Campus, which was formerly the defendant and counterclaimant in this action, appeals from the order of the Law Division by which respondent FMCF 3X was substituted for appellant in the action as defendant-counterclaimant. The substitution resulted from a separate foreclosure action on a mortgage encumbering commercial property then owned by appellant. A settlement agreement was reached in the foreclosure action. The Cooper Health System then filed the complaint in the Law Division, seeking money damages from appellant, as the landlord, for alleged breach of certain covenants of a lease between appellant and Cooper. The appellate panel finds that the general integration clause of the settlement agreement did not have the effect of canceling all the prior loan documents, or the court’s prior orders. The matter proceeded to a sheriff’s sale and a conveyance of the deed to respondent. That could only have happened if the mortgage and loan, and the documents that embodied the loan agreement, remained in effect after the parties’ settlement. The settlement released appellant and its principal from further monetary obligation to the mortgagee, but the agreement did not retain appellant as owner of the property and did not convey to appellant any right to collect monies from the tenants of the property. Since respondent, as the new owner, was the party with the true interest in the alleged past due rents and charges from Cooper, the trial court correctly substituted respondent for appellant as defendant-counterclaimant. [Decided Sept. 13, 2013.]
34-2-1348 BankUnited v. Decastro, App. Div. (per curiam) (4 pp.) Defendant Alton Decastro appeals from the order denying his application seeking to vacate plaintiff BankUnited’s final judgment in foreclosure. Decastro did not establish any basis for the court to vacate the final judgment. Decastro does not offer any facts that would lead a court to find excusable neglect; he appears to have initiated collateral proceedings in an attempt to address the foreclosure, such as the filing of a bankruptcy petition, which was dismissed. In the absence of any proffer on the issue of excusable neglect, Decastro now contends that BankUnited’s lack of standing perpetrated a fraud on the court that warrants vacating the judgment. Contrary to Decastro’s suggestion, simply because the action was not filed by the originally named mortgage holder does not deprive BankUnited of standing. BankUnited established that BankUnited, FSB was closed by the Office of Thrift Supervision and the current entity, BankUnited, lawfully acquired the assets and liabilities of its predecessor. Accordingly, the judge appropriately determined that no jurisdictional flaw existed that would make the final judgment void or unenforceable, much less a fraud. Given that Decastro has not established excusable neglect or a fraud attributable to lack of standing, there was no basis for the judge to vacate the foreclosure judgment. [Decided Sept. 17, 2013.]
34-2-1349 Cooper v. Lakehurst Presbyterian Church, App. Div. (per curiam) (8 pp.) Plaintiff appeals from the dismissal of his action seeking to compel specific performance of a real estate contract with defendant or reformation of the contract. The panel affirms, finding that it has no basis to disturb the trial judge’s credibility findings or to determine if plaintiff demonstrated the right to compel specific performance or reformation of the contract because plaintiff failed to include in the appendix to his appellate brief evidence considered by the trial judge and necessary to the review of this matter and failed to provide the transcript of the trial testimony. [Decided Sept. 17, 2013.]
35-5-1350 Bercovicz v. Township of Ocean, Tax Ct. (Sundar, J.T.C.) (16 pp.) In this challenge to the local property tax assessments for the tax years 2011 and 2013 of the single-family home owned by plaintiff, the court finds that the unadjusted sales presented by plaintiff, many of which were deemed nonusable for sales-ratio study purposes, but were not proved by plaintiff to nonetheless be usable for valuation purposes, do not equate to credible evidence that tends to prove the subject property’s fair market value and that he has therefore failed to overcome the presumptive correctness of the county board’s judgments affirming the assessments. However, because the township concedes that the property record card overstates the subject’s gross living area and incorrectly states that the subject has a partially finished basement, and the assessment for each tax year was based solely on the cost approach and that the costs were reflected on a per-square-foot basis, the court orders that the costs on the property record card be corrected and the recalculation used to reduce the assessment of the subject property. [Filed Aug. 12, 2013.]
36-2-1320 Luna v. The Estate of Marta Gonzalez, App. Div. (per curiam) (28 pp.) Plaintiffs, three surviving passengers in a fatal automobile accident, appeal from the trial court’s grant of summary judgment in favor of defendants Lakewood Township, its police department, and various officers, including Officer Joseph Prebish. The court dismissed with prejudice plaintiffs’ complaint seeking compensatory and punitive damages arising out of Prebish’s actions after he arrested the driver of plaintiffs’ vehicle less than an hour before the accident. Prebish entrusted the car keys to one of the arrestee’s companions, Marta Gonzalez, who stated she had made arrangements for the passengers of the stopped vehicle to be picked up. Instead, she drove the vehicle herself, later colliding with a pole, killing herself and injuring plaintiffs. Gonzalez had a blood-alcohol level of .092 at the time of death. The appellate panel affirms, finding the trial court did not err in concluding that Prebish was immune under the Tort Claims Act. Gonzalez was not visibly intoxicated. There was no basis to take her into custody, nor a clear basis to disbelieve her representation that a licensed driver was on the way. Nor was Prebish clearly required by any law or directive to impound the vehicle, which was in a safe place, was properly registered and insured, and, Prebish assumed, was about to be retrieved by a licensed driver. [Decided Sept. 13, 2013.]
36-2-1321 Paton v. Parrish, App. Div. (per curiam) (9 pp.) Defendant appeals from a Special Civil Part order of judgment after trial, finding him liable to plaintiff for damages she suffered in an assault. The panel affirms, concluding that, where defendant neither raised the battered person’s syndrome defense at trial nor offered any expert testimony assessing whether he suffered from it, the court did not improperly reject his battered person’s syndrome defense. The panel also declines to disturb the trial judge’s finding that defendant’s use of force was not in response to the possible attack by plaintiff or the judge’s rejection of defendant’s reliance on the defense of justifiable force since defendant’s proofs failed to satisfy the prerequisites that would justify his use of force. [Decided Sept. 13, 2013.]
36-2-1322 Rosado v. Marshall, App. Div. (per curiam) (21 pp.) In this verbal threshold case tried only on damages, defendant appeals from the entry of a $976,063.65 verdict in favor of plaintiff, and from the denial of her motion for a new trial or remittitur. The panel reverses and remands, finding that plaintiff’s counsel’s patently inappropriate statements about the defense expert in summation — suggesting, without any basis in the evidence, that the expert had rendered an opinion without reviewing the MRI studies and had been paid to lie to the jury — were clearly capable of producing an unjust result. [Decided Sept. 13, 2013.]
36-2-1351 D’Alessio v. Starland Ballroom, App. Div. (per curiam) (13 pp.) Plaintiff appeals from the grant of summary judgment in favor of defendants AEG Live NJ and Strike Force Protective Services Inc. in this personal-injury action filed after plaintiff fell and was injured when the crowd started pushing at a rock concert at the Starland Ballroom, owned by AEG. Strike Force had been hired to provide security at the concert. The panel affirms, finding that there is nothing in the record to support plaintiff’s claim that defendants knew or had reason to know that a dangerous condition existed or that defendants failed to properly protect plaintiff against such a condition where AEG took reasonable precautions to enforce it policy against unsafe crowd behavior by employing Strike Force, the band had performed at the ballroom in the past without incident, the accident occurred within a matter of seconds, and plaintiff concedes he felt safe the whole time until he got hurt. [Decided Sept. 17, 2013.]
01-7-1305 Ordner v. Commissioner of Social Security, U.S. Dist. Ct. (Chesler, U.S.D.J.) (7 pp.) Plaintiff appeals the final decision of the commissioner determining that he was not disabled under the Social Security Act. The panel vacates and remands, finding that the commissioner failed to properly evaluate the medical evidence as to plaintiff’s mental impairments and that the ALJ’s conclusion that plaintiff retains the residual functional capacity to work at jobs involving simple, repetitive tasks is not supported by the substantial evidence and that the evidence the ALJ points to, in fact, contradicts that conclusion. [Filed Aug. 9, 2013.]
01-7-1363 Rivera v. Commissioner of Social Security, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (15 pp.) Rivera appeals from the commissioner’s final administrative decision adopting the ALJ’s denial of plaintiff’s claim for Social Security Disability Insurance Benefits. The court reverses the denial and remands for further proceedings because the ALJ did not include a sufficient analysis at step three, i.e., the ALJ’s decision does not provide any analysis or comparison to any listed impairments and contains only a single conclusory statement asserting that plaintiff does not meet the requirements of any listing; the ALJ failed to properly explain whether she considered plaintiff’s subjective complaints in her decision regarding residual functional capacity; and the vocational expert’s conclusions do not comport with the earlier findings. [Filed Aug. 14, 2013.]
02-7-1324 Merrell v. Weeks Marine Inc., U.S. Dist. Ct. (Dickson, U.S.M.J.) (11 pp.) Plaintiff’s motion requires the court to determine whether plaintiff should be permitted to amend his original complaint to include a claim under the Longshore and Harbor Workers’ Compensation Act (the § 905(b) claim). Plaintiff was injured on Oct. 21, 2008, while working on defendant Weeks Marine Inc.’s vessel. In the complaint, plaintiff asserted a cause of action under the Jones Act, arguing he qualified as a “seaman” for purposes of the act. During discovery, plaintiff discovered that if he is not determined to be a seaman under the Jones Act, he may nevertheless be entitled to recovery against defendant based on his status as a “maritime employee” under § 905(b). Plaintiff did not include the § 905(b) claim in the complaint. He now seeks to amend the complaint to add the § 905 claim; however, the deadline to amend pleadings has passed. Here, plaintiff argued good cause existed because delays in discovery, the uncertainty of the applicable law, and defense counsel’s efforts to dissuade an amendment hindered plaintiff from seeking to amend earlier. The court concludes that, under the circumstances of this case, plaintiff’s neglect can be deemed excusable. The parties were always aware that plaintiff should be alternatively asserting a § 905(b) claim. There is no surprise and no prejudice to defendant in defending against this claim. In the absence of any prejudice to defendant and given the plaintiff’s reliance on the representations of defendant, the court grants the motion to amend. [Filed July 31, 2013.]
42-6-1335 In re Viola, U.S. Bank. Ct. (Kaplan, U.S.B.J.) (12 pp.) In this adversary proceeding, plaintiff, the debtor’s former spouse, seeks to establish the nondischargeability of a debt owed to her by the debtor as a result of an arbitration award and final judgment entered in her favor in a civil assault suit in state court. The court holds that the state court found that the debtor committed assault and battery against plaintiff, i.e., that his conduct was willful and malicious, in a final judgment, collaterally estopping relitigation as to the issue of damages, and because the judgment debt arises from the infliction of a willful and malicious injury, the entire debt is nondischargeable under 11 U.S.C. § 523(a)(6). [Filed Aug. 13, 2013.]
42-8-1364 Kohn v. McGuire Woods, Third Cir. (Roth, U.S.C.J.) (8 pp.) Kohn, the bankruptcy trustee of International Benefits Group, appeals from the district court’s grant of summary judgment to defendants in this action seeking to set aside as fraudulent transfers among defendants, alleging that they were made to frustrate his attempts to collect on a judgment in favor of IBG entered in its suit to recover a finder’s fee allegedly owed by defendants to IBG for its having helped defendant Haymount secure a source of funding to develop land it owned. The court affirms, finding that under Virginia law, IBG’s unsecured interest in Haymount was inferior to defendant HMezz’s recorded mortgage and, therefore, the $5 million transfer from HMezz to Haymount was not fraudulent as to IBG’s claim against Haymount; and no reasonable jury could find that, in lending Haymount $5 million, HMezz did not enter into a bona fide transaction with Haymount. [Filed Aug. 16, 2013.]
12-7-1326 Ferring Pharmaceuticals Inc. v. Watson Pharmaceuticals Inc., U.S. Dist. Ct. (Dickson, U.S.M.J.) (11 pp.) In this Lanham Act action between companies marketing competing products used for in vitro fertilization, in which plaintiff alleges that several of defendant’s advertising materials promoting its product are false and misleading and effectively paint plaintiff’s product as dangerous, ineffective and disliked by consumers, and in which plaintiff asserts statutory claims under § 43(a) of the Lanham Act, 15 U.S.C § 1125(a); unfair competition under N.J.S.A. 56:8-1 et seq, governing unconscionable trade practices; (3) common-1aw claims of unfair competition; and (4) defamation, plaintiff moves for leave to file an amended complaint added two Watson affiliates, Watson Pharma and Watson Labs. The court grants the motion, finding that defendant has not shown that plaintiff has engaged in any undue delay or dilatory tactics and the proposed amendment to add Watson Labs is not futile as plaintiff has sufficiently pleaded the elements of a Lanham Act claim against Watson Labs. [Filed Aug. 13, 2013.]
07-7-1352 Kaplan v. GreenPoint Global, U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff Leslie Kaplan filed this action against defendants GreenPoint Global and Sanjay Sharma for breach of an employment agreement. Defendants appeal from Magistrate Judge Falk’s order granting plaintiff leave to file a second amended complaint. This is a straightforward case of breach of contract and negligent misrepresentation. Judge Falk held a series of settlement conferences, but the parties’ attempts to settle the case proved unsuccessful. Plaintiff sought leave to file a second amended complaint to add new claims for wrongful termination, promissory estoppel, and negligent misrepresentation. Defendants opposed plaintiff’s request to amend, arguing that (1) the amendment would cause undue delay, (2) it was clearly futile, and (3) the negligent-misrepresentation claim duplicated the dismissed fraud claim. The court finds that Judge Falk’s decision permitting amendment was correct. Judge Falk properly applied the liberal standard governing motions to amend, and properly found that granting leave to amend would not cause undue delay, was not futile, and would not duplicate any dismissed claims. Accordingly, defendants’ appeal is denied and Judge Falk’s order is affirmed. [Filed Aug. 5, 2013.]
07-7-1365 Uddoh v. Selective Insurance Company of America, U.S. Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) Pro se plaintiff filed a complaint against defendant Selective Insurance Company of America and other defendants. No proof of service to any defendant appears on the docket. Plaintiff filed a request for entry of default against Selective, as well as other defendants. Selective then filed this motion to dismiss for insufficient service of process. Selective contends that it has never been properly served with the complaint. Plaintiff contends that he served Selective by certified mail, and that this constitutes proper and sufficient service. Selective responds that service by mail is neither sufficient under the Federal Rules of Civil Procedure, nor under New Jersey Court Rule 4:4-4, relevant here because Selective is a citizen of New Jersey. Plaintiff has not properly served Selective under any of the service provisions of the New Jersey court rules. Plaintiff has filed no affidavit demonstrating that, despite diligent effort and inquiry, personal service could not be made. New Jersey Court Rule 4:4-4(c) bars entry of default based on service by certified mail. Plaintiff’s request for entry of default against Selective is denied. Selective’s motion to dismiss the complaint for insufficient service of process is denied because it is premature. [Filed Aug. 5, 2013.]
07-7-1336 Giles v. Phelan, Hallinan & Schmieg, U.S. Dist. Ct. (Simandle, U.S.D.J.) (12 pp.) Defendants seek sanctions against plaintiffs’ counsel under Rule 11 and the court’s inherent power and against plaintiffs under Rule 11 after this action, alleging that defendants engaged in a scheme to prosecute fraudulent mortgage foreclosure lawsuits, was dismissed. The court finds that sanctions are unwarranted under Rule 11 or its inherent powers because the parties and their attorneys have not exhibited bad faith or unreasonable conduct, where the case presented several novel issues and the court addressed challenging questions of law that had not been directly answered before in the circuit, and because the court cannot impose sanctions for or infer bad faith from plaintiffs’ filing of amended complaints at the court’s direction. [Filed Aug. 14, 2013.]
46-7-1306 Mateen v. American President Lines, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (14 pp.) Plaintiff asserts that he is a religious Muslim and that when he attempted to enter the premises of American President Lines (APL), an employee prevented such entry because plaintiff was wearing a taj and had a beard. Plaintiff asserts that defendants violated his First and Fourteenth Amendments rights. Defining the APL’s action as an act of law enforcement, plaintiff seeks compensatory damages and additional damages from the employee who denied him entry and from the APL’s president. Plaintiff concedes that he is neither employed by the APL nor has or had any employmentlike or business relationship with it. Moreover, APL is a privately owned enterprise. Plaintiff’s assertions do not provide any facts indicating that the APL is acting under color of law. Plaintiff failed to meet his burden of showing that the APL is a state actor. Moreover, APL’s actions cannot fairly be attributed to the state. Finally, if the court were to hypothesize that the APL holds state-issued licenses or has to comply with state-promulgated regulations, such licenses and regulations do not transform the APL into a state actor within the meaning of the entwinement test. Plaintiff’s § 1983 challenges are dismissed for failure to meet the color-of-law requirement. In light of plaintiff’s prior litigation, plaintiff’s challenges are barred by res judicata and collateral estoppel and the dismissal is with prejudice. The court declines to exercise supplemental jurisdiction over the state law claims. [Filed July 31, 2013.]
46-7-1337 Catlett v. New Jersey State Police, U.S. Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Plaintiff, pro se, brings this suit alleging constitutional and common-law tort claims against the Vineland Police Department (VPD), Vineland Emergency Medical Service (VEMS), several named New Jersey State Police (NJSP) troopers, Vineland police officers and emergency medical technicians (EMTs), a nurse, a doctor, a medical center, and other unidentified individuals. Plaintiff claims she was tortiously and unconstitutionally detained by police and medical professionals and was administered unwanted medical treatment on suspicion that she was suicidal. Before the court is plaintiff’s motion to amend her complaint. The motion is denied as to all constitutional false-imprisonment claims and state law claims against defendants VPD and VEMS and as to all § 1983 and NJCRA claims against defendants Diorio, Stavoli and SJH. Plaintiff’s motion to amend is granted with respect to all other claims. [Filed July 31, 2013.]
46-7-1353 Hibbert v. Bellmawr Park Mutual Housing Corporation, U.S. Dist. Ct. (Schneider, U.S.M.J.) (9 pp.) Defendants filed a joint motion to amend/correct discovery asking for leave to supplement their discovery responses and to redepose plaintiff. Plaintiff is deaf and communicates through sign language. Plaintiff alleges that he was unlawfully evicted and forced to move out of his home, where defendant Bob McCormick now lives. Plaintiff alleges that defendants “took advantage of his disability and engaged in some sort of scheme to acquire his property.” Defendants contend Hibbert knowingly and voluntarily sold his home to McCormick. Until recently McCormick represented himself. Joseph Feeney, Esq., entered his appearance for McCormick on May 3, 2013. Feeney sent a request for public records to the Maine Human Rights Commission regarding three claims plaintiff made. Feeney received the documents on July 1, 2013, and produced them to plaintiff on July 3, 2013. The documents include 750 pages related to Hibbert’s discrimination complaints in Maine. Feeney also produced additional documents on July 9, 2013, regarding Hibbert’s real estate transactions in Maine. Defendants seek to supplement their discovery responses to include these documents. Hibbert’s failure to produce relevant and requested discovery excuses defendants’ late document production. Further, Hibbert should not benefit from his failure to produce discovery and is not prejudiced by defendants’ supplement. Defendants’ motion is granted. [Filed Aug. 1, 2013.]
46-7-1338 Gaymon v. Sheriff’s Officer Esposito, U.S. Dist. Ct. (Linares, U.S.D.J.) (49 pp.) Defendants — Essex County Sheriff’s Office, the sheriff, and several individual sheriff’s officers — move to dismiss plaintiff’s second amended complaint in this 42 U.S.C. § 1983 action filed after Defarra I. Gaymon was shot and killed by a sheriff’s officer in a Newark park. Defendants’ motions are granted in part and denied in part. The court holds that plaintiffs may filed a third amended complaint solely to omit those claims and corresponding facts that have been dismissed with prejudice, including the § 1983 claim of failure to train and/or supervise against the supervisory officers in their official and individual capacities, the ECSO and the county; replead those claims that the court has allowed to proceed at this time; and cure the pleading deficiencies in counts one and three, in particular, plaintiffs may amend count one to include a specified statement so to state a viable claim of excessive force under § 1983 against Esposito, and plaintiffs may amend count three to include any and all relevant facts they wish to use to substantiate their Monell claim. [Filed Aug. 16, 2013.]
46-7-1367 Perez v. Elizabeth Police Dep’t, U.S. Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) In this action alleging that police violated plaintiff’s rights during their search of her apartment and they subsequently submitted false and defamatory statements about her in connection with a forfeiture process, the court grants defendants’ motion to dismiss the 42 U.S.C. § 1983 claim because it was filed beyond the applicable two-year statute of limitations period, and their motion to dismiss the defamation claim because it was filed beyond the applicable one-year limitations period. [Filed Aug. 14, 2013.]
10-7-1327 Romsted v. Rutgers, The State University of New Jersey, U.S. Dist. Ct. (Shipp, U.S.D.J.) (9 pp.) This matter arises from a fundraising event held by a Rutgers University student group. The group was previously known as Belief Awareness Knowledge Activism: Students United for Middle Eastern Justice (BAKA), and is now known as Students for Justice in Palestine (SJP). Plaintiffs are donors dissatisfied with the chosen recipient of the funds raised. At the time their donations were made to BAKA, individuals attending the event were informed that a beneficiary had yet to be determined and the donations would be held. Plaintiffs allege that Rutgers has a policy that fundraising by its student organizations must be for a lawful purpose and that this policy violates the First and Fourteenth Amendments. However, plaintiffs have failed to allege how a Rutgers policy designed to limit the actions of its student organizations constitutes a cognizable injury to them. Plaintiffs fail to state a claim as to how the agreed-on holding of the funds until a beneficiary is determined constitutes a restriction on speech. Plaintiffs have not alleged a sufficiently personal injury-in-fact to satisfy Article III standing as their speech is not being regulated by defendants. The donations implemented plaintiffs’ choice to donate to an entity selected by BAKA. Any injury plaintiffs incurred is “self-inflicted harm” not fairly traceable to defendants. The student organization exercised its freedom of speech rights by donating to a different entity; the prudential standing rule acts to prohibit third-party standing in this case. Plaintiffs’ complaint is dismissed without prejudice. [Filed July 31, 2013.]
11-7-1339 Gloucester Township Housing Authority v. Franklin Square Associates, U.S. Dist. Ct. (Bumb, U.S.D.J.) (20 pp.) Plaintiff Gloucester Township Housing Authority (GTHA) brings this action seeking a declaration of its rights and obligations under a three-party contractual relationship with defendants Franklin Square Associates and the Department of Housing and Urban Development (HUD). The court has sua sponte raised the question of whether it has subject-matter jurisdiction. The court finds it has jurisdiction over the claims against HUD and the claims between Franklin and GTHA. GTHA’s claims and Franklin’s counterclaims against HUD are all contingent on a finding that the housing assistance payment contract (HAP contract) between GTHA and Franklin has been breached. The court exercises jurisdiction over all claims in this action, reopens HUD’s pending motions to dismiss, and dismisses them without prejudice as premature. [Filed Aug. 2, 2013.]
15-7-1340 Billings v. TD Bank NA, U.S. Dist. Ct. (Simandle, U.S.D.J.) (19 pp.) Defendant TD Bank filed a motion to dismiss this action that arises out of a credit-card agreement between plaintiff and defendant TD Bank. The complaint was based on defendant’s use of an incorrect address for plaintiff and defendant’s imposition of late fees, which were rescinded. Plaintiff asserts claims for negligence, violations of New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA) and the Federal Truth in Lending Act (TILA), and breach of fiduciary duty. The court grants defendant’s motion because (1) plaintiff failed to provide sufficient facts to support his negligence claim and to show that his alleged damages were reasonably foreseeable; (2) plaintiff failed to allege sufficient facts supporting his claim that defendant violated the TCCWNA and the TILA; and (3) plaintiff failed to demonstrate that defendant TD Bank, as creditor, owed a fiduciary duty to plaintiff, as borrower. Plaintiff’s TCCWNA and TILA claims are dismissed without prejudice and all remaining claims are dismissed with prejudice. [Filed Aug. 1, 2013.]
15-7-1354 Obarski v. Client Services Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) Obarski brings this action against defendant Client Services Inc. alleging violations of the Fair Credit Reporting Act (FCRA). Client Services is a third-party debt collector that contacted Obarski to demand payment of a delinquent account. Obarski learned that Client Services had made a hard inquiry, essentially a credit check, with credit-reporting agencies (CRAs) that negatively affected his credit rating. In Count I of the amended complaint, Obarski claims that Client Services violated 15 U.S.C. § 1681(b) by running a hard inquiry without a “permissible purpose.” The FCRA provides that credit reports may be obtained for specified purposes; one such purpose is the review or collection of an account of the consumer. In its prior opinion, the court dismissed Obarski’s claim under 15 U.S.C. § 1681(b) because it was conclusory. As that claim remains conclusory, the court dismisses Count I with prejudice. In Count II, Obarski claims that Client Services violated 15 U.S.C. § 1681s-2(b), which provides a private right of action only where a plaintiff alleges that 15 U.S.C. § 1681i(a)(2) has been satisfied. If a consumer disputes his credit report with a CRA, § 1681i(a)(2) provides that the CRA must, within five days, provide notice of the dispute to any person who provided the CRA with information. Obarski does not allege that Client Services provided CRAs with information and he does not allege that any CRA provided Client Services with the required notice. As Obarski has not alleged that § 1681i(a)(2) has been satisfied, he lacks a private right of action under § 2(b). The court dismisses Count II without prejudice. [Filed Aug. 5, 2013.]
14-7-1343 Aruanno v. Johnson, U.S. Dist. Ct. (Martini, U.S.D.J.) (6 pp.) On remand from the Third Circuit, which reversed the district court’s dismissal of plaintiff’s amended complaint as to his claim of access to the courts, where he had alleged that he had obtained a remand involving his criminal conviction but that defendant-state corrections personnel had refused to take him to court for the hearing, resulting in a dismissal, the district court reopens the matter and dismisses for lack of actual injury because the electronically available opinion of the Appellate Division of the New Jersey Superior Court establishes that the Law Division judge dismissed the remanded criminal case on the merits, not because defendants had refused to take plaintiff to court. [Filed Aug. 14, 2013.]
16-7-1308 Paris v. Pennsauken School Dist., U.S. Dist. Ct. (Hillman, U.S.D.J.) (16 pp.) Defendants Pennsauken School District and Pennsauken Board of Education move to vacate the clerk’s entry of default and plaintiffs move for default judgment as to all defendants in this action filed by the only black teacher at the Baldwin School, alleging that she suffered harassment and retaliation as a result of her participation in an investigation of another teacher for abusing children in her class, and asserting claims for, inter alia, violation of Title VII of the Civil Rights Act of 1964, common-law negligence, defamation and harassment. The court grants the motion to set aside the entry of default, finding no prejudice to plaintiffs in doing so; that the default was not due to defendants’ culpable conduct where, inter alia, the summons and complaint were served shortly before winter vacation and then the person responsible for contacting defendants’ counsel was absent due to a bout of influenza and once counsel was retained, it promptly attempted to contact plaintiff but could not because her voicemail message box was full; and that there is a strong presumption against judgment by default and in favor of trial on the merits. Given the determination that good cause exists to grant the Pennsauken School defendants’ motion to vacate the clerk’s entry of default, the court denies plaintiffs’ request for a default judgment to be entered against named individual defendants. Plaintiffs’ request for Rule 11 sanctions against all defendants is denied. [Filed Aug. 9, 2013.]
23-7-1309 DeMaria v. Horizon Healthcare Services Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Plaintiffs bring this putative class action on behalf of themselves and other similarly situated chiropractic physicians. Before the court is Horizon’s motion to dismiss plaintiffs’ first amended complaint (FAC) for failure to state a claim. The court dismissed plaintiffs’ original complaint without prejudice based on plaintiffs’ failure to demonstrate standing to bring federal claims under the Employee Retirement Security Income Act of 1974 (ERISA). Here, Horizon asserts that plaintiffs have still not met their burden of establishing ERISA standing, and have also failed to establish harm sufficient to confer them with Article III standing. The court finds plaintiffs have now pleaded sufficient facts to establish ERISA standing; the FAC contains specific factual allegations demonstrating that the assignments they received from the plan participants conferred plaintiffs with the right to receive the full benefits of those plans. It follows that they have pleaded sufficient facts demonstrating they have stepped into the shoes of their patient beneficiaries to ensure that Horizon performs its obligations. Also, plaintiffs’ FAC alleges injury to plaintiffs sufficient to confer Article III injury-in-fact standing. Horizon’s motion to dismiss for lack of standing is denied. The court also denies Horizon’s motion to dismiss plaintiff’s § 502 (a)(3) claim where plaintiffs explicitly seek unpaid benefits, and interest back to the date their claims were submitted. The court also denies Horizon’s motion to dismiss plaintiffs’ state law claims for failure to exhaust administrative remedies; plaintiffs have sufficiently pleaded that Horizon’s internal appeals process would have been futile. [Filed July 31, 2013.]
53-7-1310 Shire v. Amneal Pharmaceuticals, U.S. Dist. Ct. (Chesler, U.S.D.J.) (36 pp.) In these Hatch-Waxman actions for patent infringement involving 18 patents owned by plaintiff relating to certain amphetamine compounds and treatment methods, including L-lysine-d-amphetamine and lisdexamfetamine dimesylate, marketed as the drug Vyvanese, in which the parties have applied for claim construction, the court adopts plaintiffs’ proposed constructions in part, adopts defendants’ proposed constructions in part, and in part adopts neither. [Filed Aug. 8, 2013.]
53-7-1328 Nike Inc. v. Eastern Ports Custom Brokers Inc., U.S. Dist. Ct. (Dickson, U.S.M.J.) (11 pp.) In this Lanham Act trademark infringement action alleging that defendant Eastern Ports imported, distributed and transported, or assisted in importing, distributing and transporting counterfeit shoes bearing plaintiff’s trademarks, plaintiff seeks leave to file an amended complaint to name additional defendants, Ocean International Inc.. and City Ocean Logistics Co., Ltd. The court grants the motion, finding that plaintiff has demonstrated sufficient good cause to justify amending the pretrial scheduling order to permit it to seek to amend the complaint past the original deadline; plaintiff’s delay in seeking to amend the complaint was not undue; amendment will not prejudice the proposed additional defendants; and the claims to be asserted against the additional defendants are not futile. [Filed Aug. 13, 2013.]
25-7-1311 Chazanow v. Sussex Bank, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (10 pp.) In this action arising out of an employment contract and a consulting agreement between plaintiff and Sussex Bank, in which the court dismissed the second and third amended complaints based on deficiencies in plaintiff’s fraud claim, defendant Kovach, a member of the bank’s board of directors, moves to dismiss the fourth amended complaint, which alleges fraud against him. The court grants the motion with prejudice, finding that it is based on the same general set of facts contained in the prior amended complaints and therefore does not sufficiently allege that defendant made a material misrepresentation of fact during the negotiation of the agreements to satisfy Rule 9(b)’s heightened pleading standard, plaintiff has failed to show that defendant knew or otherwise believed that his alleged statements were false, and plaintiff has failed to allege reasonable reliance based on the express terms of the contracts and his own admissions. Moreover, the court finds that the express terms of the consulting agreement bar plaintiff’s fraud claim. [Filed Aug. 9, 2013.]
25-7-1341 Henson v. U.S. Foodservice Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (8 pp.) Plaintiff moves to consolidate this action — alleging that defendant interfered with, and terminated him in retaliation for exercising, his rights under the Family and Medical Leave Act and that he was subjected to a hostile work environment and was terminated for discriminatory reasons in violation of the New Jersey Law Against Discrimination — with Moore v. U.S. Foodservice Inc., which involves termination issues under the FMLA and the NJLAD against the same employer. Both plaintiffs are black and are represented by the same attorneys. The court denies the motion to consolidate, finding that the claims involve fact-intensive examination of each individual’s termination and only Henson asserts a hostile work environment claim, and, thus, individual questions predominate and the risk of prejudice and confusion outweighs any potential benefits of consolidation. [Filed Aug. 16, 2013.]
25-7-1355 Gretzula v. Camden County Technical Schools Bd. of Educa., U.S. Dist. Ct. (Simandle, U.S.D.J.) (33 pp.) In this action asserting claims for, inter alia, violation of Title VII, the Americans With Disabilities Act, and for intentional infliction of emotional distress (IIED) against defendant Monillas, her former supervisor, and defendant board, her former employer, the court grants defendants’ partial motion to dismiss. Plaintiff’s Title VII and ADA claims against Monillas will be dismissed with prejudice because the court concludes that those statutes do not provide for individual liability, even when the individual is sued in his official capacity. Plaintiff’s § 1983 claim against the board will be dismissed without prejudice because the board is not vicariously liable for Monillas’ actions under § 1983 and plaintiff has not identified any board policy or custom that caused her injuries. Plaintiff’s IIED claim will be dismissed with prejudice because the New Jersey Tort Claims Act bars damages for pain and suffering unless the plaintiff suffered a permanent injury and more than $3,600 in medical expenses. Defendants’ motion for more definite statement will be denied because plaintiff’s complaint is intelligible. [Filed Aug. 14, 2013.]
25-7-1312 D’Annunzio v. United of Omaha Life Insurance Company, U.S. Dist. Ct. (McNulty, U.S.D.J.) (17 pp.) This matter is before the court on cross-motions for summary judgment regarding the interpretation of a group insurance policy issued by defendant United of Omaha Life Insurance Company to D’Annunzio & Sons Inc. (D&S), a close corporation owned by plaintiff Joseph D’Annunzio and his three brothers. D&S has an employee welfare benefit plan that is funded by the policy. D’Annunzio, who is disabled, is qualified to and does receive long-term disability (LTD) benefits under the plan and the policy. The policy, however, requires that LTD benefits be reduced by the amount of “other income benefits.” The issue presented is: Do monthly payments made to D’Annunzio under an income continuation agreement constitute “other income benefits,” as defined in the policy, which must be offset against the LTD benefits due to D’Annunzio? As claim administrator of the plan, United answered that question in the affirmative and reduced D’Annunzio’s LTD benefits accordingly. The policy grants United the authority to interpret the terms of the policy. United’s decision must be upheld if it is supported by substantial evidence, and it can be overturned only if it was arbitrary and capricious. The court holds that no reasonable fact finder could conclude that United’s interpretation was arbitrary and capricious. Defendant’s motion for summary judgment is therefore granted, and plaintiff’s motion for summary judgment is denied. [Filed July 30, 2013.]
04-7-1356 First Mercury Ins. Co. v. Markowitz, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (9 pp.) Plaintiff, in the business of supplying legal-malpractice insurance to attorneys, filed this action seeking a declaration that it had no obligation to provide coverage for Jay Markowitz, Esq., in the underlying action in which Jimmy Masarwa alleged that he and his real estate company were induced to enter into a fraudulent real estate scheme and that Markowitz committed malpractice in his representation of Masarwa in the real estate transaction. First Mercury withdrew its defense of Markowitz in that action, which subsequently ended in a consent judgment, with Markowitz assigning it rights against First Mercury to Masarwa. Plaintiff moves to dismiss the two counterclaims filed by Masarwa alleging that First Mercury breached Markowitz’s policy by denying coverage for the underlying action and seeking recovery from First Mercury for the payment of the consent judgment entered into by Markowitz and Masarwa. The court finds that since both New Jersey and New York law allow for consent judgments that assign an insured’s interests against an insurer to a third party, there is no conflict of laws and New Jersey law will be applied. Applying New Jersey law, the court denies the motion to dismiss the counterclaims, finding that First Mercury failed to prove, at the motion-to-dismiss stage, that the consent judgment is unenforceable as a matter of law. [Filed Aug. 14, 2013.]
04-7-1313 Welch v. Social Security Administration, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (3 pp.) Applying the factors in Parham v. Johnson, the court grants plaintiff’s application for the appointment of pro bono counsel in his challenge to the denial of Social Security benefits, noting the plaintiff’s application in forma pauperis has been granted, he is blind and disabled and therefore will likely be unable to articulate his legal claims and supporting facts, the legal and factual issues in his Social Security action may be complex and therefore he may have difficulty in obtaining and analyzing medical information or other relevant evidence and there may be a need to examine medical expert testimony at some point during the duration of the proceedings. [Filed Aug. 9, 2013.]
34-7-1314 Smalls v. Riviera Towers Corp., U.S. Dist. Ct. (Chesler, U.S.D.J.) (6 pp.) Pro se plaintiff, a black woman and a former shareholder and tenant of Riviera Towers, a co-op in West New York, filed this action alleging, inter alia, race and gender discrimination and violation of the Fair Housing Act in connection with her eviction after she fell behind in her monthly maintenance costs, a default judgment was entered against her in state court, and RTC changed the locks on her apartment after she failed to satisfy the judgment. The court grants defendants’ motions to dismiss without prejudice because plaintiff has failed to state which of the 14 causes of action she asserts are against which of the 12 named defendants — and the court is unwilling to merely assume that she intends to assert every cause of action against each of the moving defendants — and thus defendants have not been given fair notice of the allegations against them. [Filed Aug. 9, 2013.]
36-7-1329 Safar v. Cox Enterprises Inc., U.S. Dist. Ct. (Linares, U.S.D.J.) (11 pp.) Defendant moves for summary judgment in this action arising out of a slip-and-fall incident at defendant’s Manheim Auto Auction facility in Newburgh, N.Y., and asserting claims for negligence and loss of consortium. The court denies the motion, declining to disregard the testimonial evidence that the floor where plaintiff fell was wet or slippery in favor of video evidence that it finds neither confirms nor excludes the possibility of wet conditions and concluding that a reasonable trier of fact may find that a dangerous condition existed on the floor. Further, a reasonable trier of fact may find that defendant had constructive notice of a dangerous condition on the floor since it had been raining prior to plaintiff entering the building, two witnesses assert that the floor was wet, and floor mats were placed by three of the four entrances to the lobby, but not by the entrance used by plaintiff. [Filed Aug. 12, 2013.]
36-7-1357 Cathcart v. Columbia University, U.S. Dist. Ct. (Dickson, U.S.M.J.) (6 pp.) In this action alleging that defendant Penguin Group (USA) Inc. defamed plaintiff by publishing a book containing statements that implicate plaintiff in the death of Malcolm X, in which the court dismissed the complaint without prejudice, the court denies plaintiffs’ motion to amend the complaint to better describe the alleged defamatory conduct, i.e., the failure to fact-check the statements in the book. The court denies the motion to amend because amendment would be futile where plaintiffs do not rebut Penguin’s contention that the defamation claim is barred by the statute of limitations and that the claims of intentional infliction of emotional harm and loss of consortium, which are derivative, are therefore also barred. Nor do plaintiffs rebut Penguin’s contention that it has no duty to independently fact-check a nonfiction work. [Filed Aug. 14, 2013.]
36-7-1342 Zambrana v. Brzozwski, U.S. Dist. Ct. (Chesler, U.S.D.J.) (2 pp.) In this dispute over negligence liability arising from an auto accident, defendant moves for summary judgment on the ground that plaintiff has no evidence of a permanent injury caused by the accident and thus fails to meet the verbal threshold for suit. The court denies the motion, finding that the certification of permanent injury by a chiropractor submitted by plaintiff constitutes sufficient evidence to allow a jury to find in her favor at trial and thus she has shown a disputed factual issue sufficient to defeat the motion for summary judgment. [Filed Aug. 12, 2013.]
38-7-1368 Jake Ball Trust v. Durst, U.S. Dist. Ct. (Simandle, U.S.D.J.) (19 pp.) This matter arises out of defendant Matthew Durst’s action as trustee on behalf of the Jake Ball Trust. Defendant argues that plaintiffs Steven Durst and Reuben Durst should be collaterally estopped from arguing two issues: the value of a certain property held by the trust and the fairness of a settlement entered into by Matthew on behalf of the trust in a prior state court matter. Plaintiffs argue collateral estoppel is inapplicable because they were not parties to the prior state court litigation and the issues to be litigated in this case are not identical to the issues litigated in the state court. The court grants Matthew’s motion for partial summary judgment. Steven and Reuben are precluded from arguing that the settlement of Durst v. Goodmill, heard in the Superior Court of New Jersey, Cumberland County Chancery Division, was unfair to the trust or that the settlement undervalued certain property. The fairness of the settlement and the value of the property are at issue in this case and identical to the issues resolved by the chancery court. These issues were actually litigated in the prior proceeding and the chancery court issued a final judgment enforcing the settlement finding it was fair to the trust and properly valued the property. The determination of these issues was essential to the final judgment of the chancery court. Steven and Reuben were parties to the proceeding as they fully litigated their claim seeking to invalidate the settlement and participated de facto as intervenors who would also have been beneficiaries of a favorable judgment. Therefore, collateral estoppel applies to bar relitigation of the fairness of the settlement and the value of the property. [Filed Aug. 6, 2013.]