STATE COURT CASES
ADMINISTRATIVE LAW — CIVIL SERVICE COMMISSION
01-2-1369 In the Matter of Miller, App. Div. (per curiam) (10 pp.) Appellant, a corrections sergeant at Northern State Prison, appeals from the final decision of the Civil Service Commission upholding a 30-day suspension without pay imposed by the Department of Corrections after she was found to have failed to tour the University of Medicine and Dentistry, where an inmate was housed, as required by her post orders. Noting the deference given to an agency’s expertise, the panel affirms, holding that the administrative law judge’s findings and conclusions, which the commission adopted, are fully supported by substantial credible evidence in the record, and the penalty imposed is entirely appropriate in light of Miller’s misconduct. [Decided Sept. 19, 2013.]
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION
03-2-1419 Chakrala v. Bansal, App. Div. (Nugent, J.A.D.) (14 pp.) This appeal involves a dispute between doctors in a medical practice. Defendant filed a Law Division action to confirm in part, modify in part, and vacate in part the arbitration awards issued by the American Arbitration Association (AAA). The court dismissed her action and she appealed. Defendant first challenges the court’s decision that the New Jersey Uniform Arbitration Act (NJUAA), not the Federal Arbitration Act (FAA), applies to the arbitration award. She acknowledges that the court’s 2008 order compelling arbitration as authorized by the NJUAA was final, but insists her 2011 complaint concerning the AAA award is a separate and unrelated action. Defendant did not appeal from the court’s order compelling arbitration pursuant to the NJUAA. She had a full and fair opportunity to contest and litigate the applicability of the NJUAA to her dispute in the 2008 action. Thus, she is precluded from re-litigating the issue in the 2011 action. Defendant also contends the court’s determination that the FAA did not apply to the AAA award violated the Supremacy Clause, because the FAA pre-empts state statutes that invalidate arbitration agreements. The appellate panel disagrees. The NJUAA provides for the enforcement of arbitration agreements. The statute is congruent with, not antithetical to, the FAA. The NJUAA is not pre-empted by the FAA. The panel affirms, finding the trial court properly determined the NJUAA, not the FAA, controlled the parties’ dispute about the arbitration award. [Decided Sept. 24, 2013.]
CIVIL PROCEDURE
07-2-1370 Schwarzwaelder v. Hoak, App. Div. (per curiam) (9 pp.) Steven Hoak and Elite Producers Group Inc. appeal from an order denying reinstatement of a matter dismissed without prejudice approximately four years earlier. The dismissed action was one of at least two proceedings now pending involving Hoak, Elite, plaintiff Douglas Schwarz-waelder, Tyrone Clark, and Brokers Choice of America Inc. It is not clear from the record that all the relevant parties were served with the application to reinstate, only Schwarzwaelder appeared in opposition to it, and only Schwarzwaelder has responded to the appeal. All the named plaintiffs were originally represented by one attorney, who, in 2008, entered into a settlement and stipulation of dismissal with the named defendants. The stipulation was signed only by plaintiffs’ attorney and counsel for the named defendants. It is unclear why the matter, if settled, was dismissed without prejudice. The judge’s determination that too much time had passed for the matter to be reopened did not include findings of fact and conclusions of law and the record does not otherwise establish whether all the necessary parties were served or explain parallel litigation. Moreover, the facts are very much in dispute, legal issues may result from the stipulation of dismissal having been made without prejudice, and the entire-controversy doctrine may be applicable. This matter is reversed and remanded for reconsideration of the motion on proper notice to interested parties and issuance of a decision that complies with Rule 1:7-4(a). [Decided Sept. 19, 2013.]
CONTRACTS
11-2-1371 Midway Glass & Metal Installers Inc. v. Construction Co-Ordinators, App. Div. (per curiam) (12 pp.) In this breach-of-contract dispute, third-party defendants Michael Foti and L&F Fitness seek to overturn a judgment for $6,678.80, plus costs, entered against them in favor of third-party plaintiff Construction Co-Ordinators (CC) after a one-day trial in the Special Civil Part. Foti, an accountant by profession, is the owner of L&F. The appellate panel affirms the trial court’s determinations on liability and damages as to L&F, but reverses the court’s imposition of personal liability on Foti. There was no adequate basis in the trial record to pierce the corporate veil of L&F to impose personal liability on Foti. There is no document in which Foti personally guaranteed payment. Neither fraud nor inadequate capitalization of L&F were alleged or substantiated by CC. [Decided Sept. 19, 2013.]
11-2-1404 Keith v. Liberty Harbor Marina and Dry Dock Inc., App. Div. (per curiam) (8 pp.) Keith appeals from the involuntary dismissal of his claims against Liberty Harbor Marina and Dry Dock Inc. and a judgment against him on the marina’s counterclaim for an outstanding boat storage charge. After Keith fell at the marina, the marina’s insurance carrier assigned the matter to the Walter Nixon Group, an independent adjusting company. Michael Walters conducted the investigation. Walters learned that plaintiff’s boat remained at the marina and there was an outstanding boat storage charge. Based on his communications with plaintiff’s attorney and the marina’s chief financial officer, Walters thought the parties reached a settlement agreement. Plaintiff’s complaint sought enforcement of the alleged settlement agreement, the release of his boat, and compensation “for any damage.” The marina denied that it agreed to accept $10,000 in full settlement of plaintiff’s outstanding boat storage charge, and counterclaimed for the full amount of the unpaid storage charge. A conclusion that Walters acted with apparent authority must be based on the conduct of the marina and, as the trial court correctly concluded, the marina never agreed to compromise its claim for the unpaid storage charge, it never authorized Walters to settle its claim, and there was no evidence that the marina misled plaintiff into believing Walters was authorized to settle its storage charge claim. Walters merely conveyed plaintiff’s settlement offer to the marina. The record supports the trial court’s determination that there was no settlement agreement to enforce. [Decided Sept. 23, 2013.]
11-2-1429 P.J. Smith Electrical Contractors Inc. v. North Plainfield Bd. of Educa., App. Div. (per curiam) (22 pp.) Defendant awarded three contracts to D&D Associates Inc. to complete construction work on a project to renovate and expand five of its schools. American Motorists Insurance Company posted performance and payment bonds for each of D&D’s contracts. Smith was contracted to complete electrical work. Eventually, defendant terminated D&D and entered into two takeover agreements with AMIC under which AMIC agreed to assume the obligations and liabilities of D&D. Smith filed this breach-of-contract action alleging that D&D’s delays caused it to incur $800,000 in costs and expenses and that the board breached its contractual obligation by failing to enforce its agreements with D&D and by actively interfering with Smith’s ability to perform. The board filed a third-party complaint seeking indemnification from AMIC, which was dismissed. The panel affirms the denial of indemnification from AMIC, finding that (1) the lack of any express provision in the takeover agreements obligating D&D to defend and indemnify the board against allegations of the board’s own fault means the “default rule” applied to supply the contract’s missing terms and the board may not recover defense costs incurred in defending allegations that it breached its contract with Smith; and (2) under the circumstances of this case, the board was not entitled to indemnification pursuant to the principles in Central Motors. The panel also affirms that denial of the board’s motion for attorney fees and costs under the frivolous-litigation statute because it cannot conclude that Smith acted in bad faith. The panel affirms the denial of the board’s request for litigation costs on the ground that Smith breached a covenant in the contract barring any suit for delay damages, finding that the board failed to assert the claim in its pleading and because the project specification specifically limited Smith’s remedy unless a delay was caused by acts of the board constituting active interference, which Smith alleged. [Decided Sept. 25, 2013.]
CRIMINAL LAW
14-2-1393 State v. R.D., App. Div. (per curiam) (15 pp.) Defendant’s convictions for, inter alia, sexual assaults on his daughter while she was under the age of 13, aggravated assault of his daughter while she was under the age of 13, and terroristic threats to her if she disclosed the sexual abuse are affirmed. The panel remands for resentencing because the trial judge did not make entirely clear which sentences on which counts of the indictment were intended to be consecutive rather than concurrent, did not amplify why the consecutive sentences he imposed were justified under the factors in Yarbough, and did not specify and explain the “gap time” and jail credits to which defendant may be entitled. [Decided Sept. 20, 2013.]
14-2-1410 State v. Cintron, App. Div. (Accurso, J.A.D.) (16 pp.) A jury found defendant guilty of second-degree aggravated assault, third-degree assault by auto while intoxicated, and fourth-degree assault by auto while intoxicated. The appellate panel finds that no claim of error warrants reversal of defendant’s conviction for second-degree aggravated assault. Because of errors in the jury charge, the panel reverses defendant’s convictions of third-degree and fourth-degree assault by auto and remands for further proceedings on those charges. [Decided Sept. 23, 2013.]
14-2-1411 Watley v. Shaler, App. Div. (per curiam) (6 pp.) Plaintiff Louis Watley appeals from the trial court’s order dismissing his complaint against defendant, whom he retained as a testimonial expert in a postconviction relief (PCR) hearing. Plaintiff asserted he was fraudulently induced to retain defendant, who then testified contrary to his prehearing assurances, failed to testify truthfully, and failed to protect plaintiff’s interests. Plaintiff asserts that, as a result of defendant’s testimony, plaintiff failed to secure PCR, and he was incarcerated for four more years. The appellate panel affirms the trial court’s finding that defendant was shielded by the litigation privilege. [Decided Sept. 23, 2013.]
14-2-1436 State v. Salladino, App. Div. (per curiam) (13 pp.) A grand jury indicted defendant for third-degree theft of movable property, and third-degree possession of a Schedule II controlled dangerous substance (Oxycodone). Prior to the trial, the court granted defendant’s motion to suppress the Oxycodone seized from him during a warrantless search. The state’s motion to appeal from that order was granted. The judge found, and the state concedes, that under the totality of the circumstances the seizure of the “hard bulge” from somewhere on defendant’s person exceeded the permissible scope of a Terry search for weapons and was thus unlawful. The appellate panel agrees that the search was illegal. Nevertheless, the state argues that the evidence was still admissible because its discovery was inevitable when defendant was searched after being arrested for the robbery. The state presented clear and convincing evidence that defendant would have been arrested, wholly independently of the discovery of the pills by unlawful means, and the pills would have been discovered in defendant’s possession during a search incident to arrest. Consequently, as the evidence would inevitably have been discovered without the police misconduct, it was admissible and the motion to suppress was erroneously granted. The appellate panel reverses and remands. [Decided Sept. 25, 2013.]
FAMILY LAW
20-4-1372 Joiner v. Orman. Ch. Div., Family Part — Essex Co. (Rosenberg, J.S.C.) (12 pp.) Defendant moves to dismiss plaintiff’s palimony complaint, arguing that the action is barred by the 2010 amendment to the Statute of Frauds, which requires a writing memorializing palimony agreements and independent advice of counsel for each party in advance of executing any such agreement. The issue is whether plaintiff’s claim for palimony, filed after the effective date of the amendment, is enforceable, even though the alleged agreement was never reduced to writing and neither party sought independent counsel. Plaintiff argues that defendant’s oral promise for support is enforceable based on partial or full performance. The evidence supports a finding that the parties had an express agreement. The parties had an oral agreement to reside and work together in a marital-type relationship. Plaintiff relied on defendant’s promises and support for 39 years, raised four children, and provided companionship and homemaking. The court finds plaintiff fully performed her part of the bargain. There is no way to quantify the value of the services plaintiff provided, much less the value of foregone educational and work opportunities. Moreover, defendant does not deny the agreement and acknowledged the obligation by deeds and words. The court holds that the partial or full performance exception can remove oral palimony agreements from the statute of frauds and further finds the facts here satisfy plaintiff’s claim. [Decided Aug. 8, 2013.]
20-2-1373 Salama v. Salama, App. Div. (per curiam) (17 pp.) Plaintiff appeals from a Family Part order that entered an amended dual judgment of divorce (ADJD) incorporating an oral settlement and a Family Court order that denied her motion for reconsideration and to vacate the settlement and ADJD. The panel affirms, finding no reasons to disturb the judge’s appropriate exercise of discretion in denying the motion for reconsideration. The settlement placed on the record constitutes the parties’ agreement, as it continued the essential terms of the settlement and, therefore, the written document that fleshed out the verbal agreement is enforceable as plaintiff did not timely object and it does not change the basic agreement. Further, plaintiff’s unsupported certification, including her completely uncorroborated claims of fraud and coercion, were not sufficient to warrant either an order in her favor or a hearing to resolve a factual dispute. [Decided Sept. 19, 2013.]
20-2-1386 B.S. v. R.L., App. Div. (per curiam) (8 pp.) Defendant appeals from a July 12, 2012, final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act. The appellate panel concludes that the judge made insufficient findings regarding whether the FRO was needed to protect plaintiff or prevent harm. Although the judge stated that two telephone calls on July 4, 2012, do “not necessarily preclude a conclusion that [plaintiff] was in fear,” the judge did not sufficiently find that the FRO was necessary to protect plaintiff from an immediate danger or to prevent further abuse. The panel remands for the judge to make the requisite findings of fact and conclusions of law regarding whether the FRO was necessary to protect plaintiff from an immediate danger or to prevent further abuse. [Decided Sept. 20, 2013.]
20-2-1387 Giorgianni v. Giorgianni, App. Div. (per curiam) (6 pp.) Defendant-mother relocated from South Carolina to New Jersey with the parties’ child in August 2010. The South Carolina court allowed her to relocate after determining that New Jersey was the original home state of the parties and both sets of grandparents reside in New Jersey. Plaintiff-father appeals from the Oct. 12, 2012, order denying his application to transfer jurisdiction of custody matters to New Jersey and dismissing his complaint seeking a transfer of jurisdiction to New Jersey. The mother and child had lived in New Jersey for more than two years and the father had lived in New Jersey for more than one year at the time the trial court denied plaintiff’s application to transfer jurisdiction to New Jersey. Furthermore, since the prior denial of plaintiff’s application to transfer jurisdiction, the parties had obtained a divorce in South Carolina after resolving the custody issue, thus eliminating the possibility that plaintiff was seeking a more favorable forum to litigate an initial custody determination. Because the parties’ divorce in South Carolina was finalized and both parties and their child are permanent residents of New Jersey, the appellate panel reverses. [Decided Sept. 20, 2013.]
20-2-1420 McDermod v. McDermod, App. Div. (per curiam) (6 pp.) Defendant appeals from a Family Part order requiring continued child support for the parties’ youngest child and fixing the date of emancipation of the two older children. Defendant argues the older children actually had been emancipated much earlier, resulting in his overpayment of support, which essentially would cover any remaining future child-support responsibility toward the youngest child. Judge McBride did not disagree with the legal premise, but noted he had insufficient information to make the required calculations. Therefore, he entered his order fixing an emancipation date and setting support for the remaining unemancipated child, without prejudice. Further, the judge instructed the parties to file case information statements to allow full review of the appropriate support. Defendant argues the judge should have ended his child-support obligation, crediting the overpayment against future support. The appellate panel concludes that Judge McBride’s order was not final. Judge McBride explained the failure to supply the requisite information precluded his ability to make a final child-support adjustment. The temporary order reflects a proper exercise of judicial discretion. Because the order was interlocutory, and defendant failed to seek leave to appeal, the appeal must be dismissed without prejudice. [Decided Sept. 24, 2013.]
HEALTH LAW
22-2-1421 C.M. v. Division of Medical Assistance and Health Services, App. Div. (per curiam) (9 pp.) Petitioner C.M. appeals from the final decision by the director of the Department of Human Services, Division of Medical Assistance and Health Services (DHS), denying her the Medicaid funding necessary for the purchase of a Dyna Vox Maestro speech-generating communication device. The appellate panel remands the matter, concluding that C.M.’s expert’s report and treating physician’s prescription, although admitted into evidence, were not included in the final decision issued by the director. The ALJ in this case did not refer to the speech pathologist’s report or the doctor’s prescription in her findings, much less address the fact that they appear to contradict the representations and legal arguments made on behalf of the agency. [Decided Sept. 24, 2013.]
INSURANCE LAW
23-2-1422 Certain Underwriters at Lloyd’s, London v. Books for Less, L.L.C., App. Div. (per curiam) (10 pp.) Plaintiff Certain Underwriters at Lloyd’s, London, Subscribing to Certificate LV91449 brought a declaratory judgment action in New Jersey against defendants Books for Less (BFL), Books Outlet, L.L.C., Shmuely Holding, L.L.C., and John Does 1-12. Approximately a week later, BFL sued Lloyd’s in New York regarding the same disputed coverage. BFL, a New York limited liability company, obtained insurance coverage through its broker ARM-Capacity of New York (ARM). ARM is a New York limited liability company. LoVullo Associates Inc. acted as the agent for Lloyd’s. LoVullo is a New York corporation. The Lloyd’s policy covered BFL’s warehouse in New Jersey and an office BFL leased in New York City. The warehouse is owned by Shmuely Holding, a Delaware limited liability company. Lloyd’s is an international organization, authorized to do business in New York and New Jersey. When defendants sued Lloyd’s in New York to compel coverage, they also sued LoVullo and ARM. The appellate panel affirms the dismissal of the New Jersey proceeding pursuant to the doctrine of forum non conveniens and affirms the denial of Lloyd’s motion for reconsideration. [Decided Sept. 24, 2013.]
23-2-1424 Simpson v. Gallagher Bassett Insurance Services, App. Div. (per curiam) (18 pp.) This appeal requires a determination whether equitable tolling of the statute of limitations, as allowed by Price v. New Jersey Manufacturers Insurance Co., applies where there is no evidence that the insured detrimentally relied on an insurer’s investigation of a claim before the limitations period expired. The appellate panel concludes that equitable tolling is not justified and reverses. Detrimental reliance is an essential element of equitable estoppel. Consequently, the trial court erred in denying defendants’ motion to dismiss as time-barred plaintiffs’ complaint seeking to compel underinsured-motorist (UIM) arbitration. Plaintiffs may not avail themselves of the relief of equitable tolling when there is no showing they acted with diligence in response to defendant Gallagher Basset Insurance Services’ requests for information or for a settlement demand. Plaintiffs have presented no evidence that they were lulled into believing their claim was properly and timely filed. Nor have they presented evidence that they detrimentally relied on defendants’ repeated information requests, or interpreted those requests as evidence their claim was accepted. Plaintiffs’ allegations were also insufficient to establish a breach of the covenant of good faith and fair dealing where defendants were not contractually bound to advise plaintiffs when the limitations period would expire. [Decided Sept. 24, 2013.]
LABOR AND EMPLOYMENT
25-2-1425 L.A. v. Board of Education of the City of Trenton, App. Div. (per curiam) (11 pp.) Appellant, the Trenton Public School Board of Education, appeals from a final agency decision, issued by the commissioner of the Department of Education, granting summary decision to L.A. and requiring the board to reimburse defense costs incurred in civil litigation involving respondent L.A., a former school employee. As a result of his inappropriate sexual contact with students, L.A.’s employment was terminated. The commissioner reasoned that a school employee against whom alleged claims have never been substantiated is entitled to indemnification for cost in defending a civil suit. He determined that because the civil suit was settled without an admission or adjudication of the alleged facts, there was no proof that L.A. engaged in any untoward conduct. This reasoning ignores the DCF investigative findings, the criminal conviction resulting from the conduct, and the likely testimony from the victims presented at a hearing. The appellate panel concludes the commissioner’s decision was error and must be reversed. The board presented unrefuted evidence L.A.’s conduct was not in the course of his duties of employment and the final determination of criminal charges were not disposed of favorable to L.A. Under these facts, L.A. has failed to prove an entitlement to reimbursement of his legal defense fees and costs. [Decided Sept. 24, 2013.]
LAND USE AND PLANNING
26-2-1405 White Beeches Golf & Country Club Inc. v. St. Gabriel’s Syrian Orthodox Church, App. Div (per curiam) (8 pp.) In this action in lieu of prerogative writs, plaintiff appeals from the Law Division’s determination upholding a decision by the Haworth Zoning Board of Adjustment denying plaintiff’s appeal to the board as time-barred. The panel affirms for the reasons expressed below: the letter sent by plaintiff’s president to the borough engineer questioning the engineer’s determination that modifications to defendant’s previously approved site plan did not require planning board approval and asking the engineer to review the matter was insufficient to serve as plaintiff’s appeal to the zoning board, and plaintiff’s subsequent “application” to the board and accompanying letter from counsel were untimely because they were filed more than 20 days from the engineer’s decision. The panel adds that the first letter did not clearly express plaintiff’s intent to appeal from the engineer’s determination and thus was insufficient to constitute an appeal, which should at a minimum identify with particularity the decision the sender of the letter wishes to appeal, the date the decision was made, and the name and title of the municipal official who made it. [Decided Sept. 23, 2013.]
LANDLORD/TENANT LAW
27-3-1374 Dayna Commons v. Sterling, Law Div., Special Civil Part — Essex Co. (Fast, J.S.C., retired and temporarily assigned on recall) (12 pp.) On July 9, 2013, plaintiff filed this complaint, her second, seeking to evict defendant from her residence on the basis of habitual late payment of rent. The earlier complaint was filed May 30, 2013, and alleged nonpayment of rent. Trial was scheduled for June 17 but the action was not pursued when plaintiff accepted payment of the rent on the date of trial. The notice to cease attached to this complaint alleged six prior late payments. The court dismisses the complaint, finding that that result is required by both estoppel and the entire-controversy doctrine. [Filed Aug. 7, 2013.]
27-2-1388 577 Tonnele Avenue, L.L.C. v. C&S Truck Sales Inc., App. Div. (per curiam) (12 pp.) In this action for money damages for breach of a commercial lease, defendant-tenant and its owner appeal from the grant of summary judgment in favor of plaintiff-landlord. The panel reverses and remands because the summary judgment was granted prematurely, right after the pleadings, without affording defendants the opportunity to conduct discovery and to gather evidence in support of their defenses and counterclaims and without full development of an evidentiary record. [Decided Sept. 20, 2013.]
MEDICAL MALPRACTICE
29-3-1389 Camacho-Gardner v. Rubenstein, Law Div. — Hudson Co. (Sarkisian, J.S.C.) (18 pp.) In this medical-malpractice action, defendant-doctors, both neonatologists who were involved in the infant-decedent’s care, challenge the sufficiency of plaintiffs’ expert neonatologist on the grounds that since he retired before the alleged malpractice, he did not specialize “at the time of the occurrence” in the same specialty as moving defendants and he cannot meet the other requirements of the Patients First Act. The court holds that the expert fails to meet the requirements of N.J.S.A. 2A:53A-41(a)(1) because he was no longer practicing at St. John’s Hospital at the time of the occurrence and that facility was closed at that time and thus he is not credentialed and was not at the time of the occurrence under the statute. Further, the expert cannot satisfy N.J.S.A. 2A:53A-41(a)(2)(a) because he did not devote a majority of his professional time to the clinical practice of neonatology in the year preceding the occurrence or -41(a)(2)(b) because although he was teaching at the time of the occurrence, he was only teaching physicians assistants, which does not satisfy the requirement that the expert be instructing students in the same health-care profession in which the defendant is licensed. The court bars plaintiff’s expert from testifying. It gives plaintiffs 15 days within which to move to vacate the dismissal and to extend the discovery end date to procure a new expert and have him render his report and have his deposition taken. [Filed Sept. 19, 2013.]
29-3-1390 Estate of Edwards v. Clara Maas Medical Center, Law Div. — Essex Co. (Vena, J.S.C.) (9 pp.) Defendants Clara Maas Medical Center (CMMC), St. Barnabas Health Care System, and the Clara Maas Continuing Care Center (CMCCC) filed a motion to dismiss plaintiffs’ medical-malpractice claims with prejudice due to plaintiffs’ failure to file an Affidavit of Merit. Plaintiff’s decedent, Ernest Edwards Sr., was a patient at CMMC and CMCCC. Edwards developed severe bed sores and pressure ulcers allegedly due to a lack of care. Defendants assert that plaintiffs’ failure to produce an Affidavit of Merit within the statutory time period and their failure to file a motion to extend the time period warrant dismissal of plaintiffs’ cause of action with prejudice. Plaintiffs oppose defendants’ motion, asserting that defendants’ failure to provide a complete copy of Edwards’ medical records prevented plaintiffs from timely securing an affidavit, and they are entitled to the protections of the “safety valve” provision. The court concludes that plaintiffs have substantially complied with their obligation to provide a “sworn statement” pursuant to the plain language of the safety valve statute. Plaintiffs may avail themselves of its protection in that plaintiffs plainly stated their need for medical records in order to produce an Affidavit of Merit. Defendants’ motion is denied. [Decided Sept. 12, 2013.]
29-3-1391 Halper v. St. Barnabas Hospital, Law Div. — Essex Co. (Vena, J.S.C.) (9 pp.) The court denies defendants’ motion for summary judgment seeking dismissal of this medical-malpractice action for plaintiff’s alleged failure to provide an expert report by an appropriately qualified physician. The court holds that where, as here, the respective physicians are equivalently credentialed in the medical specialty or specialties in which the alleged maltreatment actually occurred, the fact that defendant-doctor may have an additional subspecialty not shared by plaintiff’s expert is immaterial to the expert’s ability to opine on the appropriate standard of care owed in the area in which both doctors are equivalently qualified. [Filed Sept. 12, 2013.]
29-2-1406 Field v. Bannett, App. Div. (per curiam) (7 pp.) Plaintiffs appeal from the dismissal pursuant to Rule 4:37-2(b) of this medical-malpractice action against Dr. Regillo and his medical practice after plaintiff-wife lost the sight in one eye during a vitrectomy after Dr. Chen, a fellow in a retinal surgery program operated by Retina Diagnostic & Treatment Associates, who was assisting Regillo, hit the ocular nerve while anesthetizing the eye. The panel affirms, finding that where Chen was employed by a limited liability company that consisted of several member practices, including the practice of which Regillo is a member, neither Regillo nor his practice can be held personally liable as Chen’s employer as there is no employer-employee relationship between Regillo and Chen or evidence to show that Regillo had control over Chen’s performance. [Decided Sept. 23, 2013.]
PUBLIC RECORDS
52-3-1430 Burke v. Ryan, Law Div. — Ocean Co. (Grasso, A.J.S.C.) (13 pp.) Plaintiff filed this action to compel Mantoloking to disclose documents in response to his request for correspondence and communications between officials and employees of Mantoloking and of the county and state from Oct. 28, 2012, through the date of the request regarding the opening and closing of borough roads. Defendants argue that the requests are vague and overly broad and therefore invalid under the Open Public Records Act. The court finds that the subject of road closings and openings within the borough is sufficiently specific and that the custodian’s search for the requested records did not go far enough with the request limited to the mayor, police chief and special counsel, and it orders that plaintiff’s requests be returned to the custodian to further conduct a search for written and electronically maintained records by each head or chairperson for the borough’s several departments, committees and commissions. The custodian should further inquire of the seven elected borough officials regarding the request. In light of Hurricane Sandy, the court says reasonable extensions, if needed, should be granted to the borough in order to complete a search for hard or paper documents that were relocated to storage facilities. The application for attorney fees and costs is reserved pending the outcome of the continued search. [Filed Sept. 17, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESATATE — MORTGAGE FORECLOSURE
34-2-1407 Metropolitan National Bank v. Jemal, App. Div. (per curiam) (11 pp.) In this mortgage foreclosure action, defendant BNY Mellon appeals from the trial court’s determination that the Metropolitan mortgage held priority over its prior, but unrecorded, mortgage. The panel affirms, concluding that where Metropolitan’s sole purpose in obtaining the credit report was to examine credit history and credit score to establish her creditworthiness, not to identify liens on the property, Metropolitan’s receipt of a credit report during its mortgage application process was insufficient to establish notice of BNY’s prior, unrecorded mortgage. [Decided Sept. 23, 2013.]
TAXATION
35-5-1392 Triplet Square, L.L.C. v. Township of Manalapan, Tax Ct. (Sundar, J.T.C.) (5 pp.) Plaintiff appealed from the assessment imposed by defendant Manalapan on its property for tax year 2012 to the Monmouth Board of Taxation. The county board affirmed the assessment. Plaintiff mailed its appeal from the county board judgment with the Tax Court by overnight mail on June 15, 2012. The accompanying certification of service stated that the clerk and assessor of Manalapan, and the administrator of the county board were served with the copy of the appeal on June 15, 2012. The complaint was stamped as filed by the Tax Court on July 2, 2012. A year later, Manalapan moved to dismiss plaintiff’s complaint as untimely. The evidence shows that plaintiff’s appeal was delivered to the address where the Tax Court sits on June 18, 2012, within the filing deadline for appeals. Thus, plaintiff’s appeal was timely and defendant’s motion to dismiss is denied. [Decided Sept. 19, 2013.]
35-5-1432 CAPP-FSGN v. Woodland Park, Tax Ct. (Andresini, J.T.C.) (11 pp.) This is the court’s opinion with respect to defendant Certified Valuation Inc.’s (CVI) motion to dismiss the complaint against it. Plaintiff’s complaint seeks that the court void the 2010 and 2011 revaluations of its properties, order a new revaluation, that CVI refund all payments received for the revaluations and review, and that the previous assessed values of plaintiffs’ properties be used until the new revaluation is complete. Woodland Park contracted with CVI to assist the assessor in valuing all real property in the borough. The valuations performed by CVI were not binding on the township assessor. CVI, therefore, violated no duty to plaintiff. Plaintiff seeks no damages against CVI. Plaintiff, instead, seeks relief in the form of refunding all payments made by Woodland Park to CVI back to the borough, and to bar CVI from being involved in any further revaluation or reassessments in Woodland Park. CVI has acquired no right, title, or interest in any property. Rather, it has rendered a service to the assessor in exchange for compensation. The mere captioning of the complaint as a prerogative writ does not, in this factual circumstance, make for a cause of action on which relief can be granted. The court finds that there is no cause of action against CVI. Finding that plaintiffs failed to state a claim on which relief can be granted, the court dismisses the complaint against CVI. [Decided Sept. 20, 2013.]
TORTS
36-2-1376 Carpio v. State of New Jersey, App. Div. (per curiam) (25 pp.) Plaintiff alleges that her decedent husband was operating a Ford Ranger when he was involved in a multivehicle accident at or around milepost 28.7 on Interstate Route 80 in Morris County. Plaintiff filed a complaint against the state, the DOT, and the Ford Motor Company, alleging that they were liable in tort and on other theories for their respective roles in connection with her husband’s fatal accident. With regard to the state defendants, plaintiff asserted in the complaint that they were palpably unreasonable in their maintenance of and control over the allegedly dangerous condition of the portion of Route 80 where the collision occurred. The appellate panel reviews the trial court’s discovery order and order denying reconsideration, which direct the state and the Department of Transportation (DOT) to furnish plaintiff’s counsel with copies of reports of accidents occurring between mileposts 25 and 30 on Interstate 80 for the years 2003 through 2008. The trial court rejected the state defendants’ contention that the records sought were absolutely privileged under a federal statute. The panel vacates the trial court’s order compelling disclosure and remands for further proceedings to develop the record more fully concerning the specific purposes for which the reports are maintained by the DOT, and to enable the trial court to consider in the first instance the potential significance of the Third Circuit’s recent opinion in Zimmerman v. Norfolk Southern Corp., construing the scope of the federal statutory privilege. [Decided Sept. 19, 2013.]
36-2-1377 Jarosz v. G&B, L.L.C., d/b/a The Royal Manor, App. Div. (per curiam) (20 pp.) Plaintiff appeals from the orders granting summary judgment to defendants G&B, which ran a catering facility, and defendant Kida, L.L.C., which owned the premises rented to G&B and which had the same principal as G&B, in this personal-injury action filed after plaintiff, a waitress, was burned while helping to wheel a flaming pig into the banquet room. The panel affirms the trial court’s finding that the Workers’ Compensation Act provided plaintiff’s sole remedy as to G&B and that its conduct did not fall within the intentional-wrong exception since, even viewing the facts in the light most favorable to plaintiff, it cannot be found that it knowingly exposed her to a virtual certainty of harm and thus the conduct here was insufficient to establish the conduct prong of the substantial certainty test, and, because an employee getting burned is an expected risk of working in a restaurant, plaintiff failed to satisfy the context prong. The panel also affirms the trial court’s finding that Kida did not owe a duty of care to third parties such as plaintiff to ensure that G&B was safely conducting its business, finding that, inter alia, absent a basis to pierce the corporate veil, the motion judge correctly noted that Kida and G&B were separate entities and the fact that they had a common principal was insufficient to confer liability on the landlord for the actions of its commercial tenant. [Decided Sept. 19, 2013.]
TORTS — JUDGES
36-2-1433 Griffin v. Royle, App. Div. (per curiam) (7 pp.) Plaintiff appeals from the trial judge’s denial of her recusal motion and the grant of defendant’s motion for summary judgment in this action alleging that defendant had harassed her in a variety of ways and seeking damages for emotional distress after defendant alleged in a matrimonial action that plaintiff had committed adultery with defendant’s husband. The panel affirms. It declines to decide if conduct constituting the criminal offense of harassment gives rise to a civil cause of action and instead notes that a civil claim of harassment would require evidence of a physical illness or serious psychological sequelae capable of being diagnosed by trained professionals and that plaintiff’s mere claim that she was very upset by defendant’s alleged conduct is insufficient as a matter of law. As to the claim arising out of the adultery allegation, the panel holds that, viewing it as a claim of defamation, plaintiff has immunity to utter the allegation in a matrimonial complaint. The panel holds that plaintiff’s claim that the judge must recuse herself because she conducted a settlement conference is frivolous. [Decided Sept. 25, 2013.]
TORTS — PERSONAL INJURY
36-2-1379 Huffin v. Beam Brothers Trucking Inc., App. Div. (per curiam) (13 pp.) In this personal-injury action, plaintiff, then employed by the U.S. Postal Service at its now-closed transfer facility in Carteret, alleged she was struck by a “post-con” as a result of the negligence of defendant Beam Brothers Trucking’s driver, defendant Thomas Hostetter. Defendants’ position throughout this case and at trial was that the incident never occurred. At the conclusion of an eight-day trial, the jury agreed with defendants. The appellate panel rejects plaintiff’s arguments that defense counsel’s opening and closing statements were improper and that the trial judge erred in admitting a surveillance tape and certain medical and employment records, and affirms. [Decided Sept. 19, 2013.]
36-2-1434 Costa v. Shadow Lake Village Condominium Association Inc., App. Div. (per curiam) (15 pp.) In this slip-and-fall personal-injury action, plaintiff appeals from summary judgment orders in favor of defendants Shadow Lake Village Condominium Association Inc. and its management company, The Wentworth Group. At the time of the incident, plaintiff was a condominium unit owner residing at Shadow Lake. Defendants denied any wrongdoing and alleged that plaintiff’s ordinary negligence claims were barred by Article 1, Section 7 of Shadow Lake’s bylaws. Defendants also asserted they were entitled to immunity from all claims of ordinary negligence arising out of injuries occurring on the community’s premises pursuant to N.J.S.A. 2A:62A-13. That statute allows a condominium association to restrict, through its bylaws, its premises liability to unit owners for bodily injury. After the adoption of such a bylaw, a unit owner can only recover tort damages for bodily injury from the association where “willful, wanton or grossly negligent act[s] of commission or omission” are proved. In this case, the findings and conclusions of Judge Kapalko are fully supported by the record. There is no evidence to support a finding of gross negligence on the part of Shadow Lake. Furthermore, plaintiff failed to establish a prima facie case that Wentworth negligently performed its administrative responsibilities. Summary judgment in favor of defendants is affirmed. [Decided Sept. 25, 2013.]
36-2-1435 Easterling v. Brantley, App. Div. (per curiam) (17 pp.) Plaintiff Tammie Easterling was a passenger on a public bus that was rear-ended by a bus leased by defendant Bus One Company and operated by defendant Jeannette Brantley. As a result, plaintiff sued, among others, Brantley and Bus One, claiming severe injury resulting in permanent disability and pain and suffering. At the trial, defendants stipulated to their liability, and the sole issue was damages, not including lost wages and medical treatment. The jury returned a unanimous verdict of “zero” damages. Plaintiff moved for a new trial and the judge denied the motion. The appellate panel affirms, finding that the jury could reasonably have found that plaintiff did not sustain injuries as a result of the accident at issue. Further, the court did not abuse its discretion in failing to reopen discovery and barring a new expert report and further discovery concerning her new treating doctor’s recommendation for lower-back surgery. Nor did the court abuse its discretion by controlling the pace of the trial by instructing plaintiff to respond to the question asked, or by instructing the jury to disregard plaintiff’s gait and the manner she held her neck as these referred to physical problems that were not part of the case. [Decided Sept. 25, 2013.]
WORKERS’ COMPENSATION AND OTHER COMPENSATION SYSTEMS
39-2-1408 Polanco v. Rockland Coaches, App. Div. (per curiam) (7 pp.) Appellant appeals from an order entered by the workers’ compensation court in favor of petitioner, a bus driver who fell in a pothole while exiting a bus on respondent’s premises. The panel affirms, noting the deference accorded to a judge of compensation’s expertise in fixing percentages of disability and finding that the judge used her expertise with respect to weighing the testimony of competing medical experts and appraising the validity of the claim and that it cannot say that the award of 27.5 percent of partial total was excessive or inconsistent with the weight of the evidence. [Decided Sept. 23, 2013.]
39-2-1409 Sellino v. Pinto Brothers Disposal, App. Div. (per curiam) (13 pp.) Samuel Sellino was employed as a trash truck operator for defendant Pinto Brothers Disposal and died after he fell under the wheels of a truck he had been driving. The incident occurred when Sellino got out of the truck, leaving the vehicle in drive, with the parking brake engaged. The truck started rolling forward and Sellino and another employee ran after it when Sellino fell. His estate and widow appeal from an order that granted summary judgment, dismissing the complaint against Pinto Brothers as barred by the immunity provision of the Workers’ Compensation Act. Viewing the evidence in the light most favorable to plaintiffs, defendants tampered with the neutral relay, knowing that, as a result, the truck would roll forward if left in drive. It may be inferred from such evidence that bypassing the neutral relay created a risk of injury to its employees. This falls short of showing that Pinto Brothers acted with knowledge that such action was “substantially certain to result in injury or death to the employee.” The conclusion that the employer’s alleged negligence here fell short of establishing an intentional wrong is fortified by the totality of the circumstances. Sellino’s own negligence in leaving the truck in drive while leaving the cab unattended was a substantial factor contributing to his fatal injury. The evidence here failed to support a finding that Pinto Brothers committed an intentional wrong under the Workers’ Compensation Act. Therefore, the exclusivity provision of the act barred plaintiffs’ claims and summary judgment was properly granted. [Decided Sept. 23, 2013.]
FEDERAL COURT CASES
ADMINISTRATIVE LAW — SOCIAL SECURITY
01-7-1394 Williams v. Commissioner of the Social Security Administration, U.S. Dist. Ct. (Simandle, U.S.D.J.) (42 pp.) Plaintiff appeals from the commissioner’s decision denying her application for disability insurance benefits under Title II of the Social Security Act. The court vacates the commissioner’s decision and remands, finding that the ALJ erred by failing to use a vocational expert testimony or a permissible substitute; the ALJ’s determination of plaintiff’s residual functional capacity was not supported by substantial evidence, and even if the ALJ should have found that plaintiff’s generalized anxiety disorder was a severe impairment, that error was harmless. [Filed Aug. 21, 2013.]
ANTITRUST
59-7-1437 In re Neurontin Antitrust Litigation, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (19 pp.) Plaintiffs allege that Pfizer engaged in an anticompetitive scheme to acquire and maintain monopoly power in the market for gabapentin products in violation of the Sherman Act. A threshold requirement for antitrust standing is proof of “antitrust injury,” which requires that the injury be causally linked to an illegal presence in the market. A plaintiff must show both harm of the type antitrust laws were intended to prevent, and an injury to the plaintiff that flows from what makes the defendant’s actions unlawful. Defendants move for summary judgment on all claims while plaintiffs seek partial summary judgment requesting the court to find defendants’ possession of monopoly power and key elements of its alleged anticompetitive scheme to maintain that power. The court will allow defendants’ use of settlement agreements to defend against plaintiffs’ allegations of sham litigation. The court also holds that each side may use prior court rulings to support and defend against the sham litigation allegations. However, the legal question of whether such facts meet the burdens of proof in this case as to sham litigation must still be litigated. Summary judgment is denied as to the anticompetitive conduct element of plaintiffs’ monopolization claims and as to causation. [Filed Aug. 8, 2013.]
BUSINESS ENTITIES
12-7-1395 PNY Technologies Inc. v. Salhi, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (14 pp.) This action arose out of a relationship between plaintiff PNY Technologies Inc. and defendant Lorenzo Salhi and his company, Silcon Valley Services Inc. (SVS). PNY’s president, chairman, and chief executive officer, Gadi Cohen, proposed that Salhi and his management team sign offer letters for employment at PNY. Cohen proposed they enter into an invoice agreement whereby PNY would pay $500,000 to SVS in installments that were guaranteed unless Salhi quit, was terminated for cause, or failed to perform his job duties. PNY and Cohen allegedly attempted to coerce Salhi into waiving the right to the payment. Salhi refused and was terminated. Salhi returned the computer provided to him by PNY. PNY claims the computer contained sensitive, confidential, and proprietary information that Salhi destroyed or misappropriated. Salhi and SVS filed a complaint in the Superior Court of California, San Mateo County. PNY filed a complaint in this matter in this court. Defendants argue that even given the court’s finding that the first-filed rule is inapplicable, PNY’s complaint should be dismissed. The court finds that PNY pleaded with sufficient factual particularity to state a plausible claim to relief and denies defendants’ motion to dismiss. [Filed Aug. 5, 2013.]
BUSINESS ENTITIES — FRANCHISES
12-8-1412 Jackson Hewitt Inc. v. Barnes Enterprises Inc., Third Cir. (per curiam) (8 pp.) Appellants, a former Jackson Hewitt franchisee and the two co-guarantors of its franchise agreements with Jackson Hewitt, appeal from the district court’s grant of Jackson Hewitt’s motion for a preliminary injunction and its order granting default judgment for failure to comply with the scheduling order in this consolidated action alleging trademark infringement, unfair competition, and breach of contract. The Third Circuit dismisses the first appeal, finding that the franchisee failed to prosecute because it did not file a brief or indicate its intent to rely on the guarantors’ briefing and that the guarantors waived any challenge because none of the claims in their briefing pertains to the decision to grant the preliminary injunction or the decision denying reconsideration. It affirms the grant of default judgment, finding that the district court did not abuse its discretion in concluding that a balancing of Poulis factors weighed in favor of entering a default judgment. [Filed Aug. 22, 2013.]
CIVIL PROCEDURE
07-7-1380 Rivera v. County of Passaic, U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) Plaintiff commenced this employment discrimination action against various individuals and entities related to the Passaic County Sheriff’s Department. The Passaic County defendants filed a motion for summary judgment. Plaintiff’s counsel receives service of documents in this action through the court’s electronic filing system at the email address provided by them and has thereby waived their right to receive notice by first-class mail. Plaintiff’s counsel failed to file any formal opposition or any other document challenging the timeliness or the substance of defendants’ motion. After the court granted defendants’ motion for summary judgment, plaintiff’s counsel filed a motion requesting that the court reconsider its decision. Plaintiff’s motion for reconsideration is denied. Defendants’ motion for summary judgment was sent to the email address plaintiff’s counsel provided to the court. Thus, plaintiff’s counsel were properly notified of the pending motion. Also, and although not required to, defendants sent a paper copy of their summary judgment papers to plaintiff’s counsel at its mailing address. Even if plaintiff’s counsel were unaware of defendants’ summary judgment motion, that does not provide a basis for reconsideration, especially when plaintiff’s counsel failed to file any submission or make any inquiry with the court about the status of this action in the four months between defendants’ summary judgment filing and the court issuing its opinion and order. [Filed Aug. 6, 2013.]
07-7-1413 Plunkett v. Inglemoor Rehabilitation and Care Center, U.S. Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) Defendant District 1199J National and Health Care Employees (the union) filed a motion to dismiss this case, which arises from an employment dispute involving an employee, an employer, and the union. Plaintiff filed the complaint in this action, asserting, inter alia, a claim of a breach of the duty of fair representation against her union, named as a “John Doe” defendant. Plaintiff filed an amended complaint that named the union as a defendant. The docket does not show any proof of service on the union. The union now moves to dismiss the amended complaint on three grounds, but the court need only reach the first argument because the statute of limitations on the claim against the union had run by the time it was named in the amended complaint, and the amended complaint does not meet the requirements of Rule 15(c) for relation back. [Filed Aug. 9, 2013.]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-1396 Gaskins v. Countrywide Bank, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) In this declaratory judgment action seeking (1) a declaration that defendant Countrywide Bank FSB is the holder of the note signed by Gaskins as evidence of a $1.3 million loan obtained from Countrywide, and defendant Bank of American is the owner of the mortgage executed by plaintiffs to Mortgage Electronic Registration System Inc. as nominee for Countrywide to secure repayment of the loan, (2) that the mortgage is unenforceable, and (3) that the note is enforceable but unsecured, the court grants the motion of Countrywide and BOA to dismiss pursuant to Rule 12(b)(1), finding that the court lacks subject-matter jurisdiction because plaintiffs fail to present a federal question or establish diversity jurisdiction and plaintiff’s complaint fails to present an actual controversy, where they do not allege that defendants have filed a foreclosure action against them or that an adverse legal proceeding requires the court’s intervention. [Filed Aug. 21, 2013.]
07-7-1415 ADP Dealer Services Inc. v. Southern California Fleet Services Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (11 pp.) Plaintiffs ADPDS and ADP Commercial Leasing filed this action against defendant Southern California Fleet Services to resolve a contract dispute arising out of SoCal’s nonpayment for services and equipment provided by plaintiffs. Plaintiffs are incorporated in Delaware with their principal places of business in New Jersey. ADPDS is the successor-in-interest of ADP Inc. to the master service agreement (MSA) at issue in this lawsuit. SoCal is incorporated in California and headquartered in Corona, Calif. Defendants filed a motion to transfer venue. Having found that this action could have been brought in the Central District of California, the court moves to determine whether defendants’ chosen forum is not only adequate but also more convenient than the present forum. The court must balance the various private and public interests in making this determination. The court finds the factors weigh in favor of plaintiffs, and the court has an interest in deciding a local controversy that implicates New Jersey law, New Jersey businesses, and New Jersey contracts. Further, the court is more accustomed to application of New Jersey law, which governs the MSA and leases. Transfer to the U.S. District Court for the Central District of California is denied. [Filed Aug. 9, 2013.]
CIVIL RIGHTS
46-7-1397 Brown v. Ancora Psychiatric Hospital, U.S. Dist. Ct. (Bumb, U.S.D.J.) (16 pp.) Plaintiff Delores Brown, pro se, filed this action on behalf of her son, Alvin Payton Jr., an involuntarily committed patient at Ancora Psychiatric Hospital. On a motion by defendants Jennifer Velez, Esq., Allan Boyer, the New Jersey Department of Human Services (DHS), and Ancora, the court dismissed the claims against DHS and Ancora but allowed the claims for prospective injunctive relief against the individual defendants to proceed. After obtaining counsel, Brown filed an amended complaint on behalf of herself and Payton, asserting violations of substantive due process rights under the Fourteenth Amendment and § 504 of the Rehabilitation Act of 1973, negligence for failure to properly train, supervise, and implement policies, and medical malpractice. Defendants move to dismiss the § 1983 claims against DHS and Ancora, and the claims against Boyer and Velez seeking monetary damages, asserting these claims are barred by the Eleventh Amendment. They also contend the state law causes of action are barred by the Eleventh Amendment and otherwise fail because plaintiff did not comply with the notice requirements of the New Jersey Tort Claims Act. Finally, defendants argue that plaintiff fails to state an actionable claim under § 504 or for negligence and medical malpractice. The court grants defendants’ motion and dismisses plaintiffs’ claims, except the Fourteenth Amendment claims against Boyer and Velez for prospective injunctive relief. DHS and Ancora are dismissed from the action. [Filed Aug. 7, 2013.]
46-7-1426 Burroughs v. City of Newark, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (24 pp.) Plaintiff Joseph Burroughs, with his wife and two young children, arrived at a laundromat where defendants contend a police investigation was taking place. Defendants contend that video surveillance shows Burroughs walking away from his vehicle and heading over to the sidewalk area “near the dumpster for approximately eight seconds.” Subsequently, Officer Figueroa and Officer Berger pulled into the parking lot and Officer Figueroa allegedly “walked up to [Plaintiff] to conduct a field interview and conduct a Terry frisk ‘for officer safety.’” Burroughs had a legal permit to own the gun that was found, but did not have a permit to carry it. Burroughs was arrested and incarcerated for 10 days. The Essex County Prosecutor’s Office dismissed the charges after viewing a videotape of the incident. Plaintiff brings 11 causes of action against defendants Newark, Officer Figueroa and Officer Spencer. Defendants filed a motion to dismiss. The court grants defendants’ motion to dismiss plaintiff’s claims with the exception of plaintiff’s Fourth Amendment claim and negligent retention and supervision claim, which may proceed. [Filed Aug. 9, 2013.]
CIVIL RIGHTS — § 1983
46-7-1381 Duran v. Warner, U.S. Dist. Ct. (Simandle, U.S.D.J.) (20 pp.) In this 42 U.S.C. § 1983 action arising out of two incidents involving plaintiff and local police officers, plaintiff asserts five causes of action against defendant Police Chief Mooney involving the alleged promulgation of policies that led to an alleged unlawful search, use of excessive force, denial of medical care, a retaliatory stop, negligent training and supervision, and conspiracy to violate plaintiff’s civil rights, the court grant’s Mooney’s motion for summary judgment. The court concludes that plaintiff’s 56(d) affidavit does not set forth sufficient grounds to warrant delaying disposition of the motion or denying summary judgment as it is vague, overbroad and fails to identify any specific facts plaintiff hopes to uncover relating to Mooney’s personal involvement in the alleged constitutional deprivations and plaintiff does not allege that Mooney has failed to comply with any of plaintiff’s previous discovery requests. Further, to the extent that plaintiff brings suit against Mooney in his official capacity, summary judgment must be granted because such claims are in effect claims against the city and are duplicative of the claims brought against the city. The claims against Mooney in his individual capacity are dismissed with prejudice since there is no evidence that he had any personal involvement in causing the alleged harm to plaintiff. The negligent hiring and supervision claim fails because such claims are cognizable against an employer, not against individual supervisors. [Filed Aug. 20, 2013.]
CONTRACTS
11-7-1427 CPS Medmanagement, L.L.C. v. Bergen Regional Medical Center, L.P., U.S. Dist. Ct. (McNulty, U.S.D.J.) (9 pp.) This action arises from a three-year agreement in which defendant Bergen Regional Medical Center, L.P. (the hospital) engaged McKesson Medication Management (MMM) to manage its pharmacy. The hospital prematurely terminated the contract. MMM sued, claiming it was owed money on pending invoices. The hospital counterclaimed that MMM’s performance had been deficient and MMM failed to realize $7 million in promised cost savings. The court previously granted in part MMM’s motion for summary judgment and denied the hospital’s motion for summary judgment on its counterclaims. The court granted MMM’s motion for summary judgment on its claims based on unpaid invoices, finding the hospital had not raised a triable factual issue that MMM had a contractual duty to deliver $7 million in cost savings over the life of the agreement. The hospital’s counterclaims that do not relate to that alleged duty — the claims of deficient performance — remain. The denial of MMM’s motion for summary judgment on those claims gives rise to MMM’s motion for reconsideration. MMM’s contentions are directed to the hospital’s claim that MMM had a contractual duty, when ordering pharmaceuticals, to obtain the lowest price. That duty, MMM says, cannot be found in the agreement, which required it to obtain an “appropriate” inventory; or in the PACT provision, neither of which contains the alleged duty to obtain the lowest-priced pharmaceuticals. Because there is more than one reasonable interpretation, MMM’s motion for reconsideration is denied. [Filed Aug. 8, 2013.]
11-7-1438 Circuit Lighting Inc. v. Progressive Products Inc., U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (13 pp.) In this action alleging breach of contract, breach of warranty, fraud, conspiracy and conversion arising out of plaintiff’s purchase of a hydraulic stage and roof system from defendant, the court denies plaintiff’s motion to file a second amended complaint to add two additional defendants, both corporate officers and owners of defendant-corporations, who allegedly conspired to commit fraud and conversion. The court concludes that although there has been no undue delay, bad faith or dilatory motive by plaintiff and that there would be no undue prejudice to the parties if the motion is granted, the motion must be denied because plaintiff has not pleaded facts sufficient to pierce the corporate veil and impose individual liability on the proposed additional defendants for the claims asserted, and because none of the allegations supports a claim for an intentional tort against them in their individual capacity. [Filed Aug. 23, 2013.]
CONTRACTS — EDUCATION
11-7-1398 S.B. v. Summit Bd. of Educa., U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) In this breach-of-contract action alleging that defendant violated a settlement requiring it to defray the costs of a private education for plaintiffs’ son, the court grants defendant’s motion to dismiss, finding that venue is proper in the New Jersey Superior Court, not the federal court, in light of a forum-selection clause in the settlement providing that the New Jersey Superior Court shall have sole exclusive jurisdiction to adjudicate any action to enforce the provisions of the agreement. [Filed Aug. 20, 2013.]
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-1439 Corson v. Accounts Receivable Management Inc., U.S. Dist. Ct. (Irenas, U.S.D.J.) (27 pp.) This case arises out of defendant Accounts Receivable Management Inc.’s (ARM) telephone debt collection attempts. Plaintiff alleges that ARM has been making harassing telephone calls to his home daily, for approximately two months, in attempt to collect a debt that ARM concedes plaintiff does not owe. The debt is owed by plaintiff’s relative. Plaintiff asserts claims under the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA), as well as a common-law tort claim for intrusion on seclusion. Before the court is ARM’s motion for judgment on the pleadings. Because plaintiff sufficiently alleges that ARM’s telephone calls have the natural consequence of harassing him and that the calls are made repeatedly and continuously with the intent to annoy, abuse or harass him, he has stated plausible claims under §§ 1692d and 1692d(5). Defendant’s motion is denied as to those claims. Defendant’s motion is also denied as to the common-law claim for intrusion on seclusion. The motion is granted as to the remainder of plaintiff’s claims. [Filed Aug. 9, 2013.]
CRIMINAL LAW — CORRECTIONS
14-7-1403 Wilson v. Correction Care Solutions, U.S. Dist. Ct. (Sheridan, U.S.D.J.) (6 pp.) The court grants the motion of pro se plaintiff, an inmate incarcerated at Monmouth County Correctional Institution, to proceed in forma pauperis and then dismisses the federal claims involving an alleged denial of medical care against the jail because the jail is not a person subject to suit under 42 U.S.C. § 1983 for violation of constitutional rights; and the federal claims against Correction Care Solutions because plaintiff has not asserted facts showing that it had a relevant policy or custom that caused the alleged constitutional violation. The court grants plaintiff 45 days to file an amended complaint asserting facts showing that the named defendants violated or caused the violation of his constitutional rights. [Filed Aug. 21, 2013.]
CRIMINAL LAW — CORRECTIONS — CIVIL RIGHTS
14-8-1442 Aruanno v. Does, Third Cir. (per curiam) (6 pp.) Pro se appellant, presently confined at the Special Treatment Unit, appeals from the district court’s dismissal, for failure to state a claim, of his civil rights action asserting that defendants have denied him an STU job in retaliation for his exercising his constitutional rights to remain silent and not participate in treatment sessions for convicted sex offenders, during which he is told to disclose his past sexually violent behavior. Noting that this is appellant’s fourth attempt to raise these claims before it, the court affirms, finding that to the extent that appellant is dissatisfied with the court’s decisions, his proper recourse was to asked the U.S. Supreme Court to grant certiorari, which he did not do, and, in any event, as previously found, his allegations fail to state a claim because denial of a prison job for failure to admit to the crime for which he is confined does not amount to a compulsion to speak in violation of the First and Fifth Amendments. Therefore, appellant cannot prevail on his retaliation claim. [Filed Aug. 23, 2013.]
CRIMINAL LAW — EXTRADITION
14-7-1418 In the Matter of Extradition of Jean, U.S. Dist. Ct. (Falk, U.S.M.J.) (11 pp.) The court grants the government’s application to extradite Jean to Canada to face murder charges pending against him there, finding that there is an applicable extradition treaty between the United States and Canada; there is pending charge against Jean in Canada; the offense at issue falls within the scope of the treaty; and there is probable cause to believe that Jean committed the act alleged in the extradition request. [Filed Aug. 22, 2013.]
HEALTH LAW — ERISA
22-7-1416 Central States, Southeast and Southwest Areas Health and Welfare Fund v. Bollinger Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (14 pp.) Plaintiff, a multiemployer trust fund that provides an employee welfare benefit plan governed by ERISA that provides medical coverage for employees who are members of the teamsters union, and eligible family members, pursuant to the Central States Health and Welfare Fund Plan document, filed this action to recover benefit amounts it paid in excess of its responsibility as the provider of secondary coverage under the terms of its coordination of benefits provision from defendant-insurers and their third-party claims administrator who, plaintiff alleges, are primarily responsible to pay the underlying claims. The court concludes that plaintiffs essentially claim money damages for defendants’ alleged noncompliance with a legal obligation, not restitution of identifiable funds in defendants’ possession and, thus, the relief sought by plaintiffs is not equitable and therefore, the action is not authorized by § 502(a)(3). The court also concludes that plaintiffs cannot avoid the restrictions of § 502(a)(3) by pleading for recovery of the allegedly overpaid and/or future benefit amounts under a theory of injunctive or declaratory relief, as they attempt to do. The court grants the motion to dismiss without prejudice to permit plaintiffs to file an amended complaint providing proper support for the existence of federal subject-matter jurisdiction. [Filed Aug. 22, 2013.]
INSURANCE LAW
23-7-1399 Cole v. Guardian Life Insurance Company of America, U.S. Dist. Ct. (Linares, U.S.D.J.) (20 pp.) This case concerns the death of Bevelyn Cole. Her sister, Francine Cole, brings this suit pursuant to the Employee Retirement Income Security Act (ERISA), challenging defendant Guardian Life Insurance Company of America’s nonpayment of an accidental death benefit. Guardian moves for summary judgment on the basis that plaintiff is neither the plan participant, nor the plan beneficiary and therefore plaintiff lacks standing. Decedent did not designate the plaintiff or the decedent’s estate as a person “who is or may become entitled to a benefit” under the plan. Plaintiff nonetheless states that she has standing pursuant to a settlement agreement with George Johnson and Joseph Cole, who were beneficiaries. Plaintiff cites to no legal authority in support of the theory that the terms of an ERISA plan can be amended by way of a subsequent settlement agreement. Further, neither the decedent nor defendant were parties to the settlement agreement, and the settled action pertained to a separate category of life insurance benefits — not to the accidental death benefits at issue here. Plaintiff failed to meet her burden of establishing the threshold requirement of statutory standing. Plaintiff cannot bring suit under § 502 of ERISA. Defendant’s motion for summary judgment is granted. [Filed Aug. 7, 2013.]
LABOR AND EMPLOYMENT
25-7-1382 Brady v. Air Line Pilots Association, U.S. Dist. Ct. (Irenas, U.S.D.J.) (4 pp.) Defendant Air Line Pilots Association (ALPA) filed a motion for leave to depose 11 absent class members for the purpose of attacking certain assumptions made in the expert report and damage models of plaintiffs’ expert. These 11 class members represent three categories of plaintiffs: (1) current (as of the end of 2011) furloughees who voluntarily deferred or declined recall by American Airlines; (2) absent class members who did not respond to inquiries from plaintiffs’ counsel and expert for their earnings while on furlough; and (3) pilots for whom plaintiffs’ expert attributes damages even though they appear to be unharmed by the seniority integration. Although the court recognizes the general law that passive class members should not be burdened by the litigation, the class members in this litigation have been much more active than absent class members typically are. Also, the damages claim by nature hinges heavily on hard-to-test assumptions that ALPA is entitled to challenge. Accordingly, the court finds that it is appropriate to allow ALPA to depose these 11 absent class members. The court also grants plaintiffs’ motion to compel discovery relating to union dues that ALPA collected from the former TWA pilots where plaintiffs have stated that they may seek restitution and disgorgement of the union fees as an alternative theory of damages. [Filed Aug. 6, 2013.]
25-8-1400 Carr v. State of New Jersey, Third Cir. (Rendell, U.S.C.J.) (8 pp.) Carr brought this failure-to-promote employment suit against his employers because he did not receive a second-round interview for the Essex Vicinage chief probation officer position. Carr claims racial discrimination under Title VII of the Civil Rights Act, the New Jersey Law Against Discrimination (NJLAD), and 42 U.S.C. § 1983, and retaliation under Title VII and the NJLAD. He appeals from the district court’s grant of the defendants’ motion for summary judgment. With respect to Carr’s discrimination claims, the district court determined that Carr established his prima facie case, and that the defendants met their burden of establishing a legitimate, nondiscriminatory reason for not selecting Carr for a second-round interview: specifically, Carr’s poor interview performance. The district court then concluded that Carr failed to meet his burden of demonstrating pretext. With respect to Carr’s retaliation claims, the district court concluded that, although Carr provided evidence showing that he engaged in a protected activity and then suffered an adverse employment action, he failed to establish his prima facie case because he failed to show a causal link between a 2000 lawsuit and his lack of success in the 2007 interview process. Carr raises the same arguments against summary judgment that he argued to the district court. The circuit panel concludes that these arguments fail to provide grounds for reversal. [Filed Aug. 7, 2013.]
25-7-1401 Ehling v. Monmouth-Ocean Hospital Service Corp., U.S. Dist. Ct. (Martini, U.S.D.J.) (16 pp.) Defendants, a nonprofit hospital service corporation that provides emergency medical services and two of its employees, move for summary judgment in this action filed by a registered nurse/paramedic formerly employed by it asserting claims for violation of the Federal Stored Communications Act, the Family Medical Leave Act, the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act and invasion of privacy arising out of her discipline for a Facebook post and her termination. The court finds that the SCA covers plaintiff’s Facebook wall posts but that the SCA’s authorized user exception applies in this case and it grants defendants’ motion on this claim. The motion is also granted as to the FMLA claim because plaintiff failed to proffer evidence to support her interference claim and the evidence shows that defendants were extremely accommodating to plaintiff, or her retaliation claim since requiring plaintiff to clarify information on her FMLA certification is not an adverse employment action; the NJLAD claim because plaintiff waived her right to bring such claims when she filed a claim under CEPA; and the CEPA retaliation claim because plaintiff failed to show that an adverse employment action was taken against her where the record shows that defendant bent over backward not to discipline plaintiff, and she failed to show a causal connection between her whistle-blowing activity and any adverse employment action where the record shows that plaintiff was terminated because she went out on medical leave and never returned to work. [Filed Aug. 20, 2013.]
25-8-1402 Taylor v. Vineland Development School, Third Cir. (per curiam.) (4 pp.) Taylor, pro se, appeals from the district court’s order dismissing his complaint. Taylor was previously employed at Vineland Developmental Center, which is operated by the New Jersey Department of Human Services (DHS), a department within the executive branch of the New Jersey state government. Vineland Developmental dismissed Taylor following a workplace incident. Taylor filed a complaint alleging that Vineland Developmental wrongfully terminated him and discriminated against him. Taylor’s complaint stated that the action arose under the Fourteenth Amendment. In Vineland Developmental’s motion to dismiss, the reasoning of which the district court adopted, Vineland Developmental assumed Taylor was bringing his complaint pursuant to 42 U.S.C. § 1983. The circuit panel finds that because Vineland Developmental is not a person capable of being sued within the meaning of § 1983, Taylor failed to state a claim on which relief can be granted, and dismissal was correct. Because amendment of the complaint would be futile, dismissal of Taylor’s complaint with prejudice was appropriate. [Filed Aug. 6, 2013.]
25-7-1428 Rogosich v. Township of West Milford Municipal Utilities Authority, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (11 pp.) Plaintiff was hired as a part-time clerk typist by defendant West Milford Municipal Utility Authority (MUA). Two years later, she obtained a full-time position as senior account clerk, which included an increase in salary and benefits. After holding that position for two years, plaintiff’s hours were cut to part time, her salary was reduced, and her benefits were revoked. Allegedly due to a hostile work environment and deterioration of her health, Plaintiff was put on temporary disability. The amended complaint includes claims for violations of the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, conspiracy to violate civil rights, and alleges municipal liability. Plaintiff also brings several state law claims for assault, loss of services and consortium, and violations of the New Jersey Law Against Discrimination and the Conscientious Employee Protection Act. The court finds the amended complaint fails to assert any viable federal claim as it does not show the violation of a federally protected right. There are no § 1983 claims for which the MUA can be held liable. Defendants’ motion to dismiss plaintiff’s federal claims is granted. The court declines to exercise supplemental jurisdiction over plaintiffs’ remaining claims. [Filed Aug. 9, 2013.]
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-1440 I.U.O.E. Local 68 Pension Fund v. Resorts International Hotel Inc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) This matter arises out of I.U.O.E. Local 68 Pension Fund (the fund) and Robert Masterson’s claims against defendant Resorts International Hotel Inc. for violations of the Employee Retirement Income Security Act of 1974 (ERISA). The fund is an employee benefit plan, an employee benefit pension plan, and a multiemployer plan. Masterson is a member of the fund’s board of trustees, the plan sponsor, and a fiduciary of the fund. Defendant was a participating employer in the fund pursuant to the provisions of a collective bargaining agreement. As a result of defendant’s withdrawal from the fund, plaintiffs notified defendant of its withdrawal liability. Defendant neither challenged plaintiffs’ calculation of the monies allegedly owed nor did it initiate arbitration. Before the court is plaintiffs’ motion for default judgment. The court finds that plaintiffs are entitled to a default judgment against defendant on the count of their complaint for outstanding withdrawal liability. The court also directs them to appear for a hearing to determine a proper award of damages. [Filed Aug. 8, 2013.]
LABOR AND EMPLOYMENT — JUDICIAL ESTOPPEL
25-7-1383 Lewis v. Eberle & BCI Services, L.L.C., U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (8 pp.) Finding that plaintiff filed this action against her former employer alleging that she was terminated in violation of the Family and Medical Leave Act and the Americans with Disabilities Act while her bankruptcy proceeding was ongoing but failed to amend her bankruptcy filings to reflect this action, that she had a duty to disclose her claim to the bankruptcy court, that she failed to do so in bad faith, and that no lesser sanction is appropriate in this case, the court dismisses this action pursuant to the doctrine of judicial estoppel. [Filed Aug. 19, 2013.]
LEGAL PROFESSION
04-7-1384 Averhart v. Communications Workers of America, U.S. Dist. Ct. (Thompson, U.S.D.J.) (10 pp.) Plaintiff, a member of the CWA, moves to disqualify counsel for defendants, which include the union, the local, and various officers, and for a preliminary injunction enjoining the union and the local from expending funds on legal counsel, in this action concerning whether officers of the national union and Local 1033, one of its local branches, complied with federal and state law as well as the union’s constitution and bylaws. The court denies the motion to disqualify, finding, inter alia, that the conduct that forms the basis of plaintiff’s complaint is akin to mismanagement and not acts of self-dealing, stealing or fraud and thus do not give rise to a conflict of interest under RPCs 1.7 and 1.13 and thus plaintiff’s allegations are not sufficient to warrant disqualification of defendants’ counsel, and further, that not all claims under Title V of the Labor-Management Reporting and Disclosure Act automatically present a conflict of interest and that here, where plaintiff’s Title V claim relies solely on allegations that union officials turned a blind eye to his complaints regarding the local union defendants’ conduct, the allegations are insufficient to warrant disqualification. The court also denies the motion for a preliminary injunction, finding inadequate support for the relief plaintiff seeks. [Filed Aug. 20, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-8-1417 YSM Realty Inc. v. Grossbard, Third Cir. (Smith, U.S.C.J.) (3 pp.) David Scop, a licensed real estate broker in New York and owner of YSM Realty, agreed to assist President Container Inc. (PCI) in finding a new site for its manufacturing operations. PCI’s president, Marvin Grossbard, allegedly told Scop that he would pay Scop a commission if the property’s seller was unwilling to pay it. Scop later dealt with Heshy Zweig, who Scop believed to be a licensed New York real estate broker. Scop learned from Zweig of a possible property for PCI and agreed to split any commission he received with Zweig. Eventually, PCI’s wholly owned subsidiary, SP Realty II, purchased the property identified by Zweig. When the seller would not cover Scop’s commission, PCI refused to pay it. Scop sued PCI, Grossbard, and SP Realty to recover his commission. Discovery revealed that Zweig was not a licensed real estate broker. PCI, Grossbard, and SP Realty moved for summary judgment on the basis that New York law precludes a licensed real estate broker from recovering a commission if it is to be shared with an unlicensed broker. The district court granted the motion. The circuit panel finds the court appropriately granted summary judgment in favor of PCI, Grossbard, and SP Realty. Scop acknowledges that he agreed to pay Zweig half of his commission. Because Zweig was not licensed, New York law precludes Scop from recovering his commission. [Filed Aug. 7, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE — JURISDICTION
34-7-1441 Kanter v. Scharf, U.S. Dist. Ct. (Linares, U.S.D.J.) (15 pp.) Where defendant Sharf previously filed a complaint in the New Jersey Chancery Division seeking to foreclose on a tax-sale certificate on the subject property, which resulted in final judgment vesting Scharf with an absolute and indefeasible estate of inheritance in fee simple in the property, and Kenneth Kanter thereafter conveyed his interest in the property to himself and Sidney Kanter as tenants in common, and Sidney Kanter thereafter filed a declaratory judgment complaint in the New Jersey Law Division seeking a determination of the percentage ownership of each owner of the property and a public auction to sell it, which was dismissed for lack of jurisdiction, the Appellate Division affirmed and the Supreme Court denied certification, and the Law Division thereafter voided the four deeds that establish Sidney’s chain of title and ownership interest in the property, the court holds that it lacks subject-matter jurisdiction by virtue of the Rooker- Feldman doctrine to entertain this action in which Sidney Kanter asks the court to determine, inter alia, whether N.J.S.A. 54:5-87 and the Law Division order voiding the deeds that established chain of title violate the Fourth Amendment by depriving an owner of his land, and it dismisses the complaint with prejudice. [Filed Aug. 23, 2013.]