STATE COURT CASES
BUSINESS ENTITIES
12-2-1664 Greentree Mews Associates v. Cwanger Brothers Incorporated, App. Div. (per curiam) (5 pp.) Plaintiffs appeal from the trial court’s grant of summary judgment in favor of defendants Cwanger Corporation, JN Real Estate Group, LLC, and PJ Real Estate Group, LLC, in this action alleging that defendant CBI was negligent in the provision of roofing services pursuant to a contract between plaintiff The Bloom Organization and CBI and signed by defendant Jules Cwanger on CBI’s behalf, and that Cwanger improperly used undercapitalized corporate entities to insulate himself from responsibility. The panel reverses, finding that the disposition of the case was premature as plaintiffs were entitled to seek discovery regarding whether CBI’s corporate veil would be pierced. The matter is remanded for discovery regarding whether the corporate veil should be pierced and whether, in the absence of the corporate veil, any of these defendants may be held liable.
FAMILY LAW
20-2-1665 Cronin v. Cronin, App. Div. (per curiam) (14 pp.) Defendant appeals from two orders entered by the Family Part compelling him to pay alimony arrears, authorizing the issuance of a bench warrant should he miss two support payments, and denying his post-judgment application to reduce his alimony and child support obligations. Plaintiff cross-appeals from that portion of the order denying her application for attorney fees. As to defendant’s application, the judge made no findings as to whether defendant made a prima facie showing of changed circumstances; whether any changed circumstances were merely temporary; the extent to which the parties may have contemplated the businesses’ declining fortunes by including an acknowledgement in the MSA that defendant may have to use assets to meet his support obligations; and the effect of defendant’s express reservation of a Lepis modification application at the time of the divorce hearing. Similarly, as to plaintiff’s application for attorney fees, the court did not conduct an analysis of the relevant factors; nor did it comply with Rule 1:7-4. The court also failed to consider the MSA’s provision regarding attorney fees. Finding that the motion judge failed to make adequate findings of fact and conclusions of law, the appellate panel reverses and remands.
FAMILY LAW
20-2-1666 New Jersey Division of Youth and Family Services v. J.S., App. Div. (Sabatino, J.A.D.) (32 pp.) Defendant, a biological father, appeals from the Family Part’s judgment terminating his parental rights as to his minor child following a multiday trial. Among other things, defendant argues that the trial court erred in upholding a decision of the Division of Youth and Family Services to “rule out” two cousins who had expressed interest in serving as alternative caregivers for the child. Affirming the final judgment, we reject defendant’s argument that the division lacks the authority to rule out relatives under N.J.S.A. 30:4C-12.1 based on considerations of a child’s best interests. Instead, we hold that the applicable statutory provisions and a related regulation, N.J.A.C. 10:120A-3.1, allow the division to rule out a relative on such best-interests grounds, regardless of the relative’s willingness or ability to care for a child. However, the division’s rule-out authority is always subject to the Family Part’s ultimate assessment of that child’s best interests. We also uphold the validity of the language in N.J.A.C. 10:120A-3.1(b) prohibiting a relative who the division rules out on best-interests grounds from pursuing an administrative appeal of that agency determination. However, we urge the division to act with reasonable diligence in notifying a potential caretaker that he or she has been ruled out, once the investigation of that person has been completed. [Approved for publication.]
INSURANCE LAW
23-3-1667 Vrskovy v. Curcio, Law Div.-Ocean Cy. (Wellerson, J.S.C.) (43 pp.) This is the transcript of a hearing on a motion regarding whether the $500,000 liability coverage for covered motor vehicles in the coverage summary of the policy at issue applies to the claims against the Curcios. The term “covered motor vehicle” is not defined. The court finds that the only reasonable interpretation of the policy is that it is affording liability coverage to those persons identified in the policy and those motor vehicles identified when accidents happen under their control and custody or when other persons who are authorized by them are operating covered motor vehicles. The only plausible definition of “covered motor vehicle” is one of those vehicles identified by the policy itself. There is a specific exception for any other motor vehicle owned by covered persons which are not identified by the policy. The claim here is to provide liability coverage for serving alcohol to an uninsured person operating an uninsured motor vehicle. The court finds that such interpretation is strained. The fact that there is no definition of covered motor vehicle would not lead to the conclusion that this policy covers the Curcios for liability they have under the personal liability coverage where it indicates that they are limited to the amount as shown on the coverage summary, that is $500,000 per accident limit. The court finds that the $500,000 being asserted by the plaintiff is not authorized under the high performance policy and grants summary judgment to defendant Palisades in that regard. The court is not of the same mind when it comes to the optional excess liability coverage, which provides that the policy will pay damages for a covered person when they are legally liable due to personal injury up to the limit of liability shown, $1,000,000, and is not limited to automobile accidents.
LANDLORD/TENANT LAW
27-2-1668 Soliman v. The Kushner Companies Inc., App. Div. (Fuentes, P.J.A.D.) (36 pp.) This appeal involves four consolidated lawsuits brought by employees of tenants and members of their families, including minors, against the landlord and managers of this commercial office building, as well as a number of other companies responsible for installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms, two male and two female. Plaintiffs allege intentional and negligent infliction of emotional distress, common-law invasion of privacy, and invasion of privacy under N.J.S.A. 2C:58D-1(b). They seek common-law compensatory damages, punitive damages under the Punitive Damages Act, and statutory damages under N.J.S.A. 2C:58D-1(c). The Law Division granted defendants’ motions for summary judgment and dismissed plaintiffs’ cause of action as a matter of law. We reverse the Law Division’s order dismissing the counts in their complaints grounded on invasion of privacy. As a threshold issue, plaintiffs must show defendants’ actions to clandestinely monitor their activities in a gender-restricted bathroom is subject to liability because it is the type of intrusion that a reasonable person would find to be highly offensive. Consistent with the approach endorsed by the Supreme Court in Rumbauskas v. Cantor, 138 N.J. 173 (1995), we also hold that a plaintiff in a cause of action predicated on the tort of invasion of privacy, grounded in the subcategory of “invasion of intrusion on the plaintiff’s physical solitude or seclusion,” which includes the characteristics of unconsented prying, may recover compensatory damages for “personal hardships,” similar in kind and scope to those codified in N.J.S.A. 10:5-3, if plaintiffs can show a causal link between defendants’ intrusion and these “personal hardships.” [Approved for publication.]
LAND USE AND PLANNING
26-2-1669 Rosenblum v. Zoning Bd. of Adjust. of Closter, App. Div. (per curiam) (9 pp.) Plaintiff appeals from the order dismissing his action in lieu of prerogative writs challenging the board’s grant of a use variance authorizing two independent residential living units in a structure built as a single family home and used as a two-family dwelling for over 20 years in a zone in which two-family dwellings are a conditional use. The panel affirms substantially based on the opinion below (which found that the applicant had proved both the positive and negative criteria), noting that, in light of the lengthy history of the use of the property, as well as its compatibility with surrounding properties, the board’s determination to grant the necessary variance to allow use of the structure as a two-family dwelling was appropriate.
CRIMINAL LAW
14-2-1670 State v. Henderson, App. Div. (Fisher, P.J.A.D.) (22 pp.) In its landmark decision in this case, State v. Henderson, 208 N.J. 208 (2011), the Supreme Court remanded to the trial court for a new Wade hearing. Applying the court’s new state constitutional framework for such matters, the trial court denied suppression of the out-of-court eyewitness identification evidence used to convict defendant. On appeal, defendant argued, among other things, that the new framework implicitly imposed on the prosecution the burden of proving reliability by “clear and convincing evidence.” In light of the language of the Supreme Court’s opinion that, once a defendant provides evidence of suggestiveness the prosecution must “offer proof to show that the proffered eyewitness identification is reliable,” id. at 289, the court rejected this argument, viewing the prosecution’s burden as little different and no more onerous than the “burden of producing evidence” described in N.J.R.E. 101(b)(2).Affirmed. [Approved for publication.]
FEDERAL COURT CASES
ADMINISTRATIVE LAW — GUN PERMITS — CIVIL RITHTS
01-7-1671 Cowles v. City of Elizabeth, U. S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) The court grants the mayor’s unopposed motion for summary judgment, which it treats a motion for judgment on the pleadings, in this 42 U.S.C. section 1983 action alleging that plaintiff’s Second, Fifth and Fourteenth Amendment rights were violated when the city denied his application for a gun permit, because the complaint does not allege that the mayor established a policy concerning gun permit applications or that he knew about or participated in the decision to deny the application. [Filed September 18, 2013]
BANKRUTPCY
42-6-1672 In re John A. Rocco Co., Inc., U. S. Bankruptcy Ct. (Steckroth, U.S.B.J.) (10 pp.) In this action against Empire State Brokers, a wholesale insurance broker that bound policies for John A. Rocco Co. Inc., the Chapter 7 trustee seeks to avoid and recover two transfers totaling $46,323.08 that were made within 90 days prior to the bankruptcy filing. Empire had sent premium payments to the debtor’s clients after receiving checks drawn on the debtor’s trust account and earmarked to bind policies for those clients which it deposited into its own account but they were returned for insufficient funds. Upon learning of the bounced checks, debtor made the subject payments to Empire. The court finds that while the funds transferred from the debtor’s trust account were property of the estate, Empire was not an initial transferee of those funds within the meaning of Section 550(a) of the Bankruptcy Code and, therefore, the trustee’s motion for summary judgment is denied and Empire’s cross-motion for summary judgment is granted. [Filed September 18, 2013]
BANKRUPTCY
42-6-1673 In re: Sia, Bankruptcy Ct. (Winfield, U.S.B.J.) (26 pp.) Plaintiffs (the “Debtors”) filed for Chapter 13 relief. Their Chapter 13 Plan proposed to cure the arrears on their first mortgage, but disputed the total amount due and disputed that the secured creditor identified on Debtors’ Schedule D, BAC Home Loans Servicing, L.P. was the lawful owner or holder of the mortgage note. Thereafter, the instant adversary complaint was filed. The amended complaint contains six counts. The First and Second Claims assert a lack of standing by BAC to file a proof of claim in the Chapter 13 case. The Debtors claim that BAC was never the holder, assignee or owner of the mortgage note. The Second Claim alleges the mortgage note has never been lawfully endorsed. The Third Claim asserts violations of Real Estate Settlement Procedures Act and the Trust in Lending Act, based on the alleged failures to timely and adequately respond to Qualified Written Requests transmitted to BAC. The Fifth Claim is premised on the Fair Debt Collection Practices Act and alleges that BAC violated §§1692e, (3) and (10) as well as § 1692f(1), by making false and misleading representations concerning the amount owed, the fees applied, the application of payments and the ownership of the mortgage note. Plaintiffs request statutory damages, punitive damages and legal fees. Plaintiff and Defendant have filed summary judgment motions. The Court grants Defendant’s summary judgment motion in part and denies Plaintiffs’ summary judgment motion in its entirety. [Filed August 27, 2013]
BANKRUPTCY
2-7-1674 Suarez v. Alonso, U. S. Dist. Ct. (Wolfson, U.S.D.J.) (18 pp.) Plaintiff appeals from the Bankruptcy Court’s order denying her adversary proceeding complaint and permitting debtors’ discharge after finding, based on debtor’s truthful testimony that she did not intent to hinder, defraud or delay her creditors, or conceal any information, that any errors on debtor’s original schedules and statement of financial affairs were unintentional. The District Court affirms, holding that the Bankruptcy Court’s findings, rooted in credibility determinations and documentary evidence, that debtor’s initial filing errors in this matter were unintentional, honest mistakes based on advice she received from counsel, and that she made every effort to correct these errors and to disclose all materially relevant information pertaining to her finances once she retained new counsel, were not in error and that there is no basis to reverse the Bankruptcy Court’s decision that Debtor should not be precluded from discharge under § 727(a)(2)-(4). [Filed September 17, 2013]
CIVIL RIGHTS
36-7-1675 Santini v. Fuentes, U. S. Dist. Ct. (Pisano, U.S.D.J.) (11 pp.) In this 42 U.S.C. section 1983 action asserting claims for, inter alia, violation of plaintiff’s federal and state constitutional rights, false imprisonment, false arrest and malicious prosecution arising out of a confrontation between plaintiff and State Troopers and local police, the court grants defendants’ motion for summary judgment, finding defendants are entitled to judgment on the federal claims because they are barred by the Eleventh Amendment; defendants are not a “person” under section 1983 or 1985; plaintiff’s underlying criminal proceedings did not terminate favorably and defendants had probable cause sufficient to defeat his claims for malicious prosecution, false arrest and false imprisonment; section 1983 precludes recovery based solely on respondeat superior and supervisory liability; and the troopers are entitled to qualified immunity. The court declines to exercise supplement jurisdiction over the state law claims. [Filed September 18, 2013]
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-1676 Target National Bank v. Campanella, U. S. Dist. Ct. (Hillman, U.S.D.J.) (6 pp.) Where plaintiff filed a state court action to collect on an unpaid debt, and defendant filed a third-party complaint against he law firm representing the bank, alleging that it had violated the Fair Debt Collection Practices Act and the New Jersey Consumer Fraud Act in attempted to collect the purported debt, and the law firm removed the third-party complaint pursuant to 28 U.S.C. section 1441 because of the FDCPA claim, the court grants defendant’s motion to remand, acknowledging that a minority of courts, including courts in this district, have held that a third-party complaint can serve as the basis for federal jurisdiction but only if the third-party complaint is separate and independent from the original claims, and here, the bank’s claim against defendant is not separate and independent of her claim against the law firm. [Filed September 17, 2013]
LEGAL PROFESSION — ATTORNEY FEES
04-7-1677 Dixon v. Commissioner of Social Security, U. S. Dist. Ct. (Kugler, U.S.D.J.) (8 pp.) F. Michael Friedman, appointed to represent Gwendolyn Dixon on her appeal from the Commissioner of Social Security’s denial of disability insurance benefits, and whose efforts resulted in the court vacating the decision and remanding the matter, after which, due to illness, he referred the case to another attorney and the Social Service Administration approved plaintiff’s disability and awarded back benefits, seeks $11,287.50 in attorney fees pursuant to the Social Security Act, 42 U.S.C. section 406(b) for the time he spent working on plaintiff’s appeal. The court notes counsel’s failure to apply for attorney fees under the Equal Access to Justice Act and rejects his reasons for not doing so, finding that notwithstanding his illness, the interest in protecting Social Security claimants embodied in the EAJA outweighs his interest in recouping his full fee; he had 30 days from the date of the remand to apply for EAJA fees and his misinterpretation of what is defined as a final judgment does not excuse his failure to apply; the attorney’s assumption that the government’s position was substantially justified, which would preclude an EAJA award, without more, cannot justify his failure to file for EAJA fees in an attempt to lighten any potential financial burden on plaintiff. Nevertheless, it finds that he is entitled to some compensation and it awards one half the requested amount. [Filed September 18, 2013]
CRIMINAL LAW
14-8-1678 Dimanche v. Tay-Taylor, Third Circuit (per curiam) (6 pp.) In this appeal of a successful 28 U.S.C. § 2241 habeas corpus petition, the Government requests that the circuit panel summarily reverse the District Court’s order, contending that it is squarely abrogated by the Third Circuit’s recent decision in Sylvain v. Attorney General. Dimanche, a citizen of Haiti, was charged with being removable under subsections of the Immigration and Nationality Act (INA) requiring his mandatory detention during removal proceedings. Dimanche petitioned for habeas corpus relief; central to Dimanche’s argument was the belief that mandatory detention under § 1226(c) was not warranted when ICE custody did not immediately follow imprisonment resulting from one of the offenses enumerated in the statute. Holding that § 1226(c) did not authorize the mandatory detention of Dimanche, the District Court granted habeas relief. The Third Circuit then reversed Sylvain, holding that § 1226(c) does not require ICE detention to immediately follow an alien’s release from incarceration. This matter is squarely controlled by Sylvain. Thus, the panel grants the Government’s motion to the extent it requests summary action and vacates the District Court’s judgment, remanding for any further proceedings that the District Court deems appropriate. [Filed September3, 2013]