01-2-1695 In the Matter of Coursey, App. Div. (per curiam) (21 pp.) Appellant, who held a classified position as a clerk typist with Atlantic City, from which he took a leave of absence when he was named to the city council, which leave was annually renewed until at least 1993, and who was later provisionally appointed as a demolition coordinator and later a liaison for neighborhood services, and who then returned to the demolition coordinator position only to be told that he would be returned to the clerk typist position, and who was terminated based on a determination that his permanent civil service status as a clerk typist had lapsed because he had not completed a permanent leave of absence form since 1993, and who then filed suit in the Law Division, which transferred the dispute regarding his re-employment rights and issues relating to his discharge to the Civil Service Commission, appeals from the commission’s determination that his challenge to his discharge was untimely, the city’s decision to terminate him was proper because his position as a demolition coordinator was a provisional, rather than a permanent, position, he was not entitled to retroactive reinstatement to his clerk typist position, and he was not entitled to counsel fees. Applying the customary deferential standard of review that governs appeals from administrative agency decisions, the panel affirms, concluding, inter alia, that the finding of untimeliness has substantial and adequate support in the record and the decision relating to his removal as a provisional employee was consistent with the governing statutes and regulations that provide that a provisional employee can be terminated at any time at the employer’s discretion. [Decided Oct. 21, 2013.]
01-2-1679 Dehaquiz v. Board of Review, App. Div. (per curiam) (6 pp.) Dehaquiz appeals from the board’s final decision disqualifying her from receiving unemployment benefits and requiring her to refund benefits paid to her because she left work voluntarily without good cause attributable to work. The panel affirms, finding that the fact that her employer didn’t transfer her to a store in Connecticut as she had requested in light of her relocation after her marriage did not deprive her of continued employment at the Paramus store where she had been employed and the employer had no involvement in her decision to leave her job. She could have remained employed and relocated a few months later but she made a choice and the consequence is that she is legally obligated to repay the benefits to which she was never entitled, regardless of any financial hardship which that obligation creates. [Decided Oct. 18, 2013.]
01-2-1696 Williams v. Board of Review, App. Div. (per curiam) (5 pp.) Appellant appeals from the board’s decision finding him disqualified for unemployment benefits on the ground that he left work voluntarily without good cause attributable to work based on the suspension of his driver’s license, which was required to perform his job. The panel affirms, finding that the board did not act in an arbitrary, capricious or unreasonable fashion in denying him benefits. [Decided Oct. 21, 2013.]
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 and PJ Real Estate Group, 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. [Decided Oct. 17, 2013.]
07-2-1697 Mora v. Pleasantville Board of Education, App. Div. (per curiam) (13 pp.) This is a civil rights action in which plaintiff Mora seeks remedies against defendant Pleasantville Board of Education for “reverse race discrimination and arbitrary and capricious hiring practices.” Mora’s attorney filed an in limine motion that sought an order that the trial judge provide the jury with an adverse-inference instruction against the board due to its failure to produce discovery materials relating to its 2006 meetings. The board’s attorney then handed over a welter of materials — including numerous compact discs, minutes, agendas, transcripts and other documents — relating to board meetings in 2006. Mora’s attorney understandably was taken aback by this highly concentrated production, and moved, in limine, to strike the board’s answer with prejudice for its failure to produce discovery until the eve of trial. Ultimately, the judge granted Mora’s motion to strike the board’s answer with prejudice. Because the trial judge’s decision was ultimately, in her words, “based upon fundamental litigation fairness,” and was not directly linked to a rule providing for the sanction imposed, the panel concludes that striking the board’s answer with prejudice was an abuse of discretion requiring reversal. [Decided Oct. 21, 2013.]
11-2-1698 Belfiore v. City of Hoboken, App. Div. (per curiam) (20 pp.) Plaintiffs, now retired Hoboken employees, all of whom retired early in the second phase of the city’s Voluntary Severance Incentive Program, filed these breach-of-contract actions after the city failed to pay the promised severance bonuses based on Department of Community Affairs advice that the VSIP was illegal, although the city continued to pay bonuses due to those who retired in phase one of the program. Plaintiffs appeal from an adverse determination in a consolidated bench trial. The panel reverses, finding that (1) where the parties ignore whether Hoboken was permitted to adopt an incentive program for retirement, the issue of the VSIP’s illegality is waived; and (2) the doctrine of equitable estoppel must be deployed to redress the inequity between those who retired in phase one and those who retired in phase two since to deny plaintiffs the same agreed-on severance payments is fundamentally unfair. [Decided Oct. 21, 2013.]
11-2-1726 Kitchen King Inc. v. Scisco, App. Div. (Hayden, J.A.D.) (13 pp.) Plaintiff Kitchen King Inc. appeals from a judgment awarding defendants compensatory damages, interest and counsel fees for breach of a settlement agreement entered in a civil suit involving defective kitchen cabinets. The judge found that plaintiff had breached paragraph three of the agreement because (1) plaintiff delivered the cabinets to the manufacturer’s New Jersey warehouse, not its Alabama factory; (2) the cabinet doors were not repaired or replaced but merely touched up with a finishing pen; and (3) the two new cabinets were not substantially identical to the other cabinets. He also found that, pursuant to the terms of the settlement agreement, defendants were entitled to attorneys’ fees and interest. The appellate panel agrees that plaintiff’s failure to comply with paragraph three constituted a material breach of the settlement agreement. As a result, defendants were entitled to damages under the settlement agreement. The amount defendants paid plaintiff under the settlement agreement was an appropriate measure of damages. With regard to attorney fees, the settlement agreement specifically provides for an award of reasonable counsel fees to the nondefaulting party. [Decided Oct. 23, 2013.]
14-2-1707 Smith v. New Jersey Department of Corrections, App. Div. (Graves, J.A.D.) (7 pp.) Smith, a state prison inmate, appeals from a final agency decision of the Department of Corrections (DOC). Smith was found guilty of misusing or possessing a cellphone in violation of N.J.A.C. 10A:4-4.1(a)*.009 and sanctioned to 15 days’ detention, 200 days’ loss of commutation time, 200 days’ administrative segregation, and permanent loss of contact visits. Smith’s administrative appeal was denied. The DOC’s decision was apparently based solely on the photographs of Smith contained in the cellphone. The appellate panel is not convinced there is any valid reason for failing to provide him with the complete, unredacted special investigation division (SID) report. Because Smith was not afforded his due process right to a fair hearing, the panel reverses the adjudication and penalty imposed for violating *.009 and remands the matter for a new disciplinary hearing. [Decided Oct. 21, 2013.]
14-2-1718 State v. Bethea, App. Div. (per curiam) (6 pp.) Defendant appeals from the denial of his petition for postconviction relief (PCR) without an evidentiary hearing. The primary issue in this appeal is whether this was defendant’s first or second PCR petition. Rule 3:22-3 provides that a petition for postconviction relief is not a substitute for a direct appeal “and may not be filed while such appellate review…is pending.” Because defendant’s first PCR petition was filed while his direct appeal was pending, it was properly dismissed without prejudice. Accordingly, defendant’s present petition should be considered defendant’s first PCR petition. This petition was filed within the five-year period prescribed by Rule 3:22-12 and, therefore, was not time-barred. Therefore, the appellate panel reverses the order denying defendant’s petition without a hearing and remands for the appointment of counsel and consideration of the petition on its merits. [Decided Oct. 22, 2013.]
14-2-1719 State v. Smith, App. Div. (per curiam) (24 pp.) Defendant appeals from his conviction for robbery and use of a stolen credit card, which charges were severed from the remaining counts in the indictment against him, and the sentence imposed. The court finds that, although the state presented the theory that defendant was a principal in the robbery, the jury was presented with sufficient facts from which it could infer that defendant was a co-conspirator to the crime, if not the actual perpetrator and thus there was no error in charging the jury on conspiracy with respect to the robbery count. Moreover, even if it was error, it was harmless as the jury sheet reflects that it found defendant guilty based on his own conduct, not as a co-conspirator. The court also finds that the prosecutor did not exceed the bounds of fair play in his reference to defendant’s criminal history in summation and the motion judge acted within his sound discretion in denying defendant’s motion to unsevere counts one and two. The court remands for resentencing on counts one, two, six, seven and eight without consideration of aggravating factors one and two, finding, inter alia, that the fact that defendant pointed a firearm at the victims in the commission of the robbery had already been factored into the seriousness of the charged offense and a court may not again consider or double-count the use of a firearm as an aggravating factor, and there was insufficient evidence to support the judge’s finding that the robbery victims suffered emotional trauma sufficient for a finding of aggravating factor two. [Decided Oct. 22, 2013.]
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 postjudgment 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 acknowledgment in the marital settlement agrement 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. [Decided Oct. 17, 2013.]
20-2-1680 Dolan v. Dolan, App. Div. (per curiam) (17 pp.) Plaintiff appeals from certain provisions of a final judgment of divorce, entered following a seven-day trial. Plaintiff argues that the judge overvalued her imputed income because she will likely be permanently disabled in the future, and undervalued defendant’s imputed income. The judge considered plaintiff’s current testimony concerning her medical condition. She introduced no medical evidence concerning any future impairment or disability. The judge was not required to speculate about future problems. Plaintiff’s argument that defendant’s father’s demand note related to certain real property was a sham was contradicted by defendant’s testimony, as well as documentary evidence. There was ample evidence in the record to support the judge’s treatment of the parties’ children’s college debt as a marital debt. The judge did not abuse his discretion by ordering that both parties equally bear the tax burden arising from the failure to file income tax returns for defendant’s business. Further, there was ample evidence in the record, including the evidence that plaintiff had refused to make a good-faith attempt at settlement, to support the amount of the attorney fee award to plaintiff. [Decided Oct. 18, 2013.]
20-2-1681 Freeman v. Freeman, App. Div. (per curiam) (10 pp.) Plaintiff appeals from two Family Part orders. On Oct. 15, 2012, the Family Part denied her motion for reconsideration of an order entered on Sept. 6, 2012. That order, in turn, granted, in part, plaintiff’s motion to compel defendant to pay 70 percent of the college costs of the parties’ son, but granted, as well, defendant’s cross-motion to recalculate child support and vacated defendant’s obligation to continue to pay child support to plaintiff. Plaintiff argues that the motion court erred in deciding the motions without oral argument or a plenary hearing, and failed to provide “any specific reason” for the decision. The appellate panel agrees that the motion judge failed to make the required findings of fact and conclusions of law to permit meaningful appellate review in support of his initial order of Sept. 6, 2012. Accordingly, the panel remands this matter to the motion judge to set forth his findings and conclusions. In the event the motion judge determines that a plenary hearing is necessary to resolve these issues, he may enter an appropriate order vacating his prior orders and setting the matter down for a hearing. [Decided Oct. 18, 2013.]
20-2-1682 Hincapie v. Eronini, App. Div. (per curiam) (6 pp.) Defendant appeals from the Family Part’s denial of his motion to reduce his child-support obligation for his minor daughter. The panel affirms, finding that the appeal is untimely and that even if it were to be considered on the merits, there is no reason to set aside the court’s ruling since, while the documents submitted by defendant show that he has had personal difficulties, they do not suffice to show that the trial court’s ruling, based on the evidence before it, was erroneous. Moreover, the panel finds that it must give deference to the judge’s first-hand observation that defendant’s testimony was not credible. [Decided Oct. 18, 2013.]
20-2-1683 New Jersey Division of Youth and Family Services v. C.W., App. Div. (per curiam) (20 pp.) Defendant C.W. (Cynthia) appeals from the Family Part’s order finding that she had neglected her son N.D.R. (Nick). The appellate panel finds no abuse of the judge’s discretion in her determination that Cynthia’s cocaine use amounted to neglect of Nick. Nick was in her primary care when she was using cocaine. The panel finds an insufficient basis in the record for a finding of neglect based solely on the possibility that Cynthia’s physical attack on her husband, Daniel, could have resulted in his death with unspecified, consequent harm to Nick. Nick was approximately 19-months-old and not a witness to the domestic violence. There was no testimony, expert or otherwise, that he was adversely affected to any significant degree by what actually happened. The panel reverses the order on appeal to the extent it relies on the potential of harm to Nick had Cynthia actually killed Daniel, which is overly speculative. [Decided Oct. 18, 2013.]
20-2-1684 Powell v. Powell-Buchanan, App. Div. (per curiam) (10 pp.) Pro se defendant appeals from the denial of her motion to “un-emancipate” the parties oldest child and for child support and contribution to her college expenses from plaintiff, custody of the parties’ younger daughter and child support for her, an order compelling plaintiff to supply health insurance to both children and to disclose information regarding the paternity of the younger daughter’s child. Because the judge failed to consider the factors in Newburgh v. Arrigo, the panel vacates the portion of the order relative to child support for the older daughter and directs that the court, after discovery, conduct a plenary hearing to determine whether her academic status warrants entry of an order requiring plaintiff to pay child support, contribute to her college expenses, and contribute to certain obligations defendant incurred to assist the older daughter in funding her studies. The panel affirms the refusal to address the younger daughter’s status as emancipated, orders plaintiff to provide health insurance for the children, and compels him to provide paternity information. The panel vacates the court’s award to plaintiff of attorney fees as no financial proofs were presented by either party that would have enabled reasonable analysis of the request and the court did not make the findings required by Rule 5:3-5(c). [Decided Oct. 18, 2013.]
20-2-1685 Tominus v. Tominus, App. Div. (per curiam) (18 pp.) Defendant challenges several provisions of a final judgment of divorce entered by the Family Part. The panel affirms in part, reverses in part, and remands, finding that (1) the court did not err in imputing income to defendant where she previously worked as a bus driver and a part-time bookkeeper and did not present medical evidence to support her claimed disabilities; (2) the judge provided ample support for her conclusion that permanent alimony was not warranted based on the particular facts and circumstances of this case, including that defendant did not forgo any employment opportunities during the marriage and she was capable of working, and that she will be capable of earning sufficient monies to maintain a lifestyle comparable to the modest lifestyle the parties maintained during the marriage; (3) the court did not err in failing to allocate to plaintiff some responsibility for certain debts allegedly owed to defendant’s mother, grandmother and friend because defendant did not present persuasive evidence establishing the amount of or responsibility for the alleged debts; and (4) the court failed to explain why it valued plaintiff’s pension based on the contributions he had made to the plan rather than using any of the three established valuation methodologies to effect an equitable distribution of a pensioner spouse’s interest in a defined benefit pension plan, requiring a remand for reconsideration of the decision regarding the pension. [Decided Oct. 18, 2013.]
20-2-1699 Barnes v. Barnes, App. Div. (per curiam) (5 pp.) Plaintiff appeals from an order decreasing his alimony obligation, and an order denying reconsideration. The parties were married for 16 years and had no children together. On appeal, plaintiff argues that the judge erred by imputing an insufficient amount of income to defendant. He contends that had the judge imputed more income to defendant, then his alimony obligation would have ended. Plaintiff also asserts that the judge did not properly consider defendant’s ability to work. Using the case information statements provided by the parties, the judge found that plaintiff is receiving monthly Social Security disability benefits of $1,893. The judge rejected defendant’s contention that she was disabled and unable to work, and reviewed the parties’ financial situation, including actual income, expenses, support from other sources, and potential earning capacity. The judge then imputed to defendant $15,600 annual income, or $1,300 per month, and lowered plaintiff’s alimony obligation by $30 per week. Finding no abuse of discretion, the appellate panel affirms. [Decided Oct. 21, 2013.]
20-2-1700 New Jersey Division of Youth and Family Services v. A.E., App. Div. (per curiam) (4 pp.) A.E. appeals from an order finding that she committed an act of abuse or neglect by consuming illegal drugs prior to the birth of her youngest child, C.S. The judge’s decision here, although referencing A.E.’s lack of compliance with drug treatment after the birth of C.S., chiefly relied on the drug use of defendant while pregnant. Based on the recent Supreme Court case of A.L., holding that a mother’s drug abuse at or prior to the time of birth may not alone support a claim of abuse or neglect, the appellate panel vacates the order and remands. [Decided Oct. 21, 2013.]
20-2-1701 Radcliffe v. Radcliffe, App. Div. (per curiam) (13 pp.) On plaintiff’s appeal of the Family Part’s order granting defendant’s motion to emancipate the parties’ daughter, terminate his child-support obligation, and excuse him from contributing toward her post-high school education and health-care costs, the panel reverses, finding that the trial court’s ruling was the product of a mistaken exercise of discretion. Looking to the parties’ property settlement agreement, the panel says its intent was to ensure that the daughter would be entitled to support so long as she diligently continued in the pursuit of an undergraduate degree and here, where she was accepted by a four-year college and she showed great initiative in formulating a plan to obtain such a degree at a fraction of the cost by enrolling in a massage therapy school in order to obtain a certification that would help her obtain employment and contribute to her college costs, and she enrolled in a community college with a plan to move to a state college to complete her education, there was no break in her quest for a college degree and the court below mistakenly interpreted the terms of the PSA in an overly restrictive fashion to mandate emancipation once she did not immediately enroll in a “four year undergraduate school.” Moreover, the court erred in focusing almost solely on the daughter’s lack of a relationship with defendant when that was only one factor to be considered and a fair consideration of the other factors compels the conclusion that defendant is obligated to contribute to the daughter’s massage therapy school and community college costs. [Decided Oct. 21, 2013.]
22-2-1714 R.P. v. Division of Medical Assistance and Health Services, App. Div. (per curiam) (11 pp.) R.P. appeals from the final agency decision of the Division of Medical Assistance and Health Services (DMAHS), which denied his request for an undue hardship waiver for the period of ineligibility for Medicaid benefits imposed due to an asset transfer. In 2006, R.P., then 80 years old, was placed into a private nursing home. R.P. gave his son, James, a power of attorney. In 2007, James sold R.P.’s home. James transferred $182,354.06 from R.P.’s bank account to his own bank account and stopped paying for the nursing home. As a result, R.P. was evicted and placed into a public nursing home. In 2009, the court declared R.P. incapacitated and appointed a guardian from the Office of the Public Guardian for Elderly Adults (OPG). The OPG filed a complaint on R.P.’s behalf against James to recoup R.P.’s money. James began making restitution payments of $750 per month directly to the nursing home. Subsequently, a final judgment by default was entered against James. The appellate panel finds the board properly evaluated the transfer of R.P.’s assets and properly assessed the transfer penalty. R.P. presented no evidence to rebut the presumption that James transferred R.P.’s assets in order to establish R.P.’s Medicaid eligibility. R.P. failed to satisfy the criteria to establish a hardship waiver. He produced no evidence that he was deprived of medical care such that his health or life was endangered or that he was deprived of food, clothing, shelter or other necessities of life. Further, James is making restitution payments and the assets are also recoverable pursuant to the final default judgment. [Decided Oct. 22, 2013.]
23-3-1667 Vrskovy v. Curcio, Law Div. — Ocean Co. (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 that 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 million, and is not limited to automobile accidents. [Decided June 21, 2013.]
25-2-1686 Wetter v. Board of Review, App. Div. (per curiam) (5 pp.) Wetter appeals from the final decision of the Board of Review, Department of Labor, affirming the decision of an Appeal Tribunal, denying his claim for Emergency Unemployment Compensation (EUC) benefits. In July 2010, Wetter left his job in New Jersey to take a position in Connecticut. After three months, Wetter resigned from Prime Time for medical reasons and moved back to New Jersey. Wetter filed a claim for unemployment benefits in New Jersey in October 2010 and received benefits until April 2011, when the claim was exhausted. In May 2011, Wetter filed a claim under the EUC program and was paid benefits through June 11, 2011. When the New Jersey Division of Unemployment Insurance learned Wetter was eligible for unemployment benefits in Connecticut, he was declared ineligible for EUC benefits. Wetter filed a claim in Connecticut but was notified that he was ineligible for benefits because his reason for leaving his employment did not constitute good cause. Wetter failed to pursue an appeal in Connecticut. On appeal, Wetter argues that since he was denied benefits in Connecticut, the division erred in concluding that he had a valid unemployment claim in Connecticut as of May 1, 2011. The appellate panel disagrees and finds that although Wetter’s initial request for benefits was denied by Connecticut, he failed to pursue his right to appeal and thus failed to exhaust his administrative remedies. As a result, Wetter was not entitled to receive EUC benefits through New Jersey. [Decided Oct. 18, 2013.]
25-2-1702 Coursey v. City of Atlantic City, App. Div. (per curiam) (29 pp.) Coursey is a former councilman and longtime municipal employee in Atlantic City. He was discharged from his city employment in January 2006 after a new mayor took office following an election. Alleging improper political retaliation, Coursey filed this civil action in the Law Division in 2007 against the city, various city officials, and his labor union, contesting his discharge on constitutional and common-law grounds. At the behest of the city, the trial court transferred this dispute to the Civil Service Commission under the doctrine of primary jurisdiction. The commission denied Coursey relief under the civil service laws, except that it directed the city to place him prospectively on a special re-employment list. The commission did not address Coursey’s claims of political retaliation or the alleged violation of his constitutional and common-law rights. Coursey requested the trial court to reopen his lawsuit, which it declined to do in a series of orders that he now appeals. The appellate panel reverses the orders denying reinstatement of Coursey’s lawsuit. The panel remands this case to the Law Division for a merits disposition of his claims that are not based on the civil service laws. The panel also reinstates the individual defendants, whom the court dismissed with prejudice at the time of the transfer. [Decided Oct. 21, 2013.]
25-2-1727 Gatto v. Target Corporation, App. Div. (per curiam) (8 pp.) Gatto appeals from the summary judgment dismissing his complaint, in which he alleged that defendants Target Corporation, Target Corporation of Minnesota, Jason Buczek, Scott Rapp and Tania Delgado violated the Conscientious Employee Protection Act (CEPA) by terminating his employment. Gatto’s repeated failure to comply with his supervisors’ instructions regarding moving a scissor lift was reported to Delgado, a regional supervisor, who discussed the issue with another supervisor and the district manager for human resources. Pursuant to Target’s safety guidelines, they concluded that Gatto’s disregard for his supervisors’ directives, and his decision to persist in moving the scissor lift, was “gross misconduct” and “reckless conduct” that warranted immediate termination. The appellate panel rejects plaintiff’s arguments that the trial court erred in granting summary judgment to defendants because his termination was causally connected to his earlier expressed concerns regarding the need for a CDL to operate a truck, and that his termination was pretextual. No rational fact finder would infer a connection between plaintiff’s refusal to drive a truck without a CDL and his termination two months later. Nor could a rational fact finder conclude the termination was pretextual. Gatto moved a large and heavy piece of machinery with a disproportionately small, manually operated piece of equipment after being ordered by two supervisors not to do so. The proofs in the record establish that the decision to terminate him, made within 24 hours of the incident, was the immediate result of his failure to follow his supervisors’ directives and his insistence on moving the scissor lift. [Decided Oct. 23, 2013.]
26-2-1669 Rosenblum v. Zoning Bd. of Adjustment 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 more than 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. [Decided Oct. 17, 2013.]
26-2-1703 Carecycle Inc. v. Zoning Board of Adjustment of the Township of North Brunswick, App. Div. (per curiam) (3 pp.) Plaintiff Carecycle Inc. appeals from the dismissal of its complaint in lieu of prerogative writs. The controversy originated with the North Brunswick Zoning Board of Adjustment, which denied Carecycle’s claim that it was entitled to a certificate of nonconformity so that it might continue locating clothing recycling bins at the Renaissance Square Mall. After the board upheld the denial of the certificate by way of a written resolution, Carecycle filed its complaint in lieu of prerogative writs. Judge Hurley dismissed Carecycle’s complaint, noting that, pursuant to recent legislative enactments regarding clothing bins, North Brunswick had adopted an ordinance governing charitable clothing bins. Its ordinance provides that “[c]
haritable clothing bins may only be placed, used or employed in the C-2 General Commercial District” and “may not be placed, used or employed in any other zone districts within” North Brunswick. The mall is located in the PUD-II zone, not the C-2 zone. Shopping centers are a permitted use in the PUD-II zone, and are a permitted use in the C-2 zone. Plaintiff therefore concludes that because charitable donation bins are a permitted accessory use in the C-2 zone, they are a permitted accessory use in the PUD-II zone as accessory to a shopping center use. Judge Hurley found that Carecycle “fails to recognize that permitting the use as an accessory use in the C-2 zone is subject to the restriction that they may only be placed in the C-2 zone.” The appellate panel affirms the judge’s decision dismissing this action. [Decided Oct. 21, 2013.]
27-3-1728 Fogel v. Sport-A-Rama, Law Div., Special Civil Part — Essex Co. (Fast, J.S.C. retired and temporarily assigned on recall) (11 pp.) A previous judge adjourned a motion to transfer this summary action for possession to the Law Division and required a deposit of $24,000 as a condition of adjourning the motion. After denial of the transfer and the trial, plaintiff prevailed and the prime and subprime tenants were evicted, the court finding that a prime tenant could not unilaterally convert a lease into a sublease for one-half the rent for the prime lease and, where the rent for the prime lease was not paid, both the prime tenant and the subtenant (the principals of both being the same individual) were subject to eviction. Defendants’ motion for reconsideration was denied as was an emergent application to the Appellate Division. Defendants have now applied for a refund of the $24,000. The court finds, inter alia, that defendants have not presented any equitable reason for them to get the funds, the amount on deposit is a small fraction of the amount owed for the premises, the rent has been unpaid for several months, defendants delayed the resolution of the case by filing the motion to transfer, making a postjudgment application for frivolous reasons, and applying to the Appellate Division, are commercial tenants, and the deposit was based on the rent called for in the sublease. The funds on deposit are ordered to be turned over to plaintiff. [Decided Oct. 22, 2013.]
52-3-1715 Ganzweig v. Township of Lakewood, Law Div. — Ocean Co. (Grasso, A.J.S.C.) (9 pp.) In this action, plaintiff seeks to compel defendant-township and its clerk to produce police transmissions, videos and phone recordings in connection with two specified motor vehicle accidents pursuant to the Open Public Records Act. Defendants argue that the records are confidential because internal affairs investigations have been started regarding both incidents. The court orders disclosure of the records, finding that the police transmissions and recordings sought by plaintiff do not automatically fall outside OPRA’s reach because they contain the nature and source of internal allegations, they are independent and are to be distinguished from those internal affairs records that are created once an investigation has begun. Plaintiff seeks only the information that was recorded at the time of the incidents but before any internal affairs investigations. The fact that an internal affairs investigation may use or mandate the acquisition of the requested records does not change their status as an accessible government record. [Filed Sept. 27, 2013.]
34-2-1716 Bazuaye v. Mann, App. Div. (per curiam) (27 pp.) In this action arising out of the sale of plaintiff’s home while he was incarcerated, asserting claims against his girlfriend, his attorney, and the buyer of the home, and seeking to declare the deed in the buyer’s name null and void, and in which the Chancery Division severed and transferred the claims for malpractice and negligence against the attorney and fraud against the girlfriend to the Law Division, plaintiff appeals from the Chancery Division’s order dismissing his complaint with prejudice and discharging his notice of lis pendens on the property, the Chancery Division’s order entering judgment for $30,000 against his girlfriend for conversion, and the Law Division order dismissing his remaining claims. The panel affirms the Chancery Division order dismissing the complaint, finding that the power of attorney given to the girlfriend was valid as she and the notary acted pursuant to plaintiff’s instructions, it complied with the statutory requirements to transfer title to real property, and the girlfriend did not forge plaintiff’s signature because he authorized her to sign the documents on his behalf; the court did not err in putting the burden of proof that he was entitled to an equitable remedy on defendant or in relying, in part, on the doctrine of unclean hands. The panel also finds that the default judgment entered against the girlfriend when she failed to appear for trial was improvidently granted and that entry of judgment based on her misappropriation of funds was improper because that count of the complaint had been transferred to the Law Division. The panel affirms the Law Division’s dismissal finding that it properly dismissed the complaint as barred by principles of collateral estoppel. [Decided Oct. 22, 2013.]
35-5-1717 Medical Freehold, L.L.C. v. Township of Freehold, Tax Ct. (Sundar, J.T.C.) (8 pp.) The court grants defendant’s motion to dismiss this challenge to a property tax assessment because of plaintiff’s failure to respond to income and expense information requests pursuant to N.J.S.A. 54:4-34. The court rejects plaintiff’s argument that receipt of the Chapter 91 request was defective because it was incorrectly computed from the date of the request rather than the date of receipt, finding that regardless of which date is used, plaintiff’s failure to respond is not justified and that plaintiff did not allege whether or why it could not have complied with the request for information or that the information was improper or invalid. Further, the requests’ use of “B” and “L” in conjunction with numbers, commonly understood as the relevant Block and Lot numbers, and its use of “Loc” in conjunction with the word “property,” commonly understood to mean property location, does not render the request vague or confusing to justify plaintiff’s nonresponse. Defendant’s motion is granted subject to plaintiff’s right to a reasonableness hearing. [Decided Sept. 17, 2013.]
36-2-1706 Muhammad v. City of Newark, App. Div. (per curiam) (4 pp.) Plaintiff appeals from a June 2012 Law Division order denying a motion to reinstate his complaint seeking to assert claims under the Tort Claims Act against the city and UMDNJ stemming from injuries he sustained in a 1993 shooting in Newark when he was 14 years old. The panel dismisses the appeal as moot given the procedural posture of the case, where plaintiff had filed a motion seeking leave to file a late notice of claim that was denied after an August 2011 hearing; the Appellate Division denied his motion to filed a late notice of appeal in February 2012; his motion for reconsideration was denied in March 2012; in April 2012, the Supreme Court permitted him to file a notice of petition for certification; while that matter was pending, he filed a motion for relief from the trial court’s April 2011 order seeking to reinstate his complaint and to inspect documents, both of which were denied in the June 2012 order at issue; and in September 2012, the Supreme Court denied his petition for certification, thereby upholding the earlier denial of his late notice of appeal and leaving the August 2011 trial court order in effect. [Decided Oct. 21, 2013.]
36-2-1729 Dever v. New Jersey Manufacturers Insurance Company, App. Div. (per curiam) (31 pp.) The parties filed cross-appeals from a jury verdict rendered in this automobile negligence action. Liability was not disputed; the trial was limited to causation and damages. The jury found plaintiff had not suffered a permanent injury as a result of the motor vehicle collision, but awarded lost wages of $275,000. Both sides filed postjudgment motions challenging different aspects of the verdict. The judge determined plaintiff was entitled to reimbursement for unpaid medical bills, but otherwise denied the motions. Defendant New Jersey Manufacturers Insurance Company (NJM) argues the trial judge erred in denying its motion for a new trial or, in the alternative, remittitur, contending the amount of the damage award was not supported by the evidence. Defendant also challenges the order reimbursing plaintiff for the amount of a workers’ compensation lien for medical bills. Plaintiff maintains the judge erred in denying his motion for a judgment notwithstanding the verdict (JNOV), seeking to set aside the jury’s permanent-injury finding. The appellate panel affirms the jury verdict. The evidence was not so one-sided as to compel a conclusion the verdict was incorrect or excessive, warranting a new trial or remittitur. Also, the panel concludes the jury had ample evidence to conclude plaintiff did not sustain permanent injuries. The panel reverses the postjudgment order awarding plaintiff reimbursement of his medical expenses from defendant; plaintiff’s medical expenses are the responsibility of the workers’ compensation carrier and not reimbursable by defendant. [Decided Oct. 23, 2013.]
01-8-1731 Mendoza v. Commissioner of Social Security, Third Cir. (Aldisert, U.S.C.J.) (4 pp.) Mendoza appeals from a district court judgment that denied in part her fee-award application, which was submitted pursuant to the Equal Access to Justice Act (EAJA). She contends that the district court abused its discretion when it reduced her requested fee award after making erroneous “categorical legal conclusions” that certain fees incurred were not compensable. Before the district court, the commissioner argued that Mendoza should not be awarded any fees accrued after the date the commissioner offered a consent remand. The district court agreed and awarded all claimed fees incurred as of that date, but awarded no fees for work performed by the Rutgers-Newark Urban Legal Clinic after that date. The circuit panel agrees that there may have been “overlitigation” after the commissioner’s offer of a consent remand. The district court acted within its discretion in denying fees for legal work on the merits of the case performed after that offer was made, particularly given the lack of success achieved by Mendoza. However, the panel agrees with Mendoza that she was entitled to some fees for the time spent preparing the fee application itself, which would have been necessary even had Mendoza agreed to the commissioner’s remand offer. The rationale for rejecting fees here based on “overlitigation” does not apply with equal force to all of the hours spent on the fee application. The panel remands to the district court to calculate reasonable attorneys’ fees for work performed after the commissioner’s remand offer. [Filed Sept. 10, 2013.]
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 as a motion for judgment on the pleadings, in this 42 U.S.C. § 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 Sept. 18, 2013.]
01-7-1708 Wolfe v. Commissioner of Social Security, U.S. Dist. Ct. (Linares, U.S.D.J.) (23 pp.) Plaintiff appeals from the final decision denying her application for supplemental security income. The court affirms, finding that the administrative law judge’s determination that plaintiff, who has a long history of substance abuse that exacerbated her health problems, including hypertension, peripheral vascular disease, hepatitis C and depression, is not disabled was supported by substantial evidence. [Filed Sept. 20, 2013.]
01-7-1720 Diaz v. Commissioner of Social Security, U.S. Dist. Ct. (Martini, U.S.D.J.) (9 pp.) Plaintiff, a survivor of the Sept. 11, 2001, attack on the World Trade Center suffering from post-traumatic stress disorder, appeals from an administrative law judge’s denial of disability insurance benefits and supplemental security income benefits, arguing that the administrative law judge improperly weighed various expert opinions and relied on vocational expert testimony that did not reflect the facts of his situation. The commissioner does not challenge any of the arguments Diaz makes and recognizes that the ALJ’s decision is indefensible. The only disputed issue is whether the ALJ’s alleged bias requires that the matter be remanded to a new ALJ. The court declines to assign the matter to a different ALJ, finding that although the ALJ’s observation — that a doctor or psychologist may be tempted to overstate the severity of the patient’s limitations out of sympathy or as a sort of quid pro quo for the claimant’s willingness to treat with the doctor — did not belong in her opinion, it did not give rise to serious concerns about the fundamental fairness of the disability review process, the court cannot infer that the ALJ will apply the wrong legal standard on remand, and there is no basis to find that the ALJ failed to consider evidence based on hostility toward Diaz. [Filed Sept. 24, 2013.]
03-7-1732 Aetrex Worldwide Inc. v. Sourcing for You, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (4 pp.) In this action seeking temporary, preliminary and permanent relief due to defendants’ alleged breach of a noncompete provision in their supply contract with plaintiff, defendants move to stay the complaint and compel arbitration pursuant to an arbitration provision in the contract. The court looks to the language of the arbitration provision, which excludes actions seeking “a temporary restraining order or injunction,” and concludes that a plain reading of the provision shows that the word “temporary” is not an initial modifier adjective but an integral part of the phrase “temporary restraining order,” that it is unreasonable to suggest that the parties only intended the provision to cover preliminary and not permanent injunctions yet did not include the world “preliminary” in front of the word “injunction,” and that the disputed contract provision unambiguously covers permanent injunctions. Therefore, defendants’ motion is denied. [Filed Sept. 25, 2013.]
03-7-1721 Composition Roofers Local 4 Pension Fund v. J. Murphy Roofing & Sheet Metal Inc., U.S. Dist. Ct. (Cecchi, U.S.D.J.) (15 pp.) Petitioners Composition Roofers Local 4 Pension, Welfare, Annuity, and Information and Education Funds are multiemployer-employee benefit plans under the Employee Retirement Income Security Act (ERISA). Respondent J. Murphy Roofing & Sheet Metal Inc. is an employer within the meaning of the Labor Management Relations Act (LMRA). The results of an audit revealed that respondent had underpaid its contribution obligations and a delinquency existed to the funds for the period of December 2004 through December 2007. An arbitrator found that respondent had underreported its contribution obligations and a delinquency existed. The arbitrator ordered that respondent pay petitioners the principal amount, plus liquidated damages, attorney fees, per diem interest (at 12 percent) for each day from July 27, 2011, until paid in full, and arbitrator fees. Petitioners filed a motion to confirm the arbitration award. Respondent filed a cross-motion to vacate the award on the grounds that (1) the court lacks jurisdiction under the Federal Arbitration Act (FAA); (2) the arbitrator denied a fair hearing by failing to postpone the hearing date; (3) the arbitrator committed misconduct: (4) the petitioners were premature with their submission to arbitration; (5) the petitioners cannot recover contributions on behalf of individuals who have no colorable claim of benefits and who are not identifiable; and (6) the arbitrator exceeded his authority in addressing the subcontractor issue and relying on an inapplicable CBA. Considering and rejecting these arguments in turn, the court grants petitioners’ motion to confirm the arbitration award and denies respondent’s cross-motion to vacate the arbitration award. [Filed Sept. 11, 2013.]
42-6-1672 In re John A. Rocco Co. Inc., U.S. Bank. 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 that it deposited into its own account but they were returned for insufficient funds. On learning of the bounced checks, the debtor made the subject payments to Empire. The court finds that, although 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 § 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 Sept. 18, 2013.]
42-6-1673 In re Sia, U.S. Bank. 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 the debtors’ Schedule D, BAC Home Loans Servicing, L.P., was the lawful owner or holder of the mortgage note. Thereafter, this 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 the 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. Plaintiffs 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 Aug. 27, 2013.]
42-7-1674 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 the debtors’ discharge after finding, based on the debtor’s truthful testimony that she did not intent to hinder, defraud or delay her creditors, or conceal any information, that any errors on the 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 the debtor should not be precluded from discharge under § 727(a)(2)-(4). [Filed Sept. 17, 2013.]
07-7-1722 Little-King v. Hayt, Hayt & Landau, U.S. Dist. Ct. (Hammer, U.S.M.J.) (41 pp.) Before the court is the motion of plaintiff Little-King and others similarly situated and defendants Hayt, Hayt & Landau and First American Acceptance Co. to (1) certify the class and grant final approval of the parties’ settlement pursuant to Federal Rule of Civil Procedure 23; (2) apply for an award of attorney fees and reimbursement of expenses; and (3) approve an incentive award pursuant to Rule 23(h). Plaintiff alleges that defendants, acting as debt collectors, sent her a letter that did not conform with the Fair Debt Collection Practices Act (FDCPA) and filed this matter on behalf of herself and others similarly situated. The proposed class includes consumers in both New Jersey and Pennsylvania who received similar letters from defendants. The proposed settlement would resolve all claims asserted against defendants arising from plaintiff’s amended complaint. Shortly after preliminary approval, the parties provided notice of the action and settlement to potential class members, informing them of their right to be part of the class, to be excluded from the class, or to object. The court received four objections and a motion to intervene by three of the objectors. The court does not find any reason to grant the objectors’ motion, either as a matter of right or permissively. The court will certify the class as defined, grant final approval to the settlement, and deny the objectors’ motion to intervene. [Filed Sept. 10, 2013.]
46-7-1675 Santini v. Fuentes, U.S. Dist. Ct. (Pisano, U.S.D.J.) (11 pp.) In this 42 U.S.C. § 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 § 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; § 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 Sept. 18, 2013.]
46-7-1687 Alcius v. City of Trenton, U.S. Dist. Ct. (Thompson, U.S.D.J.) (5 pp.) Plaintiff filed a complaint asserting Fourth and Fourteenth Amendment claims pursuant to 42 U.S.C. § 1983 against Capital Health System, Dr. Deendyal, and other defendants. Plaintiff alleges that he was injured by police during the execution of a search warrant at his home. The incident led to an open wound on plaintiff’s thigh, later treated by Dr. Deendyal at Capital Health System. To date, more than 120 days have elapsed since the filing of defendants’ answers. Plaintiff has neither provided defendants with an Affidavit of Merit, nor sought an extension. Defendants have moved for summary judgment. Here, both Capital Health System and Dr. Deendyal appear to be licensed medical professionals. Moreover, the action is for damages for personal injuries, and the relevant claims involve medical malpractice wherein treatment failed to meet the standard of care. As such, plaintiff should have provided Capital Health System and Dr. Deendyal with an Affidavit of Merit within 60 or 120 days of the filing of their respective answers. Given that plaintiff has not done so, the court concludes that plaintiff has failed to state a cause of action with respect to the malpractice claim. Finding neither exception to the Affidavit of Merit Statute applies, the court grants defendants’ motion for summary judgment. [Filed Sept. 5, 2013.]
46-7-1688 Kellinger v. City of Englewood, U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) The city, its police department, and an individual police officer move to dismiss this 42 U.S.C. § 1983 action alleging that plaintiff was improperly ticketed for improper passing on the left and failure to yield to a pedestrian and improperly sentenced to 10 days in jail, and asserting claims for false arrest/false imprisonment, malicious prosecution, due process/unlawful seizure, that the city failed to train and supervise defendants and that defendants acted pursuant to the city’s unlawful practices, customs and policies, and cruel and unusual punishment. The court grants defendants’ motion, finding, inter alia, that plaintiff’s conviction means that there was probable cause for his arrest and prosecution, plaintiff has failed to adequately plead that Englewood has a policy or custom of arresting and trying people without probable cause or violating due process rights at trial or of cruel and unusual punishment, and the police department does not have independent legal status. [Filed Sept. 18, 2013.]
46-7-1709 Vaidya v. Township of Edison, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (17 pp.) After an incident between extended family members, plaintiffs Binal Vaidya (through Rashmin Vaidya as guardian ad litem), Rashmin Vaidya and Sudha Vaidya filed a complaint against defendants, the township of Edison, the township of Edison Police Department, Patrolman Meade, Hemlata Nayee, Pravin Nayee, Jitendra Nayee, and Pooja Nayee. Plaintiffs’ complaint alleged violation of 42 U.S.C. § 1983 (arrest); violation of 42 U.S.C. § 1983 (conspiracy); violation of 42 U.S.C. § 1983 ( Monell liability); violation of New Jersey Law Against Discrimination; common-law false arrest; intentional infliction of emotional distress; slander per se and defamation; false light; and negligence. Officer Meade did not create an incident report; he asserts that it was a response to a call for service, not a criminal investigation. The police department, pursuant to its policy, conducted an internal affairs investigation, including requests to speak with the Vaidyas and their attorney, which were refused. After interviewing the officers and the relevant documents, it was determined that the “[o]
fficers actions were justified, legal, and proper, in an attempt to render assistance in a family dispute” and the matter was closed. Defendants filed separate motions to dismiss the complaint. The court dismisses plaintiffs’ federal claims, and declines to exercise supplemental jurisdiction over the state law claims, which are dismissed without prejudice. [Filed Sept. 9, 2013.]
46-7-1689 Scott v. Ellis, U.S. Dist. Ct. (Sheridan, U.S.D.J.) (28 pp.) Pro se plaintiff, a pretrial detainee, filed this 42 U.S.C. § 1983 action against the warden and multiple employees of the Mercer County Correctional Center, asserting a variety of claims of constitutional deprivation, including cruel and unusual punishment, denial of access to the courts, denial of the free exercise of religion, and retaliation. The court reviews each claim against each defendant and permits the complaint to proceed against certain defendants on certain claims. Plaintiff’s request for the appointment of counsel is denied without prejudice. [Filed Sept. 18, 2013.]
11-7-1690 Khosla Ventures, L.L.C. v. Rolls-Royce Canada Limited, U.S. Dist. Ct. (Thompson, U.S.D.J.) (9 pp.) Defendant Rolls-Royce Canada Limited (RRC) filed a motion to dismiss the counts of plaintiff Khosla Ventures, L.L.C.’s first amended complaint, which allege fraudulent inducement and conspiracy to commit fraud. This matter arises from a contractual agreement between Khosla and RRC, whereby RRC agreed to perform maintenance and repair work on aircraft engines owned and operated by Khosla. The court finds that Khosla has met its burden to demonstrate that RRC, with the intent to deceive, knowingly misrepresented a present material fact to induce Khosla to act, resulting in damage to Khosla. The court denies RRC’s motion to dismiss the claim for fraudulent inducement. Moreover, Khosla appears to have sufficiently pleaded facts to support the elements of a civil conspiracy claim. Finally, the court will not apply the exculpatory provisions of RRC’s standard terms and conditions (STC) to the claim of civil conspiracy at this time. [Filed Sept. 5, 2013.]
11-7-1723 StrikeForce Technologies Inc. v. WhiteSky Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) Plaintiff StrikeForce Technologies Inc.’s amended complaint sets forth claims for breach of contract, misappropriation of trade secrets under New Jersey’s Trade Secrets Act, promissory estoppel and unjust enrichment. StrikeForce filed the amended complaint on leave of court following defendant WhiteSky Inc.’s motion to dismiss, which was granted in part and denied in part. The court found that the complaint pleaded insufficient factual allegations to support plaintiff’s claims of misappropriation and violation of the contract’s confidentiality provisions but observed that the claims might be viable if the facts were pleaded in compliance with Federal Rule of Civil Procedure 8(a). WhiteSky asserts that the amended complaint fails to allege facts showing that the material and methods disclosed are protected information under the Trade Secrets Act or otherwise confidential within the meaning of the parties’ agreement; however, its moving brief does not identify how or why the amended complaint is deficient. Instead, WhiteSky presents its argument on this point in the reply brief. Having reviewed the amended complaint, and the additional factual allegations concerning defendant’s disclosure of plaintiff’s software and confidential information, the court is satisfied that the claims in the amended complaint meet the pleading standard of Rule 8(a). The court denies defendant’s motion to dismiss. [Filed Sept. 11, 2013.]
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 the law firm representing the bank, alleging that it had violated the Fair Debt Collection Practices Act and the New Jersey Consumer Fraud Act in attempting to collect the purported debt, and the law firm removed the third-party complaint pursuant to 28 U.S.C. § 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 Sept. 17, 2013.]
15-7-1724 Gonzalez v. Portfolio Recovery Associates, L.L.C., U.S. Dist. Ct. (McNulty, U.S.D.J.) (5 pp.) The court grants defendant-debt collector’s motion to dismiss this action alleging that defendant violated the Fair Debt Collection Practices Act when it sent plaintiff a letter that misstated the amount of the debt and falsely represented that an attorney was involved in the collection process on the ground that it was filed after the running of the one-year statute of limitations in the FDCPA, finding that this action does not relate back to an earlier, virtually identical complaint in state court that was dismissed without prejudice because plaintiff had not properly effected service, and that there is no basis for equitable tolling. The court denies defendant’s motion for sanctions, finding that neither plaintiff’s filing of an untimely complaint nor his arguments in opposition to dismissal approach the Rule 11 threshold. [Filed Sept. 20, 2013.]
14-8-1678 Dimanche v. Tay-Taylor, Third Cir. (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 Sept. 3, 2013.]
16-7-1691 R.C.S. and M.S., on Behalf of Their Minor Child R.S. v. Shrewsbury Borough Sch. Dist. Bd. Of Educ, U.S. Dist. Ct. (Shipp, U.S.D.J.) (10 pp.) R.S. is a child diagnosed with several disabilities that impact his ability to learn. R.S.’s parents sought the assistance of the school board to provide the appropriate treatment and education for R.S. Dissatisfied with the educational care provided to R.S., his parents filed three different appeals with the administrative courts, and each time, the school board failed to comply with the outcome. R.S.’s parents filed a due process petition with the administrative court, and with that case still pending, filed this action. Defendants move to dismiss because plaintiffs have failed to exhaust their administrative remedies. The court finds plaintiffs’ allegations arising from the school board’s conduct following the most recent settlement agreement have not been subject to administrative review. A fully developed administrative record would inform the court’s judicial review and potential damages assessment. Accordingly, the exhaustion requirement will not be excused. The systemic-failure exception does not apply. Also, plaintiffs do not provide sufficient evidence to show irreversible damage. The court grants defendants’ motion. [Filed Sept. 5, 2013.]
19-7-1710 Bayliss v. New Jersey State Police, U.S. Dist. Ct. (Goodman, U.S.M.J.) (15 pp.) After counsel for defendant, Trooper Wambold, circulated a proposed amended pleading at the court’s instruction to determine whether there was consent for the amendment, the New Jersey State Police raised the fact that the proposed amended pleading contained references and quotes from confidential review sheets that it had not produced. Plaintiff thereafter filed a third amended complaint containing information from the review sheets. The NJSP has filed a clawback motion seeking an order compelling the return of documents inadvertently produced and an identification of all those to whom the documents at issue were disseminated. The court grants the motion, finding that the review sheets are predecisional and that the state has articulated a prima facie case for the application of the deliberative process privilege to them; that, on balance, the review sheets are entitled to deliberative process protection as they have no relevance to the issues raised in the Bayliss complaint, i.e., whether he can recover on his claims of excessive force; and that disclosure of the review sheets was not a waiver of the deliberative process privilege. [Filed Sept. 20, 2013.]
23-7-1733 Northern Star Management Inc. v. The Insurance Professionals, U.S. Dist. Ct. (Pisano, U.S.D.J.) (8 pp.) Plaintiff, a New Jersey-based insurance program and underwriting manager that alleges it had a contract with SUA Insurance Co. granting it the exclusive right to offer, bind and issue certain policies within a specified territory, asserts claims for tortious interference with contract and tortious interference with economic advantage, claiming that defendant intentionally caused SUA to breach its contract with plaintiff by placing insurance for SUA policyholders under plaintiff’s lines of insurance and in plaintiff’s territories. The court grants plaintiff’s motion for leave to amend, finding that, inter alia, its complaint meets the federal pleading requirements in Twombly as it contains statements that allege, and would fall into the category of, fraudulent, dishonest, and/or illegal conduct; defendant fails to cite to any facts that would support its contention that plaintiff is attempting to gain a third bite at the apple or that it would be prejudiced by the court granting leave to appeal; and plaintiff was not required to identify specific customers in its amended complaint. [Filed Sept. 23, 2013.]
23-8-1734 Pain & Surgery Ambulatory Center, P.C. v. Connecticut General Life Insurance Company, Third Cir. (Rendell, U.S.C.J.) (5 pp.) The district court granted summary judgment in favor of Connecticut General Life Insurance Company (CGLIC), rejecting appellants’ arguments that its bills for surgical procedures at Pain & Surgery Ambulatory Center, P.C. (PSAC), should have been allowed as “facility fees” covered under the policies issued pursuant to CGLIC’s benefit plan. CGLIC’s denials were based on its conclusion that PSAC does not qualify as a “free-standing surgical facility” under the terms and conditions of the CGLIC-administered “Open Access Plan” and the policies issued thereto. Appellants concede that PSAC is not a free-standing surgical facility, which would require it to maintain at least two operating rooms and one recovery room. However, they urge it should be included as an “other health care facility,” defined as “a facility other than a sospital or hospice facility.” PSAC’s facility consists of one room for use as an operating room and a separate recovery area. Patients are charged “professional fees” and “facility fees.” The latter are at issue here. Appellants urge that the district court misapprehended the applicable standard of review in considering the denials, and also improperly failed to allocate the burden of proof to CGLIC. As to the merits, they contend the district court erred in concluding that the term “other health care facilities” is limited to inpatient facilities. The circuit panel concludes that the district court’s reasoning was correct and appellants’ argument that PSAC should fit within the definition of “other health care facility” fails. This would be so even under a de novo standard, and putting the burden on GLIC, based on the plain and unambiguous language of the policies. The panel affirms the order granting summary judgment to CGLIC. [Filed Sept. 10, 2013.]
53-7-1735 Prometheus Laboratories Inc. v. Roxane Laboratories Inc., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (15 pp.) In this consolidated action in which plaintiff alleges that defendant’s filing of an Abbreviated New Drug Application for approval to market a generic version of plaintiff’s Lotronex product constitutes infringement of the claims of the re-examined ’770 patent and ’014 patent owned by plaintiff, and defendant alleges that the asserted claims are invalid and/or not infringed, the court construes the six disputed claim terms of plaintiff’s ’770 and ’014 patents. [Filed Sept. 23, 2013.]
25-7-1692 Canete v. Barnabas Health System, U.S. Dist. Ct. (Salas, U.S.D.J.) (15 pp.) Plaintiff, a 68-year-old registered nurse originally from the Philippines, filed this action alleging discrimination on the basis of age; (2) discrimination on the basis of race; (3) violation of the Conscientious Employee Protection Act (CEPA); (4) discrimination on the basis of military status; (5) discrimination on the basis of a disability; (6) harassment and hostile work environment; (7) violation of the Nurse Practice Act (NPA); (8) aiding and abetting wrongful behavior; and (9) breach of privacy in violation of policy. Defendants move for partial dismissal. Plaintiff concedes the dismissal of his age and disability discrimination claims under Title VII as to all defendants and the dismissal of his claim alleging defendants violated the Nurse Practice Act and they are dismissed. The court grants plaintiff’s motion to amend his breach-of-privacy claim to identify in greater detail those involved in the breach of privacy. The court dismisses the claims under Title VII, the ADEA, and the ADA as to individual defendants since those acts do not provide for individual liability. The court grants defendants’ motion seeking to bar plaintiff from asserting any claims of discrimination that predate June 13, 2012, because his EEOC charge stated that the alleged actions happened no earlier or later than that date and did not claim continuing discriminatory action. [Filed Sept. 18, 2013.]
25-7-1711 Boyd v. New Jersey Department of Corrections, U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (12 pp.) This matter again arises out of allegations of widespread discrimination and general misconduct against female, black corrections officers working at Northern State Prison (NSP). The plaintiff officers filed a complaint against defendants setting forth counts of sexual harassment, gender discrimination, racial discrimination, and discrimination based on military status under unspecified provisions of the New Jersey Law Against Discrimination; violations of unspecified provisions of the Lily Ledbetter Fair Pay Act of 2009, plaintiffs’ Local 105 union contract, New Jersey Department of Corrections’ (DOC) corrections reporting policy, domestic-violence policy, and unspecified privacy laws; and claims for exposure to a hazardous environment and retaliation under the Conscientious Employee Protection Act. The complaint seeks compensatory, consequential and punitive damages from all defendants on all claims, as well as attorney fees and costs. Plaintiffs’ amended complaint also specifies the Health Insurance Portability and Accountability Act and the Americans With Disabilities Act as the legal vehicles for their privacy claims, and the Public Employees Occupational Safety and Health Act as the legal vehicle for their claims for exposure to a hazardous environment. Defendants DOC, Lanigan, Adm. Lagana, Lt. Douglas, Lt. Rodriguez, Lt. Morgan, Lt. Coburn, Lt. Graham, and Maj. Blevins move to strike the amended complaint or, in the alternative, to dismiss certain claims from the amended complaint. Plaintiffs oppose the motion and move for sanctions against defendants. Plaintiffs’ motion for sanctions is denied. Defendants’ motion to strike or, in the alternative, dismiss will be treated as a motion to dismiss the amended complaint in its entirety. The court finds that plaintiffs again fail to satisfy the federal pleading standards; thus, the amended complaint is dismissed, this time with prejudice. [Filed Sept. 10, 2013.]
25-7-1712 Mance v. Quest Diagnostics Incorporated Voluntary Separation Plan, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Defendants Quest Diagnostics Incorporated Voluntary Separation Plan (VSA plan) and Quest Diagnostics Inc., as plan administrator (Quest), move to dismiss plaintiff’s complaint. Plaintiff alleges that the decision to deny her benefits under the VSA plan is a violation of ERISA § 1132(a)( I )(B). Plaintiff filed the complaint against defendants on behalf of herself and other similarly situated former employees of Quest. Plaintiff claims that benefits under the VSA plan were offered to Quest employees in exchange for voluntary termination. However, plaintiff also admits that she was involuntarily terminated. Nonetheless, plaintiff contends that she is entitled to benefits because she was eligible for benefits under Quest’s VSA plan but did not receive the benefits because defendants decided not to offer them to her and terminated her employment instead. She is essentially arguing that she would have been a beneficiary, but was deprived of this opportunity because she was involuntarily terminated instead of offered voluntary termination in exchange for benefits. Thus, plaintiff must show that she would have been a beneficiary “but for” the malfeasance of a plan fiduciary at Quest. Plaintiff has made no allegation of a breach of fiduciary duty, and her claim must be dismissed for lack of standing. Defendants’ motion is granted. [Filed Sept. 11, 2013.]
25-7-1713 Taylor v. Amcor Flexibles, U.S. Dist. Ct. (Hillman, U.S.D.J.) (27 pp.) In this action alleging retaliation under Title VII and the New Jersey Law Against Discrimination, after plaintiff filed a charge of racial discrimination against his employer, based on the content of a phone call to his home that was answered by his wife, defendant moves for sanctions against plaintiff’s pro hac vice counsel based on his failure to produce the wife at trial, after saying that she was unavailable since the parties are now involved in a divorce, despite numerous indications from the court that her testimony was necessary to avoid hearsay problems at trial and inviting defendant to renew its motion for summary judgment if she were not produced. The court denies the motion, finding that counsel’s conduct falls just short of the type of willful bad faith that justifies sanctions under 28 U.S.C. § 1927. [Filed Sept. 20, 2013.]
25-7-1736 New Jersey Building Laborers’ Statewide Pension Fund and Trustees Thereof v. C. Latorre Concrete, L.L.C., U.S. Dist. Ct. (Hillman, U.S.D.J.) (6 pp.) The court grants plaintiff’s motion for default judgment in this action seeking to recover unpaid withdrawal liability owed to the pension fund, finding that plaintiffs would be prejudiced if denied default judgment; defendant has not responded, submitted any meritorious defenses, or otherwise offered any excusable reasons for their default; and plaintiff has submitted adequate proof as to the amount owed, including interest and liquidated damages, and attorney fees. [Filed Sept. 24, 2013.]
25-7-1737 Ogunbayo v. Hertz Corporation, Third Cir. (per curiam) (6 pp.) Ogunbayo was employed by Hertz Corporation for about a decade. She was a member of the International Brotherhood of Teamsters, Local 641. Shortly after she wrote several letters to Hertz’s CEO complaining that she was being mistreated, she met with a member of her union and two Hertz managers, and in violation of Hertz rules, she surreptitiously filmed the meeting. As a consequence, Hertz suspended her, and informed her that she could return to work only after being medically cleared. Hertz later clarified that “medically cleared” meant “cleared by a psychologist”; it imposed this requirement, apparently, because co-workers reported Ogunbayo had been exhibiting disturbing behavior. Hertz scheduled two appointments with a psychologist for Ogunbayo; after she skipped the first one, it warned her that if she did not attend the second, she would be terminated. Ogunbayo refused to attend the second appointment and Hertz fired her. Ogunbayo’s complaint alleged that Hertz violated the terms of the collective-bargaining agreement (CBA); unlawfully terminated her employment; violated New Jersey’s Law Against Discrimination (NJLAD) by retaliating against her; and wrongly “condemn[ed]
” her by saying that she was unfit to work. The district court granted Hertz’s motion to dismiss the NJLAD claim. At the conclusion of discovery, Hertz filed a motion for summary judgment as to the remaining claims, which the court also granted. The circuit panel finds the district court did not err in dismissing Ogunbayo’s NJLAD claim. Ogunbayo never mentioned any NJLAD-protected characteristic in her letters, let alone attempted to connect the alleged mistreatment to any such characteristic. Also, the district court properly granted summary judgment to Hertz on Ogunbayo’s claims of wrongful discharge and violation of the CBA where she failed to exhaust the grievance and arbitration remedies in the CBA prior to filing suit. [Filed Sept. 9, 2013.]
25-7-1725 Connecticut General Life Ins. Co. v. Roseland Ambulatory Center, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (11 pp.) In this action in which plaintiff, which administers and underwrites employee health benefit plans, including the open access plus medical benefits plan in which defendant’s assignors participate, seeks to recover, pursuant to the terms of its policy, payments made to defendant, an out-of-network health-care provider, because of defendant’s practice of accepting payment from plaintiff and waiving or failing to collect the deductible, copayment, and/or coinsurance that plan participants were obligated to pay, the court denies defendant’s motion to dismiss, finding that, inter alia, plaintiff has set forth facts supporting a legally viable claim under ERISA as it has identified a provision in its plan that entitles it to recoupment for overpayments made and claims that defendant is in possession of such funds and the action is not barred by the time limit in the New Jersey Health Claims Authorization, Processing and Payment Act; plaintiff’s state law claims for fraud and unjust enrichment, which are pleaded in the alternative to its ERISA claims, are not pre-empted; and plaintiff has sufficiently pleaded the elements of fraud and unjust enrichment. [Filed Sept. 24, 2013.]
04-7-1693 Nanavanti v. Cape Regional Medical Center, U.S. Dist. Ct. (Bumb, U.S.D.J.) (23 pp.) This matter comes before the court on an order to show cause why the court should not impose sanctions on plaintiff’s counsel, Demetrius Parrish and Adrian Moody, pursuant to Federal Rule of Civil Procedure 11 or the court’s inherent authority, for their conduct in connection with the filing of a motion to vacate dismissal of this action. Parrish submitted a letter to the court apologizing for the “inaccurate and misleading” content of the motion, and taking full responsibility for the errors, while Moody voluntarily withdrew his appearance. Parrish’s misconduct violated Rule 11; further, his actions in submitting an entirely unsupported motion based on numerous misrepresentations and mischaracterizations constitute a fraud on the court deserving of sanctions pursuant to the court’s inherent powers. Those sanctions include an award of defendants’ attorney fees. [Filed Sept. 6, 2013.]
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 Social Security Administration commissioner’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 SSA 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. § 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 Sept. 18, 2013.]
36-7-1738 Lipsky v. Connecticut General Life Ins. Co., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Defendant Connecticut General sued Roseland Ambulatory Surgery Center, an out-of-network health-care provider under Connecticut’s insurance plans, to recover alleged overpayments it made to Roseland that were allegedly due to Roseland’s practice of waiving co-payments for patients covered under the plans. In this action, Roseland and its owner/manager assert claims for defamation and trade libel based on comments made by Connecticut’s spokesman in a newspaper article concerning the initial suit. The court grants defendants’ motion to dismiss the defamation claim because, although the statement that the waiver of cost-sharing is fraudulent and deceptive is injurious to plaintiffs’ reputations and concerned plaintiffs although they were not specifically named in the sentence, and the statement clearly was communicated to a third person because it was made to a newspaper reporter, the statement implicates a matter of public concern and plaintiffs have not pleaded that it was made with actual malice. The trade libel claim is dismissed because plaintiffs have not made a showing of malice. [Filed Sept. 24, 2013.]
38-8-1694 Schrager v. Aldana, Third Cir. (per curiam) (6 pp.) In this action, in which Arnold Schrager, one of the beneficiaries of the estate of Roslyn Schrager, alleges that appellee Jennifer Aldana conspired with two others to defraud the estate of more than $1 million and asserting private causes of action for money laundering, bank fraud, mail fraud and wire fraud, as well as a civil RICO claim, he appeals the district court’s grant of appellee’s motion to dismiss for failure to state a claim. Although he does not challenge the court’s conclusion that there is no private cause of action for money laundering, bank, mail or wire fraud, he does challenge its conclusion that he lacks standing for civil RICO purposes. The court affirms, finding that appellant did not have standing for civil RICO purposes because the estate was the immediate victim and he has not suffered a direct injury proximately caused by appellee. [Filed Sept. 18, 2013.]