01-2-1695 I/M/O 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 reemployment rights and issues relating to his discharge to the Civil Service Commission, appeals 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.
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.
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, which 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.
11-2-1698 Belfiore v. City of Hoboken, App. Div. (per curiam) (20 pp.) Plaintiff-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-upon severance payments is fundamentally unfair.
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 sixteen 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 in the amount of $1893. 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 $1300 per month, and lowered plaintiff’s alimony obligation by $30 per week. Finding no abuse of discretion, the appellate panel affirms.
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 upon the drug use of defendant while pregnant. Based on the recent Supreme Court case of New Jersey Div. of Youth & Family Servs. v. 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.
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’ PSA, 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.
25-2-1702 Coursey v. City of Atlantic City, App. Div. (per curiam) (29 pp.) Coursey is a former Councilman and long-time 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 reemployment 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.
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 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, that 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.
26-1-1704 Borough of Saddle River v. 66 East Allendale, L.L.C., Sup. Ct. (LaVecchia, J.) (59 pp., including dissent by Albin, J.) The jury heard evidence about the probability of a zoning change that should have been ruled on by the judge in advance and outside of the jury’s presence. A new trial on just compensation is required because the jury was allowed to hear speculative evidence that undermined the soundness of its property-valuation determination.
35-5-1705 Marina District Development Co., L.L.C. v. City of Atlantic City, Tax Ct. (DeAlmeida, P.J.T.C.) (64 pp.) The court adopts the income approach to determine the true market value of an Atlantic City casino-hotel. In addition, the court held that when determining net operating income under the income approach an appraisal expert’s averaging of the subject property’s annual net operating income over a four-year period lacks credibility, as averaging does not reflect the expert’s weighing of various factors having an impact on the subject property’s future earning potential. In addition, the court held that failure to extract business value through application of a hypothetical management fee inflated expert’s opinion of value under income approach. The court adopted the opinion of one of plaintiff’s appraisal experts. As a consequence, assessments on subject property reduced for two tax years. [Decided Oct. 18, 2013.] [Approved for publication.]
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 which 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.
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 cell phone 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 cell phone. 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.
01-7-1708 Wolfe v. Commissioner of Social Security, 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 ALJ’s determination that plaintiff, who has a long history of substance abuse which exacerbated her health problems, including hypertension, peripheral vascular disease, hepatitis C and depression, is not disabled was supported by substantial evidence. [Filed September 20, 2013]
46-7-1709 Vaidya v. Township of Edison, 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 September 9, 2013]
19-7-1710 Bayliss v. New Jersey State Police, Dist. Ct. (Goodan, 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 pre-decisional 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 Bayless 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 September 20, 2013]
25-7-1711 Boyd v. New Jersey Department of Corrections, Dist. Ct. (Debevoise, U.S.D.J.) (12 pp.) This matter again arises out of allegations of widespread discrimination and general misconduct against female, African American 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’s 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 September 10, 2013]
25-7-1712 Mance v. Quest Diagnostics Incorporated Voluntary Separation Plan, Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Defendants Quest Diagnostics Incorporated Voluntary Separation Plan (“VSA Plan”), and Quest Diagnostics incorporated, 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 § 11 32(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 September 11, 2013]
25-7-1713 Taylor v. Amcor Flexibles, 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 which 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. Section 1927. [Filed September 20, 2013]