01-2-4381 J.L. v. Dep’t of Human Services, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant appealed the denial of his request for housing Emergency Assistance. Appellant had an income of approximately $600 a month from Temporary Assistance for Needy Families and Supplemental Nutrition Assistance. He lived with his mother and paid rent to her. Mother wrote a letter stating that appellant and his son had to leave her residence by June 1, 2016. The ALJ found appellant to be not credible, that he was not homeless because mother had not yet carried through her threat to evict him and that he had shown no evidence of a job search and his imminent homelessness was due to his own actions. The court dismissed the appeal as moot because appellant no longer claimed to be eligible for EA and the appeal raised no issue of significant public importance that was capable of repetition but evaded review. The court also noted that the hearing was disconcerting because the ALJ prevented appellant from completing his testimony and went off the record in the middle of the hearing.

06-2-4368 Wells Fargo Bank, N.A. v. N. Exec. Motor Club LLC, N.J. Super. App. Div. (per curiam) (4 pp.) Plaintiff appealed from the order dismissing its only count against defendant Navy Federal Credit Union for failure to state a claim, and further appealed from the order denying reconsideration. Plaintiff deposited a check for $64,000 drawn on NFCU payable to Jennifer Aldridge and defendant Northern Executive Motor Club, LLC, into Northern Executive’s account with plaintiff. The check was indorsed by Aldridge but not Northern Executive. Plaintiff then honored all checks drawn and withdrawals against the credit from the $64,000 check. However, NFCU later return the check unpaid based on the missing signature from Northern Executive; NFCU’s failure to honor the check created an overdraft that was not paid by Northern Executive. In its complaint, plaintiff argued it was a holder in due course. The trial court granted NFCU’s motion to dismiss the count against it, reasoning that plaintiff was not a holder in due course because it failed to exercise ordinary care that substantially contributed to the improper negotiation of the check. On appeal, the court reversed, finding the trial court’s reasoning flawed, based on the UCC’s grant of holder in due course status to a depositing bank, regardless of whether the check was indorsed by the customer. Moreover, the court held that the trial court’s conclusion that plaintiff failed to exercise ordinary care was a factual determination requiring trial.

36-2-4393 Shtutman v. Carr, N.J. Super. App. Div. (per curiam) (43 pp.) The consolidated appeals arose from a Ponzi scheme wherein appellant claimed he invested over a million dollars in promissory notes based on defendant’s representations. Appellant sued numerous parties, claiming common law fraud, aiding and abetting fraud, negligence, negligent misrepresentation and unjust enrichment. Prior to trial, the motion judgment dismissed all claims except those relating to negligence; the jury found respondent was negligent and awarded damages. On cross-appeals for summary judgment the court affirmed the grant for fraud claims in favor of respondents but reversed as to aiding and abetting fraud. The court concluded that a jury could have been instructed to determine if respondent defrauded appellant even if one defendant was no longer a party. “Even in a criminal case, a defendant can be convicted of aiding and abetting a principal even if the principal was not prosecuted or was acquitted.” N.J.S.A. 2C:2-6(f). As such, it was appropriate to hold respondent aided and abetted defendant even if the case could not be pursued against defendant. Further the court vacated denial of summary judgment on appellant’s negligent misrepresentation and negligence causes of action. The court noted that appellant presented no evidence that respondent made any incorrect statements of a past or existing fraud. Instead, respondent’s alleged statements were mere puffery, predictions, or opinions which generally were not actionable.

11-2-4382 BC Compliance Group, LLC v. Rosen Seymour Shapss Martin & Co., LLP, N.J. Super. App. Div. (per curiam) (8 pp.) Appellant, a certified public accounting firm, retained respondent, a consulting firm specializing in contract compliance, to examine its real estate lease expenses to identify and eliminate overcharges in its leased facilities. Pursuant to the parties’ agreement, appellant agreed to compensate respondent with 50 percent of all benefits recovered. Following an audit indicating appellant overpaid its landlord, appellant renegotiated its lease and included a general release of all prior claims. Subsequently, respondent advised appellant that its audit findings had been utilized by appellant to obtain benefits under the new lease and demanded compensation. Upon appellant’s refusal to pay, respondent initiated the underlying complaint. On motion, the trial judge denied summary judgment in favor of appellant finding there was a disputed issue of fact as to whether appellant breached the parties’ contract by its refusal to compensate. On appeal, the court affirmed concluding the trial judge’s determination that there were genuine issues of material fact which could only be resolved by a jury was amply supported in the record. The court noted that the undisputed facts of respondent’s audit, which discovered the overpayment; the favorable lease extension subsequently negotiated between appellant and landlord; and the release of landlord from liability for prior claims; raised a significant question of fact of whether appellant secured benefits from landlord and was thus obligated to pay a fee to respondent. Accordingly, the court affirmed denial of summary judgment.

11-2-4395 Visconti v. Lake Wallkill Community, Inc., N.J. Super. App. Div. (per curiam) (8 pp.) This matter involved a dispute between respondent, a common interest community, and several appellant-homeowners, who contested their obligation to pay annual dues and filed an action to discharge liens respondent placed on their property. Respondent cross-claimed seeking a judgment for the delinquent dues and collection costs. Appellants appealed from a judgment in respondent’s favor arguing that: respondent had no legal or equitable right to file the liens, the filing violated their due process rights, the statute of limitations barred the claims, the judge erred in making certain discretionary rulings, and that appellants were entitled to counsel fees. The court affirmed the judgment as to the amount of dues owed by each appellant, however remanded on respondent’s claim for counsel fees and other costs as the trial court inadvertently failed to address that issue. The court noted appellants voluntarily joined the association as members with an application that included a commitment to pay dues and an agreement that respondent could place a lien on appellant’s property for unpaid dues. Moreover, even if the appellants had attempted to resign from the association, they could not have done so after the bylaws were subsequently amended. Finally, although the trial court’s order recited that respondent was awarded the full amount of its liens, the specific monetary amounts failed to include the sums attributable to the collection costs nor did the trial court’s opinion address the issue. Accordingly, the court remanded the matter for the limited purpose of addressing respondent’s claim for counsel fees.

15 2-4356 Deutsche Bank Nat’l Trust Co. v. Ferrara, N.J. Super. App. Div. (per curiam) (14 pp.) Defendants appealed the denial of their motion to vacate the final judgment of foreclosure. Defendants executed a note and mortgage to IndyMac in 2004 and defaulted on their mortgage in 2009. Plaintiff became the owner of the note and mortgage by way of merger and acquisition and filed notice of intent to foreclose. Defendants did not answer the complaint and filed two bankruptcies while the foreclosure action was pending. Final judgment was entered in favor of plaintiff in November 2010. Defendants filed a motion to vacate the final judgment in 2016, five years after it was entered, and on the eve of a scheduled sheriff’s sale. Defendants alleged that plaintiff did not own or control the mortgage at the time the complaint was filed. The Chancery judge found that the motion was time-barred and substantively without merit. Defendants argued plaintiff committed fraud and misrepresentation in its pleadings because it did not own or control the note and mortgage at the time of the complaint. The court found that plaintiff acquired all the assets of IndyMac from the FDIC two months before filing the complaint. Plaintiff had timely ownership and possession of the note and had standing to initiate the foreclosure. Additionally, defendants’ motion was time-barred.

15-2-4356 Prof-2013-S3 Legal Title Trust v. Adler, N.J. Super. App. Div. (per curiam) (3 pp.) Defendant appealed from a final judgment of foreclosure. Defendant signed a note secured by a mortgage in 2007. He chose not to file an answer on advice of counsel when served with the initial foreclosure complaint. That action was subsequently administratively dismissed for lack of prosecution, then reinstated and final judgment entered. Defendant successfully filed a motion to vacate that final judgment but never filed an answer to the complaint and final judgment was entered again. The trial judge correctly denied defendant’s subsequent appeal. Defendant had lived in the home without making mortgage payments for more than eight years and plaintiff was entitled to equity.

15-2-4357 Wells Fargo Bank, NA v. Jarrett, N.J. Super. App. Div. (per curiam) (4 pp.) Defendant appealed a final judgment of foreclosure. She signed a note secured by a non-purchase money mortgage in 2005 and defaulted on the loan in 2013. In 2006, she took out another mortgage loan and in 2008, obtained a home equity loan which she used to pay off the 2006 mortgage. At trial, she alleged she paid the 2005 loan with the proceeds of the 2006 loan but produced no documents to substantiate her story. The trial judge found her to be not credible. The court found that the trial judge’s credibility findings and decision were based on substantial evidence in the record.

15-2-4369 Citibank, NA v. Demetro, N.J. Super. App. Div. (per curiam) (9 pp.) On behalf of plaintiff, respondent sent a debt collection letter to appellant. Appellant contested the debt, demanded verification of the debt and instructed respondent to cease collection efforts until it mailed the debt verification in accordance with 15 U.S.C.A. §1692(g). Despite receipt of documents purporting to verify appellant’ debt, respondent allegedly did not mail such verification until after the underlying collection complaint was electronically filed. Appellant contended the factual dispute as to the mailing of the debt verification was central to her claim against respondent and therefore, dismissal of the third-party complaint prior to the exchange of discovery was improper. The court agreed, reversing dismissal and concluding appellant was deprived of discovery responsive to her inquiry as to the date that respondent mailed the debt verification. The court noted that discovery should have been completed prior to dismissal as such could substantiate appellant’s claim that the debt verification was mailed after the filing of the collection complaint in violation of the FDCPA. Finally, the court held the motion judge erred in denying as moot appellant’s motion for leave to amend her pleading to include a claim based upon respondent’s inconsistencies regarding the date it mailed the debt verification. Accordingly, the court reversed dismissal and remanded as to leave to amend.

39-2-4358 Linzmayer v. Keyport Board of Ed., N.J. Super. App. Div. (per curiam) (8 pp.) Appellant, a math teacher employed at Keyport High School, applied for workers’ compensation benefits following an alleged assault by a student wherein she sustained physical and psychological injuries. She filed claims for medical and temporary disability benefits that respondent denied. Following a trial, the workers’ compensation judge found appellant to be incredible and that her lay and expert witnesses did not support the claims. In contrast, the compensation judge found the expert testimony presented on behalf of respondent to be credible and persuasive. The compensation judge concluded that appellant’s alleged medical and psychiatric symptoms were not related to her employment and denied benefits. On appeal, the court affirmed holding there existed sufficient evidence for the compensation judge to deny appellant’s claims. Moreover, the court found the compensation judge properly weighed the competing experts and assessed the validity of the claim; the compensation judge explained that appellant’s expert opinions were based on her version of the assault and that they failed to conduct appropriate tests and reviews of medical records. However, respondent’s expert findings were supported by their examination of appellant, the tests conducted, and review of appellant’s medical records. Finally, the testimony of the principal was admissible hearsay of a party opponent as it was based on information appellant told him. Accordingly, the court affirmed.

25-2-4359 Garden State Fireworks v. Dept. of Labor and Workforce Development, N.J. Super. App. Div. (per curiam) (16 pp.) Appellant was a New Jersey corporation that manufactured, stored and sold fireworks, and facilitated firework shows; pyrotechnicians were hired to conduct and shoot the fireworks at the shows or displays. Respondent conducted a routine audit of the company and determined that appellant had improperly classified some of the pyrotechnicians it hired to run fireworks displays as independent contractors rather than employees. As a result, respondent ordered appellant to pay unemployment compensation and disability contributions for these technicians. Although the order was reversed by the ALJ, a final agency order reversed and determined that the pyrotechnicians should be classified as employees of the company. On appeal and under N.J.S.A. 43:21-19(i)(6)(A)-(C) (also known as the ABC test), the court reversed holding appellant provided the supplies the technicians required but then gave them virtually complete control over the performance of the fireworks displays. Further, the pyrotechnicians’ work was conducted at locations outside of appellant’s primary plant thereby satisfying prong “B” of the statute. Finally, the court held that the pyrotechnicians were all either retirees or full-time employees outside of their work for appellant and did not rely on appellant as their main source of income. As such, the court found insufficient evidence to support respondent’s determination that the pyrotechnicians did not meet the ABC test. Therefore, the court reversed respondent’s determination that the pyrotechnicians were employees.

25-2-4357 In the Matter of Justine Branham, City of Newark, N.J. Super. App. Div. (per curiam) (7 pp.) Appellant, an officer with Newark Police Department, sought to appeal a final agency decision suspending her for six-day for violation of department rules and regulations, insubordination, failure to take responsibility for her actions, and failure to obey orders. Approximately ten months after appellant appealed her suspension to the Commission, she filed a discrimination suit which specifically referenced her six-day suspension. The civil suit was subsequently settled for a sum of money and signing a broadly-worded release which made no exception for the pending appeal. Following the settlement, the City moved for summary decision; the ALJ dismissed the appeal for lack of subject-matter jurisdiction. Upon review, the Commission adopted the dismissal recommendation but determined the civil settlement included a release of the claims at issue in the administrative appeal. On appeal, the court affirmed holding the release confirmed the plain intention of the parties to resolve all of appellant’s claims, without exception. There was nothing ambiguous about the language selected by the parties to memorialize their agreement. Further, the circumstances surrounding the execution of the release confirmed appellant released and gave up and all claims and rights she had against the City. As there was not fraud, mistake or accident, the court cannot abrogate the terms of the contract and therefore affirmed.

17-2-4383 In the Matter of Spill Fund Liens Alexander Cleaners, N.J. Super. App. Div. (Ostrer, J.) (6 pp.) Hee Kul and Ryou Eun appealed the Department of Environmental Protection’s filing of lien against them and their property to recoup funds the department spent to clean up environmental contamination. On appeal, the Euns argued, for the first time, that they were entitled to an administrative hearing; the Euns also argued that the department should have adopted by formal rule-making its administrative guidance governing lien contests. The Euns acknowledged that they knew their property was contaminated when they purchased it. After the purchase, the Euns entered a memorandum of agreement with the department to submit a remedial action work plan. When the Euns failed to submit a plan, the department terminated the MOA and undertook cleanup with public funds. The Euns contested the lien filed by the department to the extent that it named them personally, asserting that a LLC owned the property. The department referred review to a neutral agency officer, who concluded that the Euns owned the property and recommended retaining the lien. Because the Euns raised their procedural challenges for the first time on appeal, the court declined to consider them and affirmed the department’s decision. Moreover, the court held that the Euns were not entitled to an adjudicatory hearing because they failed to identify the LLC that allegedly owned the property to raise a genuine factual issue requiring a hearing.

20-2-4358 Calabrese v. Pantalena, N.J. Super. App. Div. (per curiam) (3 pp.) Plaintiff appealed from a post-judgment matrimonial order releasing the parties’ children’s custodial accounts to pay for their college expenses, and directing enforcement of child support. On appeal, plaintiff argued that the statute requiring the trial court to consider “the need and capacity of the child for education, including higher education” was unconstitutional because the state was forcing him to financially support his children’s college decisions, even though if he were still married he would be able to refuse to pay any college expenses. The court noted that plaintiff’s constitutional argument had been rendered moot by defendant’s withdrawal of her application to have plaintiff contribute to their children’s college costs. The court affirmed the trial court’s decision, noting that plaintiff had not moved to emancipate his college-aged children; thus, the constitutionality of plaintiff’s continued child support obligation was not before the court.

20-2-4360 H.S. v. D.S., N.J. Super. App. Div. (per curiam) (7 pp.) The parties divorced pursuant to an amended judgment of divorce incorporating the parties’ agreement regarding custody of their daughter and established a parenting time schedule. Following appellant-wife’s remarriage, respondent-husband moved to terminate alimony. Appellant cross-moved for various relief including modification of child support. The family part judge granted termination of alimony as well as appellant’s modification for child support. About one year later, appellant moved to enforce litigant’s rights based upon respondent’s non-compliance with the order and requested attorneys’ fees. The family court judge issued a thirty-six paragraph order denying appellant’s application, as well as granting respondent’s motion for psychological evaluation and extra parenting time. On appeal, the court reversed holding the order failed to set forth specific findings of fact and conclusions of law as to his denial of appellant’s enforcement motion. Specifically, the court found the family part judge failed to conduct a hearing or explained how respondent’s alternate life insurance policy satisfied the prior court order. Although the family part judge found respondent had not complied with the prior court order or amended judgment of divorce, he denied appellant’s enforcement motion without providing findings of facts and conclusions of law in support of his determination pursuant to Rule 1:7-4(a). Lastly, the judge denied appellant’s application for attorneys’ fees without examining the statutory factors typically considered on a fee application. Accordingly, the court reversed.

20-2-4361 K.C. v. D.C., N.J. Super. App. Div. (per curiam) (25 pp.) After fifteen years of marriage, respondent-wife filed for divorce. Respondent, a college graduate, left the workforce shortly before the first of their two children were born in 1997 and did not work outside the home thereafter. Appellant-husband was employed as a consultant. Following a nonjury trial and order, appellant challenged the alimony obligation, asset distribution, and appointed a mediator. On appeal, the court affirmed in part the grant to respondent of restricted share units finding that such employment promotional grants were based on performance ratings at the time, in recognition of appellant’s efforts, and no document provided to the court stated appellant must meet any given performance goal to trigger the vesting of the units. Therefore, the restricted share units were subject to equitable distribution. Moreover, the distribution of a ski home was proper as it was not a joint venture per the deed, but equally owned by four parties. The court further affirmed in part the alimony obligation as being properly calculated to include “all sources” of compensation as well as correctly determining the duration of such obligation. However, the court remanded a portion of the alimony obligation related to the restricted share units for further explanation as to whether they will be excluded from consideration when calculating appellants “compensation from all sources”. Finally, the court affirmed the appointment of a mediator given appellant could not adequately explain his compensation at deposition as well as requiring appellant to be responsible for all expert fees.

20-2-4370 Brinkrode v. Brinkrode, N.J. Super. App. Div. (per curiam) (5 pp.) During the parties’ divorce proceedings, they agreed to share joint legal custody of their only child, with appellant-mother being designated as the parent of primary residence. Because respondent-father thereafter demonstrated that appellant was alienating the child from him, the trial judge ordered the parties to attend reunification therapy with a licensed clinical social worker. Appellant refused to sign the therapist’s retainer agreement and continued to ignore the trial court’s order requiring her signature or face daily sanctions. Appellant continued not to comply, and the trial judge entered another enforcement order imposing increased sanctions upon appellant. On appeal, appellant argued the monetary sanctions were unduly punitive, a plenary hearing should have been held, and the trial judge failed to consider appellant’s ability to pay such sanctions. The court affirmed holding there existed no basis to disturb the judge’s determination to impose monetary sanctions upon appellant after she repeatedly, and willfully, refused to comply with the reunification therapy necessary to enable respondent to resume parenting time with the parties’ child. The court noted that the judge took a measured approach to appellant’s defiance of the orders, beginning with a $5 per day sanction after giving appellant additional time to comply, before moving to a more substantial $100 per day sanction when it became clear that appellant would not willingly abide by the orders. Finally, the court held a plenary hearing was unnecessary as there were no disputed facts and the judge considered her ability to pay when allowing the sanctions to be offset against respondent’s alimony obligation.

20-2-4396 Dept. of Children and Families v. J.S., N.J. Super. App. Div. (per curiam) (16 pp.) Appellant was accused by his wife of physically abusing their eleven-year-old daughter by pushing her down the stairs. The police referred the child abuse allegation to respondent, which investigated and concluded that the alleged abuse was “not established.” As a result, respondent did not file any proceedings or take any action. Pursuant to its regulations, however, respondent’s “not established” finding and its investigation record were permanently maintained in its confidential records and not subject to expungement. The regulations further provided that there was no right to an administrative appeal from a “not established” finding. On appeal, appellant contended that he was falsely accused and that his right to due process had been denied as he was not afforded an adversarial hearing to confront his accusers and present evidence to clear his name. The court affirmed holding respondent’s investigation of the allegations by the victims and several witnesses, along with the child’s injury, corroborated the allegations of abuse. The “not established” finding was supported by substantial evidence in the record, and was neither arbitrary, capricious, nor unreasonable. Further, the confidential retention of the investigation records and “not established” finding appropriately addressed respondent’s need to access information in the event of future referrals involving appellant. Finally, the court held appellant was not entitled to a hearing as “a finding by [respondent] that child abuse charges have not been substantiated, but that there [was] some indication a child was harmed or placed at risk of harm, [was] purely investigatory in nature, with none of the procedural protections of an adjudicatory proceeding” required. N.J. Dep’t of Children & Families, Inst’l Abuse Investigation Unit v. S.P., 402 N.J. Super. 25, 270 (App. Div. 2008). Accordngly, the court affirmed.

20-2-4359 Guirguis v. Morris, N.J. Super. App. Div. (per curiam) (6 pp.) The parties were divorced by dual judgment of divorce which incorporated a matrimonial settlement agreement. Thereafter, the parties engaged in ongoing motion practice, which resulted in the entry of orders including the present order under appeal. Although appellant failed to timely file a conforming brief and appendix, the court ultimately accepted the brief and appendix to afford him an opportunity to prosecute his appeal. The court noted, however, failure to abide by the appellate rules implicated sanctions, including the sanction of dismissal. Rule 2:9-9. Further, the court found that appellant’s status as a pro se litigant offered no assurance of leniency nor relived him of the obligation to comply with the rules. The court recognized dismissal of the appeal was the ultimate sanction, but determined alternative sanctions lacked contextual suitability. In the court’s view, the deficiencies in appellant’s appeal would not be remediated by reprimand, censure, suppression of the brief and appendix, monetary sanctions or assessments of costs and attorney’s fees. The deficiencies included a failure to provide a concise statement of facts, failure to include legal arguments, and failure to address only those issues relating to the appeal of the order. Finally, the court held that appellant had numerous opportunities to cure his nonconformance and plaintiff has an interest to have the appeal timely resolved; therefore, the court dismissed the appeal with prejudice.

20-2-4360 Mandelbaum v. Arseneault, N.J. Super. App. Div. (per curiam) (31 pp.) This case arose out of the divorce of appellant-husband and non-party wife. Respondent, one of wife’s lawyers, sent filings in the divorce litigation to The Wall Street Journal, resulting in their widespread publication. Appellant filed suit for abuse of process, libel, invasion of privacy, and civil conspiracy. Respondent moved for, and was granted, dismissal of the complaint for failure to state a clam and to strike particular paragraphs related to false domestic violence allegations levied against appellant. On appeal, the court affirmed dismissal of abuse of process, but reversed dismissal of the remaining counts as well as reversing the striking of the paragraphs. The court found the paragraphs were relevant because the facts alleged were “of consequences to the determination of the action.” N.J.R.E. 401. The court noted the paragraphs supported motive, opportunity, intent, preparation, and plan between the alleged conspirators. N.J.R.E. 404(b). The court reversed dismissal of libel and invasion of privacy as appellant adequately alleged factions sufficient to support the claim and was not required to demonstrate fault at the pleading stage. Further, dismissal of false light was in error as the allegations were sufficient to show respondent knowingly or recklessly caused publication of false information which reached additional people when the publication was picked up by other news channels. However, the court granted dismissal of abuse of process concluding the wife’s statements did not mention, use, or threaten to use the domestic violence arrest or the criminal-complaint warrant, nor could the alleged threat carry out the criminal process to its authorized conclusion. Moreover, publicizing process was not abuse of process.

23-2-4361 Powell v. Lasting Legacy, N.J. Super. App. Div. (per curiam) (6 pp.) Respondent was sued following a motor vehicle accident; appellant-insurance company, subject to reservation of rights, retained a law firm to defend respondent in the action brought by a party injured in the accident. Appellant’s attorney filed a declaratory judgment seeking a judicial determined that respondent’s insurance policy through appellant was cancelled, and that appellant did not cover or owe respondent a duty to defend or indemnify. Respondent moved to disqualify the firm for its involvement in the mediation process resulting in a conflict of interest. Respondent made numerous arguments to the motion judge, however some were not germane to the issue of disqualification; rather pertained to substantive claims involving the alleged cancellation of coverage and other cover-related issues. After extensive oral argument and documentation, the trial court entered an order disqualified and barring the attorney from further proceedings. On appeal, the court was constrained to reversed concluding it did not know which of the many legal grounds advanced by respondent formed the basis of the judge’s ruling. The court could not ascertain if the facts supported the judge’s unspoken legal conclusions because he provided no rationale for his decision. As the court could not assess the judge’s findings of fact and conclusions of law, it vacated the order and remanded the case to another judge for further proceedings.

27-2-4362 Maslow v. Donato, N.J. Super. App. Div. (Summers, J.) (10 pp.) Defendants appealed the trial court’s issuance for a warrant of removal, evicting defendants from the home leased to them by plaintiff pursuant to defendants’ breach of a settlement agreement between the parties. Plaintiff initially filed an eviction complaint for defendants’ failure to pay rent and utilities; however, the parties entered a settlement agreement incorporated into a consent judgment that required defendants to pay monthly rent and utilities and timely repair damage to a broken water pipe. Plaintiff sought defendants’ eviction three months later for their breach of the settlement agreement by failing to pay rent. The trial court granted plaintiff’s motion for issuance of a warrant for removal, finding that defendants breached the settlement agreement. Defendants successfully sought a stay pending appeal, conditioned on their payment of rent. On appeal, defendants argued they should have been permitted to introduce plaintiff’s lack of a certificate of occupancy as proof plaintiff had no right to evict them. The court agreed with the trial court that the lack of a C.O. was irrelevant to the issue of defendants’ breach of the settlement agreement, holding that lack of a C.O. did not automatically void a lease; the court noted that defendants were also not seeking to void the lease, but to avoid eviction. The court further rejected defendants’ challenge to the trial court’s jurisdiction based on their satisfaction of the settlement agreement’s requirement for back rent. Although the court found no support for some of the trial court’s factual findings, it held that there was sufficient evidence for the trial court to conclude that defendants breached other material provisions of the settlement agreement, including failing to pay off the utility bills or all rent due. Accordingly, the court affirmed the trial court’s order and vacated the stay.

27-2-4363 Krukowski v. Wong, N.J. Super. App. Div. (per curiam) (13 pp.) Defendant appealed the verdict for plaintiffs in their suit alleging that defendant landlord wrongfully withheld their security deposit. Plaintiffs testified they leased the house, moved in on April 6, 2015, and extended the lease to October 5, 2015. On Sept. 29, 2015, plaintiffs received a text message stating that they had to vacate the following day and they did so. Landlord asserted that she had no obligation to return their security deposit, alleged damage to the premises and argued that since the property had sold, they should look to the new owner for their deposit. She asserted she was not the property owner, was not the company that leased the premises to plaintiffs, did not hold the security deposit and the lease provided that the security deposit would be turned over to the new owner. The trial judge found that defendant was not credible, that she was the owner of the property and was legally responsible for the return of plaintiffs’ security deposit. The court agreed and found that there was sufficient evidence in the record to show that defendant was the landlord, that there was no evidence that defendant closed on the sale of the property before plaintiffs vacated and that defendant was liable to return the security deposit.

29-2-4397 Dasent v. Koppel, N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the involuntary dismissal of her medical malpractice action. Plaintiff sought treatment from defendant pain management specialist. She received injections in her spine and was instructed to use ice every few hours for 20 minute intervals if the area of the injection bothered her. She had discomfort in her upper shoulder, applied ice to her shoulder and fell asleep with the ice on her shoulder. The skin blistered where the ice had been and she sued, alleging the injections burned her skin. Her medical expert opined that the use of an electrical grounding pad during the injection procedure caused the burning. However, it was undisputed that such a pad was not used during the procedure. The trial judge found that the expert’s opinion was a net opinion and dismissed the case. Plaintiff argued res ipsa loquitor obviated the need for expert testimony and if that was inapplicable, she was entitled to a conditional res ipsa loquitor charge. The court held that plaintiff’s burn to her shoulder, which was a different location than the site of the injection, did not, as a matter of common understanding, raise an inference of negligence. Additionally, plaintiff needed expert evidence to describe what caused the burn and there was a suggestion that plaintiff’s own act caused the injury

29-2-4398 Kross v. Breslow, N.J. Super. App. Div. (Gooden Brown, J.A.D,) (19 pp.) Plaintiff appealed the dismissal of her medical malpractice complaint. Defendant had a tummy tuck and liposuction, had difficulty healing and later had scar revisions which did not improve the appearance of her scars. That doctor refunded $14,000 to plaintiff in exchange for a signed release barring any future claims attributable to his care. Plaintiff then sought treatment from defendant and he performed a scar revision procedure. She continued to consult doctors about her symptoms. Her medical expert diagnosed an absence of umbilical tissue suggesting abdominal tension, scar hypertrophy and asserted defendant did not adequately consider the deficiency of skin in plaintiff’s lower abdominal area before performing the scar revision. Defendant argued plaintiff’s expert’s testimony was a net opinion and the trial court agreed and directed a verdict for defendant. The court agreed that the expert’s opinion failed to establish a causal connection between plaintiff’s complaints and defendant’s treatment. He provided no objective criteria for concluding that defendant failed to consider the laxity of plaintiff’s skin nor any basis for his conclusion that defendant’s minor scar revision caused plaintiff’s substantial and prolonged complications.

31-2-4371 Hockman v. Burrellys Ltd. Liability Co., N.J. Super. App. Div. (per curiam) (25 pp.) Defendant appealed multiple court orders in a slip and fall case in which the jury awarded plaintiff $1,280,000. Plaintiff entered defendant’s sandwich shop, slipped on an unknown liquid and injured her leg. Neither plaintiff nor defendant saw liquid on the floor, but plaintiff’s pants cuff was wet after she fell. Defendant argued the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. The court found that the motion judge erred by applying the mode-of-operation doctrine because plaintiff did not present sufficient evidence to show that it applied. The shop only served food to go and there was no evidence that the dangerous condition was due to customers’ handling of items in the refrigerator case. However, the motions judge correctly denied defendant’s motion for summary judgment because there were issues as to defendant’s notice of the alleged dangerous condition. The motions judge also correctly found that landlord had no liability as a matter of law. The trial judge erred by charging the jury on mode-of-operation. Additionally, plaintiff’s expert’s testimony exceeded the scope of the in limine determination by identifying the substance plaintiff slipped on and the source of the substance.

31-2-4372 Pagan v. Newark Hous. Auth., N.J. Super. App. Div. (per curiam) (8 pp.) Plaintiff appealed from the trial court’s grant of summary judgment to defendant, dismissing plaintiff’s negligence complaint. In her complaint, plaintiff alleged that, while a tenant in a building owned and managed by defendant, she was attacked by an unidentified armed intruder; although plaintiff had no proof, she alleged the attack was connected to her actions following her son witnessing a murder outside the apartment several months prior. After the murder, plaintiff requested a transfer; plaintiff declined units offered by defendant either due to the condition of the units or criminal activity in the neighborhoods. Following her assault, plaintiff made an emergency transfer request; plaintiff ultimately accepted a second unit offered by defendant. Plaintiff filed the present action against defendant, alleging negligence for failure to supervise the common areas and maintain the premises in a safe condition, failure to relocate plaintiff, failure to comply with applicable state and federal laws and regulations, and failure to exercise the degree of care required by law. The trial court granted defendant’s motion for summary judgment, ruling that defendant could not be liable for the criminal acts of third parties, and as a public entity was immune from liability arising from failure to provide sufficient police protection. The trial court also noted that plaintiff had merely speculated her attack was related to the murder, and that she had not suffered loss of bodily function, disfigurement, or dismemberment from her attack. On appeal, the court affirmed the grant of summary judgment, agreeing that defendant could not be held liable for a dangerous condition created by criminal activity of third parties. The court further agreed that plaintiff had merely speculated that her assault was proximately caused by defendant’s failure to relocate plaintiff, or was connected to her report of the murder.

34-2-4373 Rodano v. Kousmine, N.J. Super. App. Div. (per curiam) (9 pp.) Defendant appealed the order denying reconsideration of the decision enforcing a settlement agreement and plaintiff appealed the denial of his application for attorney fees. Plaintiff sought enforcement of litigant’s rights, i.e. a prior order requiring the installation of a bulkhead to protect an easement. That suit was settled by agreement and defendant built the bulkhead but did not adhere to the plans referred to in the settlement agreement. The court ordered compliance with the agreement and denied counsel fees. The court found that defendant failed to meet any of the requirements for reconsideration. She merely reiterated information and arguments already presented to the court. The trial judge did not explain his reasons for denying attorney fees and that decision was remanded for a fuller statement of reasons.

35-5-4384 Community Options Enter., Inc. v. Evesham Township, Tax Ct. (Flamingo, J.) (7 pp.) Both parties moved for summary judgment in plaintiff’s assessment appeal. Plaintiff, a 503(c) exempt entity, acquired the property as housing for its developmentally disabled clients. Plaintiff began construction to bring the property into compliance with DDD requirements. Plaintiff was not able to secure commitments from a sufficient number of clients by Oct, 1, 2015 and thus, there were no residents at the property as of that date. Plaintiff appealed the property assessment for the 2016 tax year, claiming an exemption pursuant to N.J.S.A. 54:4-3.6. Defendant argued that plaintiff was not in “actual use” of the property since the property was not approved by the DDD as a group home as of the assessment date, the house was not outfitted to receive residents and no residents had committed to move into the house. Plaintiff argued it had completed construction, was prepared to accept residents and was not licensed by the state only because two of the three required registered residents withdrew from the program. The parties disagreed as to whether construction finished in August 2015 or was still underway on Oct. 1, 2015, and thus, when the house was ready for residents. The court found that genuine issues of material fact precluded summary judgment. [Filed Oct. 2, 2017]

38-2-4385 In the Matter of the Estate of Samuel Joseph Feiner, N.J. Super. App. Div. (per curiam) (20 pp.) This probate litigation was adjudicated through a protracted trial that consumed twenty-five days over a 10-month period, following four years of pretrial discovery supervised by the trial judge. The dispute within this Orthodox Jewish family pitted siblings against one another with allegations centered upon wills and inter vivos transfers of property, which appellants challenged as invalid. After extensive testimony and exhibits the trial judge declared decedent-parents’ wills null and void, removed respondent as administrator, and appointed a substitute independent administrator. Having nullified the wills, the probate judge ordered the distribution of the assets instead by intestacy and invalidated various inter vivos transfers. On appeal, appellants argued, among other things, that the trial judge improperly found they had engaged in undue influence and was biased because he personally disfavored parents disinheriting their children. The court affirmed holding the trial judge’s painstaking factual findings and credibility rulings adverse to appellants were amply supported by the extensive trial record. The court noted that respondents had proven that appellants had a confidential relationship with their parents, and that there were suspicious circumstances surrounding the wills and property transfers that shifted the burden to appellants to establish their validity. As appellants failed to meet such shifted burden showing the legitimacy of the challenged instruments, the court affirmed. Finally, the final judgment entered by the trial court was founded upon a fair and meticulous assessment of the record and a sound application of legal principles.

14-2-4386 State v. Waters, N.J. Super. App. Div. (per curiam) (12 pp.) Defendant appealed from his convictions for first-degree murder, second-degree possession of a firearm for unlawful purpose, second-degree unlawful possession of a weapon, and fourth-degree aggravated assault. Defendant’s co-defendant testified that defendant had threatened to kill the victim if he did not return an item. There was also conflicting testimony about how many guns were at the crime scene and who used them. At trial, the co-defendant’s friend, who drove defendant and co-defendant to the park where the shooting occurred, equivocated over whether the victim possessed a gun and whether defendant fired a weapon at the victim. On appeal, defendant argued that the trial court erred in charging the jury on the lesser-included offense of passion/provocation manslaughter, or on the theory of manslaughter where there was evidence the victim pulled a weapon first. Defendant further argued that the trial court improperly excluded evidence that co-defendant coached his friend in his statement to police. Finally, defendant, a minor at the time of the crime, argued that the trial court had imposed a de facto life sentence without parole in violation of Miller v. Alabama, 132 S.Ct. 2455. Although defense counsel did not object to the jury charge, the court ruled that the trial court’s failure to instruct the jury on passion/provocation manslaughter and self-defense was plain error where clear evidence was presented at trial to support each of the four elements of the lesser-included offense and to support a theory of self-defense. The court further ruled that the trial court erred in excluding testimony that co-defendant coached his friend on his statement to police, finding that such testimony was properly introduced to impeach his credibility. Accordingly, the court reversed defendant’s conviction and remanded for a new trial.

14-2-4401 State v. McKoy, N.J. Super. App. Div. (per curiam) (16 pp.) Defendant was convicted for heroin and weapons possession. At the time of sentencing, he was serving an aggregate prison term for violations of probation. State troopers conducting surveillance saw defendant approach their van, recognized him from prior law enforcement contact, announced themselves and, when they caught him after he attempted to flee, found 20 bags of heroin and a loaded hand gun on him. Defendant’s argument that his predicate offense should have been sanitized in the jury charge was fundamentally flawed. A defendant’s offer to stipulate did not preclude using evidence of the name or nature of the prior conviction. The court declined to consider defendant’s claim of ineffective assistance of counsel by stipulating to the nature of his predicate offense because that issue was more appropriate for a PCR petition. Defendant’s argument that the trial court violated his constitutional rights by failing to inform him that he had the right to represent himself after he complained about his trial counsel failed because the record showed that he did not express a desire to waive counsel and proceed pro se. However, the court found that resentencing was required because the trial court failed to consider whether the aggregate sentences for his current convictions should run concurrently to the aggregate sentences for his probation violations.

14-2-4402 State v. Richardson, N.J. Super. App. Div. (per curiam) (32 pp.) Lacking a valid driver’s license, appellant was caught giving a false name during a traffic stop for a motor vehicle violation. While in the booking room, it was revealed that appellant had multiple packets of heroin in his sock. Although the room had two motion-sensitive video cameras, appellant was convicted based on the officer’s word as the respondent allegedly allowed the tape to be destroyed despite appellant’s prior written request that respondent preserve and produce it. The trial court denied appellant’s request to instruct the jury that it could draw an adverse inference from the tape’s destruction. The jury ultimately found appellant guilty and he was sentenced to a five-year term of imprisonment. On appeal, the court reversed finding that when respondent refused appellant’s diligent pre-indictment request to preserve and produce recordings, which respondent or its law enforcement agencies created and were directly relevant to adjudicating an existing charge, the appellant was entitled to an adverse inference charge. Further, the trial court erred in how it handled the evidence of hindering apprehension. The court noted the evidence was inadmissible under N.J.R.E. 404(b) for its proffered purposed and, in any event, the court’s instruction was inadequate. As these errors were not harmless, the court reversed conviction.

14-2-4374 In the Matter of W.L., N.J. Super. App. Div. (per curiam) (9 pp.) Defendant, an inmate at Northern State Prison, engaged in a months-long hunger strike that placed his health and life in imminent danger. Defendant refused to regularly eat or take fluids because he said he was upset with a disciplinary charge he received that resulted in his placement in administrative segregation for a lengthy period of time. Two preliminary injunctions were ordered permitting involuntary medical treatment and nutrition to defendant as well as to employ reasonable force in order to conduct lab tests. Defendant filed a four-count counterclaim which asserted, among other things, violation of his eighth amendment protections, deprivation of due process, and infringement of his first amendment right to engage in political protest. On motion, the trial court granted dismissal of defendant’s claims with prejudice. On appeal, the court affirmed in part the trial judge’s decision to grant the department a preliminary injunction to enable it to save defendant’s life. Affirming the trial judge’s rationale, the court concluded that defendant’s life was in imminent danger. Further, the department had a duty to protect inmates as well as a strong public interest in preserving the lives of inmates within its custody. However, the court reversed dismissal with prejudice as defendant may well have been able to file an amended counterclaim that alleged sufficient facts to correct the pleading deficiencies. As such, the court affirmed in part and reversed in part with a remand to allow defendant an opportunity to file an amended counterclaim.

14-2-4387 State v. Mills, N.J. Super. App. Div. (per curiam) (23 pp.) Following the trial court’s denial of his motion to suppress incriminating evidence that police had seized in a warrantless car search, appellant conditionally pled guilty to robbery and unlawful possession of a handgun. The trial court sentenced appellant to concurrent seven-year custodial terms on the two offenses, subject to statutory parole ineligibility periods. On appeal, appellant contended that the warrantless search of the car in which he had been riding as a passenger was unconstitutional. He further submitted that the trial court erred in rejecting his request to draw an adverse inference against respondent for failure to preserve two separate video recordings of the vehicle stop. The court remanded the suppression issues to the trial court for reconsideration in light of the Supreme Court’s recent opinion in State v. Robinson, 228 N.J. 529 (2017) which illuminated the requirements for a permissible warrantless “protective sweep” of a vehicle. The court noted the record, including a DVD of the video recording, presented to the motion judge were unable to resolve fact-laden matters conclusively as to whether the officers had the legality to conduct a warrantless protective sweep of the vehicle. As such, the appropriate course of action was to remand the matter to reconsider its original suppression ruling. However, the court affirmed denial of an adverse inference as the failure to preserve the recording was not intentionally done to prejudice appellant’s rights. Accordingly, the court affirmed in part and remanded in part.

07-7-4375 Bedoya v. American Eagle Express, D.N.J. (Salas, U.S.D.J.) (8 pp.) Defendant logistics company moved for an interlocutory appeal after the court denied defendant’s motion asserting that plaintiff delivery drivers’ putative class action, alleging that they were employees and not independent contractors, was preempted by the FAAAA. The parties agreed that the order involved a controlling question of law. Defendant argued that there were substantial grounds for differences of opinion as evidenced by a split in the circuits and that the order involved a novel and complex issue of statutory interpretation. The court agreed and noted that there was no controlling authority on the issue. Defendant also contended that a successful appeal would likely end the case. Plaintiffs argued that immediate appellate review would not affect their unjust enrichment claims and would not materially advance the termination of the litigation. The court rejected plaintiffs’ argument that defendant’s motion did not seek dismissal of plaintiffs’ unjust enrichment claims. The court agreed with defendant that its motion challenged all three prongs under the New Jersey ABS test and that its appeal involved a potentially case-dispositive issue. However, the court denied defendant’s request to stay the action. [Filed Sept. 29, 2017]

07-7-4376 RP Healthcare, Inc. v. Pfizer, Inc., D.N.J. (Sheridan, U.S.D.J) (15 pp.) In their original case filed in the northern district of California, plaintiffs alleged antitrust law violations arising out of a reverse-settlement transaction pertaining to the drug Lipitor. Not approving of the multidistrict litigation (MDL), plaintiffs dismissed their complaint and refiled in the Superior Court of California alleging state law claims. The case was ultimately transferred to the court with the MDL and the superior court denied plaintiffs’ motion for remand. On motion, the court granted dismissal with prejudice finding that plaintiffs did not allege the criteria set forth concerning the reverse settlement. However, the Third Circuit remanded the matter back for the limited purpose of determining jurisdiction, and whether the jurisdictional decision impacted the prior dismissal. The court dismissed defendants-Daiichi Limited, a Japanese pharmaceutical company, concluding it would be unreasonable to require it to defend a suit in California or New Jersey as its operations, witnesses and records all existed in Japan. Accordingly, the order dismissing such defendants for failure to state a claim was vacated as defendant-Daiichi was subject to neither specific nor general jurisdiction. However, the court found that upon dismissal of the two California defendants, the jurisdictional defect was cured and diversity jurisdiction was established. [Filed Sept. 29, 2017]

11-7-4377 Liberty Bell Capital II, L.P. v. Warren Hosp., D.N.J. (Martinotti, U.S.D.J.) (19 pp.) Both parties both moved for summary judgment in action over defendants’ transfer of the controlling interest in a holding company to a third party which resulted in plaintiff’s inability to acquire certain property. Defendants and a non-party investor were members of a holding company for property that was the subject of the suit. Holding company financed acquisition of property through a bank loan. Defendant hospital stopped paying rent and caused a default on the loan. After bank initiated foreclosure proceedings, defendants made an agreement with a health network for the network to acquire defendant hospital. Investment fund purchased holding company’s debt and transferred the debt to plaintiff and plaintiff and defendants made a post foreclosure agreement. Plaintiff asserted defendants interfered with the foreclosure process and violated the PFA by selling its interest in the holding company with the knowledge that the purchaser would cause holding company to exercise its right of redemption. Defendants argued that they complied with the express language of the PFA. The court found that the PFA did not require defendants to assist plaintiff in acquiring title and that defendants complied with the language of the PFA. Additionally, the PFA did not detail plaintiff’s interest in acquiring title and did not set forth any terms with respect thereto. [Filed Sept. 29, 2017]

11-7-4404 Sapta Global, Inc. v. Icon Solutions, Inc., D.N.J. (Llinares, U.S.D.J) (13 pp.) An entity known as Randstad Technologies LP entered into a contract with non-party Goodyear to provide a consultant to Goodyear to perform certain tasks concerning information technology issues. Ranstad then entered into a contract with plaintiff to provide such a consultant to Randstad, who Randstad would then provide to Goodyear. Plaintiff, in turn, entered into a contract with defendant to provide it with such a consultant. At some point, Randstad terminated plaintiff’s contract, and then entered into a contract directly with defendant. Plaintiff now alleged that defendant breached its agreement by bypassing plaintiff to deal with Randstad directly. Defendant, in turn, asserted a counterclaim for breach of its contract for alleged failure to pay compensation that was due and owing for services performed. On competing motions, the court granted summary judgment for defendant insofar as it concerned plaintiff’s claims and the counterclaim by defendant for damages; and denied the motion for an award of prejudgment interest. The court concluded that plaintiff was acting as an employment agency without the proper license during its involvement in the multi-party arrangement and was not involved in overseeing work. As such, plaintiff was not entitled to enforce its agreement or recover unpaid sums as it failed to obtain the required license to operate as an employment agency. Moreover, it was undisputed that plaintiff failed to honor certain invoices submitted to it by defendant for services rendered; therefore, defendant was entitled to summary judgment in its favor on their counterclaim for monies owed under the terms of the parties’ contract. Finally, the court denied prejudgment interest as defendant failed to provide the court with a proposed interest rate or any proposed calculations for such an award. [Filed Oct. 2, 2017]

15-7-4364 Kassin v. AR Res., Inc., D.N.J. (Wolfson, U.S.D.J.) (7 pp.) Defendant moved for permission to file an interlocutory appeal from the denial of its motion to dismiss. Plaintiff filed suit against defendant on behalf of himself and a proposed class, pursuant to the Fair Debt Collection Practices Act, alleging that certain language in a debt collection letter sent by defendant violated the act. The court denied defendant’s motion to dismiss, which was centered on the issue of whether language asking a consumer to directly contact a collection agency by phone regarding insurance coverage would contradict a validation notice in the same letter. The court concluded that such language would contradict the validation notice. In support of its motion for leave to file an interlocutory appeal, defendant argued there were differing district court opinions on the issue resolved in its dismissal motion, which defendant contended warranted a permissive appeal, since a decision on what it contended was a controlling question of law could remove the need for trial. In response, plaintiff argued that the Third Circuit had already issued a clear ruling on the matter so that there was no difference of opinion on the law. The court agreed with plaintiff that there was no substantial ground for difference of opinion on the controlling law. Instead, the court noted that the other district court opinions cited by defendant involved language different from the language used in the present case. Moreover, the court held that other cases also applied the least sophisticated debtor standard that the court applied in the present case. The court ruled that different courts applied the same law different to the facts of each case did not constitute the type of substantial difference of opinion that warranted a permissive appeal. Accordingly, the court denied defendant’s motion. [Filed Sept. 28, 2017]

16-7-4388 A.P. v. The Allegro School, Inc., D.N.J. (McNulty, U.S.D.J) (17 pp.) Plaintiff, a minor, was on the autism spectrum and suffered from severe behavioral disorders. Represented by her mother, plaintiff sought damages against defendant-school, as well as several current and former administrators and staff, for allegedly violating her individualized education plan (IEP) by failing to collect data and, in some instances, fabricating reported data over the course of several years. Defendants removed the matter to the court under the Rehabilitation Act and now move to dismiss the complaint in its entirety. The court granted dismissal concluding it lacked subject matter jurisdiction over the only federal-law claim, violation of the Rehabilitation Act. The court found that, despite plaintiff’s titling of her claims as §504 Rehabilitation Act violations, she was still required to exhaust administrative remedies as the claims could not be brought outside of the school context, and therefore lie within the heartland of Individuals with Disabilities Education Act (IDEA). Here, the claims asserted arose from defendant’s being the school where the child was placed under IDEA. They were essentially IDEA claims brought in another guise. The court noted that a federal court may not exercise subject-matter jurisdiction over an IDEA dispute unless the administrative remedies have been exhausted. D.M. v. N.J. Dep’t of Educ., 801 F.3d 205, 212 (3d Cir. 2015) Accordingly, the court granted dismissal of the §504 claim without prejudice for lack of subject matter jurisdiction, and remanded all other claims to the state court. [Filed Sept. 29, 2017]

39-7-4378 Continental Airlines, Inc. 401(k) Savings Plan v. Almodovar-Roman, D.N.J. (Arleo, U.S.D.J.) (7 pp.) Plaintiff was a defined contribution plan organized in Texas and licensed to do business in New Jersey. Continental Airlines sponsored plaintiff as a defined contribution plan under ERISA, and was the fiduciary of the plan. Defendant Brenda Almodovar-Roman was a participant in the plan during her employment with Continental; plaintiff was ignorant of the true identities of the John Doe defendants. From Q4 2014 to Q2 2015, Almodovar-Roman did not have a balance in her plan account; plaintiff subsequently mistakenly rolled another participant’s funds into Almodovar-Roman’s account, and sent her an account statement showing a balance of more than $149,000. Almodovar-Roman then requested and received a total distribution of her plan account. Plaintiff later discovered the mistake and attempted to recoup payment from Almodovar-Roman, which went ignored by her. Plaintiff alleged that Almodovar-Roman was still in possession of all or part of the funds, or they could be traced to Almodovar-Roman and the John Does, and asserted claims for equitable relief under ERISA, and breach of contract or unjust enrichment under state law. Following the entry of default, plaintiff filed the present motion for default judgment. The court declined to enter default judgment against the John Does, noting there was insufficient information for the court to conclude that it could exercise personal jurisdiction over them. The court further ruled that plaintiff’s equitable claim under ERISA against Almodovar-Roman, which preempted plaintiff’s state law claims, also failed because plaintiff had failed to show that the funds from the plan were clearly traceable to funds in Almodovar-Roman’s possession. Accordingly, the court denied plaintiff’s motion for default judgment. [Filed Sept. 29, 2017]

21-7-4379 Garcia-Rodriguez v. U.S., D.N.J. (Salas, U.S.D.J) (11 pp.) Plaintiff, a small business, submitted an application seeking authorization to participate in the food stamp program, declaring itself a retail store and estimated to have $500,000 worth of retail sales annually. After detecting suspicious transactions and food stamp redemption from plaintiff, an investigation was opened. Following an investigation and receipt of documents, it was concluded that plaintiff was not operating as a retail food store or as a co-located wholesale food concern and thereby was barred from participating in the food stamp program. A final agency decision concluded that plaintiff violated the program and that it was proper to withdraw its authorization to participate. Plaintiff subsequently filed the underlying matter claiming that it was not 100 percent wholesale and was in fact less than 50 percent and the USDA failed to consider additional evidence or conduct. On motion, the court granted summary judgment in favor of defendant holding plaintiff, by its own admission in its reauthorization application, was a wholesale distributor with all of its sales attributable to wholesale sales. Further, plaintiff did not qualify for an exception as it was not a “redemption outlet” for certain customers. Moreover, the court found that the withdrawal of plaintiff’s authorization to participate in the food stamp program and imposition of a six-month waiting period before reapplying was not arbitrary or capricious. Accordingly, the court granted summary judgment for defendants. [Filed Sept. 28, 2017]

51-7-4405 Fang v. Homan, D.N.J. (Linares, U.S.D.J.) (6 pp.) Defendants moved to dismiss plaintiff’s first amended complaint, alleging that defendants acted arbitrarily and capriciously and violated plaintiffs’ due process rights in terminating plaintiffs’ F-1 visa status. Plaintiffs obtained their F-1 visas after enrolling in UNNJ through academic brokers; however, UNNJ was a fake university created by ICE as part of a sting operation to catch academic brokers ICE believed were committing visa fraud. After ICE shut down UNNJ and arrested 21 academic brokers, it began terminating the student status of all foreign students who had enrolled at UNNJ for “fraudulent enrollment”; at no point prior to their termination were plaintiffs aware that UNNJ was not a legitimate school, as they had been assured by UNNJ and its agents that it was legitimate. In ruling on defendants’ motion, the court held that plaintiffs’ action turned on whether ICE’s termination of plaintiffs’ status was a “final agency action” ripe for review. The court ruled that it was not, as plaintiffs’ applications for reinstatement were still pending. Thus, the court held that plaintiffs had not yet exhausted their administrative remedies, and their claims were not yet ripe for review because plaintiffs were asking the court to make the same determination they sought in their applications for reinstatement. Accordingly, the court granted defendants’ motion to dismiss without prejudice. [Filed Oct. 2, 2017]

23-7-4365 Onex Credit Partners, LLC v. Atrium 5 LTD, D.N.J. (Falk, U.S.M.J.) (10 pp.) Plaintiff moved to seal or restrict public access to portions of certain exhibits and briefings filed in a breach of contract action over denial of insurance claims under a “key-man” disability policy. Plaintiff purchased a “key-man” insurance policy insuring against the total disability of plaintiff’s former Co-CEO. Former Co-CEO suffered an acute aortic dissection while traveling on business and became unable to and ceased performing the substantial and material duties of his position. Plaintiff submitted a claim under the insurance policy and defendant denied coverage arguing that Co-CEO was not permanently disabled. Defendant moved for summary judgment and plaintiff sought to seal portions of the record that referred to or disclosed Co-CEO’s personal medical and financial information, his private family photographs and proprietary and trade business information belonging to plaintiff. The court found that there was no public interest in the Co-CEO’s medical or financial records which were purely private in nature. Neither Co-CEO nor his family were parties to the lawsuit and his wife and children had an inarguable interest in not having private photographs publicly disclosed. Plaintiff’s interest in maintaining the confidentiality of its sensitive business records outweighed any presumption of public access. [Filed Sept. 27, 2017]

23-7-4389 The Hanover Ins. Co. v. Retrofitness, LLC, D.N.J. (Martinontti, U.S.D.J.) (16 pp.) Plaintiff moved for partial judgment on the pleadings in its declaratory judgment action against defendant. Plaintiff’s action arose from defendant’s claim for insurance benefits for an underlying lawsuit. Plaintiff had issued two claims-made-and-reported miscellaneous professional liability policies to defendant, which did not apply to claims arising from false advertising, antitrust, unfair competition, restraint of trade, unfair and deceptive business practice, and violation of federal and state consumer protection laws. Individuals filed a class action against defendant, alleging it violated TCCWNA, RISA, CFA, and HCSA. In its complaint against defendant, plaintiff alleged that defendant did not tender its defense to and demand indemnification from plaintiff for the underlying lawsuit. Plaintiff sought a declaration that it had no duty to defend or indemnify defendant in the underlying lawsuit. In support of its motion, plaintiff argued it had no duty to defend defendant in the underlying lawsuit because the lawsuit did not state claims covered under plaintiff’s policies. In response, defendant acknowledged that the claims in the underlying lawsuit were consumer protection claims, but argued it had an objectively reasonable expectation that plaintiff’s policies covered the claims and that the underlying lawsuit asserted defendant’s negligence as a franchisor; plaintiff further asserted there were outstanding questions of material fact. The court rejected defendant’s arguments as without merit, agreeing that the underlying lawsuit asserted state consumer protection claims rather than negligence claims, and therefore fell squarely within plaintiff’s policies’ exclusions for claims arising from state consumer protection laws. The court accordingly ruled that defendant could not have a reasonable expectation of coverage in the face of the exclusion. Thus, the court granted plaintiff’s motion for partial judgment on the pleadings. [Filed Sept. 29, 2017]

23-7-4406 Liberty Int’l Underwriters Canada v. Scottsdale Ins. Co., D.N.J. (Hillman, U.S.D.J.) (8 pp.) Defendants moved for summary judgment in plaintiff’s action to recover attorneys’ fees paid to settle a lawsuit which alleged that a subcontractor to plaintiff’s insured started a fire at a hotel. Plaintiff asserted that defendants had a duty to defend and indemnify plaintiff’s insured for the underlying litigation. Defendants argued that the settlement agreement in the underlying litigation had an assignment of rights provision in which plaintiff allegedly agreed to assign any of its claims from the litigation to the hotel. Defendants argued that the court’s prior opinion denying defendants’ motion for judgment on the pleadings warranted the entry of summary judgment in its favor. The court found that its prior opinion was not the “law of the case” as argued by defendants because ultimately the court had concluded that plaintiff’s claims were sufficiently viable to proceed past the initial pleading stage. Additionally, plaintiff presented substantive evidence gathered through discovery that refuted the premises relied on by the court in its earlier analysis. Defendants’ current motion relied on the court’s prior decision as evidence of the absence of genuine issues of fact and that was not proper. [Filed Sept. 29, 2017]

53-7-4366 Mondis Technology, Ltd. v. LG Electronics, D.N.J. (Chesler, U.S.D.J) (17 pp.) In this patent infringement matter involving a display device patent, the parties sought construction of claims. A court’s determination of “patent infringement requires a two-step process: first, the court determines the meaning of the disputed claim terms, then the accused device [was] compared to the claims as construed to determine infringement.” Acumed LLC v. Stryker Corp., 483 F.3d 800, 804 (Fed. Cir. 2007) Here, the parties disputed: (1) whether a preamble was limiting, and (2) meaning of various claim terms. The court found the preamble was not a claim limitation as it did not add any unique content to the information contained in the body of the claim nor recited essential structures or steps. As the preamble merely stated a purpose or intended use for the invention, it was not a claim limitation. The court further concluded the claim language, together with the specification, make clear that some display unit information – the identification number – played a key role in communication along with coordination of control with the external video source. Therefore, a broader meaning than what defendant proposed, “information for adjusting a display image on the display unit,” and plaintiff’s proposed construction gave the phrase its ordinary and broader meaning. The court concluded that as to the disputed claim terms, neither party overcame their presumption and found that all such terms should be given there ordinary meaning. [Filed Sept. 28, 2017]

25-7-4364 Long v. Leggett & Platt, Inc., D.N.J. (Hillman, U.S.D.J.) (13 pp.) Defendants moved for judgment on the pleadings, and plaintiff cross-moved for leave to amend his complaint alleging violation of the New Jersey Law Against Discrimination. Plaintiff was employed by defendant Leggett & Platt from 1982 to 1989, and again from 1994 to his termination in 2016. In 2015, plaintiff had reported sexual harassment by an L&P employee against a female co-worker, although no action was taken following the report. In his complaint, plaintiff alleged he was terminated in retaliation for reporting sexually harassing conduct, in violation of NJLAD. In addition to retaliation, plaintiff also asserted claims for aiding and abetting violation of NJLAD, and for punitive damages. The court granted defendants’ motion in part and denied it in part. As to plaintiff’s retaliation claim, the court found that plaintiff had adequately asserted protected activity in the form of reporting sexual harassment, and retaliatory behavior in the form of his termination. Although defendants presented evidence that plaintiff’s termination was contemplated prior to his report, the court found that plaintiff alleged facts to rebut defendants’ assertion. However, the court dismissed plaintiff’s aiding and abetting and punitive damage claims, finding that plaintiff did not allege that defendants “knowingly and substantially assisted” in the retaliatory conduct. Similarly, the court held that plaintiff failed to allege sufficient facts of wanton, reckless, or malicious conduct to support punitive damages. [Filed Sept. 27, 2017]

25-7-4390 Galarza v. Whittle-Kinard, D.N.J. (Salas, U.S.D.J.) (21 pp.) Plaintiff sued against certain individuals associated with St. Michael’s Medical Center, Inc., alleging violations of NJLAD, NJWHL, FMLA, and FLSA. Plaintiff also asserted liability against Prime Healthcare Services–St. Michael’s, LLC, under theories of joint-employer doctrine and successor liability. Prime moved to dismiss all the claims against it for failure to state a claim. Plaintiff took four medical leaves, and alleged she faced embarrassment and/or negative consequences for each leave, including having her direct supervisor suggest plaintiff not return to her position after a medical leave for surgery. Ultimately, plaintiff’s position was eliminated. In opposition to Prime’s motion, plaintiff alleged that despite St. Michael’s bankruptcy, Prime continued to operate the facility, and ultimately finalized a merger with or purchase of St. Michael’s. As part of the sale during St. Michael’s bankruptcy, St. Michael’s assets were sold to Prime free and clear of all liens and claims and liabilities, including successor liability. Prime therefore argued that plaintiff’s claims against it were barred by the bankruptcy code and the bankruptcy court’s order. Plaintiff asserted her termination occurred after St. Michael’s filed for bankruptcy, and argued that bankruptcy could only terminate successor liability for pre-petition conduct. The court denied Prime’s motion, noting there were exceptions to an order disposing of claims and liens under which successor liability could attach, including the circumstances where Prime and St. Michael’s merged or Prime was a mere continuation of St. Michael’s. The court further ruled that Prime failed to demonstrate that plaintiff’s complaint could not support a theory of joint-employer liability, since plaintiff alleged that Prime and St. Michael’s had been operating from the same address prior to plaintiff’s termination, and that the operation of St. Michael’s had not been interrupted by its bankruptcy. [Filed Sept. 29, 2017]

25-7-4407 Annunziata v. New Jersey Racing Comm’n, D.N.J. (Wolfson, U.S.D.J.) (9 pp.) Defendants moved to dismiss plaintiff’s §1983 complaint, alleging defendants deprived him of his constitutionally protected property interest in employment in the horse racing industry and in procuring a stable license. Upon filing his application for a stable worker license, plaintiff met with defendant Richard O’Donnell, the State Steward, who informed plaintiff that his application would be denied for financial irresponsibility. At a subsequent meeting, defendants informed plaintiff that he had been conducting unauthorized racing activities at a state licensed farm. Plaintiff did not exercise his right to a hearing or administrative appeal from O’Donnell’s decision. Plaintiff alleged that against plaintiff’s licensure, and further alleged that defendants instead had knowingly approved of hundreds of license applications from illegal immigrants using falsified social security numbers. Defendants moved to dismiss plaintiff’s complaint based on lack of standing and failure to exhaust administrative remedies. The court first agreed that plaintiff lacked standing, as plaintiff merely alleged that O’Donnell declined to recommend plaintiff for licensure; the court noted that there was no evidence that plaintiff’s license application had been denied or even reviewed. Instead, the court noted that only the board of examiners, not O’Donnell, could approve or denying plaintiff’s application. However, given the confusion over the status of plaintiff’s application caused O’Donnell’s communications to plaintiff, the court granted defendants’ motion without prejudice to plaintiff’s amendment of his complaint to attempt to satisfy standing. [Filed Oct. 3, 2017]

31-7-4391 Maliki v. Holy Redeemer Hosp., D.N.J. (Hayden, U.S.D.J.) (8 pp.) Defendant hospital moved for summary judgment in plaintiff’s action asserting he was injured by a door while delivering laundry. Plaintiff stuck a pin in a door to hold it open while he made his delivery. On the sixth or seventh load, one door closed and struck him. Defendant argued that plaintiff could not show actual or constructive notice of a defect and could not establish a prima facie case for negligence. Plaintiff argued he was an invitee or business guest and negligence could be inferred because the door shut on him. Defendant admitted that it did not regularly inspect its automatic doors. However, plaintiff offered no evidence that routine inspections would have discovered any malfunction and relied on res ipsa loquitor. Plaintiff testified that he placed a pin in the door to hold it open. His interference with the regular functioning of the door negated defendant’s exclusive control and precluded his reliance on res ipsa loquitor. [Filed Sept. 29, 2017]

34-7-4380 Richman v. A Country Place Condo. Ass’n, Inc., D.N.J. (Martinonti, U.S.D.J.) (9 pp.) Plaintiff moved to remand his action to state court, arguing that the court lacked subject matter jurisdiction. Plaintiff’s complaint alleged that defendants placed an unreasonable restriction on plaintiff’s use, enjoyment, and right of access to the condominium pool by limiting mixed-gender access to the facility. Plaintiff’s second amended complaint asserted two additional claims alleging violations of the New Jersey Condominium Act and New Jersey Law Against Discrimination; however, prior to plaintiff’s filing of his second amended complaint, defendants had removed the action, arguing that federal subject matter jurisdiction existed because plaintiff’s gender-based allegations fell under the Fair Housing Amendments Act. Defendants further asserted that the court should not have considered the new allegations in plaintiff’s second amended complaint because it was not filed in federal court nor served upon defendants. In support of his motion for remand, plaintiff argued that federal subject matter jurisdiction did not exist because he was only raising a state law claim in property interest, and the new claims in his second amended complaint also did not arise under federal law. The court first agreed with defendants that it could only considered the record at the time of removal, and thus could not consider plaintiff’s second amended complaint. However, the court rejected defendants’ assertion that plaintiff’s complaint asserted gender-based allegations falling into a FHAA claim. The court noted that plaintiff’s complaint did not assert a FHAA claim, mention the FHAA, or mention the words segregation or discrimination. Instead, the court ruled that plaintiff’s claim was clearly one raising property interest issues under common law tortious interference with easement or ouster theories. Accordingly, the court granted plaintiff’s remand motion. [Filed Sept. 29, 2017]

50-7-4367 Park v. Inovio Pharm., Inc., D.N.J. (Chesler, U.S.D.J.) (12 pp.) Defendants moved for summary judgment on plaintiff’s complaint, arising from a dispute over plaintiff’s exercise of two stock options. In his complaint, plaintiff asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. In support of their summary judgment motion, defendants argued that plaintiff could not prove breach because one of the grants required plaintiff to continuously provide services to Inovio until at least 90 days prior to exercise of the grant; defendants asserted plaintiff had no evidence of such services. The court found that although the grant did not have a service requirement, the equity plan that governed the options did. The court denied summary judgment on the breach of contract claim, crediting plaintiff’s argument that there was an interpretation of the grant and plan languages that required examination of extrinsic evidence as to their meaning, which precluded summary judgment. The court held that defendants’ interpretation of the documents was unreasonable, since it would have meant that Inovio’s predecessor terminated plaintiff at the same time as granting options conditioned on his continued service. The court further denied defendants summary judgment on plaintiff’s unjust enrichment claim, holding that plaintiff could plead the claim in the alternative to his breach of contract claim and that plaintiff had presented sufficient evidence defendants conferred a benefit upon him. Finally, the court granted defendants summary judgment on plaintiff’s good faith and fair dealing claim, finding that plaintiff had presented no evidence to support his claim. The court also rejected defendants’ statute of limitations defense, holding that factual disputes precluded a finding that the limitations period had run. Lastly, the court dismissed the complaint as to defendant Kim, agreeing that an officer could not be held liable for actions taken on behalf of the corporation. [Filed Sept. 28, 2017]

57-7-4365 DirecTV, LLC v. Alvarez, D.N.J. (Hillman, U.S.D.J) (11 pp.) Plaintiff filed the underlying complaint alleging defendant displayed satellite programming at his bar without a commercial account in violation of the Cable Communications Policy Act of 1984. Defendant was served the complaint, but failed to file an answer or otherwise respond. Plaintiff subsequently moved for, and was granted, default judgment. Before the court was defendant’s motion to vacate the default judgment. A court must consider four factors in determining whether to vacate a default judgment: (1) whether lifting the default would prejudice the plaintiff; (2) whether defendant has a meritorious defense; (3) whether defendant’s conduct was excusable or culpable; and (4) the effectiveness of alternative sanctions. Emcasco Ins. Co. v. Sambrick, 834 F.2d 71,73 (3d Cir. 1987). The court granted vacation in part holding plaintiff would not be prejudiced as installation records were presumably within the exclusive control of plaintiff and costs associated with continued litigation could not typically constitute prejudice. Further, the court found defendant had a meritorious defense as to damages given defendant alleged he was unaware of contractual terms and not willfully in violation of same. Moreover, the court found defendant’s conduct was not culpable as he believed the matter would be settled out of court. As a default judgment should be a sanction of last resort and the court found defendant had a meritorious defense as to damages, the court reversed vacation in part. [Filed Sept. 27, 2017]

57-7-4392 Weerahandi v. Shelesh, D.N.J. (Martinotti, U.S.D.J) (13 pp.) Plaintiff filed the underlying complaint alleging defendants violated federal and state laws against defamation causing monetary and mental harm in connection with the parties’ use or ownership of the website, YouTube. Plaintiff argued defendants disseminated his personal identifying information that was disclosed in defendant’s original suit against plaintiff under the Digital Millennium Copyright Act. Plaintiff reported the videos to defendant-Google for harassment and bullying and requested, to no avail, the links be removed. Defendants moved to dismiss contending the court lacked personal jurisdiction and failure to state a claim. The court granted dismissal concluding plaintiff failed to plead facts sufficient to show that defendants focused their alleged tortious activity at New Jersey. The court found that plaintiff’s complaint lacked any allegation that defendants’ defamatory comments reached anyone in New Jersey or had any effect in the forum beyond their effect on him. Although defendants may have an enormous audience in New Jersey for their YouTube channel, and that audience may provide defendants with substantial revenue, the court held such facts were not sufficiently related to defendants’ connections to New Jersey for the purposes of plaintiff’s claims. Moreover, the court granted dismissal finding plaintiff’s clams against defendants Google and YouTube were barred, as a matter of law, by the Communications Decency Act as they were “interactive computer services.” [Filed Sept. 29, 2017]

14-8-4366 Muraveva v. Toffoli, 3rd. Cir. (Smith, C.J.) (9 pp.) Appellant appealed the jury verdict in favor of police officer in her action for false arrest. Officers testified that appellant pursued them into the street while screaming, cursing, yelling, flailing her arms and interfering with their investigation. Appellant asserted that she approached one officer to speak with him without shouting or cursing and was immediately arrested. Appellant argued the District Court did not properly instruct the jury on whether officer had probable cause to arrest her. She asserted the District Court should have included instructions to the jury that conduct as well as speech could be protected under the First Amendment. However, she failed to identify any evidence that she engaged in expressive conduct. Following an officer and failing one’s arms, without more, did not constitute expressive conduct. District Court did not err in telling jury it could consider the officer’s testimony that appellant prevented him from performing police duties because while preventing an officer from performing his duties was not an element of disorderly conduct, “tumultuous behavior” was and the jury could consider the totality of the circumstances in assessing tumultuous behavior. The evidence was sufficient for a jury to conclude that officer had probable cause to arrest appellant. [Filed Sept. 25, 2017]

01-2-4381 J.L. v. Dep’t of Human Services, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant appealed the denial of his request for housing Emergency Assistance. Appellant had an income of approximately $600 a month from Temporary Assistance for Needy Families and Supplemental Nutrition Assistance. He lived with his mother and paid rent to her. Mother wrote a letter stating that appellant and his son had to leave her residence by June 1, 2016. The ALJ found appellant to be not credible, that he was not homeless because mother had not yet carried through her threat to evict him and that he had shown no evidence of a job search and his imminent homelessness was due to his own actions. The court dismissed the appeal as moot because appellant no longer claimed to be eligible for EA and the appeal raised no issue of significant public importance that was capable of repetition but evaded review. The court also noted that the hearing was disconcerting because the ALJ prevented appellant from completing his testimony and went off the record in the middle of the hearing.

06-2-4368 Wells Fargo Bank, N.A. v. N. Exec. Motor Club LLC, N.J. Super. App. Div. (per curiam) (4 pp.) Plaintiff appealed from the order dismissing its only count against defendant Navy Federal Credit Union for failure to state a claim, and further appealed from the order denying reconsideration. Plaintiff deposited a check for $64,000 drawn on NFCU payable to Jennifer Aldridge and defendant Northern Executive Motor Club, LLC, into Northern Executive’s account with plaintiff. The check was indorsed by Aldridge but not Northern Executive. Plaintiff then honored all checks drawn and withdrawals against the credit from the $64,000 check. However, NFCU later return the check unpaid based on the missing signature from Northern Executive; NFCU’s failure to honor the check created an overdraft that was not paid by Northern Executive. In its complaint, plaintiff argued it was a holder in due course. The trial court granted NFCU’s motion to dismiss the count against it, reasoning that plaintiff was not a holder in due course because it failed to exercise ordinary care that substantially contributed to the improper negotiation of the check. On appeal, the court reversed, finding the trial court’s reasoning flawed, based on the UCC’s grant of holder in due course status to a depositing bank, regardless of whether the check was indorsed by the customer. Moreover, the court held that the trial court’s conclusion that plaintiff failed to exercise ordinary care was a factual determination requiring trial.

36-2-4393 Shtutman v. Carr, N.J. Super. App. Div. (per curiam) (43 pp.) The consolidated appeals arose from a Ponzi scheme wherein appellant claimed he invested over a million dollars in promissory notes based on defendant’s representations. Appellant sued numerous parties, claiming common law fraud, aiding and abetting fraud, negligence, negligent misrepresentation and unjust enrichment. Prior to trial, the motion judgment dismissed all claims except those relating to negligence; the jury found respondent was negligent and awarded damages. On cross-appeals for summary judgment the court affirmed the grant for fraud claims in favor of respondents but reversed as to aiding and abetting fraud. The court concluded that a jury could have been instructed to determine if respondent defrauded appellant even if one defendant was no longer a party. “Even in a criminal case, a defendant can be convicted of aiding and abetting a principal even if the principal was not prosecuted or was acquitted.” N.J.S.A. 2C:2-6(f) . As such, it was appropriate to hold respondent aided and abetted defendant even if the case could not be pursued against defendant. Further the court vacated denial of summary judgment on appellant’s negligent misrepresentation and negligence causes of action. The court noted that appellant presented no evidence that respondent made any incorrect statements of a past or existing fraud. Instead, respondent’s alleged statements were mere puffery, predictions, or opinions which generally were not actionable.

11-2-4382 BC Compliance Group, LLC v. Rosen Seymour Shapss Martin & Co., LLP, N.J. Super. App. Div. (per curiam) (8 pp.) Appellant, a certified public accounting firm, retained respondent, a consulting firm specializing in contract compliance, to examine its real estate lease expenses to identify and eliminate overcharges in its leased facilities. Pursuant to the parties’ agreement, appellant agreed to compensate respondent with 50 percent of all benefits recovered. Following an audit indicating appellant overpaid its landlord, appellant renegotiated its lease and included a general release of all prior claims. Subsequently, respondent advised appellant that its audit findings had been utilized by appellant to obtain benefits under the new lease and demanded compensation. Upon appellant’s refusal to pay, respondent initiated the underlying complaint. On motion, the trial judge denied summary judgment in favor of appellant finding there was a disputed issue of fact as to whether appellant breached the parties’ contract by its refusal to compensate. On appeal, the court affirmed concluding the trial judge’s determination that there were genuine issues of material fact which could only be resolved by a jury was amply supported in the record. The court noted that the undisputed facts of respondent’s audit, which discovered the overpayment; the favorable lease extension subsequently negotiated between appellant and landlord; and the release of landlord from liability for prior claims; raised a significant question of fact of whether appellant secured benefits from landlord and was thus obligated to pay a fee to respondent. Accordingly, the court affirmed denial of summary judgment.

11-2-4395 Visconti v. Lake Wallkill Community, Inc., N.J. Super. App. Div. (per curiam) (8 pp.) This matter involved a dispute between respondent, a common interest community, and several appellant-homeowners, who contested their obligation to pay annual dues and filed an action to discharge liens respondent placed on their property. Respondent cross-claimed seeking a judgment for the delinquent dues and collection costs. Appellants appealed from a judgment in respondent’s favor arguing that: respondent had no legal or equitable right to file the liens, the filing violated their due process rights, the statute of limitations barred the claims, the judge erred in making certain discretionary rulings, and that appellants were entitled to counsel fees. The court affirmed the judgment as to the amount of dues owed by each appellant, however remanded on respondent’s claim for counsel fees and other costs as the trial court inadvertently failed to address that issue. The court noted appellants voluntarily joined the association as members with an application that included a commitment to pay dues and an agreement that respondent could place a lien on appellant’s property for unpaid dues. Moreover, even if the appellants had attempted to resign from the association, they could not have done so after the bylaws were subsequently amended. Finally, although the trial court’s order recited that respondent was awarded the full amount of its liens, the specific monetary amounts failed to include the sums attributable to the collection costs nor did the trial court’s opinion address the issue. Accordingly, the court remanded the matter for the limited purpose of addressing respondent’s claim for counsel fees.

15 2-4356 Deutsche Bank Nat’l Trust Co. v. Ferrara, N.J. Super. App. Div. (per curiam) (14 pp.) Defendants appealed the denial of their motion to vacate the final judgment of foreclosure. Defendants executed a note and mortgage to IndyMac in 2004 and defaulted on their mortgage in 2009. Plaintiff became the owner of the note and mortgage by way of merger and acquisition and filed notice of intent to foreclose. Defendants did not answer the complaint and filed two bankruptcies while the foreclosure action was pending. Final judgment was entered in favor of plaintiff in November 2010. Defendants filed a motion to vacate the final judgment in 2016, five years after it was entered, and on the eve of a scheduled sheriff’s sale. Defendants alleged that plaintiff did not own or control the mortgage at the time the complaint was filed. The Chancery judge found that the motion was time-barred and substantively without merit. Defendants argued plaintiff committed fraud and misrepresentation in its pleadings because it did not own or control the note and mortgage at the time of the complaint. The court found that plaintiff acquired all the assets of IndyMac from the FDIC two months before filing the complaint. Plaintiff had timely ownership and possession of the note and had standing to initiate the foreclosure. Additionally, defendants’ motion was time-barred.

15-2-4356 Prof-2013-S3 Legal Title Trust v. Adler, N.J. Super. App. Div. (per curiam) (3 pp.) Defendant appealed from a final judgment of foreclosure. Defendant signed a note secured by a mortgage in 2007. He chose not to file an answer on advice of counsel when served with the initial foreclosure complaint. That action was subsequently administratively dismissed for lack of prosecution, then reinstated and final judgment entered. Defendant successfully filed a motion to vacate that final judgment but never filed an answer to the complaint and final judgment was entered again. The trial judge correctly denied defendant’s subsequent appeal. Defendant had lived in the home without making mortgage payments for more than eight years and plaintiff was entitled to equity.

15-2-4357 Wells Fargo Bank, NA v. Jarrett, N.J. Super. App. Div. (per curiam) (4 pp.) Defendant appealed a final judgment of foreclosure. She signed a note secured by a non-purchase money mortgage in 2005 and defaulted on the loan in 2013. In 2006, she took out another mortgage loan and in 2008, obtained a home equity loan which she used to pay off the 2006 mortgage. At trial, she alleged she paid the 2005 loan with the proceeds of the 2006 loan but produced no documents to substantiate her story. The trial judge found her to be not credible. The court found that the trial judge’s credibility findings and decision were based on substantial evidence in the record.

15-2-4369 Citibank, NA v. Demetro, N.J. Super. App. Div. (per curiam) (9 pp.) On behalf of plaintiff, respondent sent a debt collection letter to appellant. Appellant contested the debt, demanded verification of the debt and instructed respondent to cease collection efforts until it mailed the debt verification in accordance with 15 U.S.C.A. §1692(g). Despite receipt of documents purporting to verify appellant’ debt, respondent allegedly did not mail such verification until after the underlying collection complaint was electronically filed. Appellant contended the factual dispute as to the mailing of the debt verification was central to her claim against respondent and therefore, dismissal of the third-party complaint prior to the exchange of discovery was improper. The court agreed, reversing dismissal and concluding appellant was deprived of discovery responsive to her inquiry as to the date that respondent mailed the debt verification. The court noted that discovery should have been completed prior to dismissal as such could substantiate appellant’s claim that the debt verification was mailed after the filing of the collection complaint in violation of the FDCPA. Finally, the court held the motion judge erred in denying as moot appellant’s motion for leave to amend her pleading to include a claim based upon respondent’s inconsistencies regarding the date it mailed the debt verification. Accordingly, the court reversed dismissal and remanded as to leave to amend.

39-2-4358 Linzmayer v. Keyport Board of Ed., N.J. Super. App. Div. (per curiam) (8 pp.) Appellant, a math teacher employed at Keyport High School, applied for workers’ compensation benefits following an alleged assault by a student wherein she sustained physical and psychological injuries. She filed claims for medical and temporary disability benefits that respondent denied. Following a trial, the workers’ compensation judge found appellant to be incredible and that her lay and expert witnesses did not support the claims. In contrast, the compensation judge found the expert testimony presented on behalf of respondent to be credible and persuasive. The compensation judge concluded that appellant’s alleged medical and psychiatric symptoms were not related to her employment and denied benefits. On appeal, the court affirmed holding there existed sufficient evidence for the compensation judge to deny appellant’s claims. Moreover, the court found the compensation judge properly weighed the competing experts and assessed the validity of the claim; the compensation judge explained that appellant’s expert opinions were based on her version of the assault and that they failed to conduct appropriate tests and reviews of medical records. However, respondent’s expert findings were supported by their examination of appellant, the tests conducted, and review of appellant’s medical records. Finally, the testimony of the principal was admissible hearsay of a party opponent as it was based on information appellant told him. Accordingly, the court affirmed.

25-2-4359 Garden State Fireworks v. Dept. of Labor and Workforce Development, N.J. Super. App. Div. (per curiam) (16 pp.) Appellant was a New Jersey corporation that manufactured, stored and sold fireworks, and facilitated firework shows; pyrotechnicians were hired to conduct and shoot the fireworks at the shows or displays. Respondent conducted a routine audit of the company and determined that appellant had improperly classified some of the pyrotechnicians it hired to run fireworks displays as independent contractors rather than employees. As a result, respondent ordered appellant to pay unemployment compensation and disability contributions for these technicians. Although the order was reversed by the ALJ, a final agency order reversed and determined that the pyrotechnicians should be classified as employees of the company. On appeal and under N.J.S.A. 43:21-19(i)(6)(A)-(C) (also known as the ABC test), the court reversed holding appellant provided the supplies the technicians required but then gave them virtually complete control over the performance of the fireworks displays. Further, the pyrotechnicians’ work was conducted at locations outside of appellant’s primary plant thereby satisfying prong “B” of the statute. Finally, the court held that the pyrotechnicians were all either retirees or full-time employees outside of their work for appellant and did not rely on appellant as their main source of income. As such, the court found insufficient evidence to support respondent’s determination that the pyrotechnicians did not meet the ABC test. Therefore, the court reversed respondent’s determination that the pyrotechnicians were employees.

25-2-4357 In the Matter of Justine Branham, City of Newark, N.J. Super. App. Div. (per curiam) (7 pp.) Appellant, an officer with Newark Police Department, sought to appeal a final agency decision suspending her for six-day for violation of department rules and regulations, insubordination, failure to take responsibility for her actions, and failure to obey orders. Approximately ten months after appellant appealed her suspension to the Commission, she filed a discrimination suit which specifically referenced her six-day suspension. The civil suit was subsequently settled for a sum of money and signing a broadly-worded release which made no exception for the pending appeal. Following the settlement, the City moved for summary decision; the ALJ dismissed the appeal for lack of subject-matter jurisdiction. Upon review, the Commission adopted the dismissal recommendation but determined the civil settlement included a release of the claims at issue in the administrative appeal. On appeal, the court affirmed holding the release confirmed the plain intention of the parties to resolve all of appellant’s claims, without exception. There was nothing ambiguous about the language selected by the parties to memorialize their agreement. Further, the circumstances surrounding the execution of the release confirmed appellant released and gave up and all claims and rights she had against the City. As there was not fraud, mistake or accident, the court cannot abrogate the terms of the contract and therefore affirmed.

17-2-4383 In the Matter of Spill Fund Liens Alexander Cleaners, N.J. Super. App. Div. (Ostrer, J.) (6 pp.) Hee Kul and Ryou Eun appealed the Department of Environmental Protection’s filing of lien against them and their property to recoup funds the department spent to clean up environmental contamination. On appeal, the Euns argued, for the first time, that they were entitled to an administrative hearing; the Euns also argued that the department should have adopted by formal rule-making its administrative guidance governing lien contests. The Euns acknowledged that they knew their property was contaminated when they purchased it. After the purchase, the Euns entered a memorandum of agreement with the department to submit a remedial action work plan. When the Euns failed to submit a plan, the department terminated the MOA and undertook cleanup with public funds. The Euns contested the lien filed by the department to the extent that it named them personally, asserting that a LLC owned the property. The department referred review to a neutral agency officer, who concluded that the Euns owned the property and recommended retaining the lien. Because the Euns raised their procedural challenges for the first time on appeal, the court declined to consider them and affirmed the department’s decision. Moreover, the court held that the Euns were not entitled to an adjudicatory hearing because they failed to identify the LLC that allegedly owned the property to raise a genuine factual issue requiring a hearing.

20-2-4358 Calabrese v. Pantalena, N.J. Super. App. Div. (per curiam) (3 pp.) Plaintiff appealed from a post-judgment matrimonial order releasing the parties’ children’s custodial accounts to pay for their college expenses, and directing enforcement of child support. On appeal, plaintiff argued that the statute requiring the trial court to consider “the need and capacity of the child for education, including higher education” was unconstitutional because the state was forcing him to financially support his children’s college decisions, even though if he were still married he would be able to refuse to pay any college expenses. The court noted that plaintiff’s constitutional argument had been rendered moot by defendant’s withdrawal of her application to have plaintiff contribute to their children’s college costs. The court affirmed the trial court’s decision, noting that plaintiff had not moved to emancipate his college-aged children; thus, the constitutionality of plaintiff’s continued child support obligation was not before the court.

20-2-4360 H.S. v. D.S., N.J. Super. App. Div. (per curiam) (7 pp.) The parties divorced pursuant to an amended judgment of divorce incorporating the parties’ agreement regarding custody of their daughter and established a parenting time schedule. Following appellant-wife’s remarriage, respondent-husband moved to terminate alimony. Appellant cross-moved for various relief including modification of child support. The family part judge granted termination of alimony as well as appellant’s modification for child support. About one year later, appellant moved to enforce litigant’s rights based upon respondent’s non-compliance with the order and requested attorneys’ fees. The family court judge issued a thirty-six paragraph order denying appellant’s application, as well as granting respondent’s motion for psychological evaluation and extra parenting time. On appeal, the court reversed holding the order failed to set forth specific findings of fact and conclusions of law as to his denial of appellant’s enforcement motion. Specifically, the court found the family part judge failed to conduct a hearing or explained how respondent’s alternate life insurance policy satisfied the prior court order. Although the family part judge found respondent had not complied with the prior court order or amended judgment of divorce, he denied appellant’s enforcement motion without providing findings of facts and conclusions of law in support of his determination pursuant to Rule 1:7-4(a). Lastly, the judge denied appellant’s application for attorneys’ fees without examining the statutory factors typically considered on a fee application. Accordingly, the court reversed.

20-2-4361 K.C. v. D.C., N.J. Super. App. Div. (per curiam) (25 pp.) After fifteen years of marriage, respondent-wife filed for divorce. Respondent, a college graduate, left the workforce shortly before the first of their two children were born in 1997 and did not work outside the home thereafter. Appellant-husband was employed as a consultant. Following a nonjury trial and order, appellant challenged the alimony obligation, asset distribution, and appointed a mediator. On appeal, the court affirmed in part the grant to respondent of restricted share units finding that such employment promotional grants were based on performance ratings at the time, in recognition of appellant’s efforts, and no document provided to the court stated appellant must meet any given performance goal to trigger the vesting of the units. Therefore, the restricted share units were subject to equitable distribution. Moreover, the distribution of a ski home was proper as it was not a joint venture per the deed, but equally owned by four parties. The court further affirmed in part the alimony obligation as being properly calculated to include “all sources” of compensation as well as correctly determining the duration of such obligation. However, the court remanded a portion of the alimony obligation related to the restricted share units for further explanation as to whether they will be excluded from consideration when calculating appellants “compensation from all sources”. Finally, the court affirmed the appointment of a mediator given appellant could not adequately explain his compensation at deposition as well as requiring appellant to be responsible for all expert fees.

20-2-4370 Brinkrode v. Brinkrode, N.J. Super. App. Div. (per curiam) (5 pp.) During the parties’ divorce proceedings, they agreed to share joint legal custody of their only child, with appellant-mother being designated as the parent of primary residence. Because respondent-father thereafter demonstrated that appellant was alienating the child from him, the trial judge ordered the parties to attend reunification therapy with a licensed clinical social worker. Appellant refused to sign the therapist’s retainer agreement and continued to ignore the trial court’s order requiring her signature or face daily sanctions. Appellant continued not to comply, and the trial judge entered another enforcement order imposing increased sanctions upon appellant. On appeal, appellant argued the monetary sanctions were unduly punitive, a plenary hearing should have been held, and the trial judge failed to consider appellant’s ability to pay such sanctions. The court affirmed holding there existed no basis to disturb the judge’s determination to impose monetary sanctions upon appellant after she repeatedly, and willfully, refused to comply with the reunification therapy necessary to enable respondent to resume parenting time with the parties’ child. The court noted that the judge took a measured approach to appellant’s defiance of the orders, beginning with a $5 per day sanction after giving appellant additional time to comply, before moving to a more substantial $100 per day sanction when it became clear that appellant would not willingly abide by the orders. Finally, the court held a plenary hearing was unnecessary as there were no disputed facts and the judge considered her ability to pay when allowing the sanctions to be offset against respondent’s alimony obligation.

20-2-4396 Dept. of Children and Families v. J.S., N.J. Super. App. Div. (per curiam) (16 pp.) Appellant was accused by his wife of physically abusing their eleven-year-old daughter by pushing her down the stairs. The police referred the child abuse allegation to respondent, which investigated and concluded that the alleged abuse was “not established.” As a result, respondent did not file any proceedings or take any action. Pursuant to its regulations, however, respondent’s “not established” finding and its investigation record were permanently maintained in its confidential records and not subject to expungement. The regulations further provided that there was no right to an administrative appeal from a “not established” finding. On appeal, appellant contended that he was falsely accused and that his right to due process had been denied as he was not afforded an adversarial hearing to confront his accusers and present evidence to clear his name. The court affirmed holding respondent’s investigation of the allegations by the victims and several witnesses, along with the child’s injury, corroborated the allegations of abuse. The “not established” finding was supported by substantial evidence in the record, and was neither arbitrary, capricious, nor unreasonable. Further, the confidential retention of the investigation records and “not established” finding appropriately addressed respondent’s need to access information in the event of future referrals involving appellant. Finally, the court held appellant was not entitled to a hearing as “a finding by [respondent] that child abuse charges have not been substantiated, but that there [was] some indication a child was harmed or placed at risk of harm, [was] purely investigatory in nature, with none of the procedural protections of an adjudicatory proceeding” required. N.J. Dep’t of Children & Families, Inst’l Abuse Investigation Unit v. S.P. , 402 N.J. Super . 25, 270 ( App. Div. 2008 ) . Accordngly, the court affirmed.

20-2-4359 Guirguis v. Morris, N.J. Super. App. Div. (per curiam) (6 pp.) The parties were divorced by dual judgment of divorce which incorporated a matrimonial settlement agreement. Thereafter, the parties engaged in ongoing motion practice, which resulted in the entry of orders including the present order under appeal. Although appellant failed to timely file a conforming brief and appendix, the court ultimately accepted the brief and appendix to afford him an opportunity to prosecute his appeal. The court noted, however, failure to abide by the appellate rules implicated sanctions, including the sanction of dismissal. Rule 2:9-9. Further, the court found that appellant’s status as a pro se litigant offered no assurance of leniency nor relived him of the obligation to comply with the rules. The court recognized dismissal of the appeal was the ultimate sanction, but determined alternative sanctions lacked contextual suitability. In the court’s view, the deficiencies in appellant’s appeal would not be remediated by reprimand, censure, suppression of the brief and appendix, monetary sanctions or assessments of costs and attorney’s fees. The deficiencies included a failure to provide a concise statement of facts, failure to include legal arguments, and failure to address only those issues relating to the appeal of the order. Finally, the court held that appellant had numerous opportunities to cure his nonconformance and plaintiff has an interest to have the appeal timely resolved; therefore, the court dismissed the appeal with prejudice.

20-2-4360 Mandelbaum v. Arseneault, N.J. Super. App. Div. (per curiam) (31 pp.) This case arose out of the divorce of appellant-husband and non-party wife. Respondent, one of wife’s lawyers, sent filings in the divorce litigation to The Wall Street Journal, resulting in their widespread publication. Appellant filed suit for abuse of process, libel, invasion of privacy, and civil conspiracy. Respondent moved for, and was granted, dismissal of the complaint for failure to state a clam and to strike particular paragraphs related to false domestic violence allegations levied against appellant. On appeal, the court affirmed dismissal of abuse of process, but reversed dismissal of the remaining counts as well as reversing the striking of the paragraphs. The court found the paragraphs were relevant because the facts alleged were “of consequences to the determination of the action.” N.J.R.E. 401. The court noted the paragraphs supported motive, opportunity, intent, preparation, and plan between the alleged conspirators. N.J.R.E. 404(b). The court reversed dismissal of libel and invasion of privacy as appellant adequately alleged factions sufficient to support the claim and was not required to demonstrate fault at the pleading stage. Further, dismissal of false light was in error as the allegations were sufficient to show respondent knowingly or recklessly caused publication of false information which reached additional people when the publication was picked up by other news channels. However, the court granted dismissal of abuse of process concluding the wife’s statements did not mention, use, or threaten to use the domestic violence arrest or the criminal-complaint warrant, nor could the alleged threat carry out the criminal process to its authorized conclusion. Moreover, publicizing process was not abuse of process.

23-2-4361 Powell v. Lasting Legacy, N.J. Super. App. Div. (per curiam) (6 pp.) Respondent was sued following a motor vehicle accident; appellant-insurance company, subject to reservation of rights, retained a law firm to defend respondent in the action brought by a party injured in the accident. Appellant’s attorney filed a declaratory judgment seeking a judicial determined that respondent’s insurance policy through appellant was cancelled, and that appellant did not cover or owe respondent a duty to defend or indemnify. Respondent moved to disqualify the firm for its involvement in the mediation process resulting in a conflict of interest. Respondent made numerous arguments to the motion judge, however some were not germane to the issue of disqualification; rather pertained to substantive claims involving the alleged cancellation of coverage and other cover-related issues. After extensive oral argument and documentation, the trial court entered an order disqualified and barring the attorney from further proceedings. On appeal, the court was constrained to reversed concluding it did not know which of the many legal grounds advanced by respondent formed the basis of the judge’s ruling. The court could not ascertain if the facts supported the judge’s unspoken legal conclusions because he provided no rationale for his decision. As the court could not assess the judge’s findings of fact and conclusions of law, it vacated the order and remanded the case to another judge for further proceedings.

27-2-4362 Maslow v. Donato, N.J. Super. App. Div. (Summers, J.) (10 pp.) Defendants appealed the trial court’s issuance for a warrant of removal, evicting defendants from the home leased to them by plaintiff pursuant to defendants’ breach of a settlement agreement between the parties. Plaintiff initially filed an eviction complaint for defendants’ failure to pay rent and utilities; however, the parties entered a settlement agreement incorporated into a consent judgment that required defendants to pay monthly rent and utilities and timely repair damage to a broken water pipe. Plaintiff sought defendants’ eviction three months later for their breach of the settlement agreement by failing to pay rent. The trial court granted plaintiff’s motion for issuance of a warrant for removal, finding that defendants breached the settlement agreement. Defendants successfully sought a stay pending appeal, conditioned on their payment of rent. On appeal, defendants argued they should have been permitted to introduce plaintiff’s lack of a certificate of occupancy as proof plaintiff had no right to evict them. The court agreed with the trial court that the lack of a C.O. was irrelevant to the issue of defendants’ breach of the settlement agreement, holding that lack of a C.O. did not automatically void a lease; the court noted that defendants were also not seeking to void the lease, but to avoid eviction. The court further rejected defendants’ challenge to the trial court’s jurisdiction based on their satisfaction of the settlement agreement’s requirement for back rent. Although the court found no support for some of the trial court’s factual findings, it held that there was sufficient evidence for the trial court to conclude that defendants breached other material provisions of the settlement agreement, including failing to pay off the utility bills or all rent due. Accordingly, the court affirmed the trial court’s order and vacated the stay.

27-2-4363 Krukowski v. Wong, N.J. Super. App. Div. (per curiam) (13 pp.) Defendant appealed the verdict for plaintiffs in their suit alleging that defendant landlord wrongfully withheld their security deposit. Plaintiffs testified they leased the house, moved in on April 6, 2015, and extended the lease to October 5, 2015. On Sept. 29, 2015, plaintiffs received a text message stating that they had to vacate the following day and they did so. Landlord asserted that she had no obligation to return their security deposit, alleged damage to the premises and argued that since the property had sold, they should look to the new owner for their deposit. She asserted she was not the property owner, was not the company that leased the premises to plaintiffs, did not hold the security deposit and the lease provided that the security deposit would be turned over to the new owner. The trial judge found that defendant was not credible, that she was the owner of the property and was legally responsible for the return of plaintiffs’ security deposit. The court agreed and found that there was sufficient evidence in the record to show that defendant was the landlord, that there was no evidence that defendant closed on the sale of the property before plaintiffs vacated and that defendant was liable to return the security deposit.

29-2-4397 Dasent v. Koppel, N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the involuntary dismissal of her medical malpractice action. Plaintiff sought treatment from defendant pain management specialist. She received injections in her spine and was instructed to use ice every few hours for 20 minute intervals if the area of the injection bothered her. She had discomfort in her upper shoulder, applied ice to her shoulder and fell asleep with the ice on her shoulder. The skin blistered where the ice had been and she sued, alleging the injections burned her skin. Her medical expert opined that the use of an electrical grounding pad during the injection procedure caused the burning. However, it was undisputed that such a pad was not used during the procedure. The trial judge found that the expert’s opinion was a net opinion and dismissed the case. Plaintiff argued res ipsa loquitor obviated the need for expert testimony and if that was inapplicable, she was entitled to a conditional res ipsa loquitor charge. The court held that plaintiff’s burn to her shoulder, which was a different location than the site of the injection, did not, as a matter of common understanding, raise an inference of negligence. Additionally, plaintiff needed expert evidence to describe what caused the burn and there was a suggestion that plaintiff’s own act caused the injury

29-2-4398 Kross v. Breslow, N.J. Super. App. Div. (Gooden Brown, J.A.D,) (19 pp.) Plaintiff appealed the dismissal of her medical malpractice complaint. Defendant had a tummy tuck and liposuction, had difficulty healing and later had scar revisions which did not improve the appearance of her scars. That doctor refunded $14,000 to plaintiff in exchange for a signed release barring any future claims attributable to his care. Plaintiff then sought treatment from defendant and he performed a scar revision procedure. She continued to consult doctors about her symptoms. Her medical expert diagnosed an absence of umbilical tissue suggesting abdominal tension, scar hypertrophy and asserted defendant did not adequately consider the deficiency of skin in plaintiff’s lower abdominal area before performing the scar revision. Defendant argued plaintiff’s expert’s testimony was a net opinion and the trial court agreed and directed a verdict for defendant. The court agreed that the expert’s opinion failed to establish a causal connection between plaintiff’s complaints and defendant’s treatment. He provided no objective criteria for concluding that defendant failed to consider the laxity of plaintiff’s skin nor any basis for his conclusion that defendant’s minor scar revision caused plaintiff’s substantial and prolonged complications.

31-2-4371 Hockman v. Burrellys Ltd. Liability Co., N.J. Super. App. Div. (per curiam) (25 pp.) Defendant appealed multiple court orders in a slip and fall case in which the jury awarded plaintiff $1,280,000. Plaintiff entered defendant’s sandwich shop, slipped on an unknown liquid and injured her leg. Neither plaintiff nor defendant saw liquid on the floor, but plaintiff’s pants cuff was wet after she fell. Defendant argued the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. The court found that the motion judge erred by applying the mode-of-operation doctrine because plaintiff did not present sufficient evidence to show that it applied. The shop only served food to go and there was no evidence that the dangerous condition was due to customers’ handling of items in the refrigerator case. However, the motions judge correctly denied defendant’s motion for summary judgment because there were issues as to defendant’s notice of the alleged dangerous condition. The motions judge also correctly found that landlord had no liability as a matter of law. The trial judge erred by charging the jury on mode-of-operation. Additionally, plaintiff’s expert’s testimony exceeded the scope of the in limine determination by identifying the substance plaintiff slipped on and the source of the substance.

31-2-4372 Pagan v. Newark Hous. Auth., N.J. Super. App. Div. (per curiam) (8 pp.) Plaintiff appealed from the trial court’s grant of summary judgment to defendant, dismissing plaintiff’s negligence complaint. In her complaint, plaintiff alleged that, while a tenant in a building owned and managed by defendant, she was attacked by an unidentified armed intruder; although plaintiff had no proof, she alleged the attack was connected to her actions following her son witnessing a murder outside the apartment several months prior. After the murder, plaintiff requested a transfer; plaintiff declined units offered by defendant either due to the condition of the units or criminal activity in the neighborhoods. Following her assault, plaintiff made an emergency transfer request; plaintiff ultimately accepted a second unit offered by defendant. Plaintiff filed the present action against defendant, alleging negligence for failure to supervise the common areas and maintain the premises in a safe condition, failure to relocate plaintiff, failure to comply with applicable state and federal laws and regulations, and failure to exercise the degree of care required by law. The trial court granted defendant’s motion for summary judgment, ruling that defendant could not be liable for the criminal acts of third parties, and as a public entity was immune from liability arising from failure to provide sufficient police protection. The trial court also noted that plaintiff had merely speculated her attack was related to the murder, and that she had not suffered loss of bodily function, disfigurement, or dismemberment from her attack. On appeal, the court affirmed the grant of summary judgment, agreeing that defendant could not be held liable for a dangerous condition created by criminal activity of third parties. The court further agreed that plaintiff had merely speculated that her assault was proximately caused by defendant’s failure to relocate plaintiff, or was connected to her report of the murder.

34-2-4373 Rodano v. Kousmine, N.J. Super. App. Div. (per curiam) (9 pp.) Defendant appealed the order denying reconsideration of the decision enforcing a settlement agreement and plaintiff appealed the denial of his application for attorney fees. Plaintiff sought enforcement of litigant’s rights, i.e. a prior order requiring the installation of a bulkhead to protect an easement. That suit was settled by agreement and defendant built the bulkhead but did not adhere to the plans referred to in the settlement agreement. The court ordered compliance with the agreement and denied counsel fees. The court found that defendant failed to meet any of the requirements for reconsideration. She merely reiterated information and arguments already presented to the court. The trial judge did not explain his reasons for denying attorney fees and that decision was remanded for a fuller statement of reasons.

35-5-4384 Community Options Enter., Inc. v. Evesham Township, Tax Ct. (Flamingo, J.) (7 pp.) Both parties moved for summary judgment in plaintiff’s assessment appeal. Plaintiff, a 503(c) exempt entity, acquired the property as housing for its developmentally disabled clients. Plaintiff began construction to bring the property into compliance with DDD requirements. Plaintiff was not able to secure commitments from a sufficient number of clients by Oct, 1, 2015 and thus, there were no residents at the property as of that date. Plaintiff appealed the property assessment for the 2016 tax year, claiming an exemption pursuant to N.J.S.A. 54:4-3.6 . Defendant argued that plaintiff was not in “actual use” of the property since the property was not approved by the DDD as a group home as of the assessment date, the house was not outfitted to receive residents and no residents had committed to move into the house. Plaintiff argued it had completed construction, was prepared to accept residents and was not licensed by the state only because two of the three required registered residents withdrew from the program. The parties disagreed as to whether construction finished in August 2015 or was still underway on Oct. 1, 2015, and thus, when the house was ready for residents. The court found that genuine issues of material fact precluded summary judgment. [Filed Oct. 2, 2017]

38-2-4385 In the Matter of the Estate of Samuel Joseph Feiner, N.J. Super. App. Div. (per curiam) (20 pp.) This probate litigation was adjudicated through a protracted trial that consumed twenty-five days over a 10-month period, following four years of pretrial discovery supervised by the trial judge. The dispute within this Orthodox Jewish family pitted siblings against one another with allegations centered upon wills and inter vivos transfers of property, which appellants challenged as invalid. After extensive testimony and exhibits the trial judge declared decedent-parents’ wills null and void, removed respondent as administrator, and appointed a substitute independent administrator. Having nullified the wills, the probate judge ordered the distribution of the assets instead by intestacy and invalidated various inter vivos transfers. On appeal, appellants argued, among other things, that the trial judge improperly found they had engaged in undue influence and was biased because he personally disfavored parents disinheriting their children. The court affirmed holding the trial judge’s painstaking factual findings and credibility rulings adverse to appellants were amply supported by the extensive trial record. The court noted that respondents had proven that appellants had a confidential relationship with their parents, and that there were suspicious circumstances surrounding the wills and property transfers that shifted the burden to appellants to establish their validity. As appellants failed to meet such shifted burden showing the legitimacy of the challenged instruments, the court affirmed. Finally, the final judgment entered by the trial court was founded upon a fair and meticulous assessment of the record and a sound application of legal principles.

14-2-4386 State v. Waters, N.J. Super. App. Div. (per curiam) (12 pp.) Defendant appealed from his convictions for first-degree murder, second-degree possession of a firearm for unlawful purpose, second-degree unlawful possession of a weapon, and fourth-degree aggravated assault. Defendant’s co-defendant testified that defendant had threatened to kill the victim if he did not return an item. There was also conflicting testimony about how many guns were at the crime scene and who used them. At trial, the co-defendant’s friend, who drove defendant and co-defendant to the park where the shooting occurred, equivocated over whether the victim possessed a gun and whether defendant fired a weapon at the victim. On appeal, defendant argued that the trial court erred in charging the jury on the lesser-included offense of passion/provocation manslaughter, or on the theory of manslaughter where there was evidence the victim pulled a weapon first. Defendant further argued that the trial court improperly excluded evidence that co-defendant coached his friend in his statement to police. Finally, defendant, a minor at the time of the crime, argued that the trial court had imposed a de facto life sentence without parole in violation of Miller v. Alabama , 132 S.Ct. 2455 . Although defense counsel did not object to the jury charge, the court ruled that the trial court’s failure to instruct the jury on passion/provocation manslaughter and self-defense was plain error where clear evidence was presented at trial to support each of the four elements of the lesser-included offense and to support a theory of self-defense. The court further ruled that the trial court erred in excluding testimony that co-defendant coached his friend on his statement to police, finding that such testimony was properly introduced to impeach his credibility. Accordingly, the court reversed defendant’s conviction and remanded for a new trial.

14-2-4401 State v. McKoy, N.J. Super. App. Div. (per curiam) (16 pp.) Defendant was convicted for heroin and weapons possession. At the time of sentencing, he was serving an aggregate prison term for violations of probation. State troopers conducting surveillance saw defendant approach their van, recognized him from prior law enforcement contact, announced themselves and, when they caught him after he attempted to flee, found 20 bags of heroin and a loaded hand gun on him. Defendant’s argument that his predicate offense should have been sanitized in the jury charge was fundamentally flawed. A defendant’s offer to stipulate did not preclude using evidence of the name or nature of the prior conviction. The court declined to consider defendant’s claim of ineffective assistance of counsel by stipulating to the nature of his predicate offense because that issue was more appropriate for a PCR petition. Defendant’s argument that the trial court violated his constitutional rights by failing to inform him that he had the right to represent himself after he complained about his trial counsel failed because the record showed that he did not express a desire to waive counsel and proceed pro se. However, the court found that resentencing was required because the trial court failed to consider whether the aggregate sentences for his current convictions should run concurrently to the aggregate sentences for his probation violations.

14-2-4402 State v. Richardson, N.J. Super. App. Div. (per curiam) (32 pp.) Lacking a valid driver’s license, appellant was caught giving a false name during a traffic stop for a motor vehicle violation. While in the booking room, it was revealed that appellant had multiple packets of heroin in his sock. Although the room had two motion-sensitive video cameras, appellant was convicted based on the officer’s word as the respondent allegedly allowed the tape to be destroyed despite appellant’s prior written request that respondent preserve and produce it. The trial court denied appellant’s request to instruct the jury that it could draw an adverse inference from the tape’s destruction. The jury ultimately found appellant guilty and he was sentenced to a five-year term of imprisonment. On appeal, the court reversed finding that when respondent refused appellant’s diligent pre-indictment request to preserve and produce recordings, which respondent or its law enforcement agencies created and were directly relevant to adjudicating an existing charge, the appellant was entitled to an adverse inference charge. Further, the trial court erred in how it handled the evidence of hindering apprehension. The court noted the evidence was inadmissible under N.J.R.E. 404(b) for its proffered purposed and, in any event, the court’s instruction was inadequate. As these errors were not harmless, the court reversed conviction.

14-2-4374 In the Matter of W.L., N.J. Super. App. Div. (per curiam) (9 pp.) Defendant, an inmate at Northern State Prison, engaged in a months-long hunger strike that placed his health and life in imminent danger. Defendant refused to regularly eat or take fluids because he said he was upset with a disciplinary charge he received that resulted in his placement in administrative segregation for a lengthy period of time. Two preliminary injunctions were ordered permitting involuntary medical treatment and nutrition to defendant as well as to employ reasonable force in order to conduct lab tests. Defendant filed a four-count counterclaim which asserted, among other things, violation of his eighth amendment protections, deprivation of due process, and infringement of his first amendment right to engage in political protest. On motion, the trial court granted dismissal of defendant’s claims with prejudice. On appeal, the court affirmed in part the trial judge’s decision to grant the department a preliminary injunction to enable it to save defendant’s life. Affirming the trial judge’s rationale, the court concluded that defendant’s life was in imminent danger. Further, the department had a duty to protect inmates as well as a strong public interest in preserving the lives of inmates within its custody. However, the court reversed dismissal with prejudice as defendant may well have been able to file an amended counterclaim that alleged sufficient facts to correct the pleading deficiencies. As such, the court affirmed in part and reversed in part with a remand to allow defendant an opportunity to file an amended counterclaim.

14-2-4387 State v. Mills, N.J. Super. App. Div. (per curiam) (23 pp.) Following the trial court’s denial of his motion to suppress incriminating evidence that police had seized in a warrantless car search, appellant conditionally pled guilty to robbery and unlawful possession of a handgun. The trial court sentenced appellant to concurrent seven-year custodial terms on the two offenses, subject to statutory parole ineligibility periods. On appeal, appellant contended that the warrantless search of the car in which he had been riding as a passenger was unconstitutional. He further submitted that the trial court erred in rejecting his request to draw an adverse inference against respondent for failure to preserve two separate video recordings of the vehicle stop. The court remanded the suppression issues to the trial court for reconsideration in light of the Supreme Court’s recent opinion in State v. Robinson , 228 N.J. 529 ( 2017 ) which illuminated the requirements for a permissible warrantless “protective sweep” of a vehicle. The court noted the record, including a DVD of the video recording, presented to the motion judge were unable to resolve fact-laden matters conclusively as to whether the officers had the legality to conduct a warrantless protective sweep of the vehicle. As such, the appropriate course of action was to remand the matter to reconsider its original suppression ruling. However, the court affirmed denial of an adverse inference as the failure to preserve the recording was not intentionally done to prejudice appellant’s rights. Accordingly, the court affirmed in part and remanded in part.

07-7-4375 Bedoya v. American Eagle Express, D.N.J. (Salas, U.S.D.J.) (8 pp.) Defendant logistics company moved for an interlocutory appeal after the court denied defendant’s motion asserting that plaintiff delivery drivers’ putative class action, alleging that they were employees and not independent contractors, was preempted by the FAAAA. The parties agreed that the order involved a controlling question of law. Defendant argued that there were substantial grounds for differences of opinion as evidenced by a split in the circuits and that the order involved a novel and complex issue of statutory interpretation. The court agreed and noted that there was no controlling authority on the issue. Defendant also contended that a successful appeal would likely end the case. Plaintiffs argued that immediate appellate review would not affect their unjust enrichment claims and would not materially advance the termination of the litigation. The court rejected plaintiffs’ argument that defendant’s motion did not seek dismissal of plaintiffs’ unjust enrichment claims. The court agreed with defendant that its motion challenged all three prongs under the New Jersey ABS test and that its appeal involved a potentially case-dispositive issue. However, the court denied defendant’s request to stay the action. [Filed Sept. 29, 2017]

07-7-4376 RP Healthcare, Inc. v. Pfizer, Inc. , D.N.J. (Sheridan, U.S.D.J) (15 pp.) In their original case filed in the northern district of California, plaintiffs alleged antitrust law violations arising out of a reverse-settlement transaction pertaining to the drug Lipitor. Not approving of the multidistrict litigation (MDL), plaintiffs dismissed their complaint and refiled in the Superior Court of California alleging state law claims. The case was ultimately transferred to the court with the MDL and the superior court denied plaintiffs’ motion for remand. On motion, the court granted dismissal with prejudice finding that plaintiffs did not allege the criteria set forth concerning the reverse settlement. However, the Third Circuit remanded the matter back for the limited purpose of determining jurisdiction, and whether the jurisdictional decision impacted the prior dismissal. The court dismissed defendants-Daiichi Limited, a Japanese pharmaceutical company, concluding it would be unreasonable to require it to defend a suit in California or New Jersey as its operations, witnesses and records all existed in Japan. Accordingly, the order dismissing such defendants for failure to state a claim was vacated as defendant-Daiichi was subject to neither specific nor general jurisdiction. However, the court found that upon dismissal of the two California defendants, the jurisdictional defect was cured and diversity jurisdiction was established. [Filed Sept. 29, 2017]

11-7-4377 Liberty Bell Capital II, L.P. v. Warren Hosp., D.N.J. (Martinotti, U.S.D.J.) (19 pp.) Both parties both moved for summary judgment in action over defendants’ transfer of the controlling interest in a holding company to a third party which resulted in plaintiff’s inability to acquire certain property. Defendants and a non-party investor were members of a holding company for property that was the subject of the suit. Holding company financed acquisition of property through a bank loan. Defendant hospital stopped paying rent and caused a default on the loan. After bank initiated foreclosure proceedings, defendants made an agreement with a health network for the network to acquire defendant hospital. Investment fund purchased holding company’s debt and transferred the debt to plaintiff and plaintiff and defendants made a post foreclosure agreement. Plaintiff asserted defendants interfered with the foreclosure process and violated the PFA by selling its interest in the holding company with the knowledge that the purchaser would cause holding company to exercise its right of redemption. Defendants argued that they complied with the express language of the PFA. The court found that the PFA did not require defendants to assist plaintiff in acquiring title and that defendants complied with the language of the PFA. Additionally, the PFA did not detail plaintiff’s interest in acquiring title and did not set forth any terms with respect thereto. [Filed Sept. 29, 2017]

11-7-4404 Sapta Global, Inc. v. Icon Solutions, Inc., D.N.J. (Llinares, U.S.D.J) (13 pp.) An entity known as Randstad Technologies LP entered into a contract with non-party Goodyear to provide a consultant to Goodyear to perform certain tasks concerning information technology issues. Ranstad then entered into a contract with plaintiff to provide such a consultant to Randstad, who Randstad would then provide to Goodyear. Plaintiff, in turn, entered into a contract with defendant to provide it with such a consultant. At some point, Randstad terminated plaintiff’s contract, and then entered into a contract directly with defendant. Plaintiff now alleged that defendant breached its agreement by bypassing plaintiff to deal with Randstad directly. Defendant, in turn, asserted a counterclaim for breach of its contract for alleged failure to pay compensation that was due and owing for services performed. On competing motions, the court granted summary judgment for defendant insofar as it concerned plaintiff’s claims and the counterclaim by defendant for damages; and denied the motion for an award of prejudgment interest. The court concluded that plaintiff was acting as an employment agency without the proper license during its involvement in the multi-party arrangement and was not involved in overseeing work. As such, plaintiff was not entitled to enforce its agreement or recover unpaid sums as it failed to obtain the required license to operate as an employment agency. Moreover, it was undisputed that plaintiff failed to honor certain invoices submitted to it by defendant for services rendered; therefore, defendant was entitled to summary judgment in its favor on their counterclaim for monies owed under the terms of the parties’ contract. Finally, the court denied prejudgment interest as defendant failed to provide the court with a proposed interest rate or any proposed calculations for such an award. [Filed Oct. 2, 2017]

15-7-4364 Kassin v. AR Res., Inc., D.N.J. (Wolfson, U.S.D.J.) (7 pp.) Defendant moved for permission to file an interlocutory appeal from the denial of its motion to dismiss. Plaintiff filed suit against defendant on behalf of himself and a proposed class, pursuant to the Fair Debt Collection Practices Act, alleging that certain language in a debt collection letter sent by defendant violated the act. The court denied defendant’s motion to dismiss, which was centered on the issue of whether language asking a consumer to directly contact a collection agency by phone regarding insurance coverage would contradict a validation notice in the same letter. The court concluded that such language would contradict the validation notice. In support of its motion for leave to file an interlocutory appeal, defendant argued there were differing district court opinions on the issue resolved in its dismissal motion, which defendant contended warranted a permissive appeal, since a decision on what it contended was a controlling question of law could remove the need for trial. In response, plaintiff argued that the Third Circuit had already issued a clear ruling on the matter so that there was no difference of opinion on the law. The court agreed with plaintiff that there was no substantial ground for difference of opinion on the controlling law. Instead, the court noted that the other district court opinions cited by defendant involved language different from the language used in the present case. Moreover, the court held that other cases also applied the least sophisticated debtor standard that the court applied in the present case. The court ruled that different courts applied the same law different to the facts of each case did not constitute the type of substantial difference of opinion that warranted a permissive appeal. Accordingly, the court denied defendant’s motion. [Filed Sept. 28, 2017]

16-7-4388 A.P. v. The Allegro School, Inc., D.N.J. (McNulty, U.S.D.J) (17 pp.) Plaintiff, a minor, was on the autism spectrum and suffered from severe behavioral disorders. Represented by her mother, plaintiff sought damages against defendant-school, as well as several current and former administrators and staff, for allegedly violating her individualized education plan (IEP) by failing to collect data and, in some instances, fabricating reported data over the course of several years. Defendants removed the matter to the court under the Rehabilitation Act and now move to dismiss the complaint in its entirety. The court granted dismissal concluding it lacked subject matter jurisdiction over the only federal-law claim, violation of the Rehabilitation Act. The court found that, despite plaintiff’s titling of her claims as §504 Rehabilitation Act violations, she was still required to exhaust administrative remedies as the claims could not be brought outside of the school context, and therefore lie within the heartland of Individuals with Disabilities Education Act (IDEA). Here, the claims asserted arose from defendant’s being the school where the child was placed under IDEA. They were essentially IDEA claims brought in another guise. The court noted that a federal court may not exercise subject-matter jurisdiction over an IDEA dispute unless the administrative remedies have been exhausted. D.M. v. N.J. Dep’t of Educ. , 801 F.3d 205, 212 ( 3d Cir. 2015 ) Accordingly, the court granted dismissal of the §504 claim without prejudice for lack of subject matter jurisdiction, and remanded all other claims to the state court. [Filed Sept. 29, 2017]

39-7-4378 Continental Airlines, Inc. 401(k) Savings Plan v. Almodovar-Roman, D.N.J. (Arleo, U.S.D.J.) (7 pp.) Plaintiff was a defined contribution plan organized in Texas and licensed to do business in New Jersey. Continental Airlines sponsored plaintiff as a defined contribution plan under ERISA, and was the fiduciary of the plan. Defendant Brenda Almodovar-Roman was a participant in the plan during her employment with Continental; plaintiff was ignorant of the true identities of the John Doe defendants. From Q4 2014 to Q2 2015, Almodovar-Roman did not have a balance in her plan account; plaintiff subsequently mistakenly rolled another participant’s funds into Almodovar-Roman’s account, and sent her an account statement showing a balance of more than $149,000. Almodovar-Roman then requested and received a total distribution of her plan account. Plaintiff later discovered the mistake and attempted to recoup payment from Almodovar-Roman, which went ignored by her. Plaintiff alleged that Almodovar-Roman was still in possession of all or part of the funds, or they could be traced to Almodovar-Roman and the John Does, and asserted claims for equitable relief under ERISA, and breach of contract or unjust enrichment under state law. Following the entry of default, plaintiff filed the present motion for default judgment. The court declined to enter default judgment against the John Does, noting there was insufficient information for the court to conclude that it could exercise personal jurisdiction over them. The court further ruled that plaintiff’s equitable claim under ERISA against Almodovar-Roman, which preempted plaintiff’s state law claims, also failed because plaintiff had failed to show that the funds from the plan were clearly traceable to funds in Almodovar-Roman’s possession. Accordingly, the court denied plaintiff’s motion for default judgment. [Filed Sept. 29, 2017]

21-7-4379 Garcia-Rodriguez v. U.S., D.N.J. (Salas, U.S.D.J) (11 pp.) Plaintiff, a small business, submitted an application seeking authorization to participate in the food stamp program, declaring itself a retail store and estimated to have $500,000 worth of retail sales annually. After detecting suspicious transactions and food stamp redemption from plaintiff, an investigation was opened. Following an investigation and receipt of documents, it was concluded that plaintiff was not operating as a retail food store or as a co-located wholesale food concern and thereby was barred from participating in the food stamp program. A final agency decision concluded that plaintiff violated the program and that it was proper to withdraw its authorization to participate. Plaintiff subsequently filed the underlying matter claiming that it was not 100 percent wholesale and was in fact less than 50 percent and the USDA failed to consider additional evidence or conduct. On motion, the court granted summary judgment in favor of defendant holding plaintiff, by its own admission in its reauthorization application, was a wholesale distributor with all of its sales attributable to wholesale sales. Further, plaintiff did not qualify for an exception as it was not a “redemption outlet” for certain customers. Moreover, the court found that the withdrawal of plaintiff’s authorization to participate in the food stamp program and imposition of a six-month waiting period before reapplying was not arbitrary or capricious. Accordingly, the court granted summary judgment for defendants. [Filed Sept. 28, 2017]

51-7-4405 Fang v. Homan, D.N.J. (Linares, U.S.D.J.) (6 pp.) Defendants moved to dismiss plaintiff’s first amended complaint, alleging that defendants acted arbitrarily and capriciously and violated plaintiffs’ due process rights in terminating plaintiffs’ F-1 visa status. Plaintiffs obtained their F-1 visas after enrolling in UNNJ through academic brokers; however, UNNJ was a fake university created by ICE as part of a sting operation to catch academic brokers ICE believed were committing visa fraud. After ICE shut down UNNJ and arrested 21 academic brokers, it began terminating the student status of all foreign students who had enrolled at UNNJ for “fraudulent enrollment”; at no point prior to their termination were plaintiffs aware that UNNJ was not a legitimate school, as they had been assured by UNNJ and its agents that it was legitimate. In ruling on defendants’ motion, the court held that plaintiffs’ action turned on whether ICE’s termination of plaintiffs’ status was a “final agency action” ripe for review. The court ruled that it was not, as plaintiffs’ applications for reinstatement were still pending. Thus, the court held that plaintiffs had not yet exhausted their administrative remedies, and their claims were not yet ripe for review because plaintiffs were asking the court to make the same determination they sought in their applications for reinstatement. Accordingly, the court granted defendants’ motion to dismiss without prejudice. [Filed Oct. 2, 2017]

23-7-4365 Onex Credit Partners, LLC v. Atrium 5 LTD, D.N.J. (Falk, U.S.M.J.) (10 pp.) Plaintiff moved to seal or restrict public access to portions of certain exhibits and briefings filed in a breach of contract action over denial of insurance claims under a “key-man” disability policy. Plaintiff purchased a “key-man” insurance policy insuring against the total disability of plaintiff’s former Co-CEO. Former Co-CEO suffered an acute aortic dissection while traveling on business and became unable to and ceased performing the substantial and material duties of his position. Plaintiff submitted a claim under the insurance policy and defendant denied coverage arguing that Co-CEO was not permanently disabled. Defendant moved for summary judgment and plaintiff sought to seal portions of the record that referred to or disclosed Co-CEO’s personal medical and financial information, his private family photographs and proprietary and trade business information belonging to plaintiff. The court found that there was no public interest in the Co-CEO’s medical or financial records which were purely private in nature. Neither Co-CEO nor his family were parties to the lawsuit and his wife and children had an inarguable interest in not having private photographs publicly disclosed. Plaintiff’s interest in maintaining the confidentiality of its sensitive business records outweighed any presumption of public access. [Filed Sept. 27, 2017]

23-7-4389 The Hanover Ins. Co. v. Retrofitness, LLC, D.N.J. (Martinontti, U.S.D.J.) (16 pp.) Plaintiff moved for partial judgment on the pleadings in its declaratory judgment action against defendant. Plaintiff’s action arose from defendant’s claim for insurance benefits for an underlying lawsuit. Plaintiff had issued two claims-made-and-reported miscellaneous professional liability policies to defendant, which did not apply to claims arising from false advertising, antitrust, unfair competition, restraint of trade, unfair and deceptive business practice, and violation of federal and state consumer protection laws. Individuals filed a class action against defendant, alleging it violated TCCWNA, RISA, CFA, and HCSA. In its complaint against defendant, plaintiff alleged that defendant did not tender its defense to and demand indemnification from plaintiff for the underlying lawsuit. Plaintiff sought a declaration that it had no duty to defend or indemnify defendant in the underlying lawsuit. In support of its motion, plaintiff argued it had no duty to defend defendant in the underlying lawsuit because the lawsuit did not state claims covered under plaintiff’s policies. In response, defendant acknowledged that the claims in the underlying lawsuit were consumer protection claims, but argued it had an objectively reasonable expectation that plaintiff’s policies covered the claims and that the underlying lawsuit asserted defendant’s negligence as a franchisor; plaintiff further asserted there were outstanding questions of material fact. The court rejected defendant’s arguments as without merit, agreeing that the underlying lawsuit asserted state consumer protection claims rather than negligence claims, and therefore fell squarely within plaintiff’s policies’ exclusions for claims arising from state consumer protection laws. The court accordingly ruled that defendant could not have a reasonable expectation of coverage in the face of the exclusion. Thus, the court granted plaintiff’s motion for partial judgment on the pleadings. [Filed Sept. 29, 2017]

23-7-4406 Liberty Int’l Underwriters Canada v. Scottsdale Ins. Co., D.N.J. (Hillman, U.S.D.J.) (8 pp.) Defendants moved for summary judgment in plaintiff’s action to recover attorneys’ fees paid to settle a lawsuit which alleged that a subcontractor to plaintiff’s insured started a fire at a hotel. Plaintiff asserted that defendants had a duty to defend and indemnify plaintiff’s insured for the underlying litigation. Defendants argued that the settlement agreement in the underlying litigation had an assignment of rights provision in which plaintiff allegedly agreed to assign any of its claims from the litigation to the hotel. Defendants argued that the court’s prior opinion denying defendants’ motion for judgment on the pleadings warranted the entry of summary judgment in its favor. The court found that its prior opinion was not the “law of the case” as argued by defendants because ultimately the court had concluded that plaintiff’s claims were sufficiently viable to proceed past the initial pleading stage. Additionally, plaintiff presented substantive evidence gathered through discovery that refuted the premises relied on by the court in its earlier analysis. Defendants’ current motion relied on the court’s prior decision as evidence of the absence of genuine issues of fact and that was not proper. [Filed Sept. 29, 2017]

53-7-4366 Mondis Technology, Ltd. v. LG Electronics, D.N.J. (Chesler, U.S.D.J) (17 pp.) In this patent infringement matter involving a display device patent, the parties sought construction of claims. A court’s determination of “patent infringement requires a two-step process: first, the court determines the meaning of the disputed claim terms, then the accused device [was] compared to the claims as construed to determine infringement.” Acumed LLC v. Stryker Corp. , 483 F.3d 800, 804 (Fed. Cir. 2007) Here, the parties disputed: (1) whether a preamble was limiting, and (2) meaning of various claim terms. The court found the preamble was not a claim limitation as it did not add any unique content to the information contained in the body of the claim nor recited essential structures or steps. As the preamble merely stated a purpose or intended use for the invention, it was not a claim limitation. The court further concluded the claim language, together with the specification, make clear that some display unit information – the identification number – played a key role in communication along with coordination of control with the external video source. Therefore, a broader meaning than what defendant proposed, “information for adjusting a display image on the display unit,” and plaintiff’s proposed construction gave the phrase its ordinary and broader meaning. The court concluded that as to the disputed claim terms, neither party overcame their presumption and found that all such terms should be given there ordinary meaning. [Filed Sept. 28, 2017]

25-7-4364 Long v. Leggett & Platt, Inc. , D.N.J. (Hillman, U.S.D.J.) (13 pp.) Defendants moved for judgment on the pleadings, and plaintiff cross-moved for leave to amend his complaint alleging violation of the New Jersey Law Against Discrimination. Plaintiff was employed by defendant Leggett & Platt from 1982 to 1989, and again from 1994 to his termination in 2016. In 2015, plaintiff had reported sexual harassment by an L&P employee against a female co-worker, although no action was taken following the report. In his complaint, plaintiff alleged he was terminated in retaliation for reporting sexually harassing conduct, in violation of NJLAD. In addition to retaliation, plaintiff also asserted claims for aiding and abetting violation of NJLAD, and for punitive damages. The court granted defendants’ motion in part and denied it in part. As to plaintiff’s retaliation claim, the court found that plaintiff had adequately asserted protected activity in the form of reporting sexual harassment, and retaliatory behavior in the form of his termination. Although defendants presented evidence that plaintiff’s termination was contemplated prior to his report, the court found that plaintiff alleged facts to rebut defendants’ assertion. However, the court dismissed plaintiff’s aiding and abetting and punitive damage claims, finding that plaintiff did not allege that defendants “knowingly and substantially assisted” in the retaliatory conduct. Similarly, the court held that plaintiff failed to allege sufficient facts of wanton, reckless, or malicious conduct to support punitive damages. [Filed Sept. 27, 2017]

25-7-4390 Galarza v. Whittle-Kinard, D.N.J. (Salas, U.S.D.J.) (21 pp.) Plaintiff sued against certain individuals associated with St. Michael’s Medical Center, Inc., alleging violations of NJLAD, NJWHL, FMLA, and FLSA. Plaintiff also asserted liability against Prime Healthcare Services–St. Michael’s, LLC, under theories of joint-employer doctrine and successor liability. Prime moved to dismiss all the claims against it for failure to state a claim. Plaintiff took four medical leaves, and alleged she faced embarrassment and/or negative consequences for each leave, including having her direct supervisor suggest plaintiff not return to her position after a medical leave for surgery. Ultimately, plaintiff’s position was eliminated. In opposition to Prime’s motion, plaintiff alleged that despite St. Michael’s bankruptcy, Prime continued to operate the facility, and ultimately finalized a merger with or purchase of St. Michael’s. As part of the sale during St. Michael’s bankruptcy, St. Michael’s assets were sold to Prime free and clear of all liens and claims and liabilities, including successor liability. Prime therefore argued that plaintiff’s claims against it were barred by the bankruptcy code and the bankruptcy court’s order. Plaintiff asserted her termination occurred after St. Michael’s filed for bankruptcy, and argued that bankruptcy could only terminate successor liability for pre-petition conduct. The court denied Prime’s motion, noting there were exceptions to an order disposing of claims and liens under which successor liability could attach, including the circumstances where Prime and St. Michael’s merged or Prime was a mere continuation of St. Michael’s. The court further ruled that Prime failed to demonstrate that plaintiff’s complaint could not support a theory of joint-employer liability, since plaintiff alleged that Prime and St. Michael’s had been operating from the same address prior to plaintiff’s termination, and that the operation of St. Michael’s had not been interrupted by its bankruptcy. [Filed Sept. 29, 2017]

25-7-4407 Annunziata v. New Jersey Racing Comm’n, D.N.J. (Wolfson, U.S.D.J.) (9 pp.) Defendants moved to dismiss plaintiff’s §1983 complaint, alleging defendants deprived him of his constitutionally protected property interest in employment in the horse racing industry and in procuring a stable license. Upon filing his application for a stable worker license, plaintiff met with defendant Richard O’Donnell, the State Steward, who informed plaintiff that his application would be denied for financial irresponsibility. At a subsequent meeting, defendants informed plaintiff that he had been conducting unauthorized racing activities at a state licensed farm. Plaintiff did not exercise his right to a hearing or administrative appeal from O’Donnell’s decision. Plaintiff alleged that against plaintiff’s licensure, and further alleged that defendants instead had knowingly approved of hundreds of license applications from illegal immigrants using falsified social security numbers. Defendants moved to dismiss plaintiff’s complaint based on lack of standing and failure to exhaust administrative remedies. The court first agreed that plaintiff lacked standing, as plaintiff merely alleged that O’Donnell declined to recommend plaintiff for licensure; the court noted that there was no evidence that plaintiff’s license application had been denied or even reviewed. Instead, the court noted that only the board of examiners, not O’Donnell, could approve or denying plaintiff’s application. However, given the confusion over the status of plaintiff’s application caused O’Donnell’s communications to plaintiff, the court granted defendants’ motion without prejudice to plaintiff’s amendment of his complaint to attempt to satisfy standing. [Filed Oct. 3, 2017]

31-7-4391 Maliki v. Holy Redeemer Hosp., D.N.J. (Hayden, U.S.D.J.) (8 pp.) Defendant hospital moved for summary judgment in plaintiff’s action asserting he was injured by a door while delivering laundry. Plaintiff stuck a pin in a door to hold it open while he made his delivery. On the sixth or seventh load, one door closed and struck him. Defendant argued that plaintiff could not show actual or constructive notice of a defect and could not establish a prima facie case for negligence. Plaintiff argued he was an invitee or business guest and negligence could be inferred because the door shut on him. Defendant admitted that it did not regularly inspect its automatic doors. However, plaintiff offered no evidence that routine inspections would have discovered any malfunction and relied on res ipsa loquitor. Plaintiff testified that he placed a pin in the door to hold it open. His interference with the regular functioning of the door negated defendant’s exclusive control and precluded his reliance on res ipsa loquitor. [Filed Sept. 29, 2017]

34-7-4380 Richman v. A Country Place Condo. Ass’n, Inc., D.N.J. (Martinonti, U.S.D.J.) (9 pp.) Plaintiff moved to remand his action to state court, arguing that the court lacked subject matter jurisdiction. Plaintiff’s complaint alleged that defendants placed an unreasonable restriction on plaintiff’s use, enjoyment, and right of access to the condominium pool by limiting mixed-gender access to the facility. Plaintiff’s second amended complaint asserted two additional claims alleging violations of the New Jersey Condominium Act and New Jersey Law Against Discrimination; however, prior to plaintiff’s filing of his second amended complaint, defendants had removed the action, arguing that federal subject matter jurisdiction existed because plaintiff’s gender-based allegations fell under the Fair Housing Amendments Act. Defendants further asserted that the court should not have considered the new allegations in plaintiff’s second amended complaint because it was not filed in federal court nor served upon defendants. In support of his motion for remand, plaintiff argued that federal subject matter jurisdiction did not exist because he was only raising a state law claim in property interest, and the new claims in his second amended complaint also did not arise under federal law. The court first agreed with defendants that it could only considered the record at the time of removal, and thus could not consider plaintiff’s second amended complaint. However, the court rejected defendants’ assertion that plaintiff’s complaint asserted gender-based allegations falling into a FHAA claim. The court noted that plaintiff’s complaint did not assert a FHAA claim, mention the FHAA, or mention the words segregation or discrimination. Instead, the court ruled that plaintiff’s claim was clearly one raising property interest issues under common law tortious interference with easement or ouster theories. Accordingly, the court granted plaintiff’s remand motion. [Filed Sept. 29, 2017]

50-7-4367 Park v. Inovio Pharm., Inc., D.N.J. (Chesler, U.S.D.J.) (12 pp.) Defendants moved for summary judgment on plaintiff’s complaint, arising from a dispute over plaintiff’s exercise of two stock options. In his complaint, plaintiff asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. In support of their summary judgment motion, defendants argued that plaintiff could not prove breach because one of the grants required plaintiff to continuously provide services to Inovio until at least 90 days prior to exercise of the grant; defendants asserted plaintiff had no evidence of such services. The court found that although the grant did not have a service requirement, the equity plan that governed the options did. The court denied summary judgment on the breach of contract claim, crediting plaintiff’s argument that there was an interpretation of the grant and plan languages that required examination of extrinsic evidence as to their meaning, which precluded summary judgment. The court held that defendants’ interpretation of the documents was unreasonable, since it would have meant that Inovio’s predecessor terminated plaintiff at the same time as granting options conditioned on his continued service. The court further denied defendants summary judgment on plaintiff’s unjust enrichment claim, holding that plaintiff could plead the claim in the alternative to his breach of contract claim and that plaintiff had presented sufficient evidence defendants conferred a benefit upon him. Finally, the court granted defendants summary judgment on plaintiff’s good faith and fair dealing claim, finding that plaintiff had presented no evidence to support his claim. The court also rejected defendants’ statute of limitations defense, holding that factual disputes precluded a finding that the limitations period had run. Lastly, the court dismissed the complaint as to defendant Kim, agreeing that an officer could not be held liable for actions taken on behalf of the corporation. [Filed Sept. 28, 2017]

57-7-4365 DirecTV, LLC v. Alvarez, D.N.J. (Hillman, U.S.D.J) (11 pp.) Plaintiff filed the underlying complaint alleging defendant displayed satellite programming at his bar without a commercial account in violation of the Cable Communications Policy Act of 1984. Defendant was served the complaint, but failed to file an answer or otherwise respond. Plaintiff subsequently moved for, and was granted, default judgment. Before the court was defendant’s motion to vacate the default judgment. A court must consider four factors in determining whether to vacate a default judgment: (1) whether lifting the default would prejudice the plaintiff; (2) whether defendant has a meritorious defense; (3) whether defendant’s conduct was excusable or culpable; and (4) the effectiveness of alternative sanctions. Emcasco Ins. Co. v. Sambrick , 834 F.2d 71,73 ( 3d Cir. 1987 ) . The court granted vacation in part holding plaintiff would not be prejudiced as installation records were presumably within the exclusive control of plaintiff and costs associated with continued litigation could not typically constitute prejudice. Further, the court found defendant had a meritorious defense as to damages given defendant alleged he was unaware of contractual terms and not willfully in violation of same. Moreover, the court found defendant’s conduct was not culpable as he believed the matter would be settled out of court. As a default judgment should be a sanction of last resort and the court found defendant had a meritorious defense as to damages, the court reversed vacation in part. [Filed Sept. 27, 2017]

57-7-4392 Weerahandi v. Shelesh, D.N.J. (Martinotti, U.S.D.J) (13 pp.) Plaintiff filed the underlying complaint alleging defendants violated federal and state laws against defamation causing monetary and mental harm in connection with the parties’ use or ownership of the website, YouTube. Plaintiff argued defendants disseminated his personal identifying information that was disclosed in defendant’s original suit against plaintiff under the Digital Millennium Copyright Act. Plaintiff reported the videos to defendant-Google for harassment and bullying and requested, to no avail, the links be removed. Defendants moved to dismiss contending the court lacked personal jurisdiction and failure to state a claim. The court granted dismissal concluding plaintiff failed to plead facts sufficient to show that defendants focused their alleged tortious activity at New Jersey. The court found that plaintiff’s complaint lacked any allegation that defendants’ defamatory comments reached anyone in New Jersey or had any effect in the forum beyond their effect on him. Although defendants may have an enormous audience in New Jersey for their YouTube channel, and that audience may provide defendants with substantial revenue, the court held such facts were not sufficiently related to defendants’ connections to New Jersey for the purposes of plaintiff’s claims. Moreover, the court granted dismissal finding plaintiff’s clams against defendants Google and YouTube were barred, as a matter of law, by the Communications Decency Act as they were “interactive computer services.” [Filed Sept. 29, 2017]

14-8-4366 Muraveva v. Toffoli, 3rd. Cir. (Smith, C.J.) (9 pp.) Appellant appealed the jury verdict in favor of police officer in her action for false arrest. Officers testified that appellant pursued them into the street while screaming, cursing, yelling, flailing her arms and interfering with their investigation. Appellant asserted that she approached one officer to speak with him without shouting or cursing and was immediately arrested. Appellant argued the District Court did not properly instruct the jury on whether officer had probable cause to arrest her. She asserted the District Court should have included instructions to the jury that conduct as well as speech could be protected under the First Amendment. However, she failed to identify any evidence that she engaged in expressive conduct. Following an officer and failing one’s arms, without more, did not constitute expressive conduct. District Court did not err in telling jury it could consider the officer’s testimony that appellant prevented him from performing police duties because while preventing an officer from performing his duties was not an element of disorderly conduct, “tumultuous behavior” was and the jury could consider the totality of the circumstances in assessing tumultuous behavior. The evidence was sufficient for a jury to conclude that officer had probable cause to arrest appellant. [Filed Sept. 25, 2017]