11-2-4422 Design Management Serv., Inc. v. Broad-Atlantic Assoc., LLC, N.J. Super. App. Div. (Gooden Brown, J.A.D.) (14 pp.) Defendant appealed the dismissal of its counter claims and the award of judgment to plaintiff in plaintiff’s breach of contract action. Despite defendant’s contention, the trial court did not abuse its discretion in denying defendant’s motion to transfer the case, based on the fact that its counterclaims exceeded the jurisdictional limit of the Special Civil Part, because defendant’s motion was procedurally defective and untimely. An Order to Show Cause was not the appropriate vehicle for a transfer motion and defendant was not prejudiced by the denial since the court considered defendant’s counterclaims and found no cause of action on them. Defendant was not prejudiced by the trial court’s decision to allow plaintiff to file its answer to the counterclaim out of time given defendant’s failure to move earlier for entry of default judgment. Defendant’s argument that plaintiff’s failure to respond to discovery should have resulted in the dismissal of plaintiff’s complaint was untimely because defendant made no motion to depose plaintiff’s president or to compel or extend the time for discovery within 90 days of filing its answer. Additionally, defendant suffered no prejudice because all documents submitted into evidence were either provided to defendant or already in its possession.

11-2-4429 Elar Realty Co. v. Environmental Risk Limited, N.J. Super. App. Div. (per curiam) (8 pp.) The parties entered into a written contract for respondent to perform services related to the remediation of appellant’s property. The contract contained a provision that required appellant to bring any legal action within a year after respondent ceased providing services and was silent as to the assignment of any interest in the agreement. After respondent-ERL commenced performing services, it entered into an asset purchase agreement with respondent-GZA whom purchased all assets and open contracts; appellant was not part of such agreement but was eventually provided notice of the transaction. Following termination of the contract for alleged deficiencies in work, appellant filed the underlying action. On motion, the trial court granted respondents summary judgment holding there was no obstacle to respondent-ERL assigning contract to respondent-GZA and that the action was barred by the contract’s one-year statute of limitations. On appeal, appellant argued that respondents merged making respondent-GZA responsible for all liabilities and that the contract for personal services could not be assigned without its agreement. The court affirmed holding the one-year statute of limitation agreed to by the parties was enforceable and that appellant’s contract was freely assignable. Finally, the court found that appellant’s remaining arguments, not previously before the trial court, were without sufficient merit to warrant a written opinion.

15-2-4403 Deutsche Bank Nat’l Trust Co. v. Edwards, N.J. Super. App. Div. (per curiam) (4 pp.) Defendants appealed from the order rejecting their objections to the entry of final judgment of foreclosure sought by defendant, as indenture trustee to IMH Assets Corporation. Defendants executed a mortgage in favor of Wells Fargo Bank, and later defaulted. Wells Fargo subsequently assigned the mortgage to plaintiff, who filed a foreclosure complaint. The trial court granted summary judgment to plaintiff, and ruled that it could request entry of final judgment of foreclosure as an uncontested matter. After three years the complaint was dismissed for lack of prosecution, but later reinstated upon plaintiff’s motion. Plaintiff then filed for entry of final judgment. Defendants objected, but the trial court rejected those objections and entered final judgment. On appeal, defendants argued that plaintiff had no authority or standing to foreclose because it never acquired the loan, that defendants’ monthly payments were never applied to the principal and interest of the loan, that the assignment of the mortgage was void, that defendants were never indebted to Wells Fargo because it never loaned them any money, that plaintiff was judicially estopped from making certain representations, that the trial court erred in ruling that the loan was “not a trust” and failed to take judicial notice of certain facts, that plaintiff’s counsel engaged in misconduct, and that defendants were denied due process when the matter was classified “uncontested”. The court rejected defendants’ arguments and affirmed the judgment, finding that defendants failed to provide any evidence or legal citations to support their factual and legal claims.

15-2-4408 LaSalle Bank N.A. v. Spear, N.J. Super. App. Div. (per curiam) (6 pp.) Defendant appealed from the denial of her motion to vacate an amended final judgment of foreclosure entered in plaintiff’s favor. Defendant had borrowed $225,000 from Accredited Home Lenders, Inc., secured by a mortgage. Defendant defaulted on the mortgage in January 2008. Plaintiff filed a foreclosure complaint; when defendant failed to file a responsive pleading, the trial court entered default against defendant, followed by a final judgment of foreclosure. Defendant moved to vacate default judgment, which was denied by the trial court. Plaintiff then moved to amend final judgment to update the amount due, which was granted by the trial court. Defendant then filed the present motion to vacate the amended final judgment, arguing that plaintiff lacked standing. The trial court denied defendant’s motion, finding that defendant admitted her failure to answer the foreclosure complaint, meaning that there was no excusable neglect; the trial court also held that it had ruled on defendant’s standing argument in her prior motion to vacate. On appeal, defendant again argued that plaintiff failed to establish it was the holder of the note when it initiated the foreclosure action. The court affirmed the trial court’s denial of defendant’s motion to vacate, finding that she had not demonstrated that she was entitled to relief. Specifically, the court noted that defendant had not demonstrated excusable neglect or a meritorious defense, holding that a judgment obtained by a party lacking standing was not “void” for the purposes of a motion to vacate. Finally, the court held there were no “exceptional circumstances” warranting relief.

15-2-4418 Wells Fargo Bank v. Stefansky, N.J. Super. App. Div. (per curiam) (4 pp.) Appellant entered into a line of credit, secured by a mortgage on residential property purchased for investment. Appellant went into default when he failed to pay the property taxes. The holder of the tax sale certificate instituted a foreclosure action, which was resolved by consent order permitting appellant six months to redeem. When appellant failed to timely redeem, respondent advanced the funds necessary to discharge the tax lien in order to preserve its mortgage. Respondent subsequently instituted its own mortgage foreclosure action. Appellant answered, claiming he was precluded from redeeming the tax certificate by the injury to his credit caused by respondent having reported his default to the credit agencies. The trial court struck appellant’s counterclaims and granted summary judgment in favor of respondent. The judge found appellant was obligated under the line of credit agreement and the mortgage to keep the taxes current. Appellant admitted failure to pay the taxes, resulting in institution of the tax foreclosure, constituted an event of default under the loan documents, which permitted respondent to accelerate the loan and reject further monthly payments. The judge acknowledged respondent’s payment of the taxes frustrated appellants plan to redeem, but found its actions could not considered wrongful. On appeal, the court affirmed and concluded that none of appellants’ arguments was of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The court noted that appellant failed to assert any error in respondent’s certification of amount due, no hearing was necessary and final judgment was appropriately entered.

15-2-4431 Wong v. PNC Bank, N.J. Super. App. Div. (per curiam) (5 pp.) Plaintiff appealed the denial of her motion for reconsideration of the summary judgement granted for defendant in plaintiff’s complaint alleging that defendant violated the bankruptcy court’s “automatic stay” by proceeding with a sheriff’s sale. Defendant obtained a judgment of foreclosure and sent notice of a sheriff’s sale to plaintiff. Plaintiff and her husband filed bankruptcy petitions and asked the bankruptcy court to stop the sale. The bankruptcy court declined to stay the sale and the sheriff sold the property. Plaintiff filed her complaint alleging violation of a bankruptcy court “automatic stay” and filed lis pendens on the property. The bankruptcy court discharged the lis pendens and returned the matter to the Chancery Division which found that plaintiff’s claims were fully litigated and/or barred by res judicata, that she had adequate notice of the sale and granted defendant’s summary judgment motion. Plaintiff argued she did not have adequate notice of the sale and that trial judge erred in ordering her not to file lis pendens in the future. The court found that plaintiff’s contentions lacked adequate merit to warrant discussion.

15-2-4432 Wells Fargo Bank, N.A. v. Worrell, N.J. Super. App. Div. (per curiam) (4 pp.) Appellant did not dispute that he entered into a thirty-year note and a non-purchase money mortgage on his residential property. He further admitted the loan went into default and that the prior lender merged into respondent through a series of approved transactions. Following respondent’s complaint for foreclosure and appellant’s failure to answer, respondent moved for final judgment; however, during this time, the Supreme Court issued its moratorium on foreclosure filings and amended the rules governing foreclosure. Respondent subsequently moved to reinstate the action and amend the complaint to reflect its new name. Appellant opposed the motion, arguing respondent should have to file a new complaint, or, in the alternative, that he should be permitted to demonstrate he could qualify for a loan modification. The trial court granted respondent’s motion to reinstate and substitute parties in the complaint. When appellant did not pursue mediation, respondent moved for final judgment. The trial court entered final judgment concluding appellant failed to put forth a meritorious defense. On appeal, the court affirmed concluding respondent had a right to enforce the mortgage as a result of the operation of its ownership of the asset through mergers or acquisitions. The court noted that respondent did not assert an assignment of the mortgage, rather the merger provided it standing to pursue foreclosure actions. Accordingly, the court affirmed.

15-2-4409 HSBC Bank USA, N.A. v. Keane, N.J. Super. App. Div. (per curiam) (10 pp.) Defendant appealed from the denial of his motion to vacate judgment and reinstate his answer, affirmative defenses, and counterclaims filed in response to plaintiff’s foreclosure complaint. Defendant had obtained a note from Gateway Funding Diversified Mortgage Services, secured by a mortgage. Gateway endorsed the note in blank. Defendant defaulted on the note and mortgage in April 2011; in July, plaintiff, as trustee for Nomura Asset Acceptance Corporation Pass Through Certificates Series 2005-AR3, sent defendant a notice of intent to foreclose. Thereafter, the mortgage was assigned to plaintiff. Plaintiff subsequently filed the present foreclosure complaint. Plaintiff later moved to suppress defendant’s answer, affirmative defenses, and counterclaims for failure to provide discovery; defendant cross-moved to dismiss the complaint. The trial court granted plaintiff’s motion and denied defendant’s motion. Defendant moved to reconsider the suppression of his answer, which was denied by the trial court. Following the dismissal of defendant’s bankruptcy petition, the trial court entered default. Defendant again moved for reconsideration of the suppression of his pleading, which was again denied by the trial court, which subsequently entered default judgment. On appeal, defendant argued, for the first time, that he was entitled to relief because he had demonstrated excusable neglect and a meritorious defense, and because plaintiff’s proofs were insufficient and it lacked standing. The court noted that defendant did not appeal from the final judgment, but rather from the denial of his reconsideration motion, which the court found was untimely. The court further found defendant’s new arguments meritless, noting that defendant failed to provide discovery, upon which basis the trial court would have reinstated defendant’s answer, and holding that defendant’s financial distress did not warrant relief from judgment.

39-2-4419 Jackson v. Bd. of Trustees, Police and Firemen’s Retirement System, N.J. Super. App. Div. (per curiam) (6 pp.) Appellant enrolled in the Police and Firemen’s Retirement System (PFRS) based on his employment as a police officer with the Township of Berlin. Subsequently, appellant was suspended with pay pending an investigation of a sexual harassment complaint. Appellant ultimately resigned as a result of the complaint and the Township submitted a certification of service and final salary-retirement to respondent confirming appellant’s termination. Appellant received retirement benefits, but the board indicated he needed one hundred and eight days of credible service to reach twenty-five years of service which would qualify him for a greater pension benefit. Appellant sought to apply his accrued leave time as creditable time for pension purposes to which respondent denied. On appeal, appellant argued respondent improperly considered his accumulated leave time as “extra compensation,” and thus not creditable as salaried compensation for creditable service purposes. The court affirmed holding respondent’s decision was supported by sufficient credible evidence and that appellant’s arguments were without sufficient merit to warrant discussion in a written opinion. The court added that appellant chose his own retirement date and opted to resign immediately. He did not reach a “terminal leave” agreement with the Township allowing him to exhaust his accrued leave time prior to resigning. As such, respondent properly used the date he chose for the end of his “service as a policeman” at the end of his “creditable service.” N.J.S.A. 43:16A04(a). Therefore, respondent’s final determination was affirmed.

39-2-4423 O’Neill v. Bd. of Trustees, Police and Firemen’s Retirement Syst., N.J. Super. App. Div. (per curiam) (10 pp.) Police officer appealed the denial of accidental disability retirement benefits. Officer responded to a call about a man with a gun at a bar and found his brother dead from a self-inflicted gunshot. Officer was subsequently diagnosed with PTSD, anxiety, and depression and was unable to return to work. He applied for accidental disability retirement benefits attributable to his emotional injury from discovering his brother. The board denied the application because he was not totally and permanently disabled. Officer appealed and the ALJ credited officer and his medical experts and awarded accidental disability retirement benefits. The board adopted the ALJ’s fact findings and finding that officer was disabled but rejected the ALJ’s award of benefits because the ALJ misapplied the law and confused the applicable tests. The court found that the board failed to appreciate the idiosyncratic circumstances of this case. The traumatic event, the brother’s suicide, was “undesigned and unexpected.” There was nothing ordinary in an officer’s responding to the suicide of a family member and training that would prepare an officer for a stranger suicide would not prepare an officer for a family suicide. Officer’s injury met the test established in Patterson v. Bd. of Trustees, 194 N.J. 29.

39-2-4433 Carr v. Bd. of Review, Dep’t of Labor, N.J. Super. App. Div. (per curiam) (7 pp.) Appellant appealed the order finding that she was disqualified for unemployment compensation because she left work voluntarily without good cause attributable to the work. Appellant worked as a certified alcohol and drug counselor under the supervision of a licensed clinical social worker. Her supervisor was replaced by an individual who lacked the required certification and appellant believed that she could not legally perform her job without a properly certified supervisor and that working without proper supervision would jeopardize her own state certification. She brought her concerns to her employer which took no action to remedy the matter and appellant resigned. Appellant did not report the matter to the state department responsible for certifying alcohol and drug counselors. The appeal tribunal found that appellant left her job without good cause because she failed to demonstrate that there was any merit to her belief that her certification was in jeopardy. The board agreed with the appeal tribunal. The court found that credible evidence in the record supported the tribunal’s finding that appellant’s resignation was due to her incorrect interpretation of the regulations and her failure to take any action to protect her employment prior to resigning, such as reporting her concerns to the proper authority.

39-2-4410 Van Artsdalen v. Fred M. Schiavone Construction, N.J. Super. App. Div. (per curiam) (10 pp.) Following a fall at work with appellant, respondent filed for compensation benefits. Respondent testified before the compensation judge about his pain and the limitations caused by his injury as well as presenting two medical expert reports regarding his level of disability at 52.5 percent. Appellant’s expert disagreed and found that respondent experienced only a  percent permanent partial disability. After considering the evidence, the judge of compensation found appellant’s expert to be less credible and determined respondent suffered a 47.5 percent permanent partial disability. In her opinion, the compensation judge noted respondent’s lengthy work history and his lack of any prior significant back injury or extensive back care during the time. On appeal, appellant contended the judge’s findings regarding respondent’s work history and injury being inoperable were important to her conclusion but unsupported by the evidence. Further, the 47.5 percent permanent partial disability was unfounded as respondent stopped receiving treatment, did not take daily medications, under any restriction, or in need of surgery. The court reversed and remanded for reconsideration as there was no evidence to support the findings that respondent’s injury was inoperable or that he took few days off during his years of employment. While these findings were central to the judge of compensation’s decision, as demonstrated by her conclusion that respondent’s disability rating was construed as worse because his injuries were inoperable, neither respondent nor the experts stated these facts or opinions, nor was there any other evidence presented from which the judge could have logically inferred them. As such, the judgment was vacated and remanded for reconsideration.

25-2-4434 Soto v. ICO Polymers North America, N.J. Super. App. Div. (Fuentes, P.J.A.D.) (23 pp.) Appellant was severely injured in a work-related explosion wherein he suffered second and third degree burn-related injuries over twelve percent of his body. He filed the underlying civil suit against respondent, his former employer, to recover compensatory and punitive damages. The trial court granted respondent’s summary judgment motion and dismissed appellant’s complaint based on the immunity from civil liability provided to employers under the Worker’s Compensation Act. On appeal, the court reversed holding a rational jury could find that at the time of the accident, respondent was aware that the work place conditions exposed employees to a high risk of serious injury or death. Further, a jury could also find that the accident that caused appellant’s injuries resulted from respondent’s intentional decision to abate electrical code violations found in the facility without installing the specialized lighting and wiring required. Finally, the court found that a jury may reasonably infer that respondent’s failure to make the required specialized electrical repairs were part of its overall cost-savings plan to relocate the facility. Therefore, as respondent failed to satisfy the safety protocols, the Law Division erred in granting respondent’s summary judgment and dismissing appellant’s complaint as a matter of law.

20-2-4411 T.C. v. N.M., N.J. Super. App. Div. (per curiam) (5 pp.) The parties, who were never married, were the parents of twin children, born in 1996. Appellant-father moved for emancipation off the children, and respondent cross-moved for contribution towards their college expenses and recalculation of child support. Based upon the parties’ income, assets, and debts, as well as appellant’s raising of four other children, the family part judge determined that the parties would not be able to support the college expenses. Nevertheless, since they both wanted their children to receive a college education and the children were progressing academically, the judge considered the Newburgh factors and found that they should share the financial burden for the daughter but the son’s expenses were covered by his student loans. Yet, since the son was still living with respondent and was no longer having overnight visits with appellant, appellant’s obligation to pay child support for him remained. The family part judge, however, reduced the amount by twenty percent to reflect appellant’s financial situation as permitted in N.J.S.A. 2A:34-23. On appeal, the court affirmed as the decision was supported by adequate, substantial and credible evidence. Although the court appreciated the parents’ payments of their children’s college education was an expensive undertaking that required significant sacrifice, the judgment was affirmed substantially for the reasons cited by the family part judge.

20-2-4420 Soufanati v. Soufanati, N.J. Super. App. Div. (per curiam) (13 pp.) Both parties appealed the order continuing defendant’s alimony obligation, setting plaintiff’s child support and denying defendant’s request for alternating weekend parenting time. The parties married in 1999, had three children, divorced in 2012 and continued to contest alimony, child support and child custody. Defendant argued that the judge should have terminated alimony because plaintiff no longer needed rehabilitative alimony. Plaintiff argued the judge erred in reducing the alimony award. The court found that the defendant failed to furnish the transcripts of the plenary hearing, that the transcripts were necessary for the appeal and affirmed the alimony order. Defendant argued it was error to not grant him alternate weekend parenting time because he no longer worked on the weekends. The court found that the judge, who heard the testimony of the parties and the children’s treating counselors, did not abuse his discretion. Defendant argued that the judge erred in calculating child support by crediting plaintiff for 104 overnights by eldest child when eldest child never spent the night with plaintiff. However, defendant never objected to the Guidelines worksheet at the hearing and never offered a “proper” calculation

20-2-4421 T.B. v. D.B., N.J. Super. App. Div. (per curiam) (7 pp.) Plaintiff appealed the order denying her motion to allow her convicted sex offender boyfriend to have contact with her children. The parties married in 2004, had four children and separated in 2012. The trial court entered a child support order, gave the parties shared joint legal custody, residential custody to plaintiff and ordered that the boyfriend have no contact with the children. In 2014, the trial court entered a fourth order directing that the children not be in the boyfriend’s presence and told the defendant he could petition for custody if the boyfriend was in the presence of the children. Defendant received text messages from plaintiff telling him the children had been at the boyfriend’s home and defendant filed a motion for residential custody. Plaintiff stated that she was engaged to boyfriend and sought a motion to allow him to have supervised contact with the children. Plaintiff argued she showed a change of circumstances warranting a modification of the order barring contact and that the trial court should have conducted a plenary hearing and granted discovery. The court found that plaintiff did not show a change of circumstance. Her engagement was not a new development or a change in circumstance.

20-2-4435 Jones-Muhammad v. Ott, N.J. Super. App. Div. (per curiam) (20 pp.) Following the parties divorce, appellant-husband appealed a post-judgment order enforcing equitable distribution of the marital residence, transfer of responsibility for making the mortgage payments, and respondent-wife’s assumption of sole responsibility for his unpaid income taxes. The order required appellant to retake title to the home he conveyed and pay respondent $75,000 to address the loss she suffered as a consequence of mortgage and tax lien as well as counsel fees. Although appellant acknowledged his liability, he argued the trial judge failed to consider his ability to pay the fee at the rate established. Further, he sought reversal of the counsel fee, because it was not supported by an affidavit of services and exceeded the flat fee respondent was charged. With the exception of the counsel fee, which was awarded without a certification of services and must be remanded the court affirmed. The court noted the judge erred by considering counsel fees without a complete certification of services permitting assessment of the reasonableness of the fees charged. However, the court affirmed the liability amount as appellant acknowledged the damages and accepted the amount due and owing. Moreover, there did not exist a genuine dispute of material facts which required a plenary hearing as to appellant’s ability to pay. Accordingly, the court affirmed the judgment other than the award of attorney’s fees which was subject to remand.

26-2-441 PL Squared, LLC v. Zoning Bd. of Adjustment of The Twp. of Hopewell, N.J. Super. App. Div. (per curiam) (9 pp.) Appellant owned the subject property with the intention to develop it as a convenience store and gas station. As part of that proposed development, appellant applied to respondent for the use variance, and requested other variance relief from certain bulk requirements. In denying the application, respondent concluded that appellant failed to demonstrate the site was situated for the proposed uses. Respondent also found that granting the variances conflicted with the town’s master plan, and contravened an applicable ordinance, which precluded multiple uses for lots within the district. On appeal, appellant argued that respondent’s denial of the use variance was arbitrary, capricious, and unreasonable. Further, appellant contended there was insufficient evidence to support respondent’s denial and that special reasons existed for the use variance. The court affirmed denial of the application concluding there was sufficient credible evidence in the record to support respondent’s findings that appellant failed to satisfy its burden, especially as to the negative criteria. The findings included the manner in which granting the variances would contradict the town’s master plan and contravene the local ordinance. As respondent followed applicable law, based its decision on the substantial evidence in the record, and correctly denied the applications, the court concluded the decision was not arbitrary, capricious, or unreasonable.

26-2-4436 Peg Leg Webb, LLC v. New Jersey Pinelands Comm’n, N.J. Super. App. Div. (per curiam) (12 pp.) Petitioner appealed respondent’s final decision challenging the Jackson Township Planning Board’s grant of preliminary site plan approval on petitioner’s application to build a resource extraction facility on its property. Jackson Township had previously, on respondent’s recommendation, rezoned certain portions of the township, including property now owned by petitioner, from “Rural Development,” where resource extraction was permitted as a conditional use, to “Forest Area,” where resource extraction was not permitted. A trial court later found the rezoning ordinance procedurally defective and invalidated the rezoning, finding that petitioner’s predecessor-in-interest was not provided notice of the rezoning proposal and that the township had not properly considered whether rezoning was consistent with the master plan. In 2013, the township adopted a new ordinance readopting the rezoning; in the interim, petitioner filed the present application, which was granted by the township planning board under the assumption that the property was in the RD zone because of the prior court ruling. Respondent called up the application approval, ruling that the trial court’s decision did not change the designation of the property on respondent’s land capability map, which continued to designate petitioner’s property as in the FA zone. Respondent concluded that, because of the trial court ruling, the township was either required to adopt a proper rezoning ordinance, or apply to change the land capability map. On appeal, the court affirmed respondent’s decision, ruling that the Pinelands Act and its regulations superseded the MLUL, and that the CMP prevailed over the township’s ordinances.

26-2-4437 Ratan Hotel Plaza, LLC v. Zoning Bd. of the City of E. Orange, N.J. Super. App. Div. (per curiam) (7 pp.) Respondent sought to redevelop a long-vacant hotel by reducing the number of rooms and turning its restaurant and nightclub into a separate adult day care center with medical facilities. Respondent needed two use variances, one for the adult day care center and the other to combine two principal uses on one site, with one being a hotel. Appellant objected to the applications, which respondent-Board unanimously approved after several public hearings. Appellant argued respondent-Board lacked jurisdiction to grant site plan approval, and the grant of the required variances was arbitrary and capricious. The trial court found there was no dispute and that the Municipal Land Use Law vested exclusive authority in respondent-Board to grant site plan approval. The judge acknowledged that the redevelopment plan’s language did not run smoothly parallel to the MLUL, but found it highly unlikely that the legislature would have silently stripped respondent-Bard of their exclusive power. Finally, the trial judge held that appellant failed to establish respondent-Board’s decision to grant the variances was arbitrary or capricious as the use was preferable to a neglected building and respondent demonstrated a need for such use. On appeal, the court concluded appellant’s appeal of the use variances had become moot by intervening events and that its challenge to respondent-board’s ability to grant the site plan approval and its approval of the bulk variances was without merit. The court noted the redevelopment plan was amended and no longer required a use variance. Accordingly, the court affirmed.

27-2-4422 Sin’s Realty, LLC v. Ritesh Kalra, M.D., LLC, N.J. Super. App. Div. (per curiam) (4 pp.) Following testimony from eight witnesses, including the principals of the parties involved in this commercial landlord/tenant dispute, the trial court entered judgment of possession to respondent-landlord. The trial judge found appellant-doctor, although seeing some patients by appointment, saw many walk-in patients, resulting “in more than one dozen people appearing on many occasions, at the same time. That practice resulted in patients congregating in the hallway which disturbed and offended neighboring tenants. The trial judge concluded the parties’ lease prohibited appellant from obstructing or encumbering the hallway and from causing disturbances that would offend other tenants in the building and provided respondent a right of reentry upon breach. As such, respondent was entitled to possession based on the right to re-entry and the notice provided to appellant. Appellant argued the trial court erred in expanding the terms of the lease to third parties over whom he had no control, that the court’s fact-findings were not supported by facts, and that the court denied him the ability to confront witnesses. The court rejected appellant’s arguments as wholly without merit and underserving of discussion in a written opinion. The court noted the trial judge’s findings were amply supported by credible evidence in the record, which also revealed the trial court in no way denied appellant the ability to confront the witnesses about their motive in complaining to respondent about the patients and conduct of his practice. Accordingly, judgment was affirmed.

36-2-4425 Abnathya v. Medley, N.J. Super. App. Div. (per curiam) (11 pp.) Plaintiff appealed from the denial of his motion to reinstate his complaint and denial of reconsideration. After an automobile accident that he alleged caused him injuries, plaintiff filed a complaint against defendants, asserting negligence against Cezsari Medley, the other driver, and a breach of contract claim against plaintiff’s PIP insurer. The complaint was administratively dismissed for plaintiff’s failure to serve defendants. Plaintiff served each defendant with a summons and complaint three months later. In a separate lawsuit, Sumar Abnathya and Vimar Moore alleged they were injured in the same automobile accident and filed suit against both plaintiff and Medley. Plaintiff was represented by different counsel than in his suit against Medley and his insurer, and counsel in the Abnathya matter moved to consolidate both actions. Though plaintiff’s complaint had been administratively dismissed, the trial court granted consolidation. Plaintiff then filed the present motion to reinstate his complaint, asserting that he was unable to effect service on defendants prior to dismissal, that service had since been completed, and that discovery remained open. Although defendants did not oppose plaintiff’s motion, the trial court denied it, ruling that plaintiff had not shown exceptional circumstances for reinstatement more than 90 days after dismissal. On appeal, plaintiff argued that the trial court erred in applying the exceptional circumstances rather than the good cause standard. The court agreed, ruling that the exceptional circumstances standard applied in multi-defendant cases in which at least one defendant had been properly served. The court noted that in the present case, none of the named defendants had been served. The court further rejected the assertion that reinstatement would delay proceedings in the consolidated matter. Finally, the court held that plaintiff had established good cause for reinstatement, finding that defendants had not asserted any prejudice, and that plaintiff’s counsel’s contention that it was unable to effect service was uncontradicted by the record.

31-2-4423 J.D. v. D.R., N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the denial of his motion to file a late tort claim notice against defendants, and from the denial of reconsideration. Plaintiff alleged that his teacher sexually abused him between 1983 and 1987. In 2013, plaintiff began suffering panic attacks, and was diagnosed with depression and panic disorder. During subsequent psychotherapy, plaintiff admitted to the affair between him and his teacher. In support of his motion for leave to file late notice, and on appeal, plaintiff argued that he demonstrated extraordinary circumstances excusing late notice in the form of his psychological impairments. Plaintiff further argued that the trial court erred in failing to consider plaintiff’s affidavit in support, and in failing to conduct a Lopez hearing. The court affirmed the trial court’s orders, finding plaintiff’s arguments without merit. The court noted that plaintiff was aware of the connection between his medical condition and his affair with his teacher as late as December 2015, and according to his therapist’s notes as early as May 2015. Thus, the court noted that plaintiff failed his notice well after 90 days from either date, and held that plaintiff had not demonstrated extraordinary circumstances to warrant a late filing.

34-2-4438 Dumont Bd. of Ed. v. Borough of Dumont, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the order dismissing its complaint seeking the reversion of a parcel of land to plaintiff. In 1962, plaintiff conveyed the parcel to defendant. Pursuant to the contract of sale, defendant agreed to use the parcel, which included a schoolhouse, as a borough hall or other municipal purpose. The contract also contained a reverter clause that required defendant to first offer the parcel back to plaintiff if defendant determined use of the parcel was no longer in the public interest. Defendant used the parcel as a borough hall and police headquarters until 2014, when the county health department deemed the former schoolhouse uninhabitable due to mold; however, defendant continued to use the land by bringing trailers to house the police department. Defendant ultimately passed a resolution granting a real estate developer the option to construct affordable housing and new municipal office space for defendant. Thereafter, plaintiff filed the present complaint, arguing that defendant had trigger the reverter clause in the 1962 contract of sale. The trial court dismissed the complaint, finding that because defendant would continue to use the parcel for municipal offices and because the affordable housing would also serve a municipal purpose, the reverter clause had not been triggered. During the pendency of this appeal, defendant and the developer changed their plans to move all affordable housing to another adjacent property, leaving only municipal offices to be constructed on the parcel. Thus, the court ruled that the appeal had become moot as the challenged affordable housing was no longer to be constructed on the parcel. The court further declined plaintiff’s invitation to issue an advisory opinion on what actions would trigger the reverter clause.

34-2-4439 1701 E. Main, LLC v. Wawa, Inc., N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the summary judgment that terminated by estoppel an alleged cross-easement between its property and defendant’s adjoining property. In 1971, then owner of plaintiff’s property and defendant a memorialized an agreement that among other things provided that they would “keep the adjoining perimeter of [their] premises free from obstructions in order to permit each other’s customers ingress and egress across said property lines.” The agreement was never recorded nor included in any recorded document. Defendant unsuccessfully offered to buy plaintiff’s property in 2006 and then redeveloped its property and built a curb along the common perimeter that blocked access. Owner of plaintiff’s lot died in 2008 and plaintiff took title from the deceased’s estate. Plaintiff discovered the curb for the first time in 2012. Defendant argued that any easement rights were terminated by estoppel since neither plaintiff nor its predecessor had objected to the curb for more than ten years. The court found the question of the significance of property owner’s silence as a response to defendant’s silence during the offer to purchase and the redevelopment was a question to be resolved at trial.

14-2-4426 State v. Brown, N.J. Super. App. Div. (Ostrer, J.) (11 pp.) Defendant appealed from the denial of his petition for post-conviction relief following his conviction after a guilty plea to aggravated manslaughter, and sentence of 20 years subject to the No Early Release Act. After his arrest, defendant was subjected to 11 hours of questioning on the first day, with additional questioning two days later. Defendant had made no incriminating statements six hours into question on the first day; when defendant declined to answer any more questions and requested to be taken to county lockup, officers continued questioning. After conferring with his family, defendant confessed that, while under the influence of PCP, he grabbed the victim’s gun in the middle of a scuffle and shot him as he attempted to run away. At his plea hearing, defendant admitted to shooting at the victim twice, but asserted that he did not intend to kill him. In support of his PCR petition, defendant asserted the ineffectiveness of trial counsel based on his failure to suppress defendant’s custodial statements, and that he would have proceeded to trial had the statements been suppressed. However, without the transcript of the interrogation or other evidence of defendant’s requests to stop the questioning, the trial court ruled that defendant had failed to show a violation of his right to remain silent. On appeal, appellate counsel provided the court with the full record, including a transcript of defendant’s interrogation. The court first held that to succeed on an ineffectiveness for failure to file a motion, defendant would have to show that the motion would have succeeded. After reviewing the transcript of defendant’s interrogation, the court held that defendant had established a prima facie case of ineffective assistance of counsel, ruling that a motion to suppress his custodial statements would have succeeded because police failed to honor defendant’s repeated requests to terminate the interrogation.

14-2-4427 State v. McLaughlin, N.J. Super. App. Div. (per curiam) (17 pp.) Defendant appealed her convictions for second-degree and third-degree aggravated assault. Victim and defendant were friends and were drinking at defendant’s home. Defendant’s boyfriend arrived and they all argued. Victim testified that defendant cut her in the face, arm and chest with a sharp object. Defendant testified that victim swung a broken bottle and defendant grabbed victim to “clinch” her while she was holding the broken bottle. Boyfriend testified that victim broke a bottle and swung it at defendant and that defendant and victim then grabbed each other. Defendant argued the trial judge erred in denying her motion for acquittal on the aggravated assault with a deadly weapon charge because the state did not produce any weapon, the manner in which victim received the injuries was disputed and even if the jury believed victim, the evidence was insufficient to show that defendant acted purposely, knowingly or recklessly. The trial judge correctly found that the state presented sufficient evidence because an officer testified that two corkscrews and scissors were found where the assault occurred and victim’s injuries were sufficient to show that she was attacked with an instrument capable of producing serious bodily injury. The case had to remanded for resentencing because the trial judge did not specifically address count two and whether the counts merged for sentencing.

14-2-4428 State v. Patterson, N.J. Super. App. Div. (per curiam) (25 pp.) Defendant appealed from his conviction for felony murder, kidnapping, and robbery. Prior to trial, defendant had unsuccessfully moved to suppress evidence obtained under three communications data warrants, statements defendant had made to police, and recorded telephone conversations defendant had while an inmate in county jail. Following conviction, defendant was sentenced to life without parole on the felony murder charge pursuant to the Three Strikes Law; the trial court imposed additional concurrent 30-year and 20-year terms with 85 percent parole ineligibility for the kidnapping and robbery charges. On appeal, defendant argued that the trial court erred in failing to charge the jury on accomplice liability, and to instruct the jury on the theft element for the robbery and felony murder charges. Defendant further challenged application of the Three Strikes Law, and the denial of his suppression motions. The court affirmed defendant’s conviction, but reversed and remanded for resentencing on the felony murder and robbery counts. The court rejected defendant’s challenges to the jury instructions, finding that a sua sponte accomplice liability instruction was not warranted by the evidence at trial, and holding that the failure to include a definition of theft was not a fatal error because the concept of theft was not beyond the common understanding of the jury. The court further affirmed the denial of defendant’s suppression motions, agreeing that the affidavit of probable cause did not mislead the trial court as to the frequency of defendant’s communications, which the court held warranted further examination to reveal complicity in the crime. However, the court found that the trial court mistakenly designated one of defendant’s prior robbery convictions as a first-degree offense, and therefore erroneously applied the Three Strikes Law to defendant’s sentence and sentenced defendant to more than the statutory maximum for second-degree robbery.

14-2-4441 State v. Leon Mack, N.J. Super. App. Div. (per curiam) (9 pp.) While allegedly attempting to enter the Hall of Records, respondent placed his bag through the metal detector and an officer noted that it appeared to contain a weapon. A search of the bag revealed a .25-caliber semi-automatic pistol. Following a background check which revealed that respondent had been convicted of second-degree assault, a grand jury issued two indictments charging respondent with four crimes. Respondent moved for dismissal of first-degree unlawful possession of a weapon arguing that the underlying predicate offense did not subject him to a charge under N.J.S.A. 2C:39-5(j) as it was enacted after his prior conviction. The trial court held, sua sponte, that the statute was a sentencing statute and not a substantive statute identifying a separate crime. Consequently, the trial court dismissed the indictment as to that charge. On appeal, appellant argued N.J.S.A. 2C:39-5(j) established a separate crime subject to indictment and trial by jury. The court reversed holding the plain language of the statute created a “first degree crime.” The court noted that the trial court appeared to have assumed that because respondent’s criminal history may properly be considered as a sentencing factor, the statute was therefore a sentencing statute because it referenced respondent’s prior conviction. However, here, the plain language demonstrated that the addition of subsection (j) created a separate substantive crime. Further, the legislative history of the amended statute showed the intent was to create a new first-degree crime, not a sentencing enhancement provision. Accordingly, the court reversed and remanded.

07-7-4412 Harrington v. Bergen County, D.N.J. (Chesler, U.S.D.J.) (5 pp.) Plaintiff appealed the denial of her motion for reconsideration of the denial of her motion to compel discovery testimony. The court found that the magistrate judge did not abuse her discretion and that it was reasonable for her to conclude that the relevancy and proportionality requirements in Rule 26 precluded a burdensome and speculative inquiry into a single, unrelated criminal investigation that occurred nine years ago. Even if the testimony were relevant, it failed the proportionality requirement because the discovery request did not pertain to the incidents in the current action. It was also reasonable for the magistrate judge to conclude, based on the Banda factors, that plaintiff failed to identify clear error of law or fact or to support her motion with relevant case law or legal authority. [Filed Oct. 3, 2017]

07-7-4442 Liberty Community Assoc. v. City of Plainfield, D.N.J. (Clark, U.S. M.J.) (12 pp.) Defendant sought leave to file an amended answer asserting an additional affirmative defense in plaintiff’s action asserting breach of contract, violations of §1983, RICO violations, unjust enrichment, fraud, breach of fiduciary duty and breach of implied covenant of good faith and fair dealing from dealings over the financing and operation of affordable housing. Defendant sought to assert an additional affirmative defense that a prior confidential settlement agreement from an action plaintiff filed in 2011 over the termination of the management agreement contained releases that barred the claims in this action. Plaintiff opposed the affirmative defense and argued that the settlement agreement had never been produced and defendant never made a formal request for its production. Plaintiff also argued that the terms of the release applied solely to the parties in the action in which defendant had no involvement. The court found that the addition of the proposed affirmative defense would allow the parties to obtain necessary discovery to show the settlement’s applicability or lack thereof to the matter at hand. [Filed Oct. 10, 2017]

07-7-4418 Megatel Mobile, LLC v. Tracfone Wireless, Inc., D.N.J. (Salas, U.S.D.J) (5 pp.) Following removal to federal court, defendants moved to vacate previously issued temporary restraints. The court held a telephone conference with the parties and, based on the parties’ voluminous submissions, converted oral argument on defendants’ motion into a preliminary injunction hearing. To obtain a preliminary injunction, the movant must show: (1) a likelihood of success on the merits; (2) irreparable harm if the injunction was denied; (3) no greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). When the movant’s claim was based on a breach of contract–as it is here–irreparable injury may be found where the subject matter of the contract was of such a peculiar value that damages would be inadequate or where it was impossible to ascertain the legal measure of loss so that money damages were impracticable. Here, the court denied plaintiff’s application for preliminary injunctive relief holding plaintiff can calculate its alleged money damages. Moreover, the court was guided by Third Circuit precedent in rejecting that reputational damage resulting from the breach of contract equated to irreparable harm. Accordingly, the court concluded that plaintiff failed to show it will suffer irreparable harm in the absence of an injunction and, therefore, its application was denied. [Filed Oct. 6, 2017]

46-8-4413 Johnson v. Duncan, 3rd Cir. (per curiam) (10 pp.) Appellant filed a §1983 action alleging that he was detained by customs officers when he returned from vacation on the basis of a New Jersey warrant for his arrest. He argued warrant was invalid because it was based on a fabricated criminal complaint that he had violated his probation when, in fact, his probation had expired. While detained, he contacted his attorney and was able to obtain documentation to show that the warrant was invalid. A judge vacated the warrant the next day and he was released. Appellant claimed that defendant probation officer caused the invalid warrant to be issued even though she knew appellant was no longer on probation. Appellant relied on Manuel v. City of Joliet, 137 S.CT. 911, to argue his suit was timely because it was filed within two years of the date he was released from detention. The court found that the judge, county and its sheriff’s department were immune from suit as well as the probation officer to the extent she was sued in her official capacity. However, the claim against her in her individual capacity was time barred because her contribution ended when she allegedly provided false information in 2013.[Filed Oct. 4, 2017]

46-8-4414 Nico Elec. Contractor, Inc. v. City of Camden, 3rd Cir. (Rendell, J.) (6 pp.) Plaintiff Marshall Williams appealed from the dismissal of his §1983 claim against defendants. Plaintiff, an electrical contractor, left his union in 1998 to start his own company, which did not use union labor. Plaintiff’s complaint alleged that, in four incidents from 2011 to 2013, defendants violated his constitutional rights by taking retaliatory action against him for his nonunion status. The court affirmed the dismissal of his complaint, finding that there was no evidence to support his claims that he was retaliated against due to non-union animus. As to one incident where a city employee allegedly told a property owner to hire a different contractor than plaintiff, the court ruled there was no causal link with plaintiff’s nonunion status, since the suggested alternative contractor was also nonunion. In two other incidents, the court also found no causal link when inspectors failed and then approved plaintiff’s work, apparently agreeing with plaintiff’s evaluation of the situation when he protested the failure of his work. Finally, in a fourth incident, the court found no causal link when plaintiff repaired free-of-charge faulty work that allegedly was not connected to the work plaintiff had performed on the site. Lastly, the court noted that plaintiff had failed to cite any regulations he alleged were being violated by city inspectors. [Filed Oct. 4, 2017]

11-7-4415 White Winston Select Asset Funds, LLC, D.N.J. (Martinotti, U.S.D.J) (31 pp.) The parties proposed a financing agreement to assist defendant in redeeming outstanding shares of its preferred stock, as well as for working capital. Under the term sheet, the proposed financing was to take the form of a senior secured convertible debenture, to be issued by defendant at the time of closing with a term of one year and in the original principal face amount of up to $5 million. However, defendant closed on financing with non-party PNC Bank preventing the financing agreement to be finalized and plaintiff sought payment on the break-up fee. Plaintiff filed the underlying complaint asserting claims of breach of contract, breach of duty of good faith and fair dealing, and promissory estoppel. On competing motions, the court granted summary judgment in favor of plaintiff concluding defendant’s actions of entering into the PNC Bank agreement rendered it impossible for plaintiff to close the proposed financing on substantially the same terms and conditions as set forth in the term sheet. Further, defendant made it impossible for plaintiff to be a junior lienholder to the only existing credit facility as per the term sheet. Because that condition precedent was rendered impossible, there was no way or reason for plaintiff to complete its due diligence when the closing could never be performed according to the term sheet. Accordingly, the court found plaintiff was “prepared to close” or in the alternative that defendant’s closing with PNC Bank prevented plaintiff from performing its conditions precedent and thus those conditions were excused. Moreover, the court found the break-up fee provision was triggered by under the language of the term sheet and granted summary judgment for plaintiff. [Filed Oct. 3, 2017]

31-7-4443 Robinson v. N.J. Transit Rail Operations, Inc., D.N.J. (Chesler, U.S.D.J.) (8 pp.) Defendant moved to vacate the judgment against it, or in the alternative, for remittitur. In support of their motion, defendant argued that it was entitled to 11th Amendment sovereign immunity. Although the Third Circuit had ruled in Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 that defendant was not entitled to sovereign immunity, defendant argued that Fitchik was not binding because there was intervening Third Circuit precedent taking into account post-Fitchik U.S. Supreme Court authority that held that the Fitchik court improperly weighed the factors to determine if defendant was an arm of the state. In response, plaintiff argued that because the Third Circuit had not overruled Fitchik, it was still binding precedent. The court rejected defendant’s argument, ruling that, although the Third Circuit no longer adhered to the legal principle applied in Fitchik, it did not mean that Fitchik would be decided differently today. The court predicted, if the Third Circuit were to rule on Fitchik today, that it would still find that defendant was not entitled to sovereign immunity, because either the overall factors would weigh against finding immunity, or it would be a close case rendering the funding factor the tie-breaker. Moreover, the court found that defendant’s circumstances had not changed since the Fitchik decision. Finally, the court rejected defendant’s argument in support of its alternative remittitur motion that the jury verdict of $300,000 damages for pain and suffering was excessive, noting a prior verdict with similar facts for $210,000 and defendant’s failure to cite to the record to support its contention. Accordingly, the court denied defendant’s motion to vacate judgment or remittitur. [Filed Oct. 10, 2017]

39-7-4424 Woerner v. Fram Group Operations, LLC, D.N.J. (Chesler, U.S.D.J) (9 pp.) Plaintiff filed the underlying action under §502(a)(1)(B) of the Employee Retirement Income Security Act, to challenge the denial of life insurance benefits allegedly owed to her as the beneficiary of her late husband’s employee welfare benefit plan. Defendant had filed a third party complaint against the third party defendant whom moved to dismiss, pursuant to Fed. R. Civ. Proc. 12(b)(6). The court granted dismissal holding that the four documents provided, and the allegations in the third-party complaint pertaining thereto, could not justify a reasonable inference that third-party defendant possessed authority or bore any obligation with respect to any informal plan potentially governing plaintiff’s claims. Consequently, based on the third-party complaint’s allegations, the court must also conclude that no trier of fact could reasonably infer that third-party defendant bore any fiduciary, statutory, or contractual obligation to defendant or plaintiff with regard to any informal plan. Therefore, the court found that defendant had failed to plead sufficient factual content to justify interference that third-party defendant was liable to defendant under any of its theories. Moreover, defendant pointed to no unpled facts that might allow an amended third-party complaint against third-party defendant to withstand a future motion to dismissal and dismissal with prejudice was warranted. Accordingly, any amendment would be futile and the court dismissed the third-party complaint with prejudice. [Filed Oct. 4, 2017]

30-7-4416 T.F.R. v. Morris County Prosecutor’s Office, D.N.J. (Martini, U.S.D.J) (7 pp.) Following a detective’s identification and execution of a search warrant, plaintiff surrendered on charges of robbery and three related offenses. He was detained for several weeks during which time relatives came forward with alibis; the charges were ultimately dropped. Plaintiffs filed the underlying §1983 action alleging fifteen federal and state claims, namely unlawful seizure and prolonged detention. Defendants moved to dismiss on the basis of qualified immunity as well as failure to state a claim and failure to provide facts showing that a specific policy or custom caused plaintiffs’ alleged injuries. The court granted dismissal holding the facts set out in the amended complaint did not permit a reasonable jury to find that the detective detained plaintiff without probable causes. Rather, a probable cause hearing was held wherein the trial judge determined that the evidence was sufficient to detain plaintiff until his trial. That plaintiff was later exonerated did not alter the trial court’s analysis nor does the constitution demand infallibility of law enforcement officers. As such, dismissal of plaintiff’s fourth amendment and due process claims was granted. Moreover, there lacked demonstrative evidence that plaintiff was treated differently on account of his membership in a protected class warranting dismissal of the equal protection count. Finally, the court granted dismissal of the §1983 claim concluding the language in the complaint did not name a specific policymaker or policy statement that caused failure in training or abdication of investigatory function by defendants. Accordingly, the court granted dismissal. [Filed Oct. 3, 2017]

23-7-4425 Ambulatory Surgical Ctr. of Somerset v. Allstate Fire Cas. Ins. Co., D.N.J. (Thompson, U.S.D.J.) (7 pp.) Defendant moved to reconsider the court’s order denying arbitration. Plaintiff Juan Gonzalez underwent surgery for injuries sustained in an automobile accident, which was performed at plaintiff Ambulatory Surgical Center of Somerset. Defendant refused to pay for the surgery because there was no procedure code listed in the New Jersey Auto Fee Schedule. In opposition to defendant’s motion, plaintiffs argued that where there was no listed procedure code the procedure was payable at reasonable rates. Because defendant continued to refuse to pay for procedures performed at ambulatory surgical centers that had no listed procedure codes, plaintiffs sought liability and damages on behalf of the class of individuals insured by defendant who suffered injuries and were entitled to medical benefits, and of the ambulatory surgical centers who performed procedures that defendant refused payment for. In support of its motion, defendant argues that the court erroneously considered the breadth of New Jersey’s deemer statute and determine that the statute incorporated PIP’s dispute resolution provision. Although plaintiffs argued that case law cited by defendant was already considered by the court in denying defendant’s initial motion to compel arbitration, the court granted reconsideration, finding that it failed to consider the underlying purpose of amendments to the PIP arbitration provision or the effect of this purpose on the scope of the deemer statute. Specifically, the court noted that the amendment, which permitted insurers to compel arbitration in addition to insureds, was intended to promote efficient handling of insurance claims. The court held that this implied that the deemer statute incorporated PIP’s dispute resolution provision. [Filed Oct. 5, 2017]

25-7-4419 Mejia v. Blue Bay Enterprises, LLC, D.N.J. (Martinotti, U.S.D.J) (4 pp.) Plaintiffs, who were former employees of defendants, a restaurant and its owner, asserted claims for violations of the Fair Labor Standards Act and the New Jersey Wage and Hour Law, as well as retaliation under state common law. Plaintiffs moved to compel defendants to respond to discovery requests and to appear for deposition sought by an opt-in member of a collective action under the FLSA. Defendants moved to strike as the member missed its court-ordered deadline for filing his consent to join the collective action. In their opposition, plaintiffs provided legal and factual authority in support of permitting the member to file his consent form after the deadline due to the member’s health concerns which caused his five-week tardiness. In granting plaintiffs’ motion, the court noted the parties attempted settlement and, upon a breakdown of talks, any associated prejudice to defendants that might flow from the member’s late entry was substantially reduced. Moreover, the court found the member’s inclusion would neither inflict unfair prejudice on defendants nor meaningfully delay the proceedings. The court found that the member’s delay based on his health concerns, although debatable and within his control, was understandable given his health history and was not an act of bad faith. Accordingly, on balance, the court found plaintiffs have shown good cause to excuse the member’s late filing and denied defendants’ motion to strike. As the member was properly a party to the litigation, defendants were obligated to respond to discovery requests and granted plaintiffs’ motion to compel. [Filed Oct. 6, 2017]

26-8-4420 New Jersey Chinese Community Center v. Township of Warren, 3rd Cir. (Restrepo, U.S.C.J) (7 pp.) Appellants initiated the underlying action against appellee and various municipal officers challenging land-use decisions which they alleged unlawfully prevented them from using their property in the manner they desired. Appellant initially received a variance permitting construction of a single-family residence on his property. Upon transfer of his ownership interest to appellant-Center, appellants sought tax exempt status as it wanted to use the building, among other things, as a student dormitory and for other school functions. The request for occupancy was denied on the basis that the intended usage was inconsistent with the use granted and required a proper use variance be sought. The superior court granted dismissal for failure to exhaust administrative remedies and because appellants had not demonstrated the intention to make conforming use of the property sufficient to justify zoning approval. Prior to the superior court’s disposition of appellants’ appeal, they initiated this civil action. On motion, the district court dismissed the complaint and denied appellant’s motion to reopen. On appeal, the court affirmed holding appellants failed to appeal the denial to the zoning board, and the denial was therefore not appellee’s final determination of appellants’ rights. Moreover, as the superior court noted, appellants never applied for the requested use variance to permit them to use the building for a student dormitory. Accordingly, judicial review of appellee’s denial of appellants’ requested use of their land would be inappropriate because it would prevent appellee the opportunity to render a final decision. [Filed Oct. 6, 2017]

36-7-4426 Hall v. Welch Foods, Inc., D.N.J. (Thompson, U.S.D.J.) (11 pp.) Defendants moved to transfer and plaintiff moved to remand her putative class action alleging defendants engaged in a deceptive marketing campaign to convince consumers that defendants’ Fruit Snacks contained significant amounts of actual fruit and were nutritious and healthy. She asserted breach of warranties, common law fraud, unjust enrichment, violations of the New Jersey Consumer Fraud Act, violations of the Truth in Consumer Contract, Warranty and Notice Act and sought injunctive and declaratory relief. Plaintiff brought her action in New Jersey Superior Court and defendants removed the case pursuant to jurisdiction under the Class Action Fairness Act. Defendants then sought to transfer the action to the Eastern District of New York and plaintiff moved to remand. The parties did not dispute that CAFA’s jurisdictional requirements were met. The court found that the operative complaint at the time of removal defined the class as “persons in New Jersey” and that remand was inappropriate under the mandatory home state exception to CAFA jurisdiction. The court transferred the case to New York because existing litigation there covered plaintiff’s claims. [Filed Oct. 5, 2017]

31-7-4417 Sich v. Pfizer Pharm., D.N.J. (Kugler, U.S.D.J.) (7 pp.) Defendant moved to dismiss plaintiffs’ claim for injuries from defendant’s drug. Plaintiff received an injection of defendant’s drug in his left knee. After he received a second injection, he experienced swelling, rashes, hives and a high temperature. Within a week of that injection he had open debridement, two injections and 17 days of inpatient treatment. He asserted the drug caused his injuries and alleged design defect, failure to warn, manufacturing defects, negligence, and breach of warranties. The court found that plaintiffs’ strict products liability, negligence, breach of implied warranty and loss of consortium claims were subsumed by the New Jersey Products Liability Act. Plaintiffs failed to plead the necessary elements of a design defect claim and did not reach the requisite plausibility requirement for their failure to warn claim. Plaintiffs’ manufacturing defect claim failed because they never explained how the drug differed from the requisite standard or how it was allegedly defective. The breach of warranty claim failed because they never showed any affirmation, promise or description about the product made by defendant nor how the product did not conform to any such promise or description. [Filed Oct. 4, 2017]

57-7-4427 Worrell v. Harshe, D.N.J. (Hillman, U.S.D.J.) (9 pp.) Plaintiffs moved to withdraw their complaint with prejudice. Plaintiffs and defendant were involved in several entities providing mental health services. Plaintiffs’ complaint alleged that defendant accessed plaintiffs’ email accounts without consent to gain a business advantage over plaintiffs. Plaintiffs asserted violations of the Electronic Communications Protection Act and the Stored Communications Act, in addition to claims for libel and slander. After the parties were ordered to engage in electronic discovery, plaintiffs filed the present motion, which was opposed by defendant who alleged that it was an attempt to avoid defendant’s discovery request for production of a computer. The court first noted that case law held that courts had no discretion to deny a plaintiff’s motion to dismiss with prejudice, since granting such a motion would terminate the action and avoid conducting a “useless” trial, unless it was unfair to a defendant to grant dismissal. Defendant argued that he would be prejudiced by dismissal by being unable to obtain discovery, and contended that plaintiffs should be permitted to use dismissal to avoid adverse discovery rulings. The court noted that another court in Alliance for Global Justice v. District of Columbia, 2005 WL 469593, had ruled that permitting plaintiffs to avoid discovery obligations caused undue prejudice to defendants. However, the court distinguished Alliance for Global Justice from the present case, since granting plaintiffs’ present motion would end any further federal action like there was in that case. Thus, because there would be no “second litigation,” nor had defendant incurred any significant expense, nor had the case advanced into a later stage of litigation, the court found that defendant would not be prejudiced by a voluntary dismissal with prejudice. Accordingly, the court granted plaintiffs’ motion. [Filed Oct. 5, 2017]

14-8-4421 U.S. v. Keith Jackson, 3d Cir. (Fuentes, U.S.C.J) (6 pp.) Originally charged alongside seven codefendants for his part in a drug distribution operation, appellant agreed to plead guilty to a single count of conspiracy to distribute heroin. Appellant now challenged both his designation as a career offender under the sentencing guidelines and his within-guidelines sentence of 151 months in prison. As set out in U.S.S.G. §4B1.1(a), a defendant was a career offender if: (1) defendant was 18 or older; (2) committed a crime of violence or a controlled substance offense; and (3) had at least two prior adult felony convictions for crimes of violence or controlled substance offenses. On appeal, the court affirmed holding appellant’s pre-sentence report set forth three prior offenses that might qualify as career offender predicates. The court noted two such convictions were charges under N.J. Stat. Ann. §2C:35-5(a)(1) and (b)(3), a statute that criminalized manufacturing, distributing, or dispensing a controlled dangerous substance, or possession with intent to do the same. The statute fell within the definition of “controlled substance offense” and, therefore, appellant was properly classified as a career offender and subject to the enhanced offense level under the guidelines. Although the sentence was severe, the court affirmed finding that a reasonable sentencing court could have imposed the same sentence for the reasons provided by the district court. Accordingly, the district court’s judgment was affirmed. [Filed Oct. 5, 2017]

11-2-4422 Design Management Serv., Inc. v. Broad-Atlantic Assoc., LLC, N.J. Super. App. Div. (Gooden Brown, J.A.D.) (14 pp.) Defendant appealed the dismissal of its counter claims and the award of judgment to plaintiff in plaintiff’s breach of contract action. Despite defendant’s contention, the trial court did not abuse its discretion in denying defendant’s motion to transfer the case, based on the fact that its counterclaims exceeded the jurisdictional limit of the Special Civil Part, because defendant’s motion was procedurally defective and untimely. An Order to Show Cause was not the appropriate vehicle for a transfer motion and defendant was not prejudiced by the denial since the court considered defendant’s counterclaims and found no cause of action on them. Defendant was not prejudiced by the trial court’s decision to allow plaintiff to file its answer to the counterclaim out of time given defendant’s failure to move earlier for entry of default judgment. Defendant’s argument that plaintiff’s failure to respond to discovery should have resulted in the dismissal of plaintiff’s complaint was untimely because defendant made no motion to depose plaintiff’s president or to compel or extend the time for discovery within 90 days of filing its answer. Additionally, defendant suffered no prejudice because all documents submitted into evidence were either provided to defendant or already in its possession.

11-2-4429 Elar Realty Co. v. Environmental Risk Limited, N.J. Super. App. Div. (per curiam) (8 pp.) The parties entered into a written contract for respondent to perform services related to the remediation of appellant’s property. The contract contained a provision that required appellant to bring any legal action within a year after respondent ceased providing services and was silent as to the assignment of any interest in the agreement. After respondent-ERL commenced performing services, it entered into an asset purchase agreement with respondent-GZA whom purchased all assets and open contracts; appellant was not part of such agreement but was eventually provided notice of the transaction. Following termination of the contract for alleged deficiencies in work, appellant filed the underlying action. On motion, the trial court granted respondents summary judgment holding there was no obstacle to respondent-ERL assigning contract to respondent-GZA and that the action was barred by the contract’s one-year statute of limitations. On appeal, appellant argued that respondents merged making respondent-GZA responsible for all liabilities and that the contract for personal services could not be assigned without its agreement. The court affirmed holding the one-year statute of limitation agreed to by the parties was enforceable and that appellant’s contract was freely assignable. Finally, the court found that appellant’s remaining arguments, not previously before the trial court, were without sufficient merit to warrant a written opinion.

15-2-4403 Deutsche Bank Nat’l Trust Co. v. Edwards, N.J. Super. App. Div. (per curiam) (4 pp.) Defendants appealed from the order rejecting their objections to the entry of final judgment of foreclosure sought by defendant, as indenture trustee to IMH Assets Corporation. Defendants executed a mortgage in favor of Wells Fargo Bank , and later defaulted. Wells Fargo subsequently assigned the mortgage to plaintiff, who filed a foreclosure complaint. The trial court granted summary judgment to plaintiff, and ruled that it could request entry of final judgment of foreclosure as an uncontested matter. After three years the complaint was dismissed for lack of prosecution, but later reinstated upon plaintiff’s motion. Plaintiff then filed for entry of final judgment. Defendants objected, but the trial court rejected those objections and entered final judgment. On appeal, defendants argued that plaintiff had no authority or standing to foreclose because it never acquired the loan, that defendants’ monthly payments were never applied to the principal and interest of the loan, that the assignment of the mortgage was void, that defendants were never indebted to Wells Fargo because it never loaned them any money, that plaintiff was judicially estopped from making certain representations, that the trial court erred in ruling that the loan was “not a trust” and failed to take judicial notice of certain facts, that plaintiff’s counsel engaged in misconduct, and that defendants were denied due process when the matter was classified “uncontested”. The court rejected defendants’ arguments and affirmed the judgment, finding that defendants failed to provide any evidence or legal citations to support their factual and legal claims.

15-2-4408 LaSalle Bank N.A. v. Spear, N.J. Super. App. Div. (per curiam) (6 pp.) Defendant appealed from the denial of her motion to vacate an amended final judgment of foreclosure entered in plaintiff’s favor. Defendant had borrowed $225,000 from Accredited Home Lenders, Inc., secured by a mortgage. Defendant defaulted on the mortgage in January 2008. Plaintiff filed a foreclosure complaint; when defendant failed to file a responsive pleading, the trial court entered default against defendant, followed by a final judgment of foreclosure. Defendant moved to vacate default judgment, which was denied by the trial court. Plaintiff then moved to amend final judgment to update the amount due, which was granted by the trial court. Defendant then filed the present motion to vacate the amended final judgment, arguing that plaintiff lacked standing. The trial court denied defendant’s motion, finding that defendant admitted her failure to answer the foreclosure complaint, meaning that there was no excusable neglect; the trial court also held that it had ruled on defendant’s standing argument in her prior motion to vacate. On appeal, defendant again argued that plaintiff failed to establish it was the holder of the note when it initiated the foreclosure action. The court affirmed the trial court’s denial of defendant’s motion to vacate, finding that she had not demonstrated that she was entitled to relief. Specifically, the court noted that defendant had not demonstrated excusable neglect or a meritorious defense, holding that a judgment obtained by a party lacking standing was not “void” for the purposes of a motion to vacate. Finally, the court held there were no “exceptional circumstances” warranting relief.

15-2-4418 Wells Fargo Bank v. Stefansky, N.J. Super. App. Div. (per curiam) (4 pp.) Appellant entered into a line of credit, secured by a mortgage on residential property purchased for investment. Appellant went into default when he failed to pay the property taxes. The holder of the tax sale certificate instituted a foreclosure action, which was resolved by consent order permitting appellant six months to redeem. When appellant failed to timely redeem, respondent advanced the funds necessary to discharge the tax lien in order to preserve its mortgage. Respondent subsequently instituted its own mortgage foreclosure action. Appellant answered, claiming he was precluded from redeeming the tax certificate by the injury to his credit caused by respondent having reported his default to the credit agencies. The trial court struck appellant’s counterclaims and granted summary judgment in favor of respondent. The judge found appellant was obligated under the line of credit agreement and the mortgage to keep the taxes current. Appellant admitted failure to pay the taxes, resulting in institution of the tax foreclosure, constituted an event of default under the loan documents, which permitted respondent to accelerate the loan and reject further monthly payments. The judge acknowledged respondent’s payment of the taxes frustrated appellants plan to redeem, but found its actions could not considered wrongful. On appeal, the court affirmed and concluded that none of appellants’ arguments was of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The court noted that appellant failed to assert any error in respondent’s certification of amount due, no hearing was necessary and final judgment was appropriately entered.

15-2-4431 Wong v. PNC Bank , N.J. Super. App. Div. (per curiam) (5 pp.) Plaintiff appealed the denial of her motion for reconsideration of the summary judgement granted for defendant in plaintiff’s complaint alleging that defendant violated the bankruptcy court’s “automatic stay” by proceeding with a sheriff’s sale. Defendant obtained a judgment of foreclosure and sent notice of a sheriff’s sale to plaintiff. Plaintiff and her husband filed bankruptcy petitions and asked the bankruptcy court to stop the sale. The bankruptcy court declined to stay the sale and the sheriff sold the property. Plaintiff filed her complaint alleging violation of a bankruptcy court “automatic stay” and filed lis pendens on the property. The bankruptcy court discharged the lis pendens and returned the matter to the Chancery Division which found that plaintiff’s claims were fully litigated and/or barred by res judicata, that she had adequate notice of the sale and granted defendant’s summary judgment motion. Plaintiff argued she did not have adequate notice of the sale and that trial judge erred in ordering her not to file lis pendens in the future. The court found that plaintiff’s contentions lacked adequate merit to warrant discussion.

15-2-4432 Wells Fargo Bank, N.A. v. Worrell, N.J. Super. App. Div. (per curiam) (4 pp.) Appellant did not dispute that he entered into a thirty-year note and a non-purchase money mortgage on his residential property. He further admitted the loan went into default and that the prior lender merged into respondent through a series of approved transactions. Following respondent’s complaint for foreclosure and appellant’s failure to answer, respondent moved for final judgment; however, during this time, the Supreme Court issued its moratorium on foreclosure filings and amended the rules governing foreclosure. Respondent subsequently moved to reinstate the action and amend the complaint to reflect its new name. Appellant opposed the motion, arguing respondent should have to file a new complaint, or, in the alternative, that he should be permitted to demonstrate he could qualify for a loan modification. The trial court granted respondent’s motion to reinstate and substitute parties in the complaint. When appellant did not pursue mediation, respondent moved for final judgment. The trial court entered final judgment concluding appellant failed to put forth a meritorious defense. On appeal, the court affirmed concluding respondent had a right to enforce the mortgage as a result of the operation of its ownership of the asset through mergers or acquisitions. The court noted that respondent did not assert an assignment of the mortgage, rather the merger provided it standing to pursue foreclosure actions. Accordingly, the court affirmed.

15-2-4409 HSBC Bank USA, N.A. v. Keane, N.J. Super. App. Div. (per curiam) (10 pp.) Defendant appealed from the denial of his motion to vacate judgment and reinstate his answer, affirmative defenses, and counterclaims filed in response to plaintiff’s foreclosure complaint. Defendant had obtained a note from Gateway Funding Diversified Mortgage Services, secured by a mortgage. Gateway endorsed the note in blank. Defendant defaulted on the note and mortgage in April 2011; in July, plaintiff, as trustee for Nomura Asset Acceptance Corporation Pass Through Certificates Series 2005-AR3, sent defendant a notice of intent to foreclose. Thereafter, the mortgage was assigned to plaintiff. Plaintiff subsequently filed the present foreclosure complaint. Plaintiff later moved to suppress defendant’s answer, affirmative defenses, and counterclaims for failure to provide discovery; defendant cross-moved to dismiss the complaint. The trial court granted plaintiff’s motion and denied defendant’s motion. Defendant moved to reconsider the suppression of his answer, which was denied by the trial court. Following the dismissal of defendant’s bankruptcy petition, the trial court entered default. Defendant again moved for reconsideration of the suppression of his pleading, which was again denied by the trial court, which subsequently entered default judgment. On appeal, defendant argued, for the first time, that he was entitled to relief because he had demonstrated excusable neglect and a meritorious defense, and because plaintiff’s proofs were insufficient and it lacked standing. The court noted that defendant did not appeal from the final judgment, but rather from the denial of his reconsideration motion, which the court found was untimely. The court further found defendant’s new arguments meritless, noting that defendant failed to provide discovery, upon which basis the trial court would have reinstated defendant’s answer, and holding that defendant’s financial distress did not warrant relief from judgment.

39-2-4419 Jackson v. Bd. of Trustees, Police and Firemen’s Retirement System, N.J. Super. App. Div. (per curiam) (6 pp.) Appellant enrolled in the Police and Firemen’s Retirement System (PFRS) based on his employment as a police officer with the Township of Berlin. Subsequently, appellant was suspended with pay pending an investigation of a sexual harassment complaint. Appellant ultimately resigned as a result of the complaint and the Township submitted a certification of service and final salary-retirement to respondent confirming appellant’s termination. Appellant received retirement benefits, but the board indicated he needed one hundred and eight days of credible service to reach twenty-five years of service which would qualify him for a greater pension benefit. Appellant sought to apply his accrued leave time as creditable time for pension purposes to which respondent denied. On appeal, appellant argued respondent improperly considered his accumulated leave time as “extra compensation,” and thus not creditable as salaried compensation for creditable service purposes. The court affirmed holding respondent’s decision was supported by sufficient credible evidence and that appellant’s arguments were without sufficient merit to warrant discussion in a written opinion. The court added that appellant chose his own retirement date and opted to resign immediately. He did not reach a “terminal leave” agreement with the Township allowing him to exhaust his accrued leave time prior to resigning. As such, respondent properly used the date he chose for the end of his “service as a policeman” at the end of his “creditable service.” N.J.S.A. 43:16A04(a) . Therefore, respondent’s final determination was affirmed.

39-2-4423 O’Neill v. Bd. of Trustees, Police and Firemen’s Retirement Syst., N.J. Super. App. Div. (per curiam) (10 pp.) Police officer appealed the denial of accidental disability retirement benefits. Officer responded to a call about a man with a gun at a bar and found his brother dead from a self-inflicted gunshot. Officer was subsequently diagnosed with PTSD, anxiety, and depression and was unable to return to work. He applied for accidental disability retirement benefits attributable to his emotional injury from discovering his brother. The board denied the application because he was not totally and permanently disabled. Officer appealed and the ALJ credited officer and his medical experts and awarded accidental disability retirement benefits. The board adopted the ALJ’s fact findings and finding that officer was disabled but rejected the ALJ’s award of benefits because the ALJ misapplied the law and confused the applicable tests. The court found that the board failed to appreciate the idiosyncratic circumstances of this case. The traumatic event, the brother’s suicide, was “undesigned and unexpected.” There was nothing ordinary in an officer’s responding to the suicide of a family member and training that would prepare an officer for a stranger suicide would not prepare an officer for a family suicide. Officer’s injury met the test established in Patterson v. Bd. of Trustees , 194 N.J. 29 .

39-2-4433 Carr v. Bd. of Review, Dep’t of Labor, N.J. Super. App. Div. (per curiam) (7 pp.) Appellant appealed the order finding that she was disqualified for unemployment compensation because she left work voluntarily without good cause attributable to the work. Appellant worked as a certified alcohol and drug counselor under the supervision of a licensed clinical social worker. Her supervisor was replaced by an individual who lacked the required certification and appellant believed that she could not legally perform her job without a properly certified supervisor and that working without proper supervision would jeopardize her own state certification. She brought her concerns to her employer which took no action to remedy the matter and appellant resigned. Appellant did not report the matter to the state department responsible for certifying alcohol and drug counselors. The appeal tribunal found that appellant left her job without good cause because she failed to demonstrate that there was any merit to her belief that her certification was in jeopardy. The board agreed with the appeal tribunal. The court found that credible evidence in the record supported the tribunal’s finding that appellant’s resignation was due to her incorrect interpretation of the regulations and her failure to take any action to protect her employment prior to resigning, such as reporting her concerns to the proper authority.

39-2-4410 Van Artsdalen v. Fred M. Schiavone Construction, N.J. Super. App. Div. (per curiam) (10 pp.) Following a fall at work with appellant, respondent filed for compensation benefits. Respondent testified before the compensation judge about his pain and the limitations caused by his injury as well as presenting two medical expert reports regarding his level of disability at 52.5 percent. Appellant’s expert disagreed and found that respondent experienced only a  percent permanent partial disability. After considering the evidence, the judge of compensation found appellant’s expert to be less credible and determined respondent suffered a 47.5 percent permanent partial disability. In her opinion, the compensation judge noted respondent’s lengthy work history and his lack of any prior significant back injury or extensive back care during the time. On appeal, appellant contended the judge’s findings regarding respondent’s work history and injury being inoperable were important to her conclusion but unsupported by the evidence. Further, the 47.5 percent permanent partial disability was unfounded as respondent stopped receiving treatment, did not take daily medications, under any restriction, or in need of surgery. The court reversed and remanded for reconsideration as there was no evidence to support the findings that respondent’s injury was inoperable or that he took few days off during his years of employment. While these findings were central to the judge of compensation’s decision, as demonstrated by her conclusion that respondent’s disability rating was construed as worse because his injuries were inoperable, neither respondent nor the experts stated these facts or opinions, nor was there any other evidence presented from which the judge could have logically inferred them. As such, the judgment was vacated and remanded for reconsideration.

25-2-4434 Soto v. ICO Polymers North America, N.J. Super. App. Div. (Fuentes, P.J.A.D.) (23 pp.) Appellant was severely injured in a work-related explosion wherein he suffered second and third degree burn-related injuries over twelve percent of his body. He filed the underlying civil suit against respondent, his former employer, to recover compensatory and punitive damages. The trial court granted respondent’s summary judgment motion and dismissed appellant’s complaint based on the immunity from civil liability provided to employers under the Worker’s Compensation Act. On appeal, the court reversed holding a rational jury could find that at the time of the accident, respondent was aware that the work place conditions exposed employees to a high risk of serious injury or death. Further, a jury could also find that the accident that caused appellant’s injuries resulted from respondent’s intentional decision to abate electrical code violations found in the facility without installing the specialized lighting and wiring required. Finally, the court found that a jury may reasonably infer that respondent’s failure to make the required specialized electrical repairs were part of its overall cost-savings plan to relocate the facility. Therefore, as respondent failed to satisfy the safety protocols, the Law Division erred in granting respondent’s summary judgment and dismissing appellant’s complaint as a matter of law.

20-2-4411 T.C. v. N.M., N.J. Super. App. Div. (per curiam) (5 pp.) The parties, who were never married, were the parents of twin children, born in 1996. Appellant-father moved for emancipation off the children, and respondent cross-moved for contribution towards their college expenses and recalculation of child support. Based upon the parties’ income, assets, and debts, as well as appellant’s raising of four other children, the family part judge determined that the parties would not be able to support the college expenses. Nevertheless, since they both wanted their children to receive a college education and the children were progressing academically, the judge considered the Newburgh factors and found that they should share the financial burden for the daughter but the son’s expenses were covered by his student loans. Yet, since the son was still living with respondent and was no longer having overnight visits with appellant, appellant’s obligation to pay child support for him remained. The family part judge, however, reduced the amount by twenty percent to reflect appellant’s financial situation as permitted in N.J.S.A. 2A:34-23 . On appeal, the court affirmed as the decision was supported by adequate, substantial and credible evidence. Although the court appreciated the parents’ payments of their children’s college education was an expensive undertaking that required significant sacrifice, the judgment was affirmed substantially for the reasons cited by the family part judge.

20-2-4420 Soufanati v. Soufanati, N.J. Super. App. Div. (per curiam) (13 pp.) Both parties appealed the order continuing defendant’s alimony obligation, setting plaintiff’s child support and denying defendant’s request for alternating weekend parenting time. The parties married in 1999, had three children, divorced in 2012 and continued to contest alimony, child support and child custody. Defendant argued that the judge should have terminated alimony because plaintiff no longer needed rehabilitative alimony. Plaintiff argued the judge erred in reducing the alimony award. The court found that the defendant failed to furnish the transcripts of the plenary hearing, that the transcripts were necessary for the appeal and affirmed the alimony order. Defendant argued it was error to not grant him alternate weekend parenting time because he no longer worked on the weekends. The court found that the judge, who heard the testimony of the parties and the children’s treating counselors, did not abuse his discretion. Defendant argued that the judge erred in calculating child support by crediting plaintiff for 104 overnights by eldest child when eldest child never spent the night with plaintiff. However, defendant never objected to the Guidelines worksheet at the hearing and never offered a “proper” calculation

20-2-4421 T.B. v. D.B., N.J. Super. App. Div. (per curiam) (7 pp.) Plaintiff appealed the order denying her motion to allow her convicted sex offender boyfriend to have contact with her children. The parties married in 2004, had four children and separated in 2012. The trial court entered a child support order, gave the parties shared joint legal custody, residential custody to plaintiff and ordered that the boyfriend have no contact with the children. In 2014, the trial court entered a fourth order directing that the children not be in the boyfriend’s presence and told the defendant he could petition for custody if the boyfriend was in the presence of the children. Defendant received text messages from plaintiff telling him the children had been at the boyfriend’s home and defendant filed a motion for residential custody. Plaintiff stated that she was engaged to boyfriend and sought a motion to allow him to have supervised contact with the children. Plaintiff argued she showed a change of circumstances warranting a modification of the order barring contact and that the trial court should have conducted a plenary hearing and granted discovery. The court found that plaintiff did not show a change of circumstance. Her engagement was not a new development or a change in circumstance.

20-2-4435 Jones-Muhammad v. Ott, N.J. Super. App. Div. (per curiam) (20 pp.) Following the parties divorce, appellant-husband appealed a post-judgment order enforcing equitable distribution of the marital residence, transfer of responsibility for making the mortgage payments, and respondent-wife’s assumption of sole responsibility for his unpaid income taxes. The order required appellant to retake title to the home he conveyed and pay respondent $75,000 to address the loss she suffered as a consequence of mortgage and tax lien as well as counsel fees. Although appellant acknowledged his liability, he argued the trial judge failed to consider his ability to pay the fee at the rate established. Further, he sought reversal of the counsel fee, because it was not supported by an affidavit of services and exceeded the flat fee respondent was charged. With the exception of the counsel fee, which was awarded without a certification of services and must be remanded the court affirmed. The court noted the judge erred by considering counsel fees without a complete certification of services permitting assessment of the reasonableness of the fees charged. However, the court affirmed the liability amount as appellant acknowledged the damages and accepted the amount due and owing. Moreover, there did not exist a genuine dispute of material facts which required a plenary hearing as to appellant’s ability to pay. Accordingly, the court affirmed the judgment other than the award of attorney’s fees which was subject to remand.

26-2-441 PL Squared, LLC v. Zoning Bd. of Adjustment of The Twp. of Hopewell, N.J. Super. App. Div. (per curiam) (9 pp.) Appellant owned the subject property with the intention to develop it as a convenience store and gas station. As part of that proposed development, appellant applied to respondent for the use variance, and requested other variance relief from certain bulk requirements. In denying the application, respondent concluded that appellant failed to demonstrate the site was situated for the proposed uses. Respondent also found that granting the variances conflicted with the town’s master plan, and contravened an applicable ordinance, which precluded multiple uses for lots within the district. On appeal, appellant argued that respondent’s denial of the use variance was arbitrary, capricious, and unreasonable. Further, appellant contended there was insufficient evidence to support respondent’s denial and that special reasons existed for the use variance. The court affirmed denial of the application concluding there was sufficient credible evidence in the record to support respondent’s findings that appellant failed to satisfy its burden, especially as to the negative criteria. The findings included the manner in which granting the variances would contradict the town’s master plan and contravene the local ordinance. As respondent followed applicable law, based its decision on the substantial evidence in the record, and correctly denied the applications, the court concluded the decision was not arbitrary, capricious, or unreasonable.

26-2-4436 Peg Leg Webb, LLC v. New Jersey Pinelands Comm’n, N.J. Super. App. Div. (per curiam) (12 pp.) Petitioner appealed respondent’s final decision challenging the Jackson Township Planning Board’s grant of preliminary site plan approval on petitioner’s application to build a resource extraction facility on its property. Jackson Township had previously, on respondent’s recommendation, rezoned certain portions of the township, including property now owned by petitioner, from “Rural Development,” where resource extraction was permitted as a conditional use, to “Forest Area,” where resource extraction was not permitted. A trial court later found the rezoning ordinance procedurally defective and invalidated the rezoning, finding that petitioner’s predecessor-in-interest was not provided notice of the rezoning proposal and that the township had not properly considered whether rezoning was consistent with the master plan. In 2013, the township adopted a new ordinance readopting the rezoning; in the interim, petitioner filed the present application, which was granted by the township planning board under the assumption that the property was in the RD zone because of the prior court ruling. Respondent called up the application approval, ruling that the trial court’s decision did not change the designation of the property on respondent’s land capability map, which continued to designate petitioner’s property as in the FA zone. Respondent concluded that, because of the trial court ruling, the township was either required to adopt a proper rezoning ordinance, or apply to change the land capability map. On appeal, the court affirmed respondent’s decision, ruling that the Pinelands Act and its regulations superseded the MLUL, and that the CMP prevailed over the township’s ordinances.

26-2-4437 Ratan Hotel Plaza, LLC v. Zoning Bd. of the City of E. Orange, N.J. Super. App. Div. (per curiam) (7 pp.) Respondent sought to redevelop a long-vacant hotel by reducing the number of rooms and turning its restaurant and nightclub into a separate adult day care center with medical facilities. Respondent needed two use variances, one for the adult day care center and the other to combine two principal uses on one site, with one being a hotel. Appellant objected to the applications, which respondent-Board unanimously approved after several public hearings. Appellant argued respondent-Board lacked jurisdiction to grant site plan approval, and the grant of the required variances was arbitrary and capricious. The trial court found there was no dispute and that the Municipal Land Use Law vested exclusive authority in respondent-Board to grant site plan approval. The judge acknowledged that the redevelopment plan’s language did not run smoothly parallel to the MLUL, but found it highly unlikely that the legislature would have silently stripped respondent-Bard of their exclusive power. Finally, the trial judge held that appellant failed to establish respondent-Board’s decision to grant the variances was arbitrary or capricious as the use was preferable to a neglected building and respondent demonstrated a need for such use. On appeal, the court concluded appellant’s appeal of the use variances had become moot by intervening events and that its challenge to respondent-board’s ability to grant the site plan approval and its approval of the bulk variances was without merit. The court noted the redevelopment plan was amended and no longer required a use variance. Accordingly, the court affirmed.

27-2-4422 Sin’s Realty, LLC v. Ritesh Kalra, M.D., LLC, N.J. Super. App. Div. (per curiam) (4 pp.) Following testimony from eight witnesses, including the principals of the parties involved in this commercial landlord/tenant dispute, the trial court entered judgment of possession to respondent-landlord. The trial judge found appellant-doctor, although seeing some patients by appointment, saw many walk-in patients, resulting “in more than one dozen people appearing on many occasions, at the same time. That practice resulted in patients congregating in the hallway which disturbed and offended neighboring tenants. The trial judge concluded the parties’ lease prohibited appellant from obstructing or encumbering the hallway and from causing disturbances that would offend other tenants in the building and provided respondent a right of reentry upon breach. As such, respondent was entitled to possession based on the right to re-entry and the notice provided to appellant. Appellant argued the trial court erred in expanding the terms of the lease to third parties over whom he had no control, that the court’s fact-findings were not supported by facts, and that the court denied him the ability to confront witnesses. The court rejected appellant’s arguments as wholly without merit and underserving of discussion in a written opinion. The court noted the trial judge’s findings were amply supported by credible evidence in the record, which also revealed the trial court in no way denied appellant the ability to confront the witnesses about their motive in complaining to respondent about the patients and conduct of his practice. Accordingly, judgment was affirmed.

36-2-4425 Abnathya v. Medley, N.J. Super. App. Div. (per curiam) (11 pp.) Plaintiff appealed from the denial of his motion to reinstate his complaint and denial of reconsideration. After an automobile accident that he alleged caused him injuries, plaintiff filed a complaint against defendants, asserting negligence against Cezsari Medley, the other driver, and a breach of contract claim against plaintiff’s PIP insurer. The complaint was administratively dismissed for plaintiff’s failure to serve defendants. Plaintiff served each defendant with a summons and complaint three months later. In a separate lawsuit, Sumar Abnathya and Vimar Moore alleged they were injured in the same automobile accident and filed suit against both plaintiff and Medley. Plaintiff was represented by different counsel than in his suit against Medley and his insurer, and counsel in the Abnathya matter moved to consolidate both actions. Though plaintiff’s complaint had been administratively dismissed, the trial court granted consolidation. Plaintiff then filed the present motion to reinstate his complaint, asserting that he was unable to effect service on defendants prior to dismissal, that service had since been completed, and that discovery remained open. Although defendants did not oppose plaintiff’s motion, the trial court denied it, ruling that plaintiff had not shown exceptional circumstances for reinstatement more than 90 days after dismissal. On appeal, plaintiff argued that the trial court erred in applying the exceptional circumstances rather than the good cause standard. The court agreed, ruling that the exceptional circumstances standard applied in multi-defendant cases in which at least one defendant had been properly served. The court noted that in the present case, none of the named defendants had been served. The court further rejected the assertion that reinstatement would delay proceedings in the consolidated matter. Finally, the court held that plaintiff had established good cause for reinstatement, finding that defendants had not asserted any prejudice, and that plaintiff’s counsel’s contention that it was unable to effect service was uncontradicted by the record.

31-2-4423 J.D. v. D.R., N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the denial of his motion to file a late tort claim notice against defendants, and from the denial of reconsideration. Plaintiff alleged that his teacher sexually abused him between 1983 and 1987. In 2013, plaintiff began suffering panic attacks, and was diagnosed with depression and panic disorder. During subsequent psychotherapy, plaintiff admitted to the affair between him and his teacher. In support of his motion for leave to file late notice, and on appeal, plaintiff argued that he demonstrated extraordinary circumstances excusing late notice in the form of his psychological impairments. Plaintiff further argued that the trial court erred in failing to consider plaintiff’s affidavit in support, and in failing to conduct a Lopez hearing. The court affirmed the trial court’s orders, finding plaintiff’s arguments without merit. The court noted that plaintiff was aware of the connection between his medical condition and his affair with his teacher as late as December 2015, and according to his therapist’s notes as early as May 2015. Thus, the court noted that plaintiff failed his notice well after 90 days from either date, and held that plaintiff had not demonstrated extraordinary circumstances to warrant a late filing.

34-2-4438 Dumont Bd. of Ed. v. Borough of Dumont, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the order dismissing its complaint seeking the reversion of a parcel of land to plaintiff. In 1962, plaintiff conveyed the parcel to defendant. Pursuant to the contract of sale, defendant agreed to use the parcel, which included a schoolhouse, as a borough hall or other municipal purpose. The contract also contained a reverter clause that required defendant to first offer the parcel back to plaintiff if defendant determined use of the parcel was no longer in the public interest. Defendant used the parcel as a borough hall and police headquarters until 2014, when the county health department deemed the former schoolhouse uninhabitable due to mold; however, defendant continued to use the land by bringing trailers to house the police department. Defendant ultimately passed a resolution granting a real estate developer the option to construct affordable housing and new municipal office space for defendant. Thereafter, plaintiff filed the present complaint, arguing that defendant had trigger the reverter clause in the 1962 contract of sale. The trial court dismissed the complaint, finding that because defendant would continue to use the parcel for municipal offices and because the affordable housing would also serve a municipal purpose, the reverter clause had not been triggered. During the pendency of this appeal, defendant and the developer changed their plans to move all affordable housing to another adjacent property, leaving only municipal offices to be constructed on the parcel. Thus, the court ruled that the appeal had become moot as the challenged affordable housing was no longer to be constructed on the parcel. The court further declined plaintiff’s invitation to issue an advisory opinion on what actions would trigger the reverter clause.

34-2-4439 1701 E. Main, LLC v. Wawa, Inc., N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the summary judgment that terminated by estoppel an alleged cross-easement between its property and defendant’s adjoining property. In 1971, then owner of plaintiff’s property and defendant a memorialized an agreement that among other things provided that they would “keep the adjoining perimeter of [their] premises free from obstructions in order to permit each other’s customers ingress and egress across said property lines.” The agreement was never recorded nor included in any recorded document. Defendant unsuccessfully offered to buy plaintiff’s property in 2006 and then redeveloped its property and built a curb along the common perimeter that blocked access. Owner of plaintiff’s lot died in 2008 and plaintiff took title from the deceased’s estate. Plaintiff discovered the curb for the first time in 2012. Defendant argued that any easement rights were terminated by estoppel since neither plaintiff nor its predecessor had objected to the curb for more than ten years. The court found the question of the significance of property owner’s silence as a response to defendant’s silence during the offer to purchase and the redevelopment was a question to be resolved at trial.

14-2-4426 State v. Brown, N.J. Super. App. Div. (Ostrer, J.) (11 pp.) Defendant appealed from the denial of his petition for post-conviction relief following his conviction after a guilty plea to aggravated manslaughter, and sentence of 20 years subject to the No Early Release Act. After his arrest, defendant was subjected to 11 hours of questioning on the first day, with additional questioning two days later. Defendant had made no incriminating statements six hours into question on the first day; when defendant declined to answer any more questions and requested to be taken to county lockup, officers continued questioning. After conferring with his family, defendant confessed that, while under the influence of PCP, he grabbed the victim’s gun in the middle of a scuffle and shot him as he attempted to run away. At his plea hearing, defendant admitted to shooting at the victim twice, but asserted that he did not intend to kill him. In support of his PCR petition, defendant asserted the ineffectiveness of trial counsel based on his failure to suppress defendant’s custodial statements, and that he would have proceeded to trial had the statements been suppressed. However, without the transcript of the interrogation or other evidence of defendant’s requests to stop the questioning, the trial court ruled that defendant had failed to show a violation of his right to remain silent. On appeal, appellate counsel provided the court with the full record, including a transcript of defendant’s interrogation. The court first held that to succeed on an ineffectiveness for failure to file a motion, defendant would have to show that the motion would have succeeded. After reviewing the transcript of defendant’s interrogation, the court held that defendant had established a prima facie case of ineffective assistance of counsel, ruling that a motion to suppress his custodial statements would have succeeded because police failed to honor defendant’s repeated requests to terminate the interrogation.

14-2-4427 State v. McLaughlin, N.J. Super. App. Div. (per curiam) (17 pp.) Defendant appealed her convictions for second-degree and third-degree aggravated assault. Victim and defendant were friends and were drinking at defendant’s home. Defendant’s boyfriend arrived and they all argued. Victim testified that defendant cut her in the face, arm and chest with a sharp object. Defendant testified that victim swung a broken bottle and defendant grabbed victim to “clinch” her while she was holding the broken bottle. Boyfriend testified that victim broke a bottle and swung it at defendant and that defendant and victim then grabbed each other. Defendant argued the trial judge erred in denying her motion for acquittal on the aggravated assault with a deadly weapon charge because the state did not produce any weapon, the manner in which victim received the injuries was disputed and even if the jury believed victim, the evidence was insufficient to show that defendant acted purposely, knowingly or recklessly. The trial judge correctly found that the state presented sufficient evidence because an officer testified that two corkscrews and scissors were found where the assault occurred and victim’s injuries were sufficient to show that she was attacked with an instrument capable of producing serious bodily injury. The case had to remanded for resentencing because the trial judge did not specifically address count two and whether the counts merged for sentencing.

14-2-4428 State v. Patterson, N.J. Super. App. Div. (per curiam) (25 pp.) Defendant appealed from his conviction for felony murder, kidnapping, and robbery. Prior to trial, defendant had unsuccessfully moved to suppress evidence obtained under three communications data warrants, statements defendant had made to police, and recorded telephone conversations defendant had while an inmate in county jail. Following conviction, defendant was sentenced to life without parole on the felony murder charge pursuant to the Three Strikes Law; the trial court imposed additional concurrent 30-year and 20-year terms with 85 percent parole ineligibility for the kidnapping and robbery charges. On appeal, defendant argued that the trial court erred in failing to charge the jury on accomplice liability, and to instruct the jury on the theft element for the robbery and felony murder charges. Defendant further challenged application of the Three Strikes Law, and the denial of his suppression motions. The court affirmed defendant’s conviction, but reversed and remanded for resentencing on the felony murder and robbery counts. The court rejected defendant’s challenges to the jury instructions, finding that a sua sponte accomplice liability instruction was not warranted by the evidence at trial, and holding that the failure to include a definition of theft was not a fatal error because the concept of theft was not beyond the common understanding of the jury. The court further affirmed the denial of defendant’s suppression motions, agreeing that the affidavit of probable cause did not mislead the trial court as to the frequency of defendant’s communications, which the court held warranted further examination to reveal complicity in the crime. However, the court found that the trial court mistakenly designated one of defendant’s prior robbery convictions as a first-degree offense, and therefore erroneously applied the Three Strikes Law to defendant’s sentence and sentenced defendant to more than the statutory maximum for second-degree robbery.

14-2-4441 State v. Leon Mack, N.J. Super. App. Div. (per curiam) (9 pp.) While allegedly attempting to enter the Hall of Records, respondent placed his bag through the metal detector and an officer noted that it appeared to contain a weapon. A search of the bag revealed a .25-caliber semi-automatic pistol. Following a background check which revealed that respondent had been convicted of second-degree assault, a grand jury issued two indictments charging respondent with four crimes. Respondent moved for dismissal of first-degree unlawful possession of a weapon arguing that the underlying predicate offense did not subject him to a charge under N.J.S.A. 2C:39-5(j) as it was enacted after his prior conviction. The trial court held, sua sponte, that the statute was a sentencing statute and not a substantive statute identifying a separate crime. Consequently, the trial court dismissed the indictment as to that charge. On appeal, appellant argued N.J.S.A. 2C:39-5(j) established a separate crime subject to indictment and trial by jury. The court reversed holding the plain language of the statute created a “first degree crime.” The court noted that the trial court appeared to have assumed that because respondent’s criminal history may properly be considered as a sentencing factor, the statute was therefore a sentencing statute because it referenced respondent’s prior conviction. However, here, the plain language demonstrated that the addition of subsection (j) created a separate substantive crime. Further, the legislative history of the amended statute showed the intent was to create a new first-degree crime, not a sentencing enhancement provision. Accordingly, the court reversed and remanded.

07-7-4412 Harrington v. Bergen County, D.N.J. (Chesler, U.S.D.J.) (5 pp.) Plaintiff appealed the denial of her motion for reconsideration of the denial of her motion to compel discovery testimony. The court found that the magistrate judge did not abuse her discretion and that it was reasonable for her to conclude that the relevancy and proportionality requirements in Rule 26 precluded a burdensome and speculative inquiry into a single, unrelated criminal investigation that occurred nine years ago. Even if the testimony were relevant, it failed the proportionality requirement because the discovery request did not pertain to the incidents in the current action. It was also reasonable for the magistrate judge to conclude, based on the Banda factors, that plaintiff failed to identify clear error of law or fact or to support her motion with relevant case law or legal authority. [Filed Oct. 3, 2017]

07-7-4442 Liberty Community Assoc. v. City of Plainfield, D.N.J. (Clark, U.S. M.J.) (12 pp.) Defendant sought leave to file an amended answer asserting an additional affirmative defense in plaintiff’s action asserting breach of contract, violations of §1983, RICO violations, unjust enrichment, fraud, breach of fiduciary duty and breach of implied covenant of good faith and fair dealing from dealings over the financing and operation of affordable housing. Defendant sought to assert an additional affirmative defense that a prior confidential settlement agreement from an action plaintiff filed in 2011 over the termination of the management agreement contained releases that barred the claims in this action. Plaintiff opposed the affirmative defense and argued that the settlement agreement had never been produced and defendant never made a formal request for its production. Plaintiff also argued that the terms of the release applied solely to the parties in the action in which defendant had no involvement. The court found that the addition of the proposed affirmative defense would allow the parties to obtain necessary discovery to show the settlement’s applicability or lack thereof to the matter at hand. [Filed Oct. 10, 2017]

07-7-4418 Megatel Mobile, LLC v. Tracfone Wireless, Inc., D.N.J. (Salas, U.S.D.J) (5 pp.) Following removal to federal court, defendants moved to vacate previously issued temporary restraints. The court held a telephone conference with the parties and, based on the parties’ voluminous submissions, converted oral argument on defendants’ motion into a preliminary injunction hearing. To obtain a preliminary injunction, the movant must show: (1) a likelihood of success on the merits; (2) irreparable harm if the injunction was denied; (3) no greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharms., Inc. v. Andrx Corp. , 369 F.3d 700, 708 ( 3d Cir. 2004 ) . When the movant’s claim was based on a breach of contract–as it is here–irreparable injury may be found where the subject matter of the contract was of such a peculiar value that damages would be inadequate or where it was impossible to ascertain the legal measure of loss so that money damages were impracticable. Here, the court denied plaintiff’s application for preliminary injunctive relief holding plaintiff can calculate its alleged money damages. Moreover, the court was guided by Third Circuit precedent in rejecting that reputational damage resulting from the breach of contract equated to irreparable harm. Accordingly, the court concluded that plaintiff failed to show it will suffer irreparable harm in the absence of an injunction and, therefore, its application was denied. [Filed Oct. 6, 2017]

46-8-4413 Johnson v. Duncan, 3rd Cir. (per curiam) (10 pp.) Appellant filed a §1983 action alleging that he was detained by customs officers when he returned from vacation on the basis of a New Jersey warrant for his arrest. He argued warrant was invalid because it was based on a fabricated criminal complaint that he had violated his probation when, in fact, his probation had expired. While detained, he contacted his attorney and was able to obtain documentation to show that the warrant was invalid. A judge vacated the warrant the next day and he was released. Appellant claimed that defendant probation officer caused the invalid warrant to be issued even though she knew appellant was no longer on probation. Appellant relied on Manuel v. City of Joliet , 137 S.CT. 911 , to argue his suit was timely because it was filed within two years of the date he was released from detention. The court found that the judge, county and its sheriff’s department were immune from suit as well as the probation officer to the extent she was sued in her official capacity. However, the claim against her in her individual capacity was time barred because her contribution ended when she allegedly provided false information in 2013.[Filed Oct. 4, 2017]

46-8-4414 Nico Elec. Contractor, Inc. v. City of Camden, 3rd Cir. (Rendell, J.) (6 pp.) Plaintiff Marshall Williams appealed from the dismissal of his §1983 claim against defendants. Plaintiff, an electrical contractor, left his union in 1998 to start his own company, which did not use union labor. Plaintiff’s complaint alleged that, in four incidents from 2011 to 2013, defendants violated his constitutional rights by taking retaliatory action against him for his nonunion status. The court affirmed the dismissal of his complaint, finding that there was no evidence to support his claims that he was retaliated against due to non-union animus. As to one incident where a city employee allegedly told a property owner to hire a different contractor than plaintiff, the court ruled there was no causal link with plaintiff’s nonunion status, since the suggested alternative contractor was also nonunion. In two other incidents, the court also found no causal link when inspectors failed and then approved plaintiff’s work, apparently agreeing with plaintiff’s evaluation of the situation when he protested the failure of his work. Finally, in a fourth incident, the court found no causal link when plaintiff repaired free-of-charge faulty work that allegedly was not connected to the work plaintiff had performed on the site. Lastly, the court noted that plaintiff had failed to cite any regulations he alleged were being violated by city inspectors. [Filed Oct. 4, 2017]

11-7-4415 White Winston Select Asset Funds, LLC, D.N.J. (Martinotti, U.S.D.J) (31 pp.) The parties proposed a financing agreement to assist defendant in redeeming outstanding shares of its preferred stock, as well as for working capital. Under the term sheet, the proposed financing was to take the form of a senior secured convertible debenture, to be issued by defendant at the time of closing with a term of one year and in the original principal face amount of up to $5 million. However, defendant closed on financing with non-party PNC Bank preventing the financing agreement to be finalized and plaintiff sought payment on the break-up fee. Plaintiff filed the underlying complaint asserting claims of breach of contract, breach of duty of good faith and fair dealing, and promissory estoppel. On competing motions, the court granted summary judgment in favor of plaintiff concluding defendant’s actions of entering into the PNC Bank agreement rendered it impossible for plaintiff to close the proposed financing on substantially the same terms and conditions as set forth in the term sheet. Further, defendant made it impossible for plaintiff to be a junior lienholder to the only existing credit facility as per the term sheet. Because that condition precedent was rendered impossible, there was no way or reason for plaintiff to complete its due diligence when the closing could never be performed according to the term sheet. Accordingly, the court found plaintiff was “prepared to close” or in the alternative that defendant’s closing with PNC Bank prevented plaintiff from performing its conditions precedent and thus those conditions were excused. Moreover, the court found the break-up fee provision was triggered by under the language of the term sheet and granted summary judgment for plaintiff. [Filed Oct. 3, 2017]

31-7-4443 Robinson v. N.J. Transit Rail Operations, Inc., D.N.J. (Chesler, U.S.D.J.) (8 pp.) Defendant moved to vacate the judgment against it, or in the alternative, for remittitur. In support of their motion, defendant argued that it was entitled to 11th Amendment sovereign immunity. Although the Third Circuit had ruled in Fitchik v. N.J. Transit Rail Operations, Inc. , 873 F.2d 655 that defendant was not entitled to sovereign immunity, defendant argued that Fitchik was not binding because there was intervening Third Circuit precedent taking into account post- Fitchik U.S. Supreme Court authority that held that the Fitchik court improperly weighed the factors to determine if defendant was an arm of the state. In response, plaintiff argued that because the Third Circuit had not overruled Fitchik, it was still binding precedent. The court rejected defendant’s argument, ruling that, although the Third Circuit no longer adhered to the legal principle applied in Fitchik, it did not mean that Fitchik would be decided differently today. The court predicted, if the Third Circuit were to rule on Fitchik today, that it would still find that defendant was not entitled to sovereign immunity, because either the overall factors would weigh against finding immunity, or it would be a close case rendering the funding factor the tie-breaker. Moreover, the court found that defendant’s circumstances had not changed since the Fitchik decision. Finally, the court rejected defendant’s argument in support of its alternative remittitur motion that the jury verdict of $300,000 damages for pain and suffering was excessive, noting a prior verdict with similar facts for $210,000 and defendant’s failure to cite to the record to support its contention. Accordingly, the court denied defendant’s motion to vacate judgment or remittitur. [Filed Oct. 10, 2017]

39-7-4424 Woerner v. Fram Group Operations, LLC, D.N.J. (Chesler, U.S.D.J) (9 pp.) Plaintiff filed the underlying action under §502(a)(1)(B) of the Employee Retirement Income Security Act, to challenge the denial of life insurance benefits allegedly owed to her as the beneficiary of her late husband’s employee welfare benefit plan. Defendant had filed a third party complaint against the third party defendant whom moved to dismiss, pursuant to Fed. R. Civ. Proc. 12(b)(6). The court granted dismissal holding that the four documents provided, and the allegations in the third-party complaint pertaining thereto, could not justify a reasonable inference that third-party defendant possessed authority or bore any obligation with respect to any informal plan potentially governing plaintiff’s claims. Consequently, based on the third-party complaint’s allegations, the court must also conclude that no trier of fact could reasonably infer that third-party defendant bore any fiduciary, statutory, or contractual obligation to defendant or plaintiff with regard to any informal plan. Therefore, the court found that defendant had failed to plead sufficient factual content to justify interference that third-party defendant was liable to defendant under any of its theories. Moreover, defendant pointed to no unpled facts that might allow an amended third-party complaint against third-party defendant to withstand a future motion to dismissal and dismissal with prejudice was warranted. Accordingly, any amendment would be futile and the court dismissed the third-party complaint with prejudice. [Filed Oct. 4, 2017]

30-7-4416 T.F.R. v. Morris County Prosecutor’s Office, D.N.J. (Martini, U.S.D.J) (7 pp.) Following a detective’s identification and execution of a search warrant, plaintiff surrendered on charges of robbery and three related offenses. He was detained for several weeks during which time relatives came forward with alibis; the charges were ultimately dropped. Plaintiffs filed the underlying §1983 action alleging fifteen federal and state claims, namely unlawful seizure and prolonged detention. Defendants moved to dismiss on the basis of qualified immunity as well as failure to state a claim and failure to provide facts showing that a specific policy or custom caused plaintiffs’ alleged injuries. The court granted dismissal holding the facts set out in the amended complaint did not permit a reasonable jury to find that the detective detained plaintiff without probable causes. Rather, a probable cause hearing was held wherein the trial judge determined that the evidence was sufficient to detain plaintiff until his trial. That plaintiff was later exonerated did not alter the trial court’s analysis nor does the constitution demand infallibility of law enforcement officers. As such, dismissal of plaintiff’s fourth amendment and due process claims was granted. Moreover, there lacked demonstrative evidence that plaintiff was treated differently on account of his membership in a protected class warranting dismissal of the equal protection count. Finally, the court granted dismissal of the §1983 claim concluding the language in the complaint did not name a specific policymaker or policy statement that caused failure in training or abdication of investigatory function by defendants. Accordingly, the court granted dismissal. [Filed Oct. 3, 2017]

23-7-4425 Ambulatory Surgical Ctr. of Somerset v. Allstate Fire Cas. Ins. Co., D.N.J. (Thompson, U.S.D.J.) (7 pp.) Defendant moved to reconsider the court’s order denying arbitration. Plaintiff Juan Gonzalez underwent surgery for injuries sustained in an automobile accident, which was performed at plaintiff Ambulatory Surgical Center of Somerset. Defendant refused to pay for the surgery because there was no procedure code listed in the New Jersey Auto Fee Schedule. In opposition to defendant’s motion, plaintiffs argued that where there was no listed procedure code the procedure was payable at reasonable rates. Because defendant continued to refuse to pay for procedures performed at ambulatory surgical centers that had no listed procedure codes, plaintiffs sought liability and damages on behalf of the class of individuals insured by defendant who suffered injuries and were entitled to medical benefits, and of the ambulatory surgical centers who performed procedures that defendant refused payment for. In support of its motion, defendant argues that the court erroneously considered the breadth of New Jersey’s deemer statute and determine that the statute incorporated PIP’s dispute resolution provision. Although plaintiffs argued that case law cited by defendant was already considered by the court in denying defendant’s initial motion to compel arbitration, the court granted reconsideration, finding that it failed to consider the underlying purpose of amendments to the PIP arbitration provision or the effect of this purpose on the scope of the deemer statute. Specifically, the court noted that the amendment, which permitted insurers to compel arbitration in addition to insureds, was intended to promote efficient handling of insurance claims. The court held that this implied that the deemer statute incorporated PIP’s dispute resolution provision. [Filed Oct. 5, 2017]

25-7-4419 Mejia v. Blue Bay Enterprises, LLC, D.N.J. (Martinotti, U.S.D.J) (4 pp.) Plaintiffs, who were former employees of defendants, a restaurant and its owner, asserted claims for violations of the Fair Labor Standards Act and the New Jersey Wage and Hour Law, as well as retaliation under state common law. Plaintiffs moved to compel defendants to respond to discovery requests and to appear for deposition sought by an opt-in member of a collective action under the FLSA. Defendants moved to strike as the member missed its court-ordered deadline for filing his consent to join the collective action. In their opposition, plaintiffs provided legal and factual authority in support of permitting the member to file his consent form after the deadline due to the member’s health concerns which caused his five-week tardiness. In granting plaintiffs’ motion, the court noted the parties attempted settlement and, upon a breakdown of talks, any associated prejudice to defendants that might flow from the member’s late entry was substantially reduced. Moreover, the court found the member’s inclusion would neither inflict unfair prejudice on defendants nor meaningfully delay the proceedings. The court found that the member’s delay based on his health concerns, although debatable and within his control, was understandable given his health history and was not an act of bad faith. Accordingly, on balance, the court found plaintiffs have shown good cause to excuse the member’s late filing and denied defendants’ motion to strike. As the member was properly a party to the litigation, defendants were obligated to respond to discovery requests and granted plaintiffs’ motion to compel. [Filed Oct. 6, 2017]

26-8-4420 New Jersey Chinese Community Center v. Township of Warren, 3rd Cir. (Restrepo, U.S.C.J) (7 pp.) Appellants initiated the underlying action against appellee and various municipal officers challenging land-use decisions which they alleged unlawfully prevented them from using their property in the manner they desired. Appellant initially received a variance permitting construction of a single-family residence on his property. Upon transfer of his ownership interest to appellant-Center, appellants sought tax exempt status as it wanted to use the building, among other things, as a student dormitory and for other school functions. The request for occupancy was denied on the basis that the intended usage was inconsistent with the use granted and required a proper use variance be sought. The superior court granted dismissal for failure to exhaust administrative remedies and because appellants had not demonstrated the intention to make conforming use of the property sufficient to justify zoning approval. Prior to the superior court’s disposition of appellants’ appeal, they initiated this civil action. On motion, the district court dismissed the complaint and denied appellant’s motion to reopen. On appeal, the court affirmed holding appellants failed to appeal the denial to the zoning board, and the denial was therefore not appellee’s final determination of appellants’ rights. Moreover, as the superior court noted, appellants never applied for the requested use variance to permit them to use the building for a student dormitory. Accordingly, judicial review of appellee’s denial of appellants’ requested use of their land would be inappropriate because it would prevent appellee the opportunity to render a final decision. [Filed Oct. 6, 2017]

36-7-4426 Hall v. Welch Foods, Inc., D.N.J. (Thompson, U.S.D.J.) (11 pp.) Defendants moved to transfer and plaintiff moved to remand her putative class action alleging defendants engaged in a deceptive marketing campaign to convince consumers that defendants’ Fruit Snacks contained significant amounts of actual fruit and were nutritious and healthy. She asserted breach of warranties, common law fraud, unjust enrichment, violations of the New Jersey Consumer Fraud Act, violations of the Truth in Consumer Contract, Warranty and Notice Act and sought injunctive and declaratory relief. Plaintiff brought her action in New Jersey Superior Court and defendants removed the case pursuant to jurisdiction under the Class Action Fairness Act. Defendants then sought to transfer the action to the Eastern District of New York and plaintiff moved to remand. The parties did not dispute that CAFA’s jurisdictional requirements were met. The court found that the operative complaint at the time of removal defined the class as “persons in New Jersey” and that remand was inappropriate under the mandatory home state exception to CAFA jurisdiction. The court transferred the case to New York because existing litigation there covered plaintiff’s claims. [Filed Oct. 5, 2017]

31-7-4417 Sich v. Pfizer Pharm., D.N.J. (Kugler, U.S.D.J.) (7 pp.) Defendant moved to dismiss plaintiffs’ claim for injuries from defendant’s drug. Plaintiff received an injection of defendant’s drug in his left knee. After he received a second injection, he experienced swelling, rashes, hives and a high temperature. Within a week of that injection he had open debridement, two injections and 17 days of inpatient treatment. He asserted the drug caused his injuries and alleged design defect, failure to warn, manufacturing defects, negligence, and breach of warranties. The court found that plaintiffs’ strict products liability, negligence, breach of implied warranty and loss of consortium claims were subsumed by the New Jersey Products Liability Act. Plaintiffs failed to plead the necessary elements of a design defect claim and did not reach the requisite plausibility requirement for their failure to warn claim. Plaintiffs’ manufacturing defect claim failed because they never explained how the drug differed from the requisite standard or how it was allegedly defective. The breach of warranty claim failed because they never showed any affirmation, promise or description about the product made by defendant nor how the product did not conform to any such promise or description. [Filed Oct. 4, 2017]

57-7-4427 Worrell v. Harshe, D.N.J. (Hillman, U.S.D.J.) (9 pp.) Plaintiffs moved to withdraw their complaint with prejudice. Plaintiffs and defendant were involved in several entities providing mental health services. Plaintiffs’ complaint alleged that defendant accessed plaintiffs’ email accounts without consent to gain a business advantage over plaintiffs. Plaintiffs asserted violations of the Electronic Communications Protection Act and the Stored Communications Act, in addition to claims for libel and slander. After the parties were ordered to engage in electronic discovery, plaintiffs filed the present motion, which was opposed by defendant who alleged that it was an attempt to avoid defendant’s discovery request for production of a computer. The court first noted that case law held that courts had no discretion to deny a plaintiff’s motion to dismiss with prejudice, since granting such a motion would terminate the action and avoid conducting a “useless” trial, unless it was unfair to a defendant to grant dismissal. Defendant argued that he would be prejudiced by dismissal by being unable to obtain discovery, and contended that plaintiffs should be permitted to use dismissal to avoid adverse discovery rulings. The court noted that another court in Alliance for Global Justice v. District of Columbia, 2005 WL 469593, had ruled that permitting plaintiffs to avoid discovery obligations caused undue prejudice to defendants. However, the court distinguished Alliance for Global Justice from the present case, since granting plaintiffs’ present motion would end any further federal action like there was in that case. Thus, because there would be no “second litigation,” nor had defendant incurred any significant expense, nor had the case advanced into a later stage of litigation, the court found that defendant would not be prejudiced by a voluntary dismissal with prejudice. Accordingly, the court granted plaintiffs’ motion. [Filed Oct. 5, 2017]

14-8-4421 U.S. v. Keith Jackson, 3d Cir. (Fuentes, U.S.C.J) (6 pp.) Originally charged alongside seven codefendants for his part in a drug distribution operation, appellant agreed to plead guilty to a single count of conspiracy to distribute heroin. Appellant now challenged both his designation as a career offender under the sentencing guidelines and his within-guidelines sentence of 151 months in prison. As set out in U.S.S.G. §4B1.1(a), a defendant was a career offender if: (1) defendant was 18 or older; (2) committed a crime of violence or a controlled substance offense; and (3) had at least two prior adult felony convictions for crimes of violence or controlled substance offenses. On appeal, the court affirmed holding appellant’s pre-sentence report set forth three prior offenses that might qualify as career offender predicates. The court noted two such convictions were charges under N.J. Stat. Ann. §2C:35-5(a)(1) and (b)(3), a statute that criminalized manufacturing, distributing, or dispensing a controlled dangerous substance, or possession with intent to do the same. The statute fell within the definition of “controlled substance offense” and, therefore, appellant was properly classified as a career offender and subject to the enhanced offense level under the guidelines. Although the sentence was severe, the court affirmed finding that a reasonable sentencing court could have imposed the same sentence for the reasons provided by the district court. Accordingly, the district court’s judgment was affirmed. [Filed Oct. 5, 2017]