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STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE � RIGHT TO FARM 01-2-3507 In re Samaha Farms, App. Div. (per curiam) (7 pp.) The State Agricultural Development Committee’s holding that appellants’ neighbor’s use of a liquid propane cannon as a noise-making device to protect his corn crop from birds is entitled to protection under the Right to Farm Act as a generally accepted agricultural management practice, if used in conformance with conditions imposed by the Monmouth County Agriculture Development Committee and a Department of Environmental Protection, Division of Fish and Game permit, is affirmed. The Monmouth CADB and the SADC, as entrusted under the Right to Farm Act, appropriately considered the impact of the cannon on the local public health and safety and imposed reasonable conditions on its use. [Decided April 11, 2006.] ALCOHOLIC BEVERAGES � LICENSURE 47-2-3494 In the Matter of the Application for Relief, etc., App. Div. (per curiam) (3 pp.) The director of the Division of Alcoholic Beverage Control was required by statute and case law to deny appellant’s application for renewal of its liquor license because the renewal application was not timely filed under N.J.S.A. 33:1-12.13 and appellant further failed to file an application for a new license in violation of N.J.S.A. 33:1-12.18; as a result, the director lacked jurisdiction to grant the relief sought, despite appellant’s arguments that the decision was inequitable because it was not aware of the renewal date and was affirmatively prevented from obtaining that information by the action of the authorizing agency in affixing stamped information physically on the license in the area where its expiration date was displayed. [Decided April 10, 2006.] ARBITRATION � DE NOVO FILINGS 03-2-3519 Davis v. The Brunswick Boat Group, etc., et al., App. Div. (per curiam) (6 pp.) The plaintiff brought this action for damages resulting from a breach in the hull of a boat, but an award was entered in favor of the defendant in the court’s arbitration program. Although plaintiff’s counsel dictated a timely demand for a trial de novo, his secretary did not transcribe it due to a serious accident, resulting coma and ultimate death of a good friend of both the attorney and secretary; in fact, the secretary had power of attorney for the injured man, and was involved in the decision to take him off life support. Nevertheless, the parties engaged in a discovery deposition and also corresponded thereafter, before defendant unilaterally moved for confirmation of the arbitration award. The trial judge did not err in determining that extraordinary circumstances justified relaxation of the 30-day time period here. [Decided April 12, 2006.] AUTOMOBILES � NEGLIGENCE � EVIDENCE � ILLEGAL ALIENS 05-2-3520 Yube v. Birnberg, App. Div. (per curiam) (15 pp.) The court reverses the dismissal of plaintiff’s automobile negligence complaint, with prejudice, for failure to provide discovery � his income tax returns, or a certification to their nonexistence, and an expired automobile insurance policy insuring him prior to, but not at the time of, the subject accident. Plaintiff’s counsel advised the court that plaintiff was an illegal alien, and did not want to incriminate himself or his employer, who apparently paid him off the books; his offer to have plaintiff provide a certification that he had not filed income taxes was rejected by the trial court. The panel notes that plaintiff was not seeking lost wages; therefore, the income information was not even directly implicated. Further, the court’s concern about plaintiff’s identity was not an appropriate reason to dismiss his complaint. Finally, dismissal with prejudice resulted in plaintiff being denied access to the courts based on his illegal alien status, prohibited by Montoya v. Gateway. [Decided April 12, 2006.] BANKING � LEVY � WRONGFUL DISHONOR � SETTLEMENTS 06-2-3521 Konner, et al. v. Hudson United Bank, et al., App. Div. (per curiam) (14 pp.) The trial judge accurately (1) dismissed plaintiffs’ complaint, which sought compensatory and punitive damages as a consequence of an alleged tortious and illegal abuse of a judicial order by the construction defendants; and (2) enforced plaintiffs’ purported settlement with the bank defendant. The construction defendants had sued plaintiffs regarding construction of two homes in Short Hills, which suit resulted in a restraining order being entered against plaintiffs and a levy “hold” being placed on all of plaintiffs’ bank accounts by the defendant-bank, including accounts of the husband and his bus company. The wife moved to modify the restraining order and the judge granted the motion with respect to all accounts except one in the wife’s name, providing that plaintiffs permitted any interfamily monetary transactions to be discoverable. Plaintiffs then sued (a) the bank for wrongful dishonor, negligence and breaches of contract and the covenant of good faith and fair dealing, and (b) the construction defendants for abuse of process and tortious interference with contractual relations. The trial court correctly granted summary judgment to the construction defendants and plaintiffs and the bank entered into settlement discussions. The judge also properly found that a settlement was reached. [Decided April 12, 2006.] CONDEMNATION � EMINENT DOMAIN � REDEVELOPMENT 44-2-3461 Asbury Park Bd. of Education v. City of Asbury Park, et al., etc.; one other caption, App. Div. (per curiam) (11 pp.) The plaintiffs in these consolidated cases challenged ordinances authorizing the acquisition, by eminent domain, of plaintiffs’ properties. In this opinion, the panel affirms the trial court’s grant of summary judgment to the defendants, the municipality and its redeveloper, who intervened in the actions. Inter alia, the panel notes that the Appellate Division recently upheld the validity of the municipality’s waterfront redevelopment plan, tracing the history of the municipality and its various redevelopment efforts. Here, it rejects plaintiffs’ contentions that (1) the prior public-use doctrine bars the municipality’s acquisition of these properties; and (2) reversal is required both because the plaintiff-board of education constitutes an “alter ego” of the state and because Asbury Park is a “special needs” education district under Abbott. [Decided April 6, 2006.] CONSTRUCTION � LIEN LAW � ENTIRE CONTROVERSY 43-2-3496 Dimitrov, et ux. v. Petrus, App. Div. (per curiam) (11 pp.) The lower court properly dismissed plaintiffs’ complaint against defendant on entire-controversy grounds, where plaintiffs (1) failed to properly respond to defendant’s construction lien claim or appear at the arbitration, resulting in a default judgment against them; (2) failed to follow the procedures the court outlined when plaintiffs moved to vacate the judgment � i.e., payment of a fee and filing of the proposed answer and counterclaim within a 10-day period; then (3) filed this action with the identical allegations (defective construction) that were in their proposed counterclaim, while the denial of their motion to file an answer out of time was on appeal. [Decided April 10, 2006.] CONSTRUCTION � PUBLIC WORKS CONTRACTS � SANCTIONS AGAINST CONTRACTOR � LABOR AND WAGE VIOLATIONS 43-2-3522 N.J. Dept. of Labor v. Tri-Plex Industries, Inc., et al., App. Div. (per curiam) (14 pp.) The appellate court affirms the final determination of the commissioner of the Department of Labor that (1) ordered that defendants � a roofing contractor engaged in public construction work, and its CEO � pay a certain amount in wages, $27,500 in administrative penalties, and administrative fees; and (2) barred defendants from performing Economic Authority public work projects for a period of three years, based on the administrative law judge’s finding that defendants had violated several provisions of the Prevailing Wage Act. [Decided April 12, 2006.] CONSUMER PROTECTION � AUTOMOBILES � CONSUMER FRAUD ACT � REMITTITUR 09-2-3508 Dresdner v. Meehan et al., App. Div. (per curiam) (33 pp.) In this products liability and consumer fraud case emanating from an auto accident, in which plaintiff received a verdict on her products liability claim, the judge’s decision to bar a “60 Minutes” segment regarding car-seat safety showing a vehicle sold by Chrysler, but not the model in which plaintiff was riding while injured, is affirmed since it was highly prejudicial and proved none of the elements of plaintiff’s case. The dismissal of the consumer fraud claim, which was based on defendant’s failure to disclose inadequate performance of the seatbacks, is affirmed because plaintiff failed to show that Chrysler intended its silence about the poor performance of its seatbacks to mislead consumers. The orders remitting the judgment to conform to the collateral source rule, that included a ruling that co-payments and deductibles should be treated as insurance premiums, suspending prejudgment interest for the period in which plaintiff’s complaint had been dismissed for discovery violations, and denying prejudgment interest on future economic losses are affirmed. [Decided April 11, 2006.] CRIMINAL LAW AND PROCEDURE � INTERROGATION OF JUVENILE 14-2-3501 State v. Henriques, App. Div. (per curiam) (37 pp.) In this matter where defendant was convicted of the knowing and purposeful murder of a high school classmate, the appellate panel reverses and remands for a new trial, agreeing with defendant that his statements to police must be suppressed because they were the inadmissible fruits of an illegal arrest, without a warrant and without probable cause, and because the subsequent seven-hour police interrogation of defendant without the presence of his parent, along with other circumstances, rendered his statements involuntary. [Decided April 10, 2006.] CRIMINAL LAW AND PROCEDURE � WEAPONS POSSESSION 14-2-3482 State v. Hall; State v. Anderson; State v. Rodney, App. Div. (per curiam) (15 pp.) Defendant Anderson drove co-defendants Hall and Rodney to a park, supposedly to purchase some marijuana. While Anderson waited in the car, Hall and Rodney, with a gun and knife, respectively, robbed a group of young people, fled back to the van and ordered Anderson to drive away, which he did. Although affirming the robbery and weapons possession convictions of Hall and Rodney, the court agrees with Anderson that it was plain error for the trial judge to submit both the unlawful possession of a weapon charge and the possession of a weapon by a convicted felon charge simultaneously to the jury, after the defendant had elected to testify. [Decided April 7, 2006.] DEBTOR/CREDITOR � PROMISSORY NOTES � GUARANTORS 15-2-3498 Viglione, et al. v. Fava, et al. v. Nasery, App. Div. (per curiam) (7 pp.) The court affirms the judgment in favor of the plaintiffs-sellers-note holders and the dismissal of the counterclaim and third-party complaint of the defendant-guarantor in this case arising out of the plaintiffs’ sale of its business assets and realty to defendant, his co-defendant and the third-party defendant (the buyers), as a part of which transaction plaintiffs loaned the buyers $450,000. The trial judge noted that defendant and his co-buyers’ intention to guarantee the debt was set forth in both the financing agreement and the note, and that neither of these guarantees contained any language that created an exception to liability if the designated debt service coverage ratio was not achieved; the SBA clause was inserted in the note as a timing provision to defer payment if the business did not achieve the designated DSCR, but did not absolve the debtor of its obligations, as argued by defendant. [Decided April 10, 2006.] FAMILY LAW � CHILD SUPPORT 20-2-3524 Siegel v. Siegel, App. Div. (per curiam) (11 pp.) Although the Family Part judge correctly found the parties’ income exceeded $150,800, she erred in concluding that she shouldn’t use the guidelines if the parties’ income exceeded that amount. The guidelines must be the beginning point in all child-support determinations, and the court may modify or disregard them if good cause is demonstrated. The judge should have applied the guidelines up to $150,800, and then supplement the guidelines-based award with a discretionary amount based on the remaining family income and statutory factors. [Decided April 12, 2006.] FAMILY LAW � VISITATION � VENUE 20-2-3474 W.L. v. J.W., App. Div. (per curiam) (7 pp.) (1) In light of plaintiff’s prior employment as a Family Court supervisor for the Morris/Sussex vicinage, and defendant’s residence in Sussex County, the trial court did not err in retaining venue in Passaic County, with which neither party had a relationship. (2) The court does find merit, however, in defendant’s objections to the trial court’s changes in plaintiff’s visitation schedule with his daughters. Under the procedure adopted by the judge, the girls will spend a large part of most Saturdays in an automobile. The court did not explore whether supervised visitation could occur under the auspices of Passaic County, but in a location more convenient to the girls’ home. The court is also troubled by the court’s increasing plaintiff’s visitation rights, which he did not ask for, and which result the court did not explain. (3) The court did not abuse its discretion in setting child-support arrearages and counsel fees. [Decided April 7, 2006.] HEALTH � INVOLUNTARY COMMITMENT 22-2-3475 In the Matter of the Commitment of P.D.; In the Matter of the Commitment of J.M., App. Div. (per curiam) (14 pp.) On remand from the Supreme Court for consideration of the merits of these two involuntary commitment appeals, the panel reviews the evidence underlying the commitment of each appellant, and affirms the commitment order as to appellant P.D., but reverses as to appellant J.M. There was sufficient evidence to conclude that P.D. had current substantially impaired judgment and capacity to control his behavior, and that he posed a danger to himself and others within the meaning of the statutes. As to appellant J.M., however, such evidence was lacking; all the doctor could rely on was the charge on which P.D. had been brought to the crisis center, his continual denial of it and “lack of insight” into the inappropriateness of his alleged activity. He was cooperative with the doctor and exhibited no inappropriate behaviors since his hospital admission. Moreover, he was no longer in the doctor’s unit at the time she testified, so she could not testify as to his current mental status. [Decided April 7, 2006.] INSURANCE � STEP-DOWN PROVISIONS � UM/UIM COVERAGE 23-2-3511 Tortorello v. Harleysville Ins. Co., App. Div. (per curiam) (5 pp.) Under the insurance policy issued by defendant to the business partially owned by Mark Totorello, his wife, who was not a named insured, was insured as a family member. The step-down provision in that policy limited underinsured-motorist coverage to the maximum amount of coverage an insured, other than a named insured, has available under any insurance policy in which she is an individually named insured. Applying Pinto v. New Jersey Mfrs. Ins. Co. and Murawski v. CNA Ins. Co., the Appellate Division affirms the grant of summary judgment for defendant. The maximum amount recoverable by plaintiffs under the Harleysville policy would be the difference between the tortfeasor’s $50,000 policy limit and the $100,000 limit of their personal UIM coverage, and since the primary UIM carrier had already tendered its $100,000, less the tortfeasor’s policy limit, plaintiffs have recovered the maximum allowed by the step-down provision of defendant’s policy. [Decided April 11, 2006.] 23-2-3525 American Intl. Ins. Co. of N.J. v. Bailey, App. Div. (per curiam) (10 pp.) The Law Division erred in denying plaintiff’s motion seeking to enforce the step-down provision of the automobile policy purchased by defendant’s mother with respect to an accident in which defendant was injured while driving the mother’s automobile. The defendant-son was not a named insured under the policy, did not reside in his mother’s household, nor was he a named insured under another insurance policy providing underinsured-motorist coverage. The language of the step-down provision is clear and unambiguous, and should have been enforced. The defendant held the status of “any other insured” under the terms of the policy, and was entitled to the minimum statutory uninsured-motorist limits. Since this limit was below the liability limit contained in the tortfeasor’s policy, plaintiff was not underinsured, and therefore, he was not entitled to pursue a claim for UIM benefits. [Decided April 12, 2006.] LABOR AND EMPLOYMENT � DISCRIMINATION 25-2-3512 Suchowacki v. General Motors Corp. et al., App. Div. (per curiam) (17 pp.) Where plaintiff had filed suit alleging gender discrimination and retaliation under the Law Against Discrimination against General Motors, and while that suit was pending GM offered her a One Year Transition Program (OYTP), which allowed certain employees to take a one-year paid leave of absence prior to retiring and which included a release of all pending claims against GM, which she accepted, the trial judge’s finding that she had knowingly and voluntarily signed a release of her Law Against Discrimination claims is reversed. Under the totality of the circumstances, including that she met with GM officials to discuss the OYTP the day after one had been deposed in her LAD suit but no mention was made of the suit, there are substantial questions of whether there was a knowing and voluntary waiver by plaintiff of her discrimination claims or whether the failure to inform litigation counsel or refer to plaintiff’s ongoing litigation unfairly influenced her to bargain away her right to be free from discrimination in the workplace. [Decided April 11, 2006.] 25-2-3513 King v. County of Burlington, App. Div. (per curiam) (5 pp.) Plaintiff, a Black man of Panamanian descent, alleged that the county discriminated against him based on race, national origin and language for not permitting him to rescind his resignation from employment, based on his understanding that two other white employees had been permitted to do so. The Appellate Division affirms the dismissal of the complaint since plaintiff’s argument is based on inadmissible hearsay and failed to demonstrate, as a matter of law, that he was discriminated against. [Decided April 11, 2006.] LABOR AND EMPLOYMENT � UNEMPLOYMENT COMPENSATION 25-2-3462 Johns v. Bd. of Review, etc., et al., App. Div. (per curiam) (3 pp.) Where it was reasonably foreseeable that the voluntary conduct of the claimant � a certified nurse’s aide � would render her unemployable because of the loss of a license that was a prerequisite to the job, then she was properly considered to have left work voluntarily when her own conduct in failing to timely obtain renewal of the license led to the loss of that license. [Decided April 6, 2006.] NEGLIGENCE � PREMISES LIABILITY � INDEPENDENT CONTRACTORS 31-2-3463 Dzabiev, etc. v. Rom, et ux., App. Div. (per curiam) (8 pp.) The defendants hired plaintiff’s husband to paint the interior walls and refinish the wooden floors in their two-unit apartment building. Tragically, in the course of the work, he died after the floor lacquer that he was using exploded when ignited by a stove pilot light, and plaintiff sued. The trial court properly granted summary judgment to the defendants because, although the decedent had no “trappings” of a formal floor-finishing business � no place of business, business phone, cards or vehicle, and no license as a home repair contractor � he had some prior experience refinishing floors, was recommended to defendants by a satisfied customer, purchased and supplied all of his own materials for the floor and had worked for approximately one month and refinished six rooms before the accident happened. Defendants had no control over the work or materials, and decedent never discussed with them any safety precautions regarding pilot lights, gas stoves or ventilation. Thus, the circumstances of his hiring and the manner in which the job was undertaken made him an independent contractor. As the risks were those within the normal dangers incidental to the job undertaken, there was no reason to extend liability to the homeowners. [Decided April 6, 2006.] NEGLIGENCE � SLIP AND FALL � DAMAGES 31-2-3499 Fucci v. James and Megan, Inc., etc., et al., App. Div. (per curiam) (9 pp.) In this restaurant stairway fall-down case, the appellate court affirms the jury verdict that awarded plaintiff $60,000 in damages ($36,000 after molding based on the 60 percent-40 percent comparative fault of the parties), rejecting plaintiff’s contentions that the award does not fairly and justly compensate him for his injuries and that it is so disproportionate to his injuries as to shock the judicial conscience. The trial judge, while admitting that the verdict was “on the light side” and would not have been the one he would have rendered, given the severity of the complaints, length of treatment, diagnosis and prognosis, aptly declined to modify the jury’s determination, and the appellate court agrees. It was within the jury’s prerogative, based on the conflicting medical evidence it heard, to conclude that plaintiff did not adequately demonstrate that his reflex sympathetic dystrophy condition was caused by the fall. [Decided April 10, 2006.] PARENT/CHILD � TERMINATION OF PARENTAL RIGHTS 28-2-3476 N.J. Div. of Youth and Family Svcs. v. S.B.; I/M/O Guardianship of T.S., a Minor, App. Div. (per curiam) (12 pp.) The trial court correctly terminated the parental rights of appellant to her 7-year-old son on a record that included allegations of appellant’s use of marijuana, leaving the child home alone and permitting drug dealers to visit her residence. Although the Division of Youth and Family Services could not substantiate these claims, appellant refused to submit to drug testing, even when ordered to do so by the court, resulting in the child’s removal from the home. Thereafter, appellant was evicted from her apartment, remained unemployed and repeatedly failed or refused to cooperate with DYFS’s attempts to provide her with services and counseling or to participate in drug screenings. Additionally, the child was placed in a number of foster homes, where his “sexualized” behavior led to a psychiatric evaluation concluding that he had suffered several types of maltreatment. Appellant continued to deny her history and shortcomings, and was unable to provide a safe and secure home for her son. [Decided April 7, 2006.] 28-2-3477 Div. of Youth and Family Svcs. v. D.D.; one other caption; I/M/O Guardianship of G.M.D., a Minor, App. Div. (per curiam) (22 pp.) The trial court correctly terminated the parental rights of the married appellants to their 2-year-old daughter on a record that included evidence that (1) the father, a Vietnam veteran, suffers from post-traumatic stress disorder and depression, has attempted suicide on several occasions, and has a history of (a) alcoholism, (b) drug abuse, (c) criminal involvement and (d) domestic violence; and (2) the mother also has a history of substance abuse, mental illness and depression, including her having become suicidal while she was pregnant with this child, and having attempted suicide after the birth. [Decided April 7, 2006.] 28-2-3478 N.J. Div. of Youth and Family Svcs. v. I.F.; I/M/O Guardianship of A.F., a Minor, App. Div. (per curiam) (23 pp.) The trial court correctly terminated the parental rights of appellant to her 1-year-old daughter on a record that included evidence that all three of appellant’s other children were not in her care; that she has a documented history of mental illness and suicidal tendencies; and that her home was found to be filthy and unsanitary, resulting in the child’s removal to foster care when she was 2 weeks old. Appellant was found to be too unstable and disturbed to care for her young child. [Decided April 7, 2006.] 28-2-3526 N.J. Div. of Youth and Family Svcs. v. N.F.; In the Matter of the Guardianship of Q.F., et al., Minors, App. Div. (per curiam) (22 pp.) The trial court correctly terminated the parental rights of appellant to her three children on a record of appellant’s long history with the Division of Youth and Family Services and her inability to parent her children, including evidence of homelessness and/or deplorable living conditions, appellant’s physical abuse of the children and leaving them alone for days and weeks at a time, with her whereabouts unknown, her drug abuse and failing mental health, and inability or unwillingness to better her situation and parenting skills. [Decided April 12, 2006.] PARTNERSHIPS � ORAL AGREEMENTS � REAL ESTATE � CONSTRUCTIVE TRUSTS 02-2-3479 Franco v. 1138 Summit Ave., L.L.C., etc., et al., App. Div. (per curiam) (13 pp.) The appellate panel reverses the lower court’s order granting summary judgment in favor of plaintiff’s son-in-law and the defendant-limited liability company in this action wherein plaintiff sought to impose a constructive trust on six residential apartments and a one-family residence, alleging that he was a 50 percent partner in the LLC, which owned the apartments and had an oral partnership agreement with his son-in-law with respect to the purchase of the house, which was put only in the son-in-law’s name for a variety of reasons, including the financing of the purchase. Reviewing the parties’ competing submissions, the panel concludes that the matter must be remanded for a plenary hearing. Although the trial judge correctly found that there were no written agreements respecting either parcel of property, and that plaintiff’s name did not appear on any deed, partnership agreements are not governed by either the former or the present version of the statute of frauds. In this case, a binding oral agreement of some kind is suggested by the promissory notes and circumstances asserted by plaintiff, sufficient to create genuine issues of material fact and to defeat a motion for summary judgment. [Decided April 7, 2006.] PRODUCT LIABILITY � LADDERS � ROOFING � EXPERT TESTIMONY 32-3-3464 Czyz, et ux. v. JFK Memorial Hospital, et al., Law Div. � Hunterdon Cy. (Buchsbaum, J.S.C.) (18 pp.) The plaintiff, a commercial air-conditioning installer, was injured when he fell from a ladder while descending from the roof of the defendant-hospital, and claimed that the accident was caused when the vinyl sleeve covering the handle of the roof scuttle release mechanism suddenly slipped off the handle, causing him to lose his balance. Plaintiff claimed that defendant Bilco, the manufacturer of the scuttle, was negligent in that the vinyl-sleeved handle was not fit for the intended use, was otherwise defective and caused his fall. He also claimed the defendant Avon, installer of the roof hatch, was negligent for selling and/or installing Bilco’s defective product, and that the hospital was negligent. In this opinion, the court (1) denies Bilco and the hospital’s motions for summary judgment, finding that plaintiff’s expert’s report is not a net opinion, and that plaintiff’s manufacturing defect and inadequate warning claims may be presented to a jury; (2) grants Avon’s motion for summary judgment, because none of the expert reports find negligence on its part, and because it cannot be found strictly liable since Bilco has been identified as the manufacturer of the allegedly defective product; and (3) grants, in part, defendants’ motion to preclude the late supplemental report of plaintiff’s expert, which relies heavily on the report of plaintiff’s investigator, whose involvement in this matter was not even revealed until after the end of discovery. [Decided March 29, 2006.] REAL ESTATE � EASEMENTS 34-2-3528 Leupold v. Brooks, et ux. v. Rutherford, et ux., et al., App. Div. (per curiam) (3 pp.) After a three-day bench trial, the Chancery Division judge aptly found in favor of defendants on plaintiff’s complaint seeking judicial confirmation of his claim to a prescriptive easement over property owned by defendants. Rejecting plaintiff’s assertion that the judge applied the wrong burden of proof, the appellate panel holds that the judge correctly concluded that plaintiff failed to establish the necessary elements for a prescriptive easement. [Decided April 12, 2006.] REAL ESTATE � SPECIFIC PERFORMANCE 34-2-3500 Some v. Shaaban, App. Div. (per curiam) (12 pp.) Because ambiguities in the parties’ real estate contract preclude any certain understanding about its meaning, and because the Chancery Division judge’s declaration of the parties’ contractual rights and obligations preceded the parties’ opportunity to engage in discovery, the appellate panel concludes that the order of specific performance was premature, and is reversed. [Decided April 10, 2006.] REAL ESTATE � SPECIFIC PERFORMANCE � ENVIRONMENTAL REMEDIATION 05-2-3529 Fund v. Fund, etc., et al., App. Div. (per curiam) (17 pp.) Reviewing the history of this real estate transaction, the panel reverses the lower court’s orders denying plaintiff’s motion to declare a contract for the sale of certain real property void and unenforceable, and ordering him to execute the documents required to effectuate the sale of the property and pay certain monies for the environmental remediation of the property. The defendant � the estate of plaintiff’s former co-tenant in common � asserted that plaintiff had attempted to ruin the sale of the subject property from the beginning, including refusing to pay his share of environmental remediation costs, and supporting the tenant’s refusal to provide access to the buyers’ home inspector, appraiser and surveyor. Plaintiff filed an unsuccessful complaint for partition, asserting that the contract was void because the buyers had not timely obtained their mortgage commitment. On plaintiff’s appeal of the lower court’s orders, the panel agrees with plaintiff that the trial judge erred in concluding that (1) he did not have standing in the matter; (2) he did not face a substantial likelihood of harm in the event the sale of property was completed pursuant to the terms of the contract; and (3) he did not have standing to assert a claim for partition. [Decided April 12, 2006.] TAXATION � REAL PROPERTY TAX ASSESSMENTS � CIVIL RIGHTS � FRIVOLOUS CLAIMS 35-2-3481 Amses, et al. v. Borough of Avalon, N.J., et al., etc.; one other caption, App. Div. (per curiam) (20 pp.) These appeals arise from actions brought by various Avalon property owners challenging an increase in their real property tax assessments on the ground that other property owners in the borough were not subject to similar increases and, therefore, did not pay their fair share. Plaintiffs primarily alleged violation of their due process and equal protection rights, and sought both compensatory and punitive damages pursuant to 42 U.S.C. � 1983. The Tax Court judge properly dismissed plaintiffs’ civil rights claims pursuant to General Motors Corp. v. City of Linden, pointing out that plaintiffs had available remedies under state tax laws, and invited consideration of each plaintiff’s complaint as individual tax appeals, but plaintiffs declined this remedy. Because plaintiffs’ persistent � 1983 attacks on the individual defendant-municipal employees were clearly unfounded, and continued even after a frivolous lawsuit notice and dismissal of the � 1983 claims, counsel fees and costs were properly imposed on plaintiffs’ attorneys. [Decided April 7, 2006.] WRONGFUL DEATH � SUDDEN INFANT DEATH SYNDROME � PROXIMATE CAUSE 40-3-3465 Hanson, etc. v. Bridge, et vir., Law Div. � Hunterdon Cy. (Buchsbaum, J.S.C.) (11 pp.) This case arises out of the death of plaintiffs’ 3-month-old daughter, while she was in the care of defendants. The final report of the medical examiner indicated that the child died of “natural causes” from Sudden Infant Death Syndrome, but plaintiffs sued defendants, alleging that the old wooden playpen in which the infant was placed was unsafe and dangerous, with extremely soft and pliable bedding that caused the child’s death when she was placed in the playpen on her stomach to sleep. The court denies the defendants’ motion for summary judgment, concluding that there are genuine issues of material fact as to whether defendants’ acts or omissions increased the risk of harm to the child and whether or not that increased risk was a substantial factor in producing the harm. [Decided March 29, 2006.] FEDERAL COURT CASES BANKING � FEDERAL TRUTH IN LENDING ACT � LIMITATIONS 06-7-3530 McElduff, et al. v. U.S. Bancorp, et al., U.S. Dist. Ct. (Debevoise, U.S.S.D.J.) (6 pp.) The plaintiffs alleged that defendants issued unauthorized credit cards for their accounts to an employee, who forged the individual plaintiff-company principal’s signature on the applications. Although the employee was convicted of fraud and unlawful conversion and ordered to pay approximately $223,000 in restitution, only $62,500 of that money was repaid, and plaintiffs sought the remaining amount from the bank defendants. The court finds that the one-year statute of limitations under the Truth in Lending Act began against each bank when it issued the cards in question. Although it could be argued that the limitations period should have been tolled until plaintiffs discovered the alleged violations, the court concludes that plaintiffs’ failure to discover earlier the alleged violations was due to their own negligence. [Filed April 12, 2006.] CIVIL PROCEDURE � FAILURE TO PROSECUTE 07-7-3483 Johnson-Shavers v. MVM, Inc., U.S. Dist. Ct. (Walls, U.S.S.D.J.) (6 pp.) Weighing the Poulis factors, the court grants defendant’s motion to dismiss, with prejudice, plaintiff’s complaint alleging a violation of Title VII by defendant for discriminatory termination and failure to promote based on her race and gender. Although plaintiff’s counsel passed away, plaintiff took no steps to retain new counsel or prosecute her case for more than 15 months; although she advised the magistrate judge that she was seeking counsel, and was given additional time to do so, she did not, and failed to appear pro se either at a scheduled status conference, or on the return date of the order to show cause set by the judge to give plaintiff an opportunity to show why her complaint should not be dismissed. [Filed April 7, 2006.] CIVIL PROCEDURE � SERVICE � FEDERAL EMPLOYEES 07-7-3484 Zaklama, et ux. v. I.R.S., et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (3 pp.) The court grants the motion of defendant Ianacone � an employee of the defendant Internal Revenue Service � and dismisses plaintiff’s complaint for failure to effectuate proper service. Plaintiff failed to comply with Rule 4(i)(2)(B), which requires a plaintiff suing a federal employee in his or her individual capacity to not only personally serve the employee, but to serve the U.S. Attorney’s Office and the attorney general of the United States as well. [Filed April 7, 2006.] CIVIL RIGHTS � ARREST � EXCESSIVE FORCE � DELIBERATE INDIFFERENCE TO MEDICAL NEEDS 46-7-3468 Davis, etc., et al. v. Twp. of Paulsboro, et al., U.S. Dist. Ct., (Irenas, U.S.S.D.J.) (43 pp.) Summary judgment is granted to the governmental and law-enforcement defendants in this case involving injuries sustained by plaintiffs’ son, who was struck in the head with a bottle during an altercation outside of a nightclub, then fled and antagonistically resisted all efforts of the police and emergency medical personnel to help him. He was ultimately arrested and then taken to the hospital as he had become nonresponsive. He underwent several surgeries, including brain surgery, and was in the intensive care unit for two months. However, he was released and did not die until four years later, of leukemia, ureteral obstruction and renal failure. The court holds, inter alia, that these defendants � the police officers, county, sheriff, sheriff’s officers, municipality, its police department and its police chief � are entitled to summary judgment on the claims of the plaintiffs because, inter alia, (1) there was no evidence of racial animus; (2) there was probable cause to arrest the son; (3) exigent circumstances justified the warrantless entry into the residence where the arrest occurred; (4) the police officers were entitled to qualified immunity; (5) the son was not subjected to excessive force; and (6) the defendants were not deliberately indifferent to the son’s medical needs. In the absence of any constitutional violations, there is also no basis for governmental or supervisory liability. [Filed March 27, 2006.] [Related to DDS No. 31-7-3471 below.] CIVIL RIGHTS � FILING COURT DOCUMENTS � CLERKS OF COURT 46-8-3485 Tucker v. I’Jama, etc.; Tucker v. Doe, etc., Third Cir. (per curiam) (6 pp.) The pro se appellant � currently involuntarily committed at Greystone Hospital � claims that he was deprived of his due process and equal protection rights, and access to the courts, by the defendant-clerks’ failure to file several complaints he had submitted, and failure to notify him of any deficiencies precluding their filing. The circuit panel finds that the District Court erred in dismissing both complaints on the ground that the clerks are absolutely immune from liability. Under the New Jersey rules, and applying Antoine v. Byers & Anderson, Inc., the panel notes that a clerk’s duty to file papers presented for filing is nondiscretionary, and therefore immunity does not attach. [Filed April 6, 2006.] DEBTOR/CREDITOR � FAIR CREDIT REPORTING ACT � FAIR DEBT COLLECTION PRACTICES ACT � OFFER OF JUDGMENT 15-7-3486 Lorenzo v. Palisades Collection L.L.C., et al., U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) The court grants defendants’ motion to dismiss the remainder of plaintiff’s complaint alleging violations of the Fair Credit Reporting Act and Fair Debt Collection Practices Act in defendants’ efforts to collect on plaintiff’s unpaid AT&T cellular phone bill. Plaintiff has no cause of action under subsection (b) of the FCRA since he has failed to show any evidence demonstrating that defendants received a notice of dispute from a consumer reporting agency, as opposed to the consumer himself, as required by the subsection. Moreover, the claim under � 1681b is also dismissed since the record is devoid of any evidence to show that defendants ever obtained plaintiff’s consumer report from any reporting agency, much less for an impermissible purpose. As to the FDCPA claims, the court find that defendants properly verified the debt. Further, even if plaintiff established liability on defendants’ part, the court finds that he suffered no actual damages as a result. Finally, even if plaintiff were to prevail on his claims, the court agrees with defendants that he could not recover any more than defendants had offered in their offer of judgment, which plaintiff refused. [Filed April 5, 2006.] EDUCATION � TENURE AND EMPLOYMENT ISSUES � ATTORNEYS’ FEES � FRIVOLOUS LITIGATION 16-7-3532 Moran v. Southern Regional High School Dist. Bd. of Education, et al., U.S. Dist. Ct. (Chesler, U.S.D.J.) (17 pp.) Plaintiff � a tenured employee of the defendant-school district for 17 years � agreed to voluntarily resign in the face of sexual harassment allegations; he also agreed in consideration for payment of $200,000 to release the district and its agents or employees from any claims he might have arising from his employment or its severance, and not to make any public comment on the terms of the parties’ settlement agreement. Later, the newspaper published an article about plaintiff’s resignation and the settlement terms. Plaintiff claimed that the article constituted a breach of the settlement, and declared the agreement void, withdrawing his resignation. The district sought to enforce the agreement, and a consent judgment was entered into acknowledging the validity of the agreement but preserving claims for past breach. Although the district dropped its specific-performance claim, plaintiff’s counterclaims � alleging, inter alia, breach of contract, wrongful termination, violation of privacy rights, disparate treatment and various constitutional violations � remained viable in the Law Division. Plaintiff then filed this federal case reciting many of the same claims being litigated in the state case. Defendants successfully obtained dismissal of these duplicate claims and sought attorneys’ fees under the frivolous-litigation statute. In this opinion, the court grants the application for attorneys’ fees, discussing plaintiff’s claims and concluding that they were brought without adequate legal foundation. [Filed April 11, 2006.] INSURANCE � RENTAL CARS � JURISDICTION 23-7-3534 Empire Fire & Marine Ins. Co. v. Bennett, et al., U.S. Dist. Ct. (Brown, U.S.D.J.) (7 pp.) The movant was a passenger in a car rented by defendant Bennett, when they were involved in a one-vehicle accident. Bennett had purchased, at the time of rental, supplemental liability protection issued by plaintiff Empire. After the accident, Bennett was cited for driving while intoxicated and movant asserted a personal-injury claim against Empire, which formally disclaimed coverage and filed this declaratory judgment action seeking a determination that it had no duty to provide coverage because of a policy exclusion for any accident occurring when the renter or authorized driver was under the influence. The District Court agrees with movant that, under applicable case law, where pertinent state law is uncertain or undetermined, as here, district courts should be particularly reluctant to entertain declaratory judgment actions. The court, therefore, declines jurisdiction over this declaratory judgment action. [Filed April 10, 2006.] INTELLECTUAL PROPERTY � TRADEMARK INFRINGEMENT 53-7-3514 Lazzaroni USA Corp. v. Steiner Foods et al., U.S. Dist. Ct. (Greenaway, U.S.D.J.) (17 pp) Plaintiff’s application for a preliminary injunction enjoining defendant from infringing its trademarks by using them in connection with importing, selling, distributing or advertising its macaroons imported from Italy is granted. The trademarks “Amaretti di Saronno” and “Lazzaroni” have incontestable status and defendant has failed to show a likelihood of success in proving that the former should be cancelled for geographic deceptiveness, is generic or has been abandoned. Further, use of the latter on the packaging is likely to cause confusion and is not a fair use. Thus, plaintiff has shown a likelihood of success on the merits and irreparable harm by defendant’s conduct. Considering these factors and the public interest, all factors weigh in favor of granting the application. [Filed April 11, 2006.] JURISDICTION AND VENUE � FORUM NON CONVENIENS 24-8-3488 The Technology Dev. Co., Ltd. v. Onischenko, Third Cir. (Roth, U.S.C.J.) (13 pp.) The plaintiff sued defendant, a New Jersey attorney who represented the plaintiff in its work from Russia in seeking to develop and commercialize a product for oral delivery of insulin and gene cell therapies. Plaintiff alleged that, after plaintiff refused defendant’s demand for an equity position in the company, he made good on threats to derail its projects, interfering with its ability to get patents and its negotiations with New Jersey drug companies, alienating consultants and stealing books and operating funds from the Moscow office. The District Court granted defendant’s motion to dismiss on the ground of forum non conveniens, making a conclusory statement that “well established” case law demonstrated the adequacy of the Russian courts for commercial and tort law cases. The circuit panel holds that the District Court abused its discretion in dismissing plaintiff’s complaint, by failing to properly address the forum non conveniens jurisprudence of the Supreme Court and the Third Circuit. In view of plaintiff’s opposition to the alternate forum, the District Court did not sufficiently discuss or determine its adequacy; nor did it address the issue of the proper level of deference to be afforded plaintiff’s forum selection. The circuit panel is also concerned that the District Court may not have applied the proper standard in weighing the private and public interest factors. Therefore, the dismissal order is vacated and the matter is remanded for reconsideration based on the existing record. [Filed April 5, 2006.] LABOR AND EMPLOYMENT � ARBITRATION � REASSIGNMENT � TRAVEL TIME 25-7-3504 U.S. Postal Service v. American Postal Workers Union, AFL-CIO, U.S. Dist. Ct. (Thompson, U.S.D.J.) (3 pp.) The court grants the defendant-union’s motion for summary judgment and dismisses plaintiff’s complaint seeking to vacate a labor arbitration award that found plaintiff had violated the parties’ collective-bargaining agreement when it refused to pay for travel time to employees who were reassigned to temporary duty stations following the temporary closing of the Trenton Processing and Distribution Center due to anthrax contamination. The arbitrator did not alter the parties’ agreement when he concluded that plaintiff had not changed the official duty station for the reassigned employees. [Filed April 7, 2006.] LABOR AND EMPLOYMENT � ATTORNEYS’ FEES � WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT 25-7-3515 Bell v. Plymouth Rock Transportation Corp. et al., U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Based on United Steelworkers of America v. North Star Steel Co., defendant, as the prevailing party in this action, was awarded attorneys’ fees under the Worker Adjustment and Retaining Notification Act. However, the court now vacates that award and adopts the standard articulated in Solberg v. Inline Corp., holding that when a defendant prevails, it is entitled to counsel fees only if the suit was frivolous, unreasonable or without foundation, which was not the case here. [Filed April 10, 2006.] LABOR AND EMPLOYMENT � ERISA � TERMINATION OF BENEFITS 25-7-3516 Hug v. The Union Central Life Ins. Co., U.S. Dist. Ct. (Debevoise, U.S.D.J.) (18 pp.) Plaintiff’s claim, that defendant improperly terminated disability benefits under an employee welfare program that were being paid to her based on her claim that she was totally disabled because of post-traumatic stress syndrome due to work-related stress, is rejected. The benefits were paid initially based on the diagnosis of her treating physician but the ensuing investigation gathered much more information that brought into questions the validity of her claim and the termination was fully justified, particularly since, despite the passage of five years, she has not obtained an appropriate frequency of treatment. [Filed April 10, 2006.] LABOR AND EMPLOYMENT � FAMILY AND MEDICAL LEAVE ACT 25-7-3535 Brown v. Bear Creek Assisted Living, L.L.C., U.S. Dist. Ct. (Brown, U.S.D.J.) (7 pp.) The court grants summary judgment to the defendant-assisted-living facility on plaintiff’s complaint alleging that defendant, her former employer, violated the Family and Medical Leave Act by denying her right to medical leave and terminating her for exercising that right. Inter alia, plaintiff has not submitted sufficient evidence that she gave notice of her intention to take FMLA leave while she was still employed by defendant, as was required to make out a prima facie case. [Filed April 11, 2006.] NEGLIGENCE � HOSPITALS � EMERGENCY MEDICAL TREATMENT 31-7-3471 Davis, etc., et al. v. Twp. of Paulsboro, et al., U.S. Dist. Ct. (Irenas, U.S.S.D.J.) (15 pp.) Summary judgment is granted to the medical defendants � the doctor, the emergency-room services provider and the hospital � on the plaintiff-parents’ claims under the federal Emergency Medical Treatment and Active Labor Act in this case involving emergency medical treatment given to their son, who was struck in the head with a bottle during an altercation outside of a nightclub, later arrested and brought in by the police. The doctor and the emergency-room services provider are entitled to judgment because the act provides a private right of action only against hospitals. The hospital is entitled to judgment because the plaintiffs’ expert’s opinion of inadequate medical treatment fails as a matter of law. Further, the court reviews the act’s “key requirement” of “appropriate medical screening” � a term not yet interpreted in the Third Circuit � and notes that other circuits require a hospital to screen emergency-room patients uniformly, without regard to insurance or the ability to pay. Here, the plaintiffs did not establish that the hospital treated their son differently than any other patient who came to the emergency department with similar injuries and symptoms. [Filed March 27, 2006.] [Related to DDS No. 46-7-3468 above.] PENSIONS � FAILURE TO MAKE TIMELY CONTRIBUTIONS � DAMAGES 56-7-3505 Laborers Intl. Union of N.A., etc., et al. v. R.E. Pierson Contracting Co., U.S. Dist. Ct. (Kugler, U.S.D.J.) (10 pp.) The court enters judgment for plaintiffs � multi-employer benefit funds and their trustees � agreeing that the defendant-employer violated the parties’ collective-bargaining agreement by neglecting to make timely contributions to the funds; and further finding that this violation subjects defendant to the ramifications of the agreement’s 10 percent liquidated damages charge for all late payments. However, the court denies plaintiffs’ demand for attorneys’ fees because their submissions do not meet the requirements of the local rules and therefore plaintiffs have not met their burden of establishing reasonableness of the amount claimed. [Filed April 7, 2006.] PUBLIC EMPLOYEES � ADMINISTRATIVE PROCEDURES � GOVERNMENTAL IMMUNITY 33-7-3472 O’Brien, etc. v. State of N.J., U.S. Dist. Ct. (Brown, U.S.D.J.) (5 pp.) This matter arises out of plaintiff’s termination from his position as a firefighter. His request for interim relief was denied by the Merit System Board because he failed to appear at the hearing, and his subsequent appeal was deemed untimely. Plaintiff filed this suit alleging a violation of his constitutional rights by the defendant’s negligence in allegedly holding the hearing 10 months before he filed his appeal; he sought a waiver of the time limitation on his appeal; vacation of the final determination of the Department of Personnel; and damages against the defendant. Under the Eleventh Amendment, nonconsenting states may not be sued by private individuals in federal court, unless the matter is governed by Ex Parte Young, which allows such suits if they seek prospective injunctive relief to proceed only against state officials acting in their official capacities. Since plaintiff alleges a past violation of federal law and seeks retrospective relief, his suit is barred and the defendant’s motion to dismiss is granted. [Filed April 5, 2006.] PUBLIC EMPLOYEES � CIVIL RIGHTS 33-7-3517 Francis v. Joint Force Headquarters et al., U.S. Dist. Ct. (Kugler, U.S.D.J.) (17 pp.) In this action by a former federal military technician with the New Jersey Army National Guard alleging harassment, discrimination and retaliation for a complaint filed with the Equal Employment Opportunity Commission, plaintiff’s complaints against her union and several of its officers alleging a failure to represent her are dismissed since federal employees have no private cause of action against a union or its officers for breach of the duty of fair representation. Her complaints against the individual defendants are dismissed for insufficient service where she served them at their places of employment and there is no evidence that they received the mail. To give her an opportunity to litigate her complaints, the secretary of the Department of the Army will be substituted for defendant National Guard Bureau and the Joint Force Headquarters and plaintiff is ordered to also serve the United States attorney and the attorney general. Her motion to amend her complaint is denied for futility and for noncompliance with local civil rules. [Filed April 10, 2006.] SECURITIES � INJUNCTIVE RELIEF � DISGORGEMENT � PENALTIES 50-8-3489 S.E.C. v. Johnson, Third Cir. (per curiam) (9 pp.) Concluding that the evidence against defendant supports a finding of knowing and reckless violation, and that the judge did not err in instructing the jury, the circuit panel affirms the order of the District Court granting permanent injunctions, ordering disgorgement and imposing civil monetary penalties � with one modification � following a jury verdict in favor of the plaintiff Securities and Exchange Commission in this securities fraud civil law enforcement action, alleging that defendant caused his company to file two SEC registration statements that contained numerous misrepresentations and omissions; issued false and misleading press releases; and traded on inside information. [Filed April 5, 2006.] TORTS � SPOILATION � THIRD-PARTY PRACTICE 36-7-3518 Saksa-Mydlowski v. Ford Motor Co., U.S. Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) In this action arising out of a single-car rollover accident, in which Ford’s motion for summary judgment based on spoliation of the car (where it was sold at auction and then salvaged) was dismissed, Ford’s present motion to file a third-party complaint alleging negligence stemming from the destruction of the car is dismissed. No New Jersey case has held that an insurer has a duty to a party not its insured to preserve evidence in its possession when it knows of the potential for litigation and New Jersey courts have not chosen to extend the state’s law to permit a tort defendant to bring a claim of negligent destruction of evidence against a third party. This court will not do so. The third party owed no duty to Ford to preserve the car. [Filed April 10, 2006.] WORKERS’ COMPENSATION � LONGSHORE AND HARBOR WORKERS COMPENSATION ACT � ADMIRALTY 39-8-3490 Goldsmith v. Swan Reefer A.S., et al., Third Cir. (Brody, U.S.D.J., sitting by designation) (14 pp.) Plaintiff, a longshoreman employed by a stevedore company hired by terminal operator Del Monte, was injured while unloading cargo from a ship owned by defendant Swan Reefer. The panel affirms the District Court’s grant of summary judgment (1) to Swan Reefer, on the grounds that plaintiff has failed to produce any evidence that would support imposing a duty on this defendant’s part to intervene for his safety under � 905(b) of the LHWCA; and (2) to the defendant Del Monte because plaintiff has failed to create a triable issue that Del Monte breached a duty of care it owed him under federal maritime law. [Filed April 6, 2006.]

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