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STATE COURT CASES ADMINISTRATIVE LAW � MOTOR VEHICLE FRANCHISE RELOCATION 01-2-6116 Open Road of Edison, Inc., etc. v. BMW of North America, et al., App. Div. (per curiam) (4 pp.) The court affirms the final decision of the Motor Vehicle Franchise Committee disallowing petitioner’s protest against the proposed relocation from Lebanon to Bridgewater of respondent Hunterdon Motors Inc., a relocation that was approved by respondent BMW of North America. [Decided Jan. 11, 2007.] ARBITRATION � BUSINESS VENTURES � CONTRACTS � FRAUD 03-2-6133 Q Capital Corp., et al. v. Wilmington Trust Co., etc., et al.; one other caption, App. Div. (per curiam) (12 pp.) This case arose out of a failed business venture in which the defendant-investors financed plaintiffs’ business of purchasing receivables. Defendant-appellant Engler was the executive vice president and chief operating officer of plaintiff Q Capital. A concerned defendant Wilmington Trust conducted an audit and found that Q had improperly retained $11.6 million in payments to which it was entitled, along with other irregularities, and terminated the contract. Cross-complaints were filed, and the parties agreed to submit their dispute to binding arbitration. The arbitrator, a retired judge, found in favor of Wilmington Trust and its related entities on all of the fraud and breach-of-contract claims, and awarded more than $22.2 million, plus more than $3.6 million in counsel fees. The arbitrator also found that the Q parties failed to establish their claims, and dismissed them. Rejecting Engler’s contentions on appeal, the panel affirms, concluding, inter alia, that appellant’s interpretation of the economic-loss doctrine and its application to this case is without merit. [Decided Jan. 12, 2007.] ARBITRATION � DE NOVO TRIAL DEMANDS � CIVIL RIGHTS 03-2-6167 Williams v. The May Dept. Stores Co., Inc., etc., App. Div. (per curiam) (5 pp.) The plaintiff was arrested by a security guard at defendant’s Strawbridge’s Department Store in Cherry Hill, and was confined in jail for 11 days prior to her release on bail. After she was acquitted by a jury, she filed this suit for false imprisonment, malicious prosecution and violation of her civil rights, but the arbitrator at the nonbinding arbitration hearing found no cause for action. Although plaintiff’s counsel filed a timely demand for a trial de novo, she did not serve her adversary, and the defendant successfully moved for confirmation of the no-cause award. Since the express language of R. 4:21A-6(b)(1) requires both filing and service within 30 days of the entry of the arbitration, and since there was no substantial compliance with the rule, the Law Division judge did not abuse her discretion in refusing to relax the rule. She aptly denied plaintiff’s motion to vacate the earlier order striking her de novo demand and confirming the arbitration award of no cause. [Decided Jan. 17, 2007.] AUTOMOBILES � NEGLIGENT ENTRUSTMENT 05-3-6151 Riungu v. Estate of Peralta, et al., Law Div. � Middlesex Cy. (Williams, J.S.C.) (5 pp.) In this automobile negligence case, the court denies defendant Ana Peralta’s motion, rejecting her contention that she is entitled to summary judgment because, although she had given permission to her brother, the decedent Juan Peralta, to drive her automobile on New Year’s Eve, he was not acting as her agent or employee. There exist genuine issues of material fact as to whether defendant’s entrustment of the vehicle to her brother was negligent under the circumstances, where it appears that defendant knew her brother was leaving to celebrate the holiday at clubs and bars; he had fallen asleep at the wheel before; and his license had been suspended. [Decided Jan. 12, 2007.] CIVIL PROCEDURE � CREDIBILITY � EVIDENCE 07-2-6152 Dobriner, et ux., et al. v. El Campesino Farmers Mkt., Inc. v. Superfresh, Inc., App. Div. (per curiam) (5 pp.) The court affirms the judgment entered, following a bench trial, in favor of defendant, rejecting most of plaintiffs’ contentions of error. Central to the judge’s findings of fact and conclusions of law, set forth in articulate detail in a 25-page written opinion, was a finding that plaintiff’s primary witnesses were not credible. As she was in the best position to make such a determination based on her opportunity to see and hear the witnesses, the court will not disturb her findings. Although the court does agree with plaintiffs that two letters written by defense counsel were improperly admitted into evidence, it does not find that the error requires reversal, as the judge’s opinion indicates that she did not consider any fact stated in the letters for its truth; rather, she used them to evaluate plaintiffs’ credibility. [Decided Jan. 16, 2007.] CIVIL PROCEDURE � FRIVOLOUS LITIGATION � RELIEF FROM JUDGMENT 07-2-6153 Sun Sushi, Inc. v. Deng, et al. v. Kimm, App. Div. (per curiam) (4 pp.) The trial judge did not err in denying defendant Yu’s motion to vacate an earlier order providing that he pay third-party defendant Kimm $5,085 in counsel fees based on the judge’s finding that he filed a frivolous third-party complaint. Yu and Kimm were both attorneys involved in an aborted sale of plaintiff Sun Sushi’s business to Yu’s client, Deng. When Sun Sushi sued Deng and Yu for breach of contract, Yu filed his third-party complaint against Kimm, attorney for Sun Sushi. The trial judge dismissed Yu’s claims, and Yu did not appeal, nor did he seek reconsideration. On the current motion, the judge found that he had not met any of the requirements for relief from judgment under R. 4:50-1. [Decided Jan. 16, 2007.] CONSTRUCTION � CONTRACTS � EXCAVATION 43-2-6168 Richard Samaha Excavating, Inc. v. Craftmark Corp., et al., App. Div. (per curiam) (9 pp.) The plaintiff contracted with defendant to clear, excavate and grade defendant’s site, install water and sewer lines, and pave certain portions of the land in connection with defendant’s plans for development of a condominium project. When defendant failed to pay certain invoices, plaintiff threatened to stop work, and ultimately sued. Plaintiff hired a subcontractor to install the storm water system, including manholes; there was apparently a problem with a manhole separating from the drainage pipe, which was redesigned by defendant’s engineer, and reinstalled by the subcontractor. The defendant counterclaimed for alleged damages in connection with the defective manhole. The court here affirms the entry of a $57,080 judgment in favor of plaintiff on its invoices, and the dismissal of defendant’s counterclaim. The court aptly found that defendant only began complaining about the quality of the work after the litigation commenced; that defendant had wrongfully withheld payment; and that plaintiff was entitled to stop work. Additionally, the court concluded that defendant failed to prove that plaintiff, as opposed to defendant’s own surveyor, was responsible for the alleged problems with the original manhole. [Decided Jan. 17, 2007.] CONTRACTS � BUSINESS SALES � BROKER’S COMMISSIONS 11-2-6169 Dickman Business Brokers v. Advanced Metal Processing, Inc., etc., App. Div. (per curiam) (10 pp.) Defendant entered into an exclusive listing agreement with the plaintiff-broker for the sale of its business, but plaintiff did not produce a buyer prior to the expiration of the listing agreement, which was not renewed; however, during the period of the agreement, defendant’s principal entered into discussions with one of his customers, who ultimately took over defendant’s business and employed the principal. The trial court found that plaintiff was entitled to the full commission under the circumstances, because the principal had “subverted” the listing agreement for his own benefit. [Decided Jan. 17, 2007.] CRIMINAL LAW AND PROCEDURE � AGGRAVATED ASSAULT � LESSER-INCLUDED OFFENSES 14-2-6122 State v. D.C.M., App. Div. (per curiam) (11 pp.) The defendant was convicted of second-degree aggravated assault and acquitted of second-degree endangering the welfare of a child, stemming from two incidents involving his daughter, then 9 months old. The appellate panel reverses because the trial judge failed to charge the jury with respect to two lesser-included offenses: third-degree aggravated assault and simple assault. Although defense counsel did not request such instructions, in the view of the panel it was plain error not to include them. [Decided Jan. 11, 2007.] CRIMINAL LAW AND PROCEDURE � DRUG DISTRIBUTION � EXPERT TESTIMONY 14-2-6123 State v. Pleasant, App. Div. (per curiam) (11 pp.) The appellate court reverses the defendant’s conviction for heroin distribution and heroin distribution in a school zone, agreeing with defendant that it was plain error for the judge to permit expert testimony in this straightforward street drug distribution case, where the police observed the actual transaction. The expert’s testimony here exceeded the purpose for which such testimony is permitted, and much of it was inadmissible and unnecessary to assist the jury’s understanding of the evidence or any issue in dispute. [Decided Jan. 11, 2007.] CRIMINAL LAW AND PROCEDURE � ROBBERY AND AGGRAVATED ASSAULT � LESSER-INCLUDED OFFENSES 14-2-6125 State v. Ruffin, App. Div. (per curiam) (9 pp.) The defendant was acquitted of second-degree robbery and third-degree theft, but convicted of third-degree aggravated assault. The appellate panel reverses, agreeing with defendant that the trial judge’s refusal to instruct the jury with respect to the lesser-included offense of simple assault deprived him of a fair trial. [Decided Jan. 11, 2007.] CRIMINAL LAW AND PROCEDURE � SEARCH AND SEIZURE 14-2-6126 State v. Sessler, App. Div. (per curiam) (7 pp.) On the state’s appeal of the Law Division order granting defendant’s motion to suppress evidence seized from his home as a result of a warrantless search, the appellate panel affirms, agreeing with the trial judge’s conclusion that exigent circumstances were not present because defendant had made no threatening movements and had not acted in any way that might indicate he meant to harm the officers who came to question him about his allegedly making terroristic threats to another, and possessing a rifle. Defendant answered the door in only his underwear and socks, and despite the fact that the officers observed weapons in the room behind defendant, there is no indication that he attempted to retrieve any of them while in the presence of the police, or issued any threat to the officers. [Decided Jan. 11, 2007.] CRIMINAL LAW AND PROCEDURE � SENTENCING 14-2-6143 State v. Hines, App. Div. (per curiam) (9 pp.) Although the trial judge appropriately rejected the state’s argument that defendant had been sentenced to a mandatory extended-term sentence, he mistakenly exercised his discretion when he granted defendant’s motion for a change of sentence under R. 3:21-10(b)(1) and released him to an outpatient drug rehabilitation program. Although defendant did make progress through a “Second Chance” program while in custody awaiting sentence, the appellate panel is unable to agree with the trial judge that the record and his progress warranted the extraordinary relief he received. [Decided Jan. 12, 2007.] ENVIRONMENTAL LAW � WATER POLLUTION � JURISDICTION 17-2-6154 Stahl v. Barresi, App. Div. (per curiam) (17 pp.) In this dispute involving the use of defendant’s real property and the effects of that use on plaintiff’s adjacent tract, plaintiff asserted the right to sue under the Environmental Rights Act (ERA) and sued defendant alleging violations of the Water Pollution Control Act, the Freshwater Wetlands Protection Act (FWPA), trespass, nuisance and breach of an easement agreement. The lower court noted that defendant had filed an application with the Department of Environmental Protection for an FWPA permit, and that plaintiff’s claim under the FWPA should be remanded to the DEP for consideration with the permit application, since it had primary jurisdiction over the application; the balance of the complaint was dismissed without prejudice. The appellate panel agrees with plaintiff that the trial court erred in dismissing his complaint. Although the DEP may have taken some action in this case, a private cause of action may still lie if the DEP’s efforts can be demonstrated to have been insufficient. [Decided Jan. 16, 2007.] FAMILY LAW � CHILD SUPPORT 20-2-6170 Ortiz v. Fiore-Ortiz, App. Div. (per curiam) (7 pp.) The Family Part judge did not err in reducing the plaintiff-father’s child-support obligation from $2,000 per month to $199 per week, even though plaintiff himself had not established a change in his circumstances. Where the original child-support award was based on plaintiff’s earning $50,000 per year and defendant’s earning $0, but defendant had obtained employment earning $750 gross per week, the judge properly concluded that the reduction was warranted, and the judge recalculated plaintiff’s obligation pursuant to the guidelines. [Decided Jan. 17, 2007.] FAMILY LAW � CHILD SUPPORT � COLLEGE EXPENSES 20-2-6155 Dahms v. De Santo, App. Div. (per curiam) (10 pp.) The defendant was entitled to a plenary hearing and a complete Newburgh analysis from the trial judge, therefore the order directing her to pay a proportionate share of her estranged daughter’s college tuition is reversed and the matter remanded for further proceedings. Of particular concern is the trial judge’s failure to consider defendant’s limited financial resources; the impact defendant’s estrangement from her daughter had on plaintiff’s decision to exclude defendant from any meaningful discussion about the daughter’s education prospects; the root factors that led to the breakdown of the relationship, and any exacerbation by defendant’s post-separation conduct; and the lack of evidence showing the parties’ agreement to pay for the daughter’s college education. [Decided Jan. 16, 2007.] 20-2-6171 Miller v. Miller, App. Div. (per curiam) (4 pp.) The appellate court notes that, although the parties’ property settlement agreement is not clear and unambiguous on its face with respect to the defendant-father’s obligation to pay his son’s college costs, it nevertheless disagrees with the trial judge’s conclusion that, because the PSA explicitly spells out, in one paragraph, dealing with summer camp, that “tuition” includes room and board, the unmodified word “tuition” in another paragraph must be read to have the same meaning for purposes of defendant’s college cost obligation. The order requiring defendant to pay tuition, room and board is reversed and the matter is remanded for further proceedings. [Decided Jan. 17, 2007.] FAMILY LAW � CHILD SUPPORT � COLLEGE EXPENSES � EQUITABLE DISTRIBUTION 20-2-6172 Velamati v. Kolluru, App. Div. (per curiam) (19 pp.) The court affirms in part, and remands in part on the parties’ cross-appeals from several orders in this matter with a contentious 10-year history of post-divorce litigation, holding that (1) the trial judge should have held a plenary hearing with respect to plaintiff’s motion regarding the children’s college expense arrears; (2) the judge did not abuse his discretion in addressing the cross-requests for counsel fees, or in imposing a sanction on plaintiff for disobeying a prior court order; and (3) the judge did not err in denying defendant’s request to modify his equitable distribution of the marital residence. [Decided Jan. 17, 2007.] FAMILY LAW � DOMESTIC VIOLENCE 20-2-6117 Perito v. Negron, App. Div. (per curiam) (15 pp.) The judge properly considered the history of domestic violence in the parties’ dating relationship and entered a final restraining order against defendant, a police officer who had been suspended with respect to a prior domestic-violence incident involving plaintiff, and who advised plaintiff that he had not turned in his gun as required. In addition to hitting her and making threats, defendant followed plaintiff and her daughter everywhere, and she understandably felt threatened because she knew he was armed. Although the judge found that the incidents underlying this complaint � defendant’s following plaintiff and her daughter to two department stores � did not constitute harassment in and of themselves, on the record of defendant’s prior behavior, it showed that defendant was engaging in a pattern of hostility and abuse that justified entry of the FRO. [Decided Jan. 11, 2007.] FAMILY LAW � LIFE INSURANCE � ESTATES 20-2-6173 Weiss, etc. v. Estate of Robinson, Deceased, App. Div. (per curiam) (6 pp.) The trial judge did not err in granting plaintiff’s motion to enforce the dual final judgment of divorce by entering a judgment of $300,000 against the defendant � the estate of the late husband � for his failure to provide a viable life insurance policy in that amount for the benefit of the parties’ unemancipated daughter, notwithstanding the fact that defendant’s estate had a pending coverage suit against the insurer. [Decided Jan. 17, 2007.] FAMILY LAW � SETTLEMENTS 20-2-6134 McCormick v. Maccia, App. Div. (per curiam) (5 pp.) The parties agreed to settle the equitable distribution aspect of their matrimonial dispute and developed a handwritten “Outline of Settlement”; however, defendant-husband refused to sign formal settlement papers, and each party moved to enforce his or her version of the settlement. After conducting an evidentiary hearing, the Family Part judge enforced the plaintiff-wife’s version, and divorced the parties. In this opinion, the court rejects defendant’s appeal of the trial court’s denial of his applications to rescind the settlement, grounded in the subsequent disbarment � by consent, due to active alcoholism � of the attorney who represented him in the settlement negotiations. The judge properly relied on the fact that defendant, a college-educated businessman, testified regarding the settlement at the plenary hearing and stated that he was satisfied with his attorney; the judge rejected defendant’s contention that he misunderstood the finality and effect of the settlement agreement. [Decided Jan. 12, 2007.] INSURANCE � PIP � LIMITATIONS 23-2-6136 Gonzalez, et vir. v. AIG Centennial Ins. Co., etc., et al., App. Div. (per curiam) (5 pp.) The court below justifiably dismissed plaintiffs’ personal injury protection complaint as time-barred, where the present action was brought more than seven years after the accidents in question, and more than two years after the last PIP payments were made by the carriers. The appellate panel rejects plaintiffs’ assertion that the statute-of-limitations defense had been waived by defendant AIG because a stipulation of dismissal in a prior PIP action against Colonial Penn Ins. Co., AIG’s predecessor, preserved plaintiff’s right to re-open this claim for future medical benefits. [Decided Jan. 12, 2007.] INSURANCE � UNDERINSURED-MOTORIST BENEFITS 23-2-6156 Zalk, et vir. v. One Beacon Ins. Co., App. Div. (per curiam) (10 pp.) Following plaintiff’s automobile accident, the parties disputed whether plaintiff was required under Longworth to first exhaust the tortfeasor’s liability policy before proceeding to UIM arbitration, or whether she could settle for less than the tortfeasor’s policy limits before proceeding to arbitration, crediting the difference between the settlement amount and the policy limits against her UIM claim. When plaintiff finally sued to compel defendant to arbitrate her UIM demand, the defendant-carrier moved for summary judgment, asserting that the complaint was time-barred. The Law Division judge agreed, concluding that defendant’s written denials would control over plaintiff’s counsel’s verbal representations of the defendant’s agreement to arbitrate, and dismissed her complaint. The appellate court concludes that the issue is not whether the claim was time-barred, but whether or not the parties had reached a settlement within the limitations period by agreeing to arbitrate the claim, subject only to resolution of the disputed issue. As to plaintiff’s argument that she was lulled into not filing the complaint by the carrier’s actions and ongoing negotiations, a factual issue existed sufficient to defeat defendant’s summary judgment motion. [Decided Jan. 16, 2007.] INSURANCE � UNINSURED-MOTORIST COVERAGE � CARJACKING 23-2-6118 Pohlod v. N.J. Mfrs. Ins. Co., et al., App. Div. (per curiam) (11 pp.) Expanding on the 2001 case of Grabowski v. Liberty Mutual Ins. Co., in which the court held that a plaintiff, who was injured when forced out of a moving car as a carjacker attempted to gain control of it, was entitled to recover uninsured-motorist benefits, the court holds in this case that the definition of “operator” for UM purposes may, under appropriate circumstances, include a carjacker who does not physically take control of the vehicle until after the injury-producing event. The court also holds that “arising out of the . . . use of a motor vehicle” for UM purposes may include circumstances where the motor vehicle is not the injury-producing instrument, as long as there is a substantial nexus between the use of the vehicle and the resulting injuries. [Decided Jan. 11, 2007.] INSURANCE � VERBAL THRESHOLD 23-2-6137 Mickey, et vir. v. Allen, et al., App. Div. (per curiam) (12 pp.) Although the motion judge dismissed plaintiff’s automobile negligence complaint for failure to provide a Polk comparative analysis of her pre- and post-accident residuals, the appellate panel affirms the dismissal without reaching the question of the continued viability of Polk under the Automobile Insurance Cost Reduction Act, as it concludes that plaintiff’s medical proofs, in any event, did not meet the objective, credible evidence standard required by the verbal threshold statute. [Decided Jan. 12, 2007.] 23-2-6176 Stefanski, et vir. v. Clayton, et al., App. Div. (per curiam) (5 pp.) Although the jury found that defendant was 100 percent at fault for the parties’ automobile accident, it also justifiably found that plaintiff had not proved that she sustained a permanent injury that was proximately caused by the accident. The trial judge aptly denied plaintiff’s motion for a new trial, on credible evidence that showed that, although plaintiff had two surgeries on her rotator cuff, the first was nearly a year after the accident. The jury apparently found credible the testimony of the defense expert, who opined that, if plaintiff had torn her rotator cuff in the accident, it would have been very painful and disabling. According to his review of the medical records, plaintiff reported no acute pain in the shoulder at the time or even in the ensuing months. The jury apparently accepted his opinion that plaintiff’s condition resulted from degenerative changes and was not caused by the subject accident. [Decided Jan. 17, 2007.] INSURANCE � VERBAL THRESHOLD � COMPARATIVE ANALYSIS 23-2-6138 Kiley v. Merck & Co., Inc., et al., App. Div. (per curiam) (3 pp.) Where plaintiff’s automobile negligence complaint was dismissed for failure to meet the Polk comparative-analysis requirement thought to remain viable under the Automobile Insurance Cost Reduction Act, the appellate court holds that the disposition of the appeal should abide the Supreme Court’s upcoming opinion in Davidson v. Slater, on which argument was heard in September, 2006. The decision should control the issue, and may also impact the issue of whether plaintiff was prejudiced by the defendants’ allegedly late production of the insurance policy or their late assertion of the verbal threshold defense. [Decided Jan. 12, 2007.] LABOR AND EMPLOYMENT � JURISDICTION � PUBLIC EMPLOYEES � ADMINISTRATIVE LAW AND PROCEDURE 25-2-6177 Harris v. State of N.J., etc., et al., App. Div. (per curiam) (8 pp.) In this case involving disciplinary charges against the plaintiff for alleged sexual harassment of six female co-workers, the Law Division erred in retaining jurisdiction of this matter involving the alleged inaction of an administrative agency, where (1) an administrative hearing was scheduled for less than two weeks after plaintiff filed his complaint in the Law Division; and (2) subsequent adjournments delayed the return date of the order to show cause to almost 12 weeks after the scheduled hearing. The Law Division should have rejected plaintiff’s application at the outset and let the matter proceed through the administrative process, which, in all likelihood, would have been completed by now. Alternatively, plaintiff should have appealed to the Appellate Division rather than filing a Law Division complaint. [Decided Jan. 17, 2007.] LABOR AND EMPLOYMENT � SEXUAL HARASSMENT � HOSTILE WORK ENVIRONMENT 25-2-6157 Ramos v. Pharmaceutical Formulations, Inc., et al., App. Div. (per curiam) (14 pp.) The trial court correctly dismissed plaintiff’s claim for negligent infliction of emotional distress as barred by the availability of the workers’ compensation remedy. Then, the judge granted the defendants’ motion for summary judgment with respect to the balance of plaintiff’s claims � including sexual harassment, hostile work environment, gender, race and national origin discrimination, constructive discharge, assault and battery � discussing each claim individually, finding that they all were governed by the two-year statute of limitations and, rejecting plaintiff’s equitable estoppel argument, that they had not been timely filed. [Decided Jan. 16, 2007.] LABOR AND EMPLOYMENT � SEXUAL HARASSMENT � RETALIATION 25-2-6158 Drago v. Communication Workers of America, et al., App. Div. (per curiam) (35 pp.) The trial judge aptly dismissed, with prejudice, plaintiff’s complaint alleging sexual harassment; retaliation and discrimination in violation of the New Jersey Law Against Discrimination; violations of both the New Jersey Family Leave Act and the federal Family Medical Leave Act and defendant CWA’s sick-leave policy; and intentional infliction of emotional distress. The LAD claims were barred by the applicable two-year statute of limitations and because they did not rise to the level of behavior required for a claim under the statute. As to plaintiff’s retaliation claim, she failed to demonstrate any adverse employment action to support it. Finally, she failed to demonstrate violations of the FLA or FMLA. [Decided Jan. 16, 2007.] LAND USE � SITE-PLAN APPROVAL � PERMITS 26-2-6139 Sprout Dev. Co., L.L.C. v. Borough of Paramus, et al., App. Div. (per curiam) (11 pp.) The parties, plaintiff and defendant Holobeam Inc., owners of adjoining commercial properties on Route 17 North in Paramus, entered into an agreement for the creation of a cross-access driveway between their properties for commercial and pedestrian use. Defendant obtained all approvals and constructed the driveway, which has been in use for more than a decade, allowing customers to access both shopping centers without having to re-enter Route 17. In 2004, Holobeam served plaintiff with written notice of termination of the agreement, and plaintiff sued, seeking a declaration that the termination provision was void and unenforceable. Holobeam thereafter obtained permits from the defendant borough for the installation of an electric gate that effectively terminated plaintiff’s use of the driveway, while permitting remote access for emergency vehicles. Plaintiff sued to invalidate the permits, and the two actions were consolidated. The Chancery Division judge granted summary judgment to Holobeam, declaring that the termination clause was valid, and denied plaintiff’s motion to invalidate the permits, concluding that it had failed to exhaust its administrative remedies, and that the permits were validly issued. The appellate court reverses, agreeing with plaintiff that it was not required to exhaust its administrative remedies before filing its complaint in lieu of prerogative writs, since a question of law, not fact, was presented. The court also agrees that the borough engineer was not authorized to exempt Holobeam’s closing of the driveway by way of the electric gate from site-plan approval; the erection of the gate was not an item of “maintenance, repair or correction of drainage problems,” which are exempted from the requirement of planning board approval. [Decided Jan. 12, 2007.] LANDLORD/TENANT 27-2-6119 Elramouz v. Admana, et ux., App. Div. (per curiam) (4 pp.) The defendant sold his house to plaintiff, and then leased it back from him with an option to purchase, contingent on defendant fulfilling his obligations under the lease. When he defaulted under the lease, plaintiff sought possession. Defendant objected, and the parties ultimately settled their dispute. When plaintiff sought to enforce the settlement, he moved for possession, rather than the sums of money in dispute (late fees and counsel fees). The judge found for plaintiff, and denied defendant’s motion for reconsideration. The appellate panel now dismisses defendant’s appeal as moot, since the warrant for possession has not only been executed and defendant removed from the property, but the property has been sold to a third party. Although defendant apparently wishes the court to proceed so that he may obtain a decision to use in connection with a suit against plaintiff � in which he could then contend that he was wrongfully deprived of his right to exercise the option to purchase � the appellate panel declines to “enter that potential fray.” [Decided Jan. 11, 2007.] LANDLORD/TENANT � COMMERCIAL LEASES � INJUNCTIVE RELIEF 27-4-6178 Stop & Shop Supermarket Co., L.L.C. v. DWL Monmouth, Inc., et al., Chancery Div. � Bergen Cy. (Doyne, P.J.S.C.) (11 pp.) The defendant is the current owner of a shopping center in Closter and plaintiff is the current major tenant. Plaintiff sublet the premises to defendant Big M, which runs an Annie Sez store on the property. Plaintiff’s master lease, which was entered into more than 35 years ago between the parties’ predecessors, was always “subject to” a prior lease of a portion of the shopping center to a bank. After negotiations, Big M entered into an option agreement with the landlord, later recorded, which it believed entitled it to exercise all renewal options if plaintiff failed to or was unable to, as well as a right of first refusal. It believed that the option agreement applied to the entire shopping center, including the bank space; the defendant disagrees and asserts that Big M never had any rights over the bank property. However, at the conclusion of the bank lease, the bank vacated the premises, and the plaintiff sublet the bank premises to Northfork Bank. Plaintiff has continuously and timely paid, and defendant has accepted without protest, rent for the entire property. The plaintiff, with Big M joining in the application, seeks injunctive relief to prevent defendant from terminating the master lease and the bank lease pending, inter alia, a determination on the validity of the lease extension and a determination of whether any default occurred. In this opinion, the court denies plaintiff’s application for injunctive relief. Although not minimizing the difficulties in this complex situation, when determining irreparable injury, the court finds that the matter is, at base, one of monetary damages implicated by a landlord-tenant relationship. Further, plaintiff’s request for relief is not premised on a settled legal right in New Jersey, but on the Hobson’s choice resolved by the “Yellowstone Injunction” used by the New York courts, where a tenant confronted with threat of a lease termination was afforded the opportunity to obtain a stay tolling the running of the cure period so that a determination on the merits could be made and, thereafter, the tenant given the right to cure the defect and avoid the forfeiture of the leasehold. Moreover, the N.J. law is unsettled with respect to a tenant’s right to cure a lease violation subsequent to service of a termination notice. Finally, the court cannot say that the plaintiff has a reasonable probability of success in light of the myriad questions of contractual and lease interpretation that need to be addressed in this case. [Decided Jan. 12, 2007.] NEGLIGENCE � PREMISES LIABILITY 31-2-6179 Walker v. The Vizzoni Group, et al., App. Div. (per curiam) (7 pp.) Summary judgment in favor of defendants is affirmed in this case brought by plaintiff’s workers’ compensation carrier in her name, seeking reimbursement for payments it made to plaintiff for injuries she sustained when she struck her head on a backhoe owned by defendant GPU Energy on property owned by the defendant-contracting company. Plaintiff, a realtor, was waiting to show a client a home, when another agent, who was having a house built on the property next door, invited plaintiff and another agent to come over and see his home. When he went to turn on the heaters in the house, plaintiff was injured on the backhoe while walking up the still-unpaved driveway. Under the circumstances, the trial judge accurately found that defendants did not breach any duty owed to plaintiff. No reasonable fact finder could conclude that the manner in which the backhoe was parked, or the failure to specifically warn plaintiff of its presence, breached a duty. [Decided Jan. 17, 2007.] NEGLIGENCE � PREMISES LIABILITY � LANDLORD/TENANT 31-2-6120 Lima v. Nitti, et al., App. Div. (per curiam) (4 pp.) The plaintiff was injured when he fell through a porch railing at an investment property owned by defendants and leased to third parties, not named as defendants in this suit. The trial judge dismissed the complaint, ruling that plaintiff had failed to establish that defendants owed him any duty. He found that there was no evidence to indicate the condition of the railing was compromised or that the defendant-landlords had actual or constructive notice of the condition of the railing. The panel reverses, noting that the defendants’ own testimony revealed that they periodically inspected the premises. Further, there was evidence that one defendant had once admonished a tenant for repairing a water heater, stating that he should only do what his lease called for, and that she would have her own plumber come to make sure the repair was done correctly. Under these circumstances, material issues of fact were created as to whether the landlord-defendants negligently inspected the premises, and whether they undertook responsibility for repair of the railing. [Decided Jan. 11, 2007.] 31-2-6140 Espinal v. 60 Cedar Lane, L.L.C., et al., App. Div. (per curiam) (11 pp.) The plaintiff’s employer was the sole commercial tenant of a building it rented from defendant under a triple net lease, which imposed on the tenant the responsibility for maintenance and payment of all taxes and utilities. Under these circumstances, the trial court properly dismissed plaintiff’s complaint against the defendant for serious injuries she sustained when she was struck by a vehicle driven by a co-worker, as she stood drinking coffee with other employees by a food truck in the parking lot of the building, despite it being an area where vehicular traffic was prohibited. The trial court properly found that plaintiff offered no evidence to support her design-defect theory, and, even if she had, there was no evidence that defendant had designed and/or constructed the building. [Decided Jan. 12, 2007.] NEGLIGENCE � RACE TRACKS � SEATS � PRODUCT LIABILITY � EVIDENCE 31-2-6159 Qualiano, et ux. v. Irwin Seating Co., etc., et al., App. Div. (per curiam) (17 pp.) The jury voted unanimously to enter a verdict of no cause on plaintiffs’ suit for injuries sustained as a result of a seat collapse at the Meadowlands Race Track. The appellate court rejects plaintiffs’ contentions that they were entitled to a new trial because (1) the trial judge erroneously excluded evidence (a) of remedial repairs to the chair by the defendant Irwin Seating Co. and (b) of prior incidents of chair failures in the box-seat section of the grandstand level; (2) the verdict on product defect in favor of Irwin was against the weight of the evidence; (3) the jury charges on product defect and negligence were erroneous; and (4) the verdict in favor of the New Jersey Sports and Exposition Authority on the “dangerous condition” issue was against the weight of the evidence. [Decided Jan. 16, 2007.] NEGLIGENCE � WORKPLACE INJURY 31-2-6180 McNulty, et ux. v. Dover M.U.A., et al., App. Div. (per curiam) (17 pp.) The plaintiff was injured during the course of his employment with the defendant-municipal utilities authority when the walls of a trench collapsed around him. In this opinion, the court affirms the grant of summary judgment in favor of all defendants, rejecting plaintiff’s contentions that the trial court improperly (1) applied the Supreme Court’s Millison-Laidlow standard; and (2) granted the defendant’s motion because a jury should have determined whether trench work was inherently dangerous. [Decided Jan. 17, 2007.] PUBLIC EMPLOYEES � DISCIPLINE 33-2-6181 In the Matter of Rivera, Police Dept., City of Camden, App. Div. (per curiam) (6 pp.) The record supports the Merit System Board’s factual determination that appellant’s actions jeopardized a fellow officer’s safety, where he indicated that he would respond with the other officer to a domestic-violence call, but knew he could not because his car was stuck in the mud on a grass median because he had attempted a U-turn after giving up pursuit of a speeder beyond or near the city limits. The record also showed that appellant: failed to notify communications that his vehicle was disabled; purposely provided differing versions of the facts of the incident during the internal investigation that followed; left city limits without notice to his supervisor; and falsely reported that he abandoned the pursuit of the speeder because he was told that vehicle pursuits must remain in the city limits. The penalty of removal was not too harsh, considering appellant’s prior history and the current offenses. [Decided Jan. 17, 2007.] REAL ESTATE � FORECLOSURE � AFFORDABLE HOUSING � CONDOMINIUMS 34-4-6161 Washington Mutual Home Loans, Inc. v. Lima, et al., Chancery Div. � Mercer Cy. (Shuster, P.J.Ch.) (16 pp.) This decision � involving foreclosure on an affordable-housing condominium unit � marks the first time that a New Jersey court has addressed the issue of the distribution of surplus funds resulting from a foreclosure sale on an affordable-housing unit, where a municipality was the successful bidder. The municipality here, Hopewell Township, claimed entitlement to all of the surplus funds, arguing that, under current law, as owner of the affordable unit it would be personally obligated to pay the administrative entity that was responsible for assuring affordability any surplus funds, should the property be foreclosed on. However, the trial judge agreed with the Brandon Farms Condominium Association’s argument that the N.J. Condominium Act, which grants homeowner associations the right to collect on any liens, takes priority over the statute cited by the township. Brandon Farms also argued that it would be impractical to expect an association to provide a myriad of services to its members if it has no means of collecting assessments to fund the costs of services. The judge found that Brandon Farms was entitled to have its liens satisfied using the surplus funds, and that only after it had collected on its liens would any remaining monies go to the township. [Decided Dec. 22, 2007.] REAL ESTATE � PARTITION 34-2-6121 Smith v. Estate of Gethings, et al., App. Div. (per curiam) (4 pp.) The Chancery Division judge properly entered judgment for the defense in this partition action filed by plaintiff following the death of his half-brother. Plaintiff contended that he owned a one-half interest in decedent’s property as a tenant in common. The two had purchased the property together and lived there (with their mother), sharing expenses and being equally liable on the mortgage. Because plaintiff was a veteran, he qualified for 100 percent financing, and no cash was put down on the purchase. The brothers apparently had an agreement that, when one of them married, the other would move out; plaintiff testified that he and his mother moved out in 1974 when the decedent married. Plaintiff made no further payments toward the mortgage or taxes on the house after he moved out, although he did help with some maintenance and improvement projects at his brother’s request. Plaintiff himself also married in 1974 and he purchased his own home in 1977. When he was divorced in 1992, neither he nor his wife listed decedent’s property on their case information statement. Plaintiff refused his brother’s request to deed over his share of the property in 1989 when decedent was divorced, and claimed entitlement to a full one-half value of the property at his brother’s death. The Chancery Division judge found that insufficient evidence was presented with respect to the financial history of the property, and its use and occupancy over the years. He also concluded that the brothers’ agreement provided that, when the first brother married, the other would move out, and the remaining brother would buy out his interest. Thus, he concluded that the value of plaintiff’s interest had to be calculated at the time the decedent married in 1974. [Decided Jan. 11, 2007.] REAL ESTATE � TAX-SALE FORECLOSURE � RELIEF FROM JUDGMENT 34-2-6162 Betty Simon, Trustee, L.L.C. v. Regenye, et vir., et al., App. Div. (per curiam) (6 pp.) The lower court properly vacated a prior order in favor of plaintiff that had entered final judgment of foreclosure on property previously owned by the Regenye defendants, and barred their right of redemption. The lower court judge justifiably concluded that Champion Mortgage Co., a defendant in the underlying tax foreclosure proceedings, was entitled to equitable relief from the default judgment entered against it because the plaintiff had not properly identified Champion’s interests in the complaint. The judge also concluded that Champion could obtain relief under R. 4:50-1 notwithstanding the time-bar embodied in N.J.S.A. 54:5-87. [Decided Jan. 16, 2007.] WILLS, ESTATES AND TRUSTS � ADMINISTRATION 38-2-6141 In the Matter of the Estate of Cruz, App. Div. (per curiam) (2 pp.) The court affirms the Chancery Division order that appointed appellant’s estranged wife administratrix of the estate of their deceased son, noting, as did the trial judge, that if, as a result of her appointment as administratrix, a conflict of interest emerged in the course of the wrongful death and survivorship action filed as a result of the son’s death, the judge in that action could take appropriate measures to protect the other beneficiaries of the estate. [Decided Jan. 12, 2007.] WRONGFUL DEATH � TORT CLAIMS ACT 40-2-6142 Gilmore, etc. v. State of N.J., et al., App. Div. (per curiam) (13 pp.) Summary judgment was correctly granted in favor of all defendants, dismissing plaintiff’s action arising from the death of her 14-year-old daughter. The girl had run away on at least three occasions in the year she died, and was frequently absent from school. Plaintiff alleged that she sought help from the Division of Youth and Family Services, but ultimately hoped the situation would resolve itself. She and her daughter met with school counselors regarding her truancy, but the problem continued. The girl did not come home from school one day, and plaintiff reported her missing; ultimately, she washed ashore in Margate, the victim of a probable homicide. Plaintiff sued various entities, including the police, defendants involved with the school (for failure to enforce their attendance policy) and DYFS. The motion judge justly found that plaintiff was well aware that her daughter was not attending school; that the Tort Claims Act barred her claims; and that plaintiff had not met the statutory requirements to establish liability for a dangerous condition of public property. As to DYFS and the University of Medicine and Dentistry of New Jersey, plaintiff had not produced any evidence of a causal connection between their actions or inactions and the death of her daughter. [Decided Jan. 12, 2007.] FEDERAL COURT CASES BANKRUPTCY � GOOD FAITH 42-6-6144 In re Nuttall, Debtor, U.S. Bankruptcy Ct. (Burns, U.S.B.J.) (13 pp.) Considering the totality of circumstances presented, the court agrees with the objector � the sole unsecured creditor � that the debtor lacked good faith in filing his Chapter 13 plan, and denies confirmation of the plan. The debtor admits that he filed the bankruptcy solely to deal with the impending state court civil judgment sought by the unsecured creditor, who sued the debtor for assault to which the debtor pleaded guilty in criminal court. The debtor proposes to pay a pittance � only 1.5 percent � on the $300,000 claim, the only claim to be dealt with under the plan. The court is also convinced that the debtor’s failure to accurately schedule his few assets, or disclose transfers of his property, is further evidence that he had not been fully candid. Finally, he artificially increased his monthly expenses in order to justify paying a pittance on the unsecured claim to the objector. [Filed Jan. 11, 2007.] CIVIL PROCEDURE � DISCOVERY � SANCTIONS 07-7-6163 Access 4 All, Inc., et al. v. ANI Assocs., Inc., U.S. Dist. Ct. (Schneider, U.S.M.J.) (12 pp.) In this case, in which plaintiffs seeks to compel defendant to make reasonable modifications or accommodations to its hotel property in compliance with the Americans With Disabilities Act, the magistrate judge grants plaintiffs’ motions and imposes sanctions for defendant’s failure to produce discovery as ordered by the court. Despite defense counsel’s representation to the court that he made a conscious choice not to respond to the ordered discovery because he did not think it relevant, the magistrate judge finds that the discovery at issue is necessary and relevant to key issues in the case, including the factual basis for defendant’s affirmative defenses that plaintiffs’ requested modifications and accommodations are unreasonable, not readily achievable and, if implemented, would create an undue burden on the defendant. Since defendant willfully violated the court order, substantially prejudicing plaintiffs, sanctions are appropriate. [Filed Jan. 12, 2007.] CIVIL RIGHTS � POLICE ACTION � EMPLOYER RESPONSIBILITY 46-7-6145 Brown v. City of Trenton, et al., U.S. Dist. Ct. (Brown, U.S.D.J.) (7 pp.) The court grants the summary judgment motion filed by the defendant, the city of Trenton, dismissing plaintiff’s civil rights claims alleging that Trenton was responsible, as the employer of the police officer-defendant, for his actions in, inter alia, falsely arresting and prosecuting her. Since the substantive claims against the officer were all dismissed previously, the court having found that the officer acted reasonably throughout the automobile stop and ultimate arrest of plaintiff, and since the claims against Trenton are based on the officer’s underlying conduct, the claims against Trenton must also fail. [Filed Jan. 11, 2007.] CONSUMER FRAUD � USED-AUTOMOBILE SALES 09-7-6127 Venneman v. Johnson, U.S. Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) The court remands this complaint in which plaintiff sues defendant for allegedly misrepresenting the condition of a vehicle that he sold to her for “$21,000 more or less,” since the complaint cites no statute or law in support of the treble damages she seeks, and a potential award of treble damages, punitive damages and attorneys’ fees may not be included within the calculation of the jurisdictional amount under � 1332 unless that award is available to a successful plaintiff by specific statute or state law. [Filed Jan. 10, 2007.] CRIMINAL LAW AND PROCEDURE � SEARCH AND SEIZURE 14-7-6150 U.S.A. v. Fulton, etc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (8 pp.) The defendant did not have a reasonable expectation of privacy when he walked away from the police, who wished to question him in a tavern, and entered the ladies’ room, the door of which was unlocked, ajar and open to the public; therefore, no probable cause was needed for the police to search the restroom, and the handgun and the bag of marijuana that defendant placed into the medicine cabinet in the room were properly admitted into evidence. [Filed Jan. 10, 2007.] FAMILY LAW � REMOVAL OF STATE COURT PROCEEDINGS � JURISDICTION 20-7-6146 Dixon v. Kuhn, U.S. Dist. Ct. (Cooper, U.S.D.J.) (9 pp.) The judge dismisses the complaint of plaintiff, a Pennsylvania citizen, that appears to seek removal of a state court action brought against him by the N.J. defendant, his former wife. Additionally, plaintiff complains that the state court child-support order should be vacated as unconstitutional and states that the proceedings below violated his due process rights. The federal court lacks jurisdiction (1) over a domestic relations matter involving child support; and (2) over claims that were � or could have been � raised in state proceedings, where the losing party may seek review through the appeals process. Plaintiff appears to be attempting to sidestep the state appellate process by removing the action to federal court. [Filed Jan. 12, 2007.] INTELLECTUAL PROPERTY � TRADEMARK INFRINGEMENT � DIETARY SUPPLEMENTS � PRIMARY JURISDICTION 53-7-6128 Nutraquest, Inc. v. All American Pharmaceutical & Natural Foods Corp., et al., U.S. Dist. Ct. (Debevoise, U.S.S.D.J.) (10 pp.) The plaintiff, holder of the trademark “Xenadrine EFX,” sued defendants alleging trademark infringement and dilution, cybersquatting and unfair competition, all with respect to the names of defendants’ various dietary supplements. The court here denies the motion of defendant All American EFX for a stay pending the resolution of an opposition proceeding before the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office (PTO), filed by plaintiff in opposition to defendant’s application to register its mark “NYTRIC EFX” with the PTO. Discussing the doctrine of primary jurisdiction and pertinent case law, the court concludes that, while the Third Circuit has yet to decide the issue of whether primary jurisdiction applies in the context of an opposition proceeding before the TTAB, it would likely follow the lead of the Second Circuit in Goya Foods, Inc. v. Tropicana Products, Inc., which found that, although the TTAB’s reasoning in a registration determination is relevant to an infringement claim, the District Court still has to independently determine the validity and priority of the marks and the likelihood of consumer confusion. Therefore, the court will not invoke the doctrine of primary jurisdiction to stay the proceedings. Moreover, in weighing the competing interests of the parties, the court concludes that plaintiff may be damaged if the action is stayed, whereas defendant has failed to establish a clear case of hardship or inequity. [Filed Jan. 11, 2007.] LABOR AND EMPLOYMENT � SEXUAL HARASSMENT � RETALIATION � MILITARY 25-7-6148 Gonzalez v. N.J. Natl. Guard, et al., U.S. Dist. Ct. (Kugler, U.S.D.J.) (9 pp.) The court denies plaintiff’s motion to remand and grants defendants’ motion to consolidate this suit filed by plaintiff, a former National Guard recruiter, who alleges that, after she settled a previous sexual harassment suit against the Guard, defendants subjected her to various forms of retaliation. As to consolidation, the two complaints are identical and arise from the same set of facts; consolidation will streamline the litigation process. As to remand, the court reviews the Federal Officer Removal Statute and finds that defendants have met its requirements, since (1) the acting defendant supervisor was (a) a person, (b) who acted under federal office, and (c) who arguably performed the complained-of conduct under direction of federal authority, and (2) defendants have raised a colorable federal defense in their claim that the Feres doctrine bars this suit. [Filed Jan. 11, 2007.] LABOR AND EMPLOYMENT � UNFAIR LABOR PRACTICES � INJUNCTIVE RELIEF 25-7-6129 Kendellen v. Interstate Waste Services of N.J., U.S. Dist. Ct. (Chesler, U.S.D.J.) (11 pp.) The respondent unsuccessfully challenged the results of a representation election held at its Newark facility, and the Teamsters Local 945 (union) was certified as the exclusive bargaining representative of the drivers and helpers in question. Three months later, respondent purchased a solid-waste company in Jersey City, closed its Newark facility and merged its work force. Thereafter, it refused to recognize and bargain with the union, which filed two unfair labor practice charges. Summary judgment to the union on one complaint was granted, and is presently on appeal to the circuit court of appeals. Respondent filed an answer to the second complaint, asserting that it was engaged in a “technical refusal to bargain” in order to trigger the filing of the unfair labor practice charge, which would allow it to challenge the overruling of its objections to the original representation election. In this opinion, the court denies the application of the petitioner, the regional director of the National Labor Relations Board, seeking injunctive relief. Although the board has established reasonable cause to believe that respondent violated the act, it has failed to establish that the injunction sought is just and proper. [Filed Jan. 11, 2007.] LABOR AND EMPLOYMENT � WRONGFUL TERMINATION � TURNOVER OF CRIMINAL INVESTIGATION FILE � PRIVILEGE 25-7-6130 Wong, et al. v. Thomas, et al., U.S. Dist. Ct. (Hughes, U.S.M.J.) (12 pp.) In this wrongful-termination action, the court grants in part, and denies in part, plaintiff’s motion to compel the turnover of the terminated criminal investigation file on her by the intervenor, Division of Criminal Justice (DCJ). Plaintiff, an Asian-American, was appointed executive director of the Higher Education Student Assistance Authority by former Gov. James McGreevey. She alleges that, during her tenure, she was pressured to favor African-Americans in the hiring process; not to hire Asian-Americans; and to make HESAA funds available only to African-American students. She also was instructed not to socialize with other Asian-Americans and criticized for her involvement in that community. When she refused to comply, she contends she was forced to resign by defendants, who accused her of misappropriating HESAA funds. It is the investigation of this alleged criminal activity � which terminated with a finding that plaintiff had committed no wrongdoing � that plaintiff now seeks to use in her wrongful-termination suit. The court finds that the closed file and close-out memorandum are relevant and discoverable, and, even if they were produced in anticipation of litigation and otherwise protected by the work-product privilege, plaintiff has shown a substantial need for the information and cannot obtain the substantial equivalent elsewhere. The privileged documents may be redacted to exclude mental impressions, conclusions, opinions or legal theories. Counsel for the newly arrived intervenor, the DCJ, may present a privilege log and accompanying brief to support its assertion that the documents are also protected by (1) deliberative process privilege; (2) innocent third-party privilege; and (3) investigatory process privilege; plaintiff’s counsel may move for costs. [Filed Jan. 10, 2007.] PENSIONS � SETTLEMENTS � AMENDING COMPLAINTS 56-7-6149 U.F.C.W., Local 56, Health and Welfare Fund, et al. v. J.D.’s Market; one other caption, U.S. Dist. Ct. (Simandle, U.S.D.J.) (15 pp.) The parties had previously settled these consolidated suits filed by the fund plaintiffs, alleging that the supermarket defendants failed to make timely payments to the funds as required by labor contracts and trust agreements. Unfortunately, one of defendants’ principals died before the written settlement agreement was executed, and it was thereafter discovered that his estate did not have the resources to guarantee payments under the settlement, as anticipated. Plaintiffs successfully moved to enforce the settlement and to amend their complaints, seeking to add the estate and its personal representative as proper parties. However, plaintiffs amended their complaints for a second time without leave of court, adding four new paragraphs asserting claims against the estate and the executrix, in her individual capacity, under the theories of fiduciary duty and of piercing the corporate veil. The court here grants defendants’ motion to dismiss the four counts of plaintiffs’ second amended complaint because plaintiffs failed to seek or obtain leave to amend their complaints in the manner in which they were amended. The very issue of naming the executrix individually was discussed in court when the complaint was amended the first time, and plaintiffs were not given leave to assert such claims. In fact, the magistrate judge specifically limited the scope of the plaintiffs’ amendment in granting the first motion. The court notes that plaintiffs’ failure to submit a proposed amended complaint with their motion, in violation of the rules, contributed to this problem. [Filed Jan. 11, 2007.] PENSIONS AND EMPLOYEE BENEFITS � INDEPENDENT CONTRACTORS 56-7-6131 Martin, et al. v. PSE&G Co., Inc., et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (4 pp.) The judge denies plaintiffs’ motion for reconsideration of the court’s prior order* dismissing plaintiff’s complaint alleging that they were misclassified as independent contractors, rendering them ineligible to receive benefits under the Employee Retirement Income Security Act. The judge also denies plaintiffs’ motion for leave to amend their complaint in order to add an “anti-cutback” claim pursuant to ERISA � 204(g); plaintiffs claim that they were eligible for benefits under earlier plan documents and that defendants violated the “anti-cutback” rule by subsequently eliminating their eligibility in later plan documents. Plaintiffs’ own concession that defendant has consistently characterized them as independent contractors defeats their standing and any “anti-cutback” rule claims. [Filed Jan. 9, 2007.] [*For prior opinion, see DDS 25-7-5811 in the Dec. 11, 2006, Unpublished Opinions column, 186 N.J.L.J. 1024.] TELECOMMUNICATIONS � BROKERAGE FEES 57-7-6164 Arzoomanian v. British Telecommunications, PLC., U.S. Dist. Ct. (Sheridan, U.S.D.J.) (31 pp.) Asserting various theories, including quantum meruit and tortious interference with contractual relations and prospective economic advantage, the plaintiff sues for a brokerage fee allegedly due and owing for his role in assisting defendant British Telecommunications to land a contract with a previously dismissed defendant, Unilever. The court reviews the extensive history of the parties’ negotiations, and grants BT’s motion for summary judgment, concluding that (1) there was no meeting of the minds between plaintiff and Unilever regarding his authority to act on the latter’s behalf; (2) even if there were a contract between plaintiff and Unilever, the plaintiff has failed to establish that BT’s actions were intentional, malicious, unreasonable or unconscionable; (3) BT and Unilever had an ongoing relationship, and there was a solid break in plaintiff’s involvement and the date of the final transaction, such that he was not the efficient-producing cause of the transaction; and (4) the equitable remedy of quantum meruit is unavailable to plaintiff due to his unclean hands. To deny summary judgment and allow this case to go forward would “turn contract law upside down” and “be a license for aggressive entrepreneurs to assert a broker relationship in a myriad of cases.” The court finds that plaintiff was an entrepreneur who undertook a risky proposition; the better policy is to foster basic contract law, and to promote firm contractual relationships. Plaintiff should have negotiated at least the basic terms of his contract upfront, before any work was performed. [Filed Jan. 12, 2007.] TRANSPORTATION � AIRLINE SECURITY � BAGGAGE 49-7-6165 Besante v. Transportation Security Administration, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (4 pp.) The court grants the defendant’s motion and dismisses the complaint of plaintiff � a passenger on an American Airlines flight from Belize to Miami on Sept. 1, 2003 � who alleges that his luggage was opened on arrival, and defendant’s negligence caused the loss or destruction of his property. Through unrebutted sworn statements or affidavits of its employees, defendant avers that it does not inspect persons or screen arriving baggage unless such persons or baggage were subjected to reverse screening or were checked through by an airline to a connecting flight, neither of which was the case here. Screening for weapons after passengers have already deplaned would have very little security benefit. Plaintiff’s bald, unsupported assertion of a potential factual dispute is insufficient to withstand defendant’s motion. [Filed Jan. 12, 2007.]

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