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STATE COURT CASES ATTORNEY/CLIENT 04-2-7299 Herrera v. Hark, Esq., et al., App. Div. (per curiam) (7 pp.) The plaintiff established a prima facie case of the defendant-attorney’s deviation from accepted legal standards, where, inter alia, defendant (1) approached plaintiff in the hospital without his consent and, despite the fact that plaintiff was in severe pain and on medication following an automobile accident with defendant’s wife’s grandfather, had him sign a retainer agreement; and (2) failed to disclose the conflict of interest. However, the trial court properly granted summary judgment to the defendant dismissing plaintiff’s complaint alleging legal malpractice and fraud, since plaintiff did not make any showing of damages flowing from defendant’s conduct, as he could not show that he would have obtained a better result than the $95,000 for which he settled the case. The appellate panel does note its concern with defendant’s conduct and refers a copy of this opinion to the Office of Attorney Ethics. [Decided May 8, 2007.] CONDEMNATION � EMINENT DOMAIN 44-2-7300 Union City Redevelopment Agency, etc. v. UC Overlook Dev., L.L.C., etc., et al., App. Div. (per curiam) (8 pp.) The panel rejects defendants’ challenges to the final judgment obtained by the plaintiff, permitting it to condemn commercial property owned by defendant Overlook, which property contains an office building that is nearly 100 years old. The property was part of an area declared in need of redevelopment, on notice to the public and after full compliance with the Local Redevelopment and Housing Law, yet no action in lieu of prerogative writs was filed challenging the designation, and defendant’s attempt to challenge it now is time-barred. Further, the court below justly found that plaintiff engaged in bona fide negotiations with defendant, providing a written offer, backed up by three appraisals, and repeatedly responding to defendant’s requests for additional information thereafter. [Decided May 8, 2007.] CONSTRUCTION � INSURANCE � PERFORMANCE AND PAYMENT BONDS 43-2-7310 Danco, Inc. v. Arch Ins. Co., et al., App. Div. (per curiam) (10 pp.) The appellate court reverses the order granting summary judgment to the plaintiff and awarding it more than $102,398, plus prejudgment interest, on a payment bond issued by defendant Arch Insurance Company to Voegele Mechanical, the HVAC contractor for the construction project in question, to which plaintiff, a wholesale supplier, provided HVAC and plumbing supplies on credit. When Voegele had incurred a $500,000 receivables balance with plaintiff, it financed that amount with a credit company recommended by plaintiff, and paid plaintiff in full; but it only made one payment to the credit company before declaring bankruptcy, after which the credit company demanded the balance from plaintiff, which, in turn, then made a claim under the payment bond. The defendant unsuccessfully argued before the trial court that the agreement between the credit company, Voegele, and plaintiff constituted a novation that completely discharged its liability under the payment bond. The appellate panel agrees with defendant’s position, noting that, under the clear terms of the bond, defendant was not obligated to pay plaintiff because plaintiff was “paid in full” when it received payment pursuant to the financing agreement Voegele made with the credit company, notwithstanding that it had to repay the credit company when Voegele defaulted. [Decided May 9, 2007.] CONSUMER FRAUD � AUTOMOBILE DEALERSHIPS 09-2-7263 Ivans v. Plaza Nissan Ford, et al., App. Div. (per curiam) (26 pp.) The Law Division judge aptly dismissed plaintiff’s consumer fraud claims against the dealership due to plaintiff’s inability to show an “ascertainable loss.” Mere inconvenience to a consumer is not enough to demonstrate a qualifying ascertainable loss under the Consumer Fraud Act; and noneconomic damages are not recoverable thereunder. Most of the plaintiff’s difficulties in purchasing a vehicle from defendants were caused by his own bad credit rating and were not causally related to any acts or omissions by defendants. Even assuming that the dealership guaranteed plaintiff that he would be able to obtain financing on the vehicle he wanted, he specified no quantifiable loss that ultimately resulted from the defendant’s inability to carry out that alleged promise. The judge also justifiably dismissed his common-law conversion, fraud and negligence claims, finding that they were not viable on the facts presented. [Decided May 3, 2007.] CORPORATIONS � SHAREHOLDERS’ VOTES � INJUNCTIVE RELIEF 12-4-7288 Oldham v. Dendrite Intl., Inc., et al., Chancery Div. � Somerset Cy. (Derman, P.J.Ch.) (30 pp.) The court denies the plaintiff’s motion seeking injunctive relief to halt a pending shareholders’ vote, scheduled for the purpose of approving a merger transaction in which the corporation would become part of a wholly owned subsidiary of a French corporation known as Cegedim, S.A. “Under plaintiff’s theory, Cegedeim was both the corporate raider whose goal was to oust management and take over the corporation’s business without negotiation and the white knight who swooped in and saved the individual defendants from losing their positions (or offering a premium for their surrender) while offering a deal that is, in plaintiff’s mind, violative of corporate duties, the true value of the company, and shareholders’ interests.” Inter alia, the court addresses in detail and rejects plaintiff’s allegations of deficiencies in the proxy statement, nondisclosures, and conflicts of interest. [Decided May 2, 2007.] CRIMINAL LAW AND PROCEDURE � JURY INSTRUCTIONS � CORROBORATION OF ALLEGED CONFESSION 14-2-7271 State v. H.M., App. Div. (per curiam) (20 pp.) Because an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for a crime, the trial court erred by failing to instruct the jury regarding its duty with respect to corroboration of the defendant’s alleged confession to the police, mandating reversal of the sexual assault, child endangerment and manslaughter convictions against the 24-year-old defendant who confessed to being engaged in a sexual activity in a bathtub with the 15-year-old victim, when the latter drowned. [Decided May 3, 2007.] CRIMINAL LAW AND PROCEDURE � RIGHT TO A FAIR TRIAL � SURVEILLANCE � WITHHOLDING OF MAIL 14-2-7292 State v. DuBois, App. Div. (per curiam) (5 pp.) Reversing the Appellate Division’s determination that defendant was entitled to a new trial based on deficiencies in the advice he was provided concerning his right to self-representation, the Supreme Court concluded that defendant had been adequately advised, and that he knowingly and intelligently waived his right to counsel. The case returns to the Appellate Division on remand for consideration of certain arguments advanced by defendant in his initial appeal that were not previously addressed, including (1) whether the state’s surveillance of defendant’s library activities comprised his right to a fair trial because it enabled the prosecutor, acting in concert with the jail warden and librarian, to discover his trial preparation and strategy; (2) whether defendant’s right to a fair trial was prejudiced because he was not able to obtain proof of several civil judgments against the state’s main witness � defendant’s ex-wife � in time to use them for cross-examination at trial because the prison warden, again in concert with the prosecutor, wrongfully withheld his mail; and (3) that his sentence was excessive. Finding that all three issues require a remand, the panel does so. The sentence clearly exceeded the presumptive term, and the other issues cannot be decided on the present record. [Decided May 7, 2007.] CRIMINAL LAW AND PROCEDURE � SEARCH AND SEIZURE 14-2-7318 State v. Tyler, App. Div. (per curiam) (13 pp.) Rejecting the state’s appeal, the appellate panel affirms the trial court’s grant of defendant’s motion to suppress the drug evidence found in his motor vehicle, agreeing that, while the activity that the surveillance officer observed took place in a known high-drug-trafficking area, this did not give the officer reasonable grounds for a subsequent investigatory stop where the conduct of the defendant � entering the restaurant, talking to someone, walking outside with that person, turning his back and then shaking hands before returning to his car � added nothing to justify police intrusion. [Decided May 9, 2007.] CRIMINAL LAW AND PROCEDURE � TRIAL ERROR 14-2-7285 State v. Strader, App. Div. (per curiam) (31 pp.) The defendant was convicted of various offenses for setting fire to the home of his former girlfriend, Land. The appellate panel reverses defendant’s convictions (except on the escape charge) and remands for a new trial, concluding that the defendant was denied a fair trial as a result of (1) numerous incidents elicited by the prosecutor associating the defendant with prior criminal or inappropriate conduct, and establishing the defendant’s continuing incarceration from the time of his arrest until trial; (2) the trial judge’s instructing the jury regarding a different statutory reference and model jury charge than that reflected in the indictment regarding the contempt charges; (3) hearsay testimony elicited from a patrolman who stated that the defendant made additional and more serious threats than the threat occurring through his telephone call with Land; (4) the trial judge’s error in permitting the prosecutor to elicit testimony from Land that she believed that the defendant was guilty; and (5) the prosecutor’s summation, which exceeded the bounds of propriety. [Decided May 4, 2007.] DEBTOR/CREDITOR � DEFAULT JUDGMENT � ADJOURNMENT REQUESTS 15-2-7311 Valley Hospital v. Laubshire, et ux., App. Div. (per curiam) (8 pp.) The trial judge misapplied his discretion when he denied the request of the 73-year-old defendant, who lives in South Carolina and suffers from severe ischemic cardiomyopathy and coronary artery disease, for adjournment of the trial in this collection action, and subsequently entered default judgment against him. Given the fact that defendant’s doctor submitted two statements to the trial judge documenting the defendant’s condition and indicating that he should not travel for six months, the judge’s demand that the doctor specifically state that defendant was “unable to either ride in an automobile or be a passenger on a plane, train or bus” was unreasonable, and the suggestion that the judge reserved the right to have defendant examined by an independent medical professional selected by the court was inappropriate. Despite the court’s unquestionably strong interest in litigation management, interests in calendar clearance do not justify requiring a party to choose between the right to be heard and real health considerations. [Decided May 9, 2007.] EDUCATION � EMPLOYMENT ISSUES � TRANSFERS 16-2-7301 New Brunswick Education Assn. v. New Brunswick Bd. of Education, App. Div. (per curiam) (6 pp.) The arbitrator agreed with plaintiff’s claim that the defendant-board of education transferred its employee, Clark, from her project liaison position to a high school English-as-a-second-language (ESL) position for disciplinary reasons in violation of the collective-bargaining agreement and directed that Clark be returned to her former position. The plaintiff filed a complaint and order to show cause with the trial court seeking to confirm and enforce the arbitrator’s decision, and the defendant-board answered and shortly thereafter complied with the arbitrator’s directive; however, on the same day it transferred Clark to another ESL position in the middle school, allegedly because of a temporary emergency shortage of instructors in that specialized area. On the return date of plaintiff’s order to show cause, the trial court, without holding an evidentiary hearing, enforced the award “as written” and directed the board to return Clark to her project liaison position. On the board’s appeal the panel reverses and remands for an evidentiary hearing, as the second transfer was not the subject of the arbitrator’s decision. By enforcing the arbitrator’s order in the face of a factual dispute � as to whether the board’s second transfer was simply an attempt to avoid the effect of the arbitrator’s decision, or was truly motivated by an emergency � the court potentially deprived the board of its exclusive managerial prerogative to transfer employees for nondisciplinary reasons. [Decided May 8, 2007.] ENVIRONMENT � WATER POLLUTION 17-2-7275 N.J. D.E.P. v. Egg Harbor Gas & Go, L.L.C., App. Div. (per curiam) (2 pp.) The court affirms the final administrative order of the Department of Environmental Protection that fined appellant for violations of the Water Pollution Control Act, the Underground Storage of Hazardous Substances Act, and the regulations promulgated thereunder, after an inspection of appellant’s gas station revealed that (1) the underground storage tanks were not properly registered with the department; (2) appellant had not demonstrated financial responsibility; and (3) appellant had failed to provide a mechanism for spill release detection. [Decided May 4, 2007.] FAMILY LAW � CHILD SUPPORT � COLLEGE EXPENSES 20-2-7289 Maddox v. Maddox, App. Div. (per curiam) (8 pp.) The plaintiff-father was justifiably ordered to reimburse the defendant-mother a sum representing his one-half share of his daughter’s college expenses � specifically room and board, computer, books, transportation and food � rejecting plaintiff’s challenges to the reasonableness of the costs � which had already been incurred over the past years and were never objected to by him � and his arguments that his daughter could have procured cheaper lodgings and a more inexpensive computer. [Decided May 7, 2007.] FAMILY LAW � CHILD SUPPORT � RETROACTIVITY 20-2-7276 Hamilton v. Mamroud, App. Div. (per curiam) (12 pp.) The Family Part judge properly granted the plaintiff-mother a retroactive increase in child support, finding that a letter dated Oct. 1, 2001, from the county child-support specialist � advising the defendant-father that the Board of Social Services had begun to gather information in order to review child support on the plaintiff-mother’s application for an increase � was the equivalent of the filing of a formal notice of motion to fall within the meaning of N.J.S.A. 2A:17-56.23a, and that any modification would be retroactive to the date of the letter. The appellate panel agrees, and finds that Keegan v. Keegan � which held that a retroactive reduction of child support was prohibited, but not a retroactive increase � is binding precedent on the Family Part. [Decided May 4, 2007.] FAMILY LAW � ENFORCEMENT OF LITIGANT’S RIGHTS � JOINT LEGAL CUSTODY � ALIMONY 20-2-7264 Mott v. Mott, App. Div. (per curiam) (16 pp.) By the terms of the parties’ comprehensive property settlement and support agreement, the parties shared joint legal custody, with the plaintiff-mother having physical custody of her two children for six days of every 14-day period. She filed a motion to enforce litigant’s rights, asserting that the defendant-father constantly excluded her from important decisions affecting the children � including their activities and medical and psychological care � and moved from the former marital home without telling her of the specific new address. Although the trial judge acknowledged that defendant should have consulted with plaintiff on these matters, he did not abuse his discretion in determining that plaintiff’s complaints did not rise to a set of circumstances that would necessitate a best-interests evaluation and referral to a mediator for resolution. The judge also did not err in denying plaintiff’s motion seeking to be relieved of the obligation to pay defendant limited-duration alimony; even though plaintiff demonstrated three of the Lepis factors for modification, the circumstances are not extreme, and the judge properly enforced the parties’ freely negotiated nonmodification provision in the PSA with respect to alimony. [Decided May 3, 2007.] FAMILY LAW � RECEIVERSHIPS 20-2-7277 Hoffman v. Hoffman, App. Div. (per curiam) (4 pp.) In this case, the trial judge had previously denied defendant’s motion to set aside the property settlement and support agreement incorporated into the divorce judgment, and had appointed a receiver to marshal defendant’s assets because defendant refused to pay child support. Over the defendant’s objection, the panel here concludes that the trial judge justifiably approved the accounting of the court-appointed receiver; awarded him counsel fees; and approved his proposal to place $200,000 from the receivership account into an investment plan recommended by an investment broker and approved by plaintiff. Defendant appears to be attempting to relitigate prior efforts to set aside the PSA. [Decided May 4, 2007.] GOVERNMENT � LAW ENFORCEMENT OFFICERS SAFETY ACT 21-2-7265 Zarrelli v. Rabner, etc., App. Div. (per curiam) (7 pp.) The court considers what affirmative responsibilities, if any, are imposed on the state as a result of the passage by Congress of the Law Enforcement Officers’ Safety Act of 2004, which permits qualified retired law enforcement officers carrying specified identification to carry a concealed firearm. The plaintiff here � a retired N.J. resident who was formerly employed in New York as a court officer, and was required to carry a gun in that position � sought to have New Jersey issue to him the identification referred to in the act. Plaintiff was advised that he was unable to carry a weapon under the act because New Jersey has not implemented a program to issue that identification, and he commenced this action seeking to compel New Jersey to certify him to carry a concealed weapon. The panel affirms the trial court’s dismissal of the action for failure to state a claim. The act is bereft of any indication that Congress intended to mandate that the various states implement a procedure for issuing certifications in order to permit an individual to qualify thereunder. Congress cannot compel officers of one state to implement federal programs. [Decided May 3, 2007.] HEALTH � HOSPITALS � CERTIFICATES OF NEED 22-2-7312 Deborah Heart and Lung Center v. Jacobs, M.D., et al., App. Div. (per curiam) (8 pp.) Over the challenge of the plaintiff Deborah Heart and Lung Center, the panel affirms the final agency decision of the N.J. Department of Health and Senior Services that granted a certificate of need permitting Virtua Memorial Hospital in Burlington County to upgrade its low-risk cardiac catheterization facility to one providing full-service invasive cardiac diagnostic services. [Decided May 9, 2007.] INSURANCE � PIP � PRECERTIFICATION REQUESTS 23-3-7290 Surgicare of Englewood Cliffs, etc. v. Proformance Ins. Co., Law Div. � Bergen Cy. (Donohue, J.S.C.) (4 pp.) The court vacates the determination of the DRP that found that, although the defendant insurer’s rejection of the plaintiff-provider’s precertification request (for cervical facet point injections) was short of the 72 hours required, since the rejection occurred prior to the actual procedure, the provider’s objection to the violation of the 72-hour requirement was not significant. The court disagrees that the 72-hour limitation may be disregarded; just as a provider must comply with the precertification period, so must the insurer be bound by the regulations. The claim that some of the documents were illegible could have easily been remedied by the insurer making a timely demand. [Decided April 2, 2007.] LABOR AND EMPLOYMENT � UNEMPLOYMENT COMPENSATION 25-2-7278 Dait v. Bd. of Review, etc., App. Div. (per curiam) (7 pp.) The claimant was justifiably denied unemployment benefits for leaving his job voluntarily without good cause attributable to the work. After sustaining a knee injury at work and having surgery, claimant asserted that his job as an airport security screener at Newark Liberty Airport was adversely affecting his health, and the employer agreed to a series of functional restrictions that were prescribed by the claimant’s doctor, including not having to walk and/or stand for more than four hours per shift. Claimant left work because he believed that, despite the restriction, he was being made to stand for more than four hours per shift, and there were no sedentary positions available. Although the claimant and the employer presented conflicting testimony regarding the accommodations, the Appeal Tribunal found that the fact that the employer had presented firsthand witnesses rendered the employer’s testimony more credible. [Decided May 4, 2007.] LAND USE � SUBDIVISIONS 26-3-7266 Broadhurst, et ux. v. Twp. of Holland Planning Bd., et al., Law Div. � Hunterdon Cy. (Buchsbaum, J.S.C.) (22 pp.) The court affirms the defendant-planning board’s grant of cluster subdivision approval to the applicant Blumberg for 15 new lots, including one open space lot, reviewing the pertinent trial testimony and rejecting the plaintiffs’ contentions that (1) the June 9, 2003, meeting was invalid and should not have been conducted because certain documents regarding drainage were not on file with the board 10 days prior to the meeting; and (2) the planning board improperly granted the access easement variance at its July 14, 2003, meeting, when it approved the first resolution. [Decided April 23, 2007.] LAND USE � USE VARIANCES � TIME-OF-DECISION RULE 26-2-7267 Developers Diversified Realty Corp. v. Mount Laurel Zoning Bd. of Adj., App. Div. (per curiam) (11 pp.) The plaintiff, which sought to develop the shopping center site in question for use as a Costco retail store, also sought a use variance to enable it to construct a 12-pump “gasoline fueling facility” onsite. It later amended its application, contending that a proper interpretation of Mount Laurel’s ordinance rendered the use either a permitted retail sales use, or a permitted accessory use. The board of adjustment denied the application, concluding that a fueling station constituted a “motor vehicle service station,” which was a prohibited use in the Major Commercial Planned Development District. The Chancery Division judge overturned the board’s decision, finding that the use was a permitted one, or, alternatively, a permitted accessory use incidental to the principal use. Having found the use to be a permitted one, the judge did not address whether the board properly denied the use variance application. The board appealed, and subsequently sought leave to amend the record to include Ordinance 2006-8, not previously referenced in its appellate papers, which made reference to a recommendation in the master plan re-examination report, concerning the prohibition on the sale and dispensing of motor vehicle fuels in the district. The board argued that this ordinance was in effect at the time of the decision. The appellate panel remands for further proceedings concluding that the trial court should consider the plaintiff’s procedural objections to the adoption of an ordinance; the applicability of the time-of-decision rule under the circumstances of this case; and any other procedural or substantive objections plaintiffs may have to the amended ordinance. [Decided May 3, 2007.] NEGLIGENCE � SIDEWALKS 31-2-7279 Rodriguez v. Tamasik, et al., App. Div. (per curiam) (9 pp.) The plaintiff tripped and fell on a public sidewalk abutting a residence, and sued the landowner, the municipality, the county and the state. The court here affirms the trial judge’s grant of summary judgment to the landowner, based on the rule of nonliability of abutting residential property owners for maintenance of public sidewalks. Although plaintiff asserted that the sidewalk was covered with leaves, branches and wire, so that he couldn’t see the cracks and uneven pavement, and he argued that the presence of such debris created a nuisance for which defendant should be held liable, Yanhko specifically held that an abutting residential landowner is not liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk, even though it constitutes a nuisance, unless the proofs show that the owner or his predecessor in title participated in the creation or continuance of the nuisance. Here, there was a complete lack of evidence establishing that the debris plaintiff alleges existed on the sidewalk was caused by any wrongful act on the part of defendant, or that he had notice of it. [Decided May 4, 2007.] PHYSICIAN/PATIENT � WRONGFUL DEATH � MEDICAL JUDGMENT 29-2-7268 Stauder, etc. v. Taylor, App. Div. (per curiam) (18 pp.) The appellate court reverses the judgment based on the no-cause verdict in favor of the defendant-physician after a jury trial on plaintiff’s medical-malpractice/wrongful-death action seeking damages for the death of her mother, who hemorrhaged after surgery was performed to remove a cancerous kidney and ureter. The appellate court determines that the trial judge’s failure to untangle the facts in relation to the medical-judgment charge left the jury free to excuse defendant based on the evidence of judgment in an instance where no judgment was exercised. This error requires that the verdict be set aside and the matter remanded for a new trial. [Decided May 3, 2007.] PUBLIC EMPLOYEES � DISCIPLINE � JURISDICTION 33-3-7313 Dunlap-Pryce v. Garden State Correctional Facility, et al., Law Div. � Mercer Cy. (Feinberg, A.J.S.C.) (19 pp.) Plaintiff, an employee of the Department of Corrections (DOC) whose position was not part of any collective-negotiations unit, was charged with violation of the state antidiscrimination policy for allegedly advising a DOC employment candidate that he “almost wasn’t hired because he was white,” and suspended for 10 days. Since this constituted major discipline, her appeals process proceeded through the Office of Administrative Law. Thereafter, however, after plaintiff had already served the 10-day suspension, the DOC advised the OAL that it was reducing the suspension to five days, which reduced the charge to one of minor discipline, divesting the OAL of jurisdiction, and returning the matter to the Merit System Board. The plaintiff argued that the reduction of suspension was done in bad faith to remove the matter from the purview of a neutral magistrate, and requested that the matter be returned to the OAL or the appointing authority; the board denied both requests. Instead of appealing, the plaintiff filed the complaint in this matter, seeking a de novo review by the Superior Court; dismissal of all charges; and an award of back pay, attorneys’ fees and reasonable compensation for any other pecuniary losses, including costs of suit. The court grants the motion of the defendants and dismisses the complaint, concluding that (1) it lacks jurisdiction to provide a de novo appeal of discipline imposed by a state agency; and (2) plaintiff failed to exhaust all of her administrative remedies. Even though plaintiff’s position is not governed by a state contract with a collective-bargaining unit, there is still a comprehensive regulatory scheme for the appeal of minor discipline for employees in public service. There are also no “special facts” to warrant the court’s jurisdiction as in Romanowski. [Decided May 4, 2007.] PUBLIC EMPLOYEES � SENIORITY 33-2-7280 In the Matter of Hogan, etc., App. Div. (per curiam) (3 pp.) The Merit System Board correctly rejected appellant’s claim that the 14-week period during which he was a corrections officer recruit trainee should be counted in determining his seniority score for the purpose of a correctional examination for the position of corrections sergeant. [Decided May 4, 2007.] PUBLIC RECORDS 52-2-7281 Higgins v. Twp. of Hopewell, et al., App. Div. (per curiam) (4 pp.) The plaintiff sought a security camera videotape that recorded proceedings both before and after a meeting of the Hopewell township committee. The tape became part of a police investigation of an alleged theft by one committee member of property belonging to another member. At the direction of the county prosecutor, the township declined to release the tape on the grounds that it was not a government record under the Open Public Records Act, because it was a criminal investigatory record. When the prosecutor determined not to pursue the theft matter, it withdrew its objection to the release of the videotape. Analyzing plaintiff’s claim under both OPRA and the common law, the trial judge first concluded that the prosecutor had acted lawfully in only keeping the records confidential as long as his investigation was ongoing. The appellate court remanded, concluding that there was a material factual dispute as to whether the criminal investigation was ongoing up until the time the prosecutor authorized release of the tape. The remand was for a plenary hearing on that narrow factual issue. On remand, the panel concludes that the trial judge accurately determined, based on her evaluation of the witnesses’ credibility, that (1) the prosecutor’s investigation had, in fact, been ongoing up until the time that the release of the tape was authorized; and (2) the tape was never a government record because it was subject to the exception for criminal investigatory records, as well as the limited exception that permits law enforcement agencies to keep documents that are government records confidential, but only as long as needed for an ongoing investigation. [Decided May 4, 2007.] REAL ESTATE � BEACH RIGHTS 34-4-7316 Bubis, et al. v. Kassin, et ux., et al., Chancery Div. � Monmouth Cy. (Lehrer, P.J.Ch.) (20 pp.) In this 12-year-old litigation between neighbors in a New Jersey shore community, the court applies the doctrines of Matthews v. Bay Head Improvement Assn., 95 N.J. 306 (1984), and Raleigh Ave. Beach Assn. v. Atlantis Beach Club, Inc., 185 N.J. 40 (2005), to a private, nonresidential beach, limiting its use by the public pursuant to the Public Trust Doctrine. [Decided May 8, 2007.] REAL ESTATE � CONDOMINIUMS � DAMAGE TO UNIT � NEGLIGENT MAINTENANCE � EXPERT TESTIMONY 34-2-7282 A-1 Property Mgmt., L.L.C. v. Bergenwood Commons Assn., Inc., et al., App. Div. (per curiam) (13 pp.) The gist of plaintiff’s complaint in this case was that the defendant-condominium association was responsible for exterior maintenance of the subject complex, and the association’s property manager, defendant Delev Corp. Property Management (Delev), failed to maintain and repair the property, leading to extensive water damage to a townhouse owned by Knobhill Victorian Estates Inc. The association filed an answer and counterclaims against Delev. Although the trial court granted the association one discovery extension, it denied its subsequent motions for an extension of time to file an expert report, and then dismissed the association’s claims against Delev for lack thereof. The appellate panel reverses, based on its conclusion that the association’s time to file an expert report should have been extended due to Delev’s late response to the association’s timely served discovery demands. [Decided May 4, 2007.] WILLS, ESTATES AND TRUSTS � UNDUE INFLUENCE 38-2-7269 In the Matter of the Estate of Grant, Deceased, App. Div. (per curiam) (10 pp.) After plaintiff lodged his father’s will for probate, the defendants, plaintiff’s sisters, challenged their father’s testamentary capacity and alleged undue influence by plaintiff in connection with both their father’s 1998 will and a family limited partnership created by their father in 1999. Although there was a confidential relationship between father and son, as they worked together in the family business, the panel affirms the Chancery Division’s dismissal of defendants’ claims and the order admitting the will to probate, reciting the facts that the court found determinative, including the fact that the will was prepared at decedent’s request by his longtime attorney, Warren Wilentz; that it did not dramatically change a prior 1992 will with respect to any benefit to plaintiff; and that the evidence established that decedent knew what he was doing, and had a strong personality, incapable of being manipulated. The evidence also showed no undue influence in the creation of the limited family partnership, which was created to minimize estate and inheritance taxes. [Decided May 3, 2007.] WORKERS’ COMPENSATION 39-2-7270 Havens v. Viking Yacht Co., App. Div. (per curiam) (25 pp.) The petitioner’s job duties with respondent included painting the engine rooms of boats one day every other week. The compensation judge found that petitioner had suffered a compensable injury � occupational asthma � as a result of his exposure to chemical vapors in this job over a three-and-one-half month period; awarded him partial permanent disability benefits; and required respondent to pay petitioner’s medical bills. The appellate court reverses, reviewing the medical evidence and concluding that the judge’s decision is unsupported by, and inconsistent with, the competent and relevant medical evidence offered at trial. Additionally, the court cannot defer to the compensation judge’s positive credibility assessment of petitioner, who the judge admitted was “a little bit evasive” about his years of smoking; in fact, petitioner clearly misrepresented his prior history of smoking, telling different stories to each of the doctors � even lying to his own expert � about why he began smoking and how many cigarettes he smoked. The judge’s decision is flawed by his ignoring petitioner’s smoking history and his failure to consider the impact that it may have had on his symptoms and complaints, particularly in view of the compelling testimony of the respondent’s expert in this regard, and the lack of objective medical tests disclosing the existence of a pulmonary disability. [Decided May 3, 2007.] FEDERAL COURT CASES CIVIL PROCEDURE � FULL, FAITH AND CREDIT � ENTIRE CONTROVERSY 07-8-7303 Opdycke v. Stout, etc., et al., Third Cir. (Ambro, U.S.C.J.) (12 pp.) The plaintiff’s civil rights “shotgun complaint” was properly dismissed by Judge Cooper of the District Court because plaintiff had already sued the same defendants on the same claims in a third-party complaint in state court proceedings brought against her by her condominium association relating to the removal of her 38 cats from her condominium and her removal after she refused to obey the terms of the notice of abatement issued by the municipal Department of Health with respect to cleaning the condominium. The panel rejects plaintiff’s contention that she specifically preserved her federal claims under a so-called “England reservation.” When a plaintiff chooses to litigate a controversy in state court, reserving potential federal claims for a subsequent federal suit under the auspices of England is ineffective; England reservations are for plaintiffs that have been displaced from federal court and forced to litigate in state court. [Filed April 27, 2007.] CIVIL RIGHTS � JUDICIAL IMMUNITY � IN FORMA PAUPERIS 46-8-7320 Mauro v. N.J. Supreme Court, et al., Third Cir. (per curiam) (5 pp.) The circuit panel rejects plaintiff’s challenge to the District Court’s denial of his Rule 60(b) motion, which he filed asking the court to reconsider its dismissal of his civil rights suit alleging that the N.J. Supreme Court justices denied him due process and equal protection in connection with his being arrested and placed under a restraining order for violation of a state spousal abuse law. Judge Cooper found, inter alia, that (1) the justices were immune from suit and the Rooker- Feldman doctrine prevented her from adjudicating plaintiff’s claims. A judgment can be voided only if the rendering court lacked subject-matter jurisdiction, or if the court acted in a manner inconsistent with the due process of law, neither of which occurred here. [Filed April 27, 2007.] CIVIL RIGHTS � JUDICIAL IMMUNITY � PROBATION SENTENCING 46-7-7321 Wallace v. Alvarez, et al., U.S. Dist. Ct. (Bumb, U.S.D.J.) (8 pp.) The plaintiff contends that the defendant, Judge Carmen Alvarez of the Superior Court, denied him due process of law in connection with a motion he filed seeking an early termination of probation. Although the motion was never set for a hearing, and the judge did not issue an appropriate order or serve plaintiff with notice that the motion had been denied, the judge is entitled to immunity in the performance of her judicial functions. To the extent that plaintiff complains of the form of the judge’s judicial acts � that is, to the extent that it was improper for the judge to deny plaintiff’s motion without a hearing � the proper remedy lies through appeal or petition in the state court. [Filed May 8, 2007.] DEBTOR/CREDITOR � INTEREST RATES � “PRIME RATE” 15-8-7304 Lum, et ux., et al. v. Bank of America, et al., Third Cir. (Rendell, U.S.C.J.) (7 pp.) The original complaint in this matter alleged that defendants artificially inflated the rate plaintiffs paid on their “prime rate” loans by reporting a “prime rate” to defendants’ customers and national newspapers that did not reflect the rate charged to their best customers. The District Court dismissed the complaint for failure to plead with particularity, and the circuit panel affirmed, noting that the term “prime rate” was “sufficiently indefinite that it [was] reasonable for the parties to have different understandings.” Plaintiffs filed an amended complaint seeking to set aside the District Court order, because of “newly discovered evidence” and fraud on the court � to wit, glossary definitions on five of the defendants’ own Web sites undermining the substance of the order. The District Court found no “grave miscarriage of justice”; that the new evidence was cumulative, not material to the case, and would not have changed the outcome of the case; and that the plaintiffs’ alleged facts, even if accepted as true, were not sufficient to prove fraud on the court. The circuit panel agrees that plaintiffs have failed to show a “grave miscarriage of justice” and refuses to set aside the prior judgment. Plaintiffs’ new evidence does not cure the failure to plead with particularity; nor does it inject precision into the allegations. [Filed May 7, 2007.] IMMIGRATION � JURISDICTION � INJUNCTIVE RELIEF � APPLICATION DELAYS 51-7-7305 Xiao, et ux. v. Gonzalez, etc., et al., U.S. Dist. Ct. (Chesler, U.S.D.J.) (14 pp.) The court considers whether it has jurisdiction to hear an action in which the plaintiffs seek to compel the U.S. Citizenship and Immigration Service to adjudicate an application for adjustment to lawful permanent residence status. Plaintiffs’ application to adjust their status to that of permanent resident aliens had not been adjudicated for two and one-half years because the USCIS and the FBI have a severe security check backlog as a result of regulations adopted by the attorney general in the aftermath of Sept. 11, 2001. Although plaintiffs admit that the attorney general’s ultimate decision to grant or deny their application is not reviewable by the court, they argue that defendants owe them a nondiscretionary duty to process their application within a reasonable time. The court, however, agrees with defendants, who argue that the entire process is discretionary, and therefore not reviewable. The adjustment of status process is discretionary, including the pace of the adjudication; therefore, immigration officials do not have a nondiscretionary duty to adjudicate plaintiffs’ I-485 applications. Absent such a duty, the court does not have mandamus jurisdiction. [Filed May 3, 2007.] INTELLECTUAL PROPERTY � TRADEMARK INFRINGEMENT 53-7-7293 Athlete’s Foot Marketing Assocs., L.L.C., et al. v. FL Consulting, Inc., et al., U.S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) The court grants plaintiff’s motion for a preliminary injunction in this trademark infringement and breach-of-contract action following the dissolution of a franchise relationship between the parties. Despite the fact that the plaintiff validly exercised its right to terminate the operating agreement due to defendants’ default, defendants continued to operate their footwear store using plaintiff’s name and marks in violation of the agreement. Plaintiff’s claim is likely to succeed on the merits; it has shown a likelihood of confusion in defendants’ continued use of its name and marks; plaintiff has demonstrated that it and its authorized franchised stores will be hurt within the geographic noncompete area; and the public interest supports the protection of plaintiff’s property interests in its trademarks. [Filed May 4, 2007.] JURISDICTION � DIVERSITY OF CITIZENSHIP � CHANGE OF DOMICILE 24-7-7307 McCann, etc. v. George W. Newman Irrevocable Trust, et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (14 pp.) Following a remand from the Third Circuit to apply the “preponderance of evidence” standard in determining whether the plaintiff’s deceased husband had changed his domicile before his death, the court concludes that plaintiff has proved that her husband did change his domicile from New Jersey to New Hampshire before he died. Accordingly, there is diversity of citizenship amongst the parties and the court is vested with jurisdiction to adjudicate plaintiff’s claims. The court also finds that it may consider portions of the certification of the Bank of New York’s attorney, Kahn, that relate to mootness and justiciability issues raised by defendants’ Rule 12(b)(6) motion, because these facts relate directly to the issue of subject-matter jurisdiction. Finally, the court dismisses that count of plaintiff’s complaint directed at two defendants who have resigned as trustees of the trust, as they are in no position to “dilute, dissipate or otherwise impair plaintiff’s interest . . . in the property.” [Filed May 7, 2007.] [For underlying Third Circuit opinion, see the Opinions Approved column of Aug. 28, 2006, 185 N.J.L.J. 784.] LABOR AND EMPLOYMENT � RACE AND SEX DISCRIMINATION 25-8-7322 West, et al. v. Hudson Cy. Correctional Center, Third Cir. (per curiam) (6 pp.) The circuit panel rejects the plaintiff’s appeal from the District Court’s grant of summary judgment to the defendants, dismissing the employment discrimination suit brought by plaintiff and six others alleging that the defendant maintained a pattern of discrimination on the basis of race and sex. As an African-American woman, Judge Lifland correctly concluded that plaintiff satisfied the first element of the McDonnell Douglas test, but her “proofs” failed to satisfy the next three elements with respect to the allegations that defendant engaged in racial discrimination in job training and assignments. Her submissions were merely general, conclusory statements about discrimination and promotion, devoid of specific facts. [Filed April 27, 2007.] LABOR AND EMPLOYMENT � WRONGFUL TERMINATION 25-7-7323 Brennan v. Cephalon, et al., U.S. Dist. Ct. (Hillman, U.S.D.J.) (18 pp.) Plaintiff, a compliance auditor for defendant, a biotechnology and drug company, contended that he was terminated because he reported that his risk management audit revealed that defendant was not in compliance with the conditions of the Food and Drug Administration approval of a narcotic painkiller called Actiq. He asserted that he was fired because he believed that defendant was committing some illegal activities and wanted them to stop, or to report them appropriately to the FDA, which he did a week after he was terminated. Finding that plaintiff was an at-will employee and that his termination did not violate any clear mandate of public policy, the judge grants defendant’s motion to dismiss. [Filed May 8, 2007.] PRODUCTS LIABILITY � HUMAN TISSUE PRODUCTS 32-7-7324 In re Human Tissue Products Liability Litigation; five additional individual captions; U.S. Dist. Ct. (Hedges, U.S.M.J.) (11 pp.) In this case transferred to the court by the Judicial Panel on Multi-District Litigation, the court sets forth its first pretrial order, including reminding parties of their obligations regarding evidence preservation and communication, and reminding counsel that they are under an obligation to the court to exercise all reasonable efforts to identify and notify parties and nonparties, including employees of corporate or institutional parties. The court also designates co-lead counsel, medical monitoring counsel, and federal liaison counsel and discusses their responsibilities. [Filed May 8, 2007.] REAL ESTATE � MORTGAGES � FORECLOSURE � FEES � FAIR DEBT COLLECTIONS PRACTICES ACT 34-7-7294 Whittingham v. Mortgage Electronic Registration Svcs., Inc., et al., U.S. Dist. Ct. (Simandle, U.S.D.J.) (19 pp.) The defendant HSBC Mortgage Services serviced the mortgage held by defendant MERS on plaintiff’s home, and defendant law firm, Zucker, Goldberg, represented both MERS and HSBC in the foreclosure proceedings instituted on the property. Plaintiff requested a payoff and remitted the amount due in full, then sued, alleging that defendants engaged in a uniform scheme and course of conduct to inflate their profits by charging and collecting various fees not authorized by the loan documents or applicable law. In granting in part, and denying in part, defendants’ motions to dismiss, the court rules, inter alia, that (1) because the Fair Debt Collections Practices Act has a one-year statute of limitations, the allegations that the mortgage payoff letter violated the act are untimely; however, plaintiff’s allegations that the actual payment/collection of the debt constituted a violation of the FDCPA are timely; (2) plaintiff has sufficiently pleaded causes of action for negligence and breach of the duty of good faith and fair dealing by the defendant-law firm; (3) the Consumer Fraud Act claim against the law firm is dismissed; (4) the intentional-misrepresentation claim is dismissed, as plaintiff speaks amorphously of the defendants and has not pleaded with the required specificity as to who made the alleged misrepresentations; (5) the claim under the Fair Foreclosure Act is dismissed, as the act does not give plaintiff a private right of action for allegedly excessive attorneys’ fees included in the payoff statement; (6) the claim under the N.J. court rules is dismissed, as there is no private remedy for violation of these rules; (7) plaintiff does not allege sufficient facts to bring either HSBC or MERS within the FDCPA’s definition of a “debt collector”; and (8) the Consumer Fraud Act claim against HSBC and MERS remains viable. [Filed May 4, 2007.] REAL ESTATE � NEW HOME WARRANTIES � ARBITRATION 34-7-7295 Kadziela v. Multitrust, Inc., et al., U.S. Dist. Ct. (Brown, U.S.D.J.) (8 pp.) The plaintiff’s new home was constructed by defendant Multitrust, and enrolled in a limited warranty program that provided all unresolved warranty issues were to be resolved through a four-step arbitration process: (1) arbitration to determine if the claims were covered under the program; (2) method of repair arbitration to pick an appropriate method to correct defects; (3) clarification arbitration to clarify an award; and (4) compliance arbitration to determine if the warrantor had complied with the award. The N.J. State Office of Dispute Settlement conducted an arbitration hearing on several of plaintiff’s warranty claims and issued an award finding some of them covered. Thereafter, plaintiff disputed some of defendant’s methods of repair, and a method of repair arbitration was held and concluded. Defendant sought clarification of the method of repair award, and a written clarification was issued. Plaintiff filed the present motion to confirm the method of repair arbitration award as binding and final; however, he also filed a request for binding compliance arbitration concerning the claims at issue. The court denies plaintiff’s motion, determining not to intervene in the as-yet-incomplete arbitration process to declare the third arbitration final and binding. Instead, the action is stayed pending outcome of the compliance arbitration. [Filed May 4, 2007.] SECURITIES � ACCOUNTING FRAUD � CONTRIBUTION 50-7-7274 Cendant Corp. v. Shelton, U.S. Dist. Ct. (Walls, U.S.S.D.J.) (15 pp.) The court grants in part, and denies in part, plaintiff’s motion for summary judgment in this action seeking contribution from defendant Shelton � former chief operating officer, president and member of the board of directors and its executive committee � to recoup his proportional share of the $3 billion paid by plaintiff to settle numerous accounting fraud actions brought against it. Because Shelton was convicted by a jury in a criminal trial on six counts of securities fraud that mirrored the violations asserted against plaintiff in the civil cases, and the conviction was upheld by the circuit court, plaintiff asserts that its right to contribution as a matter of law has been established. The court agrees with this and grants plaintiff’s motion both with respect to defendant’s liability for contribution, and plaintiff’s calculation of defendant’s 1 percent proportionate liability. The court finds some merit with respect to defendant’s argument regarding the reasonableness of the settlement amounts at issue; while the trial court concluded that the settlements were fair, reasonable and adequate to the respective classes of plaintiffs, it did not consider whether the settlements were reasonable or fair to the settling party. As defendant has raised an issue of triable fact regarding whether plaintiff paid more than was reasonable to settle either action, summary judgment on this aspect of the motion is denied. [Filed May 3, 2007.] SECURITIES � CONCURRENT JURISDICTION 50-7-7308 Pinto, et al. v. Vonage Holdings Corp., et al., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (4 pp.) The court denies the plaintiffs’ motion seeking to remand this action � one of 15 putative class-action suits against defendants � to the Law Division pursuant to the concurrent jurisdiction provided by 15 U.S.C. � 77v(a) of the Securities Act of 1933. As the court previously held in Rovner v. Vonage Holdings Corp.,* there exists exclusive federal jurisdiction over claims that (1) are brought to enforce the rights and liabilities created by the Securities Act; and (2) are covered class actions. The court sees no reason to depart from its interpretation in Rovner of the statutory provisions as divesting state courts of concurrent jurisdiction over covered class actions, regardless of whether the class actions raise state law claims in addition to claims under the Securities Act. [Filed May 7, 2007.] [*See DDS No. 50-7-6425 in the Unpublished Opinions column of Feb. 12, 2007, 187 N.J.L.J. 525.] TRANSPORTATION � RAILROADS � NEGLIGENCE � INDEMNIFICATION � LEASES 49-7-7326 Darcy v. N.J. Transit Rail Operations, Inc. v. Atlantic County Improvement Authority v. SMG, etc., U.S. Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) Plaintiff, an employee of defendant-third-party plaintiff NJ Transit, was injured when he fell while descending a stairway in the parking lot of the rail terminal in Atlantic City. NJ Transit filed a third-party complaint against the third-party defendant ACIA, claiming that, in the lease agreement between the parties, ACIA agreed to indemnify NJ Transit for its liability as to plaintiff’s injuries. The court holds that ACIA is not contractually obligated to indemnify NJ Transit for injuries suffered by plaintiff Darcy that are found to have resulted from NJ Transit’s negligence. [Filed May 8, 2007.]

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