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APRIL 24 TO 30, 2008 STATE COURT CASES ADMINISTRATIVE LAW – REAL ESTATE LICENSURE – REVOCATION 01-2-0328 New Jersey Real Estate Commission v. Nasir, App. Div. (per curiam) (14 pp.) Where after being found liable in a civil insurance fraud prosecution, defendant had his insurance producer license revoked administratively, the revocation of his real estate salesperson’s license for a term of five years for violation of the Real Estate License Act, based on the insurance fraud, was not duplicative of the other sanctions imposed, as there is no legal impediment to separate penalties for violations of the three separate statues involved. Nor was it unduly excessive since appellant’s conduct clearly shows dishonesty and commission of a fraudulent act, either of which justified revocation. [Decided April 25, 2008.] AGENCY AND PARTNERSHIP – WIND-UP OF AFFAIRS 02-4-0347 JerseyYork Apparel, L.L.C., Yellowstone Brands, L.L.C., Ross Holding, L.L.C., Mitchell Barkley, Gary Podhaizer and Sergio Cereda v. Ronald Platovsky et al., etc., Chancery Div. – Bergen Cy. (Doyne, P.J.Ch.) (21 pp.) A motion was filed on behalf of the defendants, Ronald Platovsky and Michael Sabino, seeking, pursuant to N.J.S.A. 42:2B-50(a), an appointment of a liquidating receiver to take title and sell the assets of JerseyYork Apparel, L.L.C., and Yellowstone Brands, L.L.C., wind up their affairs, and dissolve the entities. The defendants’ application was premised on the plaintiffs’ purported waste of JerseyYork and Yellowstone’s intellectual property, the management’s failure to satisfy the entities’ financial obligations, and plaintiffs’ purported efforts to dilute the defendants’ interest in the companies. As the defendants failed to establish JerseyYork or Yellowstone is insolvent; has suspended its ordinary business for lack of funds; or its business is being conducted at a great loss and at great prejudice to the interests of its creditors or members, defendant’s application to appoint a receiver for JerseyYork and Yellowstone to liquidate the companies was denied. [Decided April 25, 2008.] ARBITRATION AND MEDIATION – EXPUNGED RECORDS 03-2-0368 Teamsters Local Union No. 177 v. United Parcel Service, Inc., App. Div. (per curiam) (9 pp.) Teamsters Local Union No. 177 appealed from an order granting the cross-motion of defendant United Parcel Service “to inspect and release the files and records and the information contained therein” relating to the arrest of defendant’s employee, F.M. The released material had been expunged pursuant to a prior order of the court. The order also permitted Essex County Prosecutor’s Office investigators John Gomes and Robert O’Neil to testify at an arbitration hearing being conducted for the purpose of determining whether UPS had just cause to discharge F.M. The union argued that the expungement statute and the expungement order clearly prohibit the disclosure of the underlying criminal record and testimony at the discharge arbitration hearing and no compelling reason exists to justify the disclosure authorized by the order. The union acknowledged that hearsay evidence is admissible in an arbitration, that the evidence in UPS’ possession is unaffected by the expungement, and that UPS can assert that what it did was based on the information supplied to it by the investigators, as well as what Security Officer Smith observed when responding to the scene. Under the circumstances, the expunged records may not be required to sustain UPS’ position, and the statutory expungement should be maintained because there would be no “good cause” or “compelling need” to release the information. However, the appellate panel recognized that F.M. could deny the fact he was even arrested much less prosecuted, and the judiciary has never permitted a person to invoke even a constitutional right when preclusion of nonadmissible evidence would permit untruthful testimony to remain unimpeached. Accordingly, the panel modified the order under review and precluded the use of the expunged records and the testimony of the subpoenaed investigators unless F.M. testifies and presents a defense that disputes he possessed marijuana on a UPS truck on the date of his arrest, and that he was arrested. As stated in Ulinsky and J.R.S., the remedy of expungement was never intended as a device by which a plaintiff could control the availability of evidence relevant to the proceedings. The matter was remanded for arbitration. [Decided April 30, 2008.] ARBITRATION AND MEDIATION – INTEREST ON AWARD – ATTORNEYS’ FEES 03-2-0356 Somerset County Sheriff’s Officers FOP Lodge #39 v. County of Somerset and Somerset County Sheriff, App. Div. (per curiam) (8 pp.) Following arbitration, plaintiff obtained an award requiring that its members receive a wage increase. The Public Employment Relations Commission (PERC) affirmed the award. Absent a stay, the county was required to pay the arbitration award within 14 days. When the county did not pay the award, the FOP filed a verified complaint and order to show cause in the Law Division, seeking to enforce the arbitration award. Plaintiff also sought counsel fees for the cost of the enforcement application, plus interest on the arbitration award. The trial court judge entered an order enforcing the award but denying plaintiff’s application for counsel fees and interest. The judge’s rationale was that awarding attorneys’ fees and interest would “put a chilling effect on any entity’s right to appeal any decision and to go through the necessary channels. The appellate panel found that not only did the county fail to pay the award in a timely manner, it played a “cat-and-mouse game” with its stay application. The panel found the record plainly demonstrated that the county had no intention of paying the award until it was forced to do so. The panel found that entering an order awarding counsel fees would not have precluded the county from pursuing its appeal rights, nor would it have unfairly burdened or “chilled” the right of appeal. Consequently, the Appellate Division concluded that it was a mistaken exercise of discretion to deny plaintiff’s application for counsel fees. Plaintiff is entitled to reasonable counsel fees for the enforcement action, including time spent opposing the two stay applications. Further, the panel found that because employees represented by plaintiff FOP were denied the use of wages they should have had, and the county had the opportunity to earn interest on the funds, post-award interest was warranted. The panel reversed the order denying counsel fees and interest, and remanded to the trial court. [Decided April 29, 2008.] ARBITRATION AND MEDIATION – DEFAULT – NOTICE 03-2-0357 New Century Financial Service, Inc. v. Sutton, App. Div. (per curiam) (4 pp.) Defendant failed to appear for arbitration and a default judgment was entered on May 27, 2005. Defendant did not move to vacate the default until July 13, 2007. He did not present any substantial reason for the delay, although he denied the debt on his GM card on the ground that he had “exercised credit disability life insurance terms policy.” The trial court rendered a written memorandum of decision in which it reviewed the requirements of Rule 4:50-1 and concluded that defendant did not present sufficient reason for vacating the judgment. The appellate panel affirmed. The panel added that defendant’s argument that the default judgment was entered without fair notice to him because plaintiff’s notice of motion to confirm the arbitration award and enter default incorrectly listed Essex rather than Atlantic County was unavailing. As Judge Todd correctly noted, the error in the notice of motion did not deprive the court of jurisdiction or defendant of his due process right to notice. Defendant failed to respond to the notice of motion in either county, failed to move timely to vacate the default pursuant to Rule 4:50-2 and failed to provide any basis for a finding that the more than two-year delay in filing his motion to vacate the default judgment was excusable neglect. [Decided April 29, 2008.] ATTORNEY/CLIENT – CONFLICT OF INTEREST 04-2-0311 Appaloosa Investment L.P.I. et al v. J.P. Morgan Securities Inc. et al., App. Div. (per curiam) (13 pp.) Plaintiffs are a group of mutual and hedge funds that, by way of this action, sought damages based on losses they claim to have sustained from investing in Bre-X Minerals Ltd., a Canadian gold exploration company. Defendants are financial institutions that provided services for the now-bankrupt Bre-X. In the complaint filed by their attorneys, Gibbs & Bruns, the funds allege that “red flags” that went up should have made defendants understand that Bre-X was a fraud. Defendants filed a third-party complaint against the managers and investment advisers of the funds. Gibbs & Bruns thereafter appeared as counsel for the advisers. In this appeal, the Appellate Division reviewed the trial judge’s order that denied defendants’ motion to disqualify Gibbs & Bruns as counsel because of its dual representation of both the funds and the advisers. The appellate panel concluded there is a substantial identity of interests between the funds and the advisers and that the scenario does not generate a conflict of interest within the meaning of RPC 1.7(a). Even if a conflict of interest could be found in these circumstances, the panel determined that the funds waived it. [Decided April 24, 2008.] AUTOMOBILES – VERBAL THRESHOLD 05-2-0369 Filbert v. Pinto and Vault, App. Div. (per curiam) (3 pp.) This verbal threshold case arose out of an automobile accident that occurred on Oct. 31, 2003. Plaintiff alleged that she suffered chronic traumatic cervical sprain and strain with cervical myofascitis, chronic traumatic thoracic sprain and strain, cervical facet syndrome and probable glenoid labral tear in the right shoulder. An MRI of the cervical spine showed normal cervical vertebrae and an MRI of her right shoulder shows only an inflammation. Although plaintiff submitted a number of medical reports opining that she had serious permanent injuries, she presented no objective evidence to support those findings. Under DiProspero, plaintiff no longer must demonstrate an impact on her life, but she must present objective evidence of a permanent injury in order to meet the verbal threshold. The appellate panel found that all of the medical reports submitted by plaintiff were based on plaintiff’s subjective responses indicating pain on palpation or movement. There are no X-rays, MRIs or other objective studies to support a finding of permanent injury. The certificate of plaintiff’s physician asserting permanency does not by itself preclude summary judgment. The panel affirmed the trial court’s grant of summary judgment. [Decided April 30, 2008.] BANKING – HOUSING and MORTGAGE FINANCE AGENCY REGULATIONS 06-2-0312 Overlook Terrace, HMFA # 20 v. New Jersey Housing and Mortgage Finance Agency, App. Div. (per curiam) (37 pp.) In this appeal of the interpretation of N.J.A.C. 5:80-9.13, which governs a sponsor’s optional conversion of certain privately owned, HMPRA-financed housing projects to mixed low-income and moderate-income projects in order to take advantage of streamlined procedures and less restrictive standards for implementing rent increases, applying the time-of-decision rule, the court affirms, with one modification, the agency’s retroactive application to appellant of amendments that it made to the rule during the pendency of the matter before the Office of Administrative Law, which amendments buttressed its position regarding the five contested issues of the rule’s interpretation. [Decided April 24, 2008.] CIVIL PROCEDURE – DISCOVERY RULE – POLICE – WRONGFUL DEATH 07-2-0329 Estate of Crawford v. City of Newark et al., App. Div. (per curiam) (13 pp.) In this wrongful-death action arising out of a high-speed police pursuit, in which plaintiffs did not timely sue the individual officers involved nor name them as fictitious parties, their later amended complaint against the two officers was properly dismissed as barred by the applicable two-year statute of limitations since that statute was not tolled by the discovery rule because plaintiffs were aware of an injury and knew, or should have known, that such injury was the fault of the identifiable police officers. [Decided April 25, 2008.] CIVIL PROCEDURE – DISMISSALS WITH PREJUDICE 07-2-0370 Giacobbi v. Midstate HYE, NJ, LP et al., App. Div. (per curiam) (7 pp.) In this slip-and-fall sidewalk case, where plaintiff complied with an order to submit to a medical examination and defense counsel then agreed to postpone an ordered deposition because plaintiff was obtaining new counsel, plaintiff delayed for more than six months in retaining new counsel, and there was no subsequent order compelling his deposition, the trial court erred in dismissing the complaint with prejudice. [Decided April 30, 2008.] CONDEMNATION – OPEN SPACE – SETTLEMENTS 44-2-0313 Township of Hamilton v. Fieldstone Associates, L.L.P., etc., App. Div. (per curiam) (17 pp.) Where the township and defendant had entered into a settlement of the township’s condemnation action, commenced to acquire defendant’s property as open space, and the township had sufficient Open Space funding to cover the settlement but as part of the settlement agreed to apply for Green Acres funding and other available grants or loans to pay for the land within one year while paying interest, the trial court judge properly granted defendant’s motion to enforce litigant’s rights after a change in the township council’s makeup led to an attempt to repudiate the settlement. The settlement did not violate N.J.S.A. 40A:4-57, as the exception in N.J.S.A. 40A:4-57(b) for payments to be made beyond the fiscal year is applicable, and there was more than enough money to pay the township’s settlement obligation for the budget year in which it authorized the settlement. [Decided April 24, 2008.] CRIMINAL LAW AND PROCEDURE – COMPETENCY ASSESSMENTS 14-2-0320 State v. Durga, App. Div. (per curiam) (10 pp.) Since N.J.S.A. 2C:4-5 provides the exclusive methods by which a court may order that a defendant be examined to determine his competency to stand trial, and that statute contemplates an evaluative report prepared by a professional who is not retained by either side, the trial court erred in requiring the state to pay for defendant’s psychiatric examination. [Decided April 24, 2008.] CRIMINAL LAW AND PROCEDURE – CONSECUTIVE SENTENCING 14-2-0321 State v. Hall, App. Div. (per curiam) (35 pp.) The Appellate Division concludes that under the Yarborough guidelines, the trial court erred in imposing consecutive sentences for defendant’s convictions for armed robbery and unlawful possession of a weapon and the matter is remanded for resentencing. It is affirmed in all other respects. [Decided April 24, 2008.] CRIMINAL LAW AND PROCEDURE – MICHAELS HEARING 14-2-0336 State v. D.C., App. Div. (per curiam) (10 pp.) Defendant was charged with second-degree sexual assault and second-degree endangering the welfare of a child. Trial counsel’s motion for a Michaels hearing on the issue of the reliability and admissibility of the children’s statements was granted. However, the hearing was never held. In determining whether a post-conviction relief application entitles a defendant to a plenary hearing, a trial judge has the discretion to evaluate an issue as lacking factual or legal merit. In this case, the court speculated as to motivation and strategy of trial counsel in waiving a Michaels hearing and assumed that defendant knowingly agreed to such a waiver. Although the trial judge may well have been correct in his assessment, the Appellate Division found that an evidentiary hearing is best suited to resolve the issues as there is dispute of fact regarding matters not of record. Trial counsel may then testify as to his reasons for not pursuing the Michaels hearing and the defendant’s consent. The appellate panel reversed and remanded. [Decided April 25, 2008.] CRIMINAL LAW AND PROCEDURE – PAROLE INELIGIBILITY 14-2-0365 State v. Willis, App. Div. (per curiam) (20 pp.) In sentencing defendant, the judge concluded that the aggravating factors clearly and substantially outweighed the mitigating factors. The judge imposed the maximum base term of five years’ imprisonment and also imposed the maximum period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b). The appellate panel agreed with the judge’s conclusion that the aggravating factors clearly and substantially outweighed the two mitigating factors and upheld the five-year base term. As to defendant’s argument that the parole-ineligibility term was not justified and must be vacated, the panel observed that a judge must explain why he reached that conclusion by making specific findings about the qualitative and quantitative weight he applied to each aggravating and mitigating factor. The Appellate Division affirmed the conviction and remanded the matter for resentencing to permit the judge to make the findings that are required by Kruse and provide an explanation of the factors considered in imposing the period of parole ineligibility. [Decided April 29, 2008.] CRIMINAL LAW AND PROCEDURE – PCR – LOST RECORDS 14-2-0352 State v. Glenn, App. Div. (per curiam) (8 pp.) Defendant’s sentence included a term to be served at the Adult Diagnostic and Treatment Center in Avenel. Before defendant was transferred, an electrical fire broke out in the East Jersey State Prison and all of the documents respecting his conviction and sentence were lost. Defendant appealed from a final order denying his motion for an order compelling the Office of the Public Defender to provide full discovery of the material and documents contained in its file respecting the conviction. In denying defendant’s motion, the judge explained that the time in which a direct appeal could be filed passed several years ago, that the Public Defender’s Office was unable to find defendant’s file, and that Rule 3:13-3 does not give the court power to demand discovery years after a conviction. Although affirming, the Appellate Division found that defendant is entitled to the documents and evidence he requested and that he has a right to seek post-conviction relief. As a consequence, its affirmance was without prejudice to a subsequent motion to compel the attorney general or the Middlesex County prosecutor to provide defendant with copies of the requested documents. [Decided April 28, 2008.] CRIMINAL LAW AND PROCEDURE – POST-ARREST SILENCE 14-2-0322 State of New Jersey in the Interest of A.V., Juvenile-Appellant, App. Div. (per curiam) (9 pp.) Defendant, a juvenile, was adjudicated delinquent for offenses that, if committed by an adult, would have constituted second-degree robbery; fourth-degree unlawful possession of a weapon; third-degree possession of a weapon for an unlawful purpose; simple assault; and conspiracy to commit robbery. He was sentenced to a one-year term of probation and 90 hours of community service. Defendant contended on appeal that the prosecutor violated his constitutional right to remain silent by cross-examining him on his post-arrest silence. The Appellate Division found that it was improper for the prosecutor to attack defendant’s version of what happened by commenting on his failure to tell the police that another person had possession of a video game stolen from the victim. Although the whereabouts of the video game did not appear to play a role in the trial court’s decision, defendant’s credibility was critical in light of the conflict between his testimony on his involvement in the events and the state’s charges. The Appellate Division found that allowing a line of questioning impugning defendant’s credibility in contravention of his right to remain silent was clearly capable of producing an unjust result. [Decided April 24, 2008.] CRIMINAL LAW AND PROCEDURE – RECANTING WITNESSES 14-2-0323 State v. Chandler, App. Div. (per curiam) (10 pp.) The trial court denied defendant’s motion for a new trial based on newly discovered evidence, the two witnesses who implicated defendant in the crime recanted. However, since these were the only two witnesses implicating defendant in the crime, the Appellate Division reversed and remanded in order that an evidentiary hearing be held so that the trial judge may make findings on the credibility of the recanting statements. [Decided April 24, 2008.] FAMILY LAW – ALIMONY – CHANGED CIRCUMSTANCES 20-2-0314 Derasmo v. Derasmo, App. Div. (per curiam) (10 pp.) The trial court erred in denying the ex-husband’s motion for relief from his ongoing alimony obligation without a plenary hearing since he has advanced a prima facie showing of changed circumstances – his acceptance of a lower-paying job in Florida in exchange for medical coverage and a pension, the ex-wife’s inheritance of a house and rental income from her condominium – sufficient under Lepis to trigger such a hearing. [Decided April 24, 2008.] FAMILY LAW – CHANGED CIRCUMSTANCES – CHILD SUPPORT 20-2-0371 Hulse v. Whitney, App. Div. (per curiam) (11 pp.) Where defendant certified to a decrease in his hourly wage followed by a subsequent inability to work because of injuries to his foot and spine, which necessitated surgery, and that his only income for nearly two years has been private disability payments and food stamps, the order denying his motion for a reduction in child support based on changed circumstances is reversed and remanded so that he may present updated evidence regarding any decrease in his earning capacity, whether temporary or permanent, and information regarding his present medical condition. [Decided April 30, 2008.] FAMILY LAW – CHILD SUPPORT 20-2-0330 Isaacson v. Isaacson, App. Div. (per curiam) (15 pp.) The defendant appealed from portions of an order of the Family Part that increased plaintiff’s monthly child-support obligation for the parties’ two children by $60; denied her request for reimbursement of certain tutoring expenses; and denied her request that plaintiff reimburse her mother for loans to defendant. Defendant also claimed the trial judge denied her a fair hearing on her motion, and sought the judge’s recusal in the event of a remand. The Appellate Division concluded that the trial judge improperly declined to require plaintiff to submit his current financial information in deciding defendant’s motion and erroneously denied defendant’s request for reimbursement of tutoring expenses. The denial of reimbursement to defendant’s mother was upheld. The panel further concluded that the judge demonstrated a significant degree of animus and impatience toward defendant and, therefore, reversed and remanded for further proceedings before a different judge. [Decided April 25, 2008.] FAMILY LAW – CHILD SUPPORT – RETROACTIVITY 20-2-0348 Internoscia v. Internoscia, App. Div. (per curiam) (9 pp.) After examining the updated circumstances, including the mother’s more frequent overnights with the parties’ children, the trial judge entered an order granting a reduction of child support to $49 per week. The order made that decrease retroactive to the date on which the mother had filed her reduction motion. The judge denied, however, the mother’s request for additional retroactive treatment back to the trigger date for the mother’s agreed-on $125 weekly support payment. The judge relied on the so-called anti-retroactivity statute that generally precludes the reduction of child support after it has already become due for payment, except as to the date on which a motion for modification is filed, unless a child has been emancipated. The judge rejected the mother’s argument that adopting a later effective date would cause the father to receive an unfair windfall, noting that the father had originally agreed to accept a child-support figure below the amount called for under the state guidelines, and that he had also waived support for a six-month period. The judge found no equitable reason to depart from the dictates of the anti-retroactivity statute. Although the support adjustment issue was being negotiated by the parties’ counsel, the mother failed to file a motion in the meantime to protect her interests in preserving an earlier trigger date. If such a motion had been filed sooner, counsel could have requested the court to adjourn the motion while the settlement talks were ongoing. [Decided April 28, 2008.] FAMILY LAW – DOMESTIC VIOLENCE – FINAL RESTRAINING ORDER 20-2-0358 L.V. v. A.S., App. Div. (per curiam) (18 pp.) Plaintiff appealed from the dismissal of her domestic-violence complaint and the denial of her request for a final restraining order (FRO), following a trial in the Family Part. Plaintiff argued that the judge gave undue weight to the one-month delay between defendant’s threatening gestures and the filing of the complaint and failed to give adequate consideration to the statutory factors that inform the decision to grant any FRO. The judge determined that plaintiff’s decision not to seek the FRO sooner was not the result of her belief that an order of protection was already in existence, or her belief that defendant posed an “immediate danger” to her or her children, as she had claimed. He saw the delay as evidence of plaintiff’s motivation for filing the complaint and concluded that plaintiff came to court to seek a restraining order on this and other occasions only after custody or parenting time was in dispute. The Appellate Division found that the judge adequately considered the statutory factors. However, he conceded that the concerns expressed by the parties’ child during his testimony are worthy of serious analysis and consideration. Nevertheless, the panel affirmed, finding those concerns are best addressed in the context of any plenary hearing that may take place regarding defendant’s parenting time request, and not in an action under the Domestic Violence Prevention Act. [Decided April 29, 2008.] GOVERNMENT – BALLOT DESIGN – ELECTION LAW 21-2-0359 Andrews v. Rajoppi et al., App. Div. (per curiam) (14 pp.) In this suit by one of the candidates for the Democratic nomination for U.S. senator, challenging the design of the ballots to be used for the primary, the Appellate Division directs the county clerks of counties where either bracketed or nonbracketed candidates were given preferential treatment to conduct new drawings and redraft ballots in conformity with the results, to conform with the legislative requirement of equality of treatment among candidates for the same office. The panel also prohibits the “L” formation used in some counties. It also rejects plaintiff’s argument that those counties that permitted candidates for other offices to be bracketed with a senate candidate violated the third paragraph of N.J.S.A. 19:23-26.1, as the Appellate Division has held that paragraph unconstitutional. [Decided April 29, 2008.] INSURANCE – INADEQUATE REPLACEMENT COVERAGE 23-2-0315 ARC Family L.L.C. v. Ralph Parnes Associates Inc., App. Div. (per curiam) (61 pp.) In this insurance broker malpractice action, defendant appealed from an order awarding plaintiff (1) $1.61 million for defendant’s negligence in securing adequate replacement-cost property insurance, together with prejudgment interest of $178,953.22; and (2) $37,641.88 for defendant’s negligence in setting the policy limits for business interruption insurance, together with prejudgment interest of $4,155.09. Defendant argued that the jury failed to consider various policy exclusions, but presented no testimony about policy exclusions at trial, nor was the policy admitted into evidence. In any event, the court found that the policy secured by the defendant was inadequate and did not match plaintiff’s request for full replacement coverage. The Appellate Division determined that the verdict, which was substantially less than the amount sought by plaintiff, was amply supported by the evidence and not excessive. [Decided April 24, 2008.] INSURANCE – SUBSTITUTED VEHICLE 23-2-0331 Ward v. National Continental Insurance Company/Progressive Insurance Company et al., App. Div. (per curiam) (5 pp.) Plaintiff appealed from orders constituting a final judgment against his employer’s automobile carrier, National Continental Insurance Company, and its servicing agent, the R.L.M. Agency, for failure to include plaintiff and the personal vehicle he was driving at the time of his accident under the employer’s policy. Plaintiff sought reversal of the summary judgment granted to NCIC and entry of summary judgment requiring NCIC to pay underinsured-motorist benefits under the policy. He also sought reversal of the summary judgment entered in favor of R.L.M. Under the employer’s policy, coverage is provided for anyone “occupying a covered ‘auto’ or a temporary substitute for a covered ‘auto.’” Under the policy the substituted vehicle must have been “out of service because of its breakdown, repair, servicing, loss or destruction.” Plaintiff asserted he was using his wife’s vehicle because his work pickup truck, one of four covered vehicles under his employer’s policy, was “out of service” during “repair,” within the meaning of the policy. The question of whether the employee’s personal vehicle could be deemed a “substituted vehicle” was a factual dispute. As the motion judge’s decision did not address the issue, the Appellate Division remanded for reconsideration of the motion for summary judgment based on the standard announced in Brill. Summary judgment in favor of R.L.M. was upheld as there was an insufficient showing that the employer authorized or directed R.L.M. to add plaintiff’s personal vehicle to the policy. [Decided April 25, 2008.] LABOR AND EMPLOYMENT – DENIAL OF UNEMPLOYMENT BENEFITS – DRUG TREATMENT 25-2-0372 Ehmann v. Board of Review, Department of Labor et al., App. Div. (per curiam) (3 pp.) Claimant worked as technician for respondent Hoffman’s Exterminating Co. Inc. for approximately three months when he left to address a medical problem related to his use of drugs. He did not seek a leave of absence and agreed that his employer did not promise to keep his job open. When he had completed his treatment, he sought to return to his former position, but there were no positions available. He applied for unemployment compensation benefits; however, his application was denied. An individual is disqualified for unemployment compensation benefits if the individual “has left work voluntarily without good cause attributable to such work.” It is not sufficient that the individual have good cause to leave the employment; that good cause must be attributable to the work itself. Although claimant clearly needed to address his substance-abuse problem, he candidly admitted that there was no relationship between his employment and his need for drug treatment. The Appellate Division affirmed, finding the decision of the Board of Review that claimant left his employment for a personal reason, unrelated to his employment, and was thus disqualified for unemployment compensation benefits, was fully supported by the record and in accord with the statute. [Decided April 30, 2008.] LABOR AND EMPLOYMENT – DISCRIMINATION 25-2-0373 L.W. v. Subway Restaurant et al., App. Div. (per curiam) (17 pp.) In this matter filed by the guardian for the minor complainants alleging that defendant, Subway’s manager, frequently made racist comments to them in the workplace, thus creating a hostile work environment and leading to their constructive discharge, the Division on Civil Rights director’s refusal to vacate its finding that defendant had committed employment discrimination in violation of the Law Against Discrimination, entered after a default hearing, is affirmed. There was no abuse of discretion where defendant, who was not a minor when this matter was adjudicated, was well aware of the proceedings but continuously failed to respond and, although he did produce some evidence of an alleged miscommunication with his prior attorney and even possible malpractice, did not produce evidence of a meritorious defense in his reconsideration motion. [Decided April 30, 2008.] LABOR AND EMPLOYMENT – UNEMPLOYMENT BENEFITS 25-2-0316 Regan v. Board of Review, Department of Labor et al., App. Div. (per curiam) (6 pp.) In this appeal of the Board of Review’s determination that plaintiff is disqualified from receiving unemployment benefits, the court says the board did not abuse its discretion in treating the employer’s procedurally imperfect letter as an appeal from the Appeal Tribunal’s decision awarding benefits and ordering a remand hearing. [Decided April 24, 2008.] 25-2-0332 Keith v. Board of Review, Dept. of Labor et al., App. Div. (per curiam) (5 pp.) Where appellant’s position as assistant manager at an apartment complex was eliminated when a full-time more experienced manager was hired, she received unemployment benefits, and she enrolled in a community college work force program, the court affirms the Board of Review’s determination that she was not eligible for additional benefits during training under N.J.S.A. 43:21-60 because there was no substantial reduction-in-work opportunities in her job classification at her former work site. [Decided April 25, 2008.] 25-2-0374 Pindar v. Board of Review, App. Div. (per curiam) (11 pp.) The court affirms the Board of Review’s determination that appellant was disqualified from unemployment benefits because she left her job voluntarily without good cause since, notwithstanding her dissatisfaction with her working conditions and her belief that her supervisor’s actions and statements were unprofessional and disrespectful and that her work was not appreciated, she has not shown that working conditions were hostile or abnormal. [Decided April 30, 2008.] LAND USE – BULK VARIANCES – REMEDIES 26-2-0376 Miller v. Abbott et al., App. Div. (per curiam) (32 pp.) The trial court order dismissing plaintiffs’ action in lieu of prerogative writs challenging the Margate Zoning Board of Adjustment’s decision granting two variances to defendants for an outside staircase and from height and setback requirements for decks is reversed. The board’s factual findings supporting its grant of a C variance for the deck are not supported by the evidence since, inter alia, the deck has no impact on drainage on the property and the record belies the finding that permitting the enlarged deck will have no impact on the neighbor’s property. Moreover, the board cannot base its decisions on personal regard for an applicant. Defendants must either lower the deck or cut it back to satisfy the applicable set-back requirements. The decision granting a variance to construct an outdoor staircase from the first to the second floor is also reversed since it is not supported by sufficient evidence or sufficient factual findings to sustain the grant of a D variance. [Decided April 30, 2008.] LAND USE – CONFLICT OF INTEREST – CAMPAIGN CONTRIBUTIONS 26-3-0363 Borough of Ridgefield v. Borough of Ridgefield Zoning Board of Adjustment et al., Law Div. – Bergen Cy. (Harris, J.S.C.) (33 pp.) Grand Summit is the owner of 1.52 acres of undeveloped, heavily treed, and steeply sloped land with frontage on two streets in Ridgefield. It applied to the Ridgefield Board of Adjustment for permission to establish and operate a mixed use of residential and retail uses on the land. In an effort to overturn its board’s decision granting use and other variances, the Republican-controlled borough of Ridgefield sued primarily on the ground that the agency’s decision is tainted because of a conflict of interest. The alleged error involves the chairman of the board of adjustment who, in his capacity as treasurer of the Ridgefield Democratic Municipal Committee, knew or should have known of Grand Summit’s two separate campaign contributions to the Democratic committee, and who thereafter refused to recuse himself on the development application after being invited to do so at a public meeting. The case raised stimulating questions concerning standing and conflict of interest, but not so much about the land-use issues at stake. The borough did not succeed in convincing the court that it enjoyed standing to sue and failed to convince the court that the chairman should have recused himself because of the campaign contributions. The complaint was dismissed with prejudice and without costs. [Decided April 29, 2008.] LAND USE – DENIAL OF VARIANCE – PINELANDS PROTECTION ACT 26-2-0333 Whitetail Farms, L.L.C. v. Mullica Township Planning Board, App. Div. (per curiam) (18 pp.) Mullica Township is a Pinelands community subject to the provisions of the N.J. Pinelands Protection Act. Plaintiff applied under the land transfer program to permit construction of a single-family dwelling. The application sought a setback variance, seeking to reduce the 200-foot front yard setback requirement to 100 feet, which was necessary to maintain the required 300-foot wetlands buffer. No other variances were needed, as the proposed development satisfied the 11 other criteria established by the Pinelands Commission and the township. The trial court, in reversing the planning board’s denial of the variance, found that plaintiff satisfied the positive and negative criteria for variance relief through the presentation of unrebutted and credible expert testimony, and that there was “literally no evidence of detriment to the public good resulting from plaintiff’s proposal.” The Appellate Division agreed and further found that the board’s attempt to create an additional “buffer zone” was arbitrary, capricious and unreasonable. The panel affirmed the variance under N.J.S.A. 40:55D-70c(1). [Decided April 25, 2008.] LAND USE – PRESERVATION OF HISTORIC LANDMARKS ORDINANCE 26-2-0375 Cotswold, L.L.C. v. Paul Renaud, Construction Officer of the Borough of Tenafly, et al., App. Div. (per curiam) (5 pp.) A sculptured fountain had been located on the grounds of the Cotswold Estate since at least 1925. In 2002, defendant Tenafly adopted an ordinance designating the Cotswold Estate as an historic site pursuant to its power to designate and regulate historic sites under N.J.S.A. 44:55D-65.1 and its Preservation of Historic Landmarks Ordinance, Borough of Tenafly, N.J. Code � 35-807. Plaintiff, owner of the Cotswold Estate, thereafter converted the property into condominium units. Plaintiff removed the fountain from the property, without obtaining a certificate of appropriateness from the borough before doing so. Plaintiff took the position that since the fountain was not mechanically attached to the land, it was not a fixture and hence was not encompassed within the historic-site designation. When the borough directed that the fountain be returned to the property, plaintiff brought this declaratory judgment action seeking a finding that the fountain was not subject to the ordinance. The borough filed a counterclaim seeking an order for the return of the fountain plus penalties. The trial judge held the fountain was an improvement governed by the historic designation and must be returned to the historic site and remain there unless and until plaintiff obtains the requisite certificate of appropriateness. The trial judge denied the borough’s request for civil penalties and exemplary damages. The appellate panel affirmed. [Decided April 30, 2008.] LAND USE – VARIANCES 26-2-0349 Price v. Maximus Real Estate Fund, L.L.C. et al., App. Div. (per curiam) (5 pp.) The Appellate Division concurs with the trial judge’s findings that the expert testimony offered by defendant was adequate to satisfy its burden of proving a right to variances for floor area ratio, density, minimum lot size and maximum lot coverage, sought in order to construct a nine-story residential high rise in Union City. [Decided April 28, 2008.] MUNICIPAL LAW – ROAD MAINTENANCE 30-2-0364 Bader et al v. Township of Mahwah et al., App. Div. (per curiam) (5 pp.) Whether Mahwah is obligated to maintain and repair the disputed section of road was the subject of two prior lawsuits. The Appellate Division twice affirmed the determination that plaintiffs failed to demonstrate that Mahwah owned the road and held that Mahwah was under no obligation to maintain and repair a road not owned by it. Here, Judge Harris found that no change in circumstances occurred since commencement of the first action and the 1984 affirmance of the first lawsuit remained binding. Judge Harris found unpersuasive plaintiffs’ effort to distinguish the concept of “responsibility” for maintenance of the road from “ownership” of the road. He concluded that based on the doctrines of res judicata and collateral estoppel, plaintiffs’ claim was not sustainable. Even if not precluded by the prior adjudication, plaintiff’s equal protection and civil rights claims were not meritorious because a rational basis exists for disparate treatment by Mahwah of the different sections of the road. The judge also rejected plaintiffs’ efforts to support its claim by reference to the Tort Claims Act, reasoning that the act does not impose on municipal entities any obligation to exercise dominion and control over roadways within their borders. The Appellate Division affirmed. [Decided April 29, 2008.] PUBLIC EMPLOYEES – CODEY BILL AND FORFEITURE LAW 33-2-0317 Hood et al. v. Ryan, Individually, and in his official capacity as Commissioner of Human Services et al., App. Div. (per curiam) (34 pp.) Following pretermination and formal departmental hearings, Ancora Psychiatric Hospital, a state psychiatric hospital under the control of the Department of Human Services (DHS), suspended without pay eight employees after criminal background checks revealed charges or convictions for criminal offenses. In Count I of their complaint, plaintiffs sought a declaration that defendants’ actions were inconsistent with the language and intent of the Codey Bill and Forfeiture Law and injunctive relief to halt ongoing violations. In Count II, plaintiffs asserted an “as applied” challenge to the constitutionality of the Civil Service Act and its regulations, i.e., Ancora’s ongoing application of the permissive suspension authority contained in N.J.S.A. 11A:2-13, N.J.A.C. 4A:2-2.5, and N.J.A.C. 4A:2-2.7, “to systematically suspend without pay all employees who are charged, but not convicted, of criminal offenses,” undermines the legal principle of innocent until proved guilty. In Count III, plaintiffs alleged defendants violated their federal rights under 42 U.S.C.A. � 1983. The Law Division judge transferred the first two counts of plaintiffs’ complaint to the Appellate Division and retained the � 1983 count. The Appellate Division dismissed counts I and II of plaintiffs’ complaint with prejudice for failure to exhaust administrative remedies. [Decided April 24, 2008.] PUBLIC EMPLOYEES – PROSECUTOR’S INVESTIGATORS – TERMINATION 33-2-0377 Feltri v. Kelaher et al., App. Div. (per curiam) (17 pp.) Where the evidence accepted by the court showed that plaintiff, an investigator in the prosecutor’s office, threatened the jobs of the police officers who stopped his car, was uncooperative with them, and showed an attitude of general disrespect by referring to them in derogatory language, the evidence was sufficient to support his convictions for misconduct under N.J.S.A. 2A:157-10.1 and for conduct unbecoming a county investigator under the rules and regulations of the prosecutor’s office. Given the seriousness of his convictions, the penalty of termination of his employment was not excessive. The Law Division’s affirmance of the prosecutor’s termination of plaintiff from his position is affirmed. [Decided April 30, 2008.] PUBLIC EMPLOYEES – ZERO-TOLERANCE SEXUAL HARRASSMENT POLICY 33-2-0-0346 In the Matter of Williams, App. Div. (per curiam) (6 pp.) The Merit System Board’s decision upholding Williams’ termination was supported by sufficient credible evidence on the record. Williams did not deny that while in the barracks as an Academy recruit, she dropped her towel and made sexually explicit comments to Officer Peterson. Further, the panel concluded the MSB’s determination that Williams’ conduct violated N.J.A.C. 4A:7-3.1(a)1 and 2, which expresses the state’s zero-tolerance policy proscribing “harassment or discrimination by anyone in the workplace” or “any location which can be reasonably regarded as an extension of the workplace,” was a correct one. [Decided April 25, 2008.] REAL ESTATE – LAND TRANSFER 34-4-0378 Boylan et al. v. The Radburn Association Inc. et al., Chancery Div. – Bergen Cy. (Contillo J.S.C.) (6 pp.) The Radburn Association is a nonprofit corporation that was formed in 1929 for the purpose of operating a planned housing community. Radburn is governed by a board of nine trustees and subject to a “Declaration of Restrictions” containing various covenants running with the land. On Feb. 16, 2004, the Radburn board of trustees contracted with the developer Landmark Companies for the sale of a 5.7-acre parcel of vacant land called Daly Field, which is subject to the Declaration of Restrictions. Landmark intends to develop the property in the same manner and design as the rest of the community. The plaintiffs are homeowners in the Radburn community who want to prevent the transfer. They sought to have the court void the contract on either of two theories: (1) the board was improperly constituted as required by various state-law and constitutional principles; and (2) the board of trustees acted beyond the scope of its authority as expressed in the Declaration of Restrictions. To support the first claim, the plaintiffs alleged several violations of New Jersey state law. The consequence of these violations, they argued, is that the board’s actions (specifically, the contract with Landmark) are invalid. The second claim alleged that the board acted beyond the scope of its authority when it contracted with Landmark, because the board did not follow its own procedures prior to contracting. The court found that Landmark had no knowledge, nor was it willfully ignorant, of any circumstances that may have deprived the Radburn board of trustees the authority to contract. The plaintiffs’ first claim, that the Landmark contract is invalid because of alleged statutory deficiencies, thus failed as a matter of law. As to the second claim, the court held that Article Ten of the Declaration of Restrictions is inapplicable to the case at bar as Article Ten does not apply to land transfers. Landmark will take title to Daly Field subject to the Declaration of Restrictions incorporated in the deed. Radburn will continue to have all the rights and obligations contained therein. Since there will be no transfer of rights or powers to Landmark, the Article Ten procedures do not apply. [Decided April 30, 2008.] REAL ESTATE – PLANNED REAL ESTATE DEVELOPMENT FULL DISCLOSURE ACT 34-4-0379 Moore et al. v. The Radburn Association Inc. et al., Chancery Div. – Bergen Cy. (Contillo, J.S.C.) (18 pp.) This litigation involved a dispute over the governance structure of the Radburn Association, a nonprofit corporation that was formed in 1929 for the purpose of operating a planned housing community. In 2004, the Radburn board of trustees contracted with a developer for the sale of a 5.7-acre community property called Daly Field. The developer intends to develop the property in the same manner and design as the rest of the community, and the Radburn Association would retain the authority and responsibility to govern the property. The plaintiffs are generally residents of the Radburn community who oppose the sale and development of Daly Field. The defendants are the Radburn Association and two of its officers. In a previously decided matter, Boylan v. Radburn, C-438-06 (Feb. 19, 2008), this court granted Radburn and the developer summary judgment against substantially the same plaintiffs on the issue of whether the sale of Daly Field was invalid due to (among other things) alleged violations of law. The alleged violations in Boylan related to Radburn’s system of governance; the plaintiffs essentially argued that it was not democratic enough. The court’s decision in Boylan did not require it to resolve the attack on Radburn’s governmental structure. That issue, however, constituted the primary subject matter of this litigation. The court found Radburn’s restriction of membership to current and former trustees does not violate The Planned Real Estate Development Full Disclosure Act. The voting meetings policy substantially complies with PREDFDA, although Radburn shall amend its bylaws to comply with the statute. As to financial disclosure, Radburn must use the Condominium Act as its guideline for determining what and when it must disclose to the residents of the community. As to the specific content of the disclosures, the court noted only that the Condominium Act requires Radburn to apply generally accepted accounting principles. The tortious-interference claims were barred by the entire-controversy doctrine. The allegations that Meyerson breached her fiduciary duties were unsupported by the law. [Decided April 30, 2008.] REAL ESTATE – QUIET ENJOYMENT – RIGHT OF WAYS – RIPARIAN RIGHTS 34-3-0334 McAdams v. Dagit Brothers Holding Co., L.L.C. et al., Law Div. – Atlantic Cy. (Johnson, J.S.C.) (18 pp.) In this case involving disputes regarding competing real estate titles, conflicts over competing uses of real estate, the parties’ rights as landowners to access navigable waters, and the status and parameters of a public right-of-way, which arise without regard to the township’s land-use regulations, the court determines that the right-of-way has been accepted as a public right-of-way; plaintiffs are the riparian owners for purposes of obtaining tideland leases or licenses from the Tidelands Resource Council in the riparian lands adjacent to the right-of-way; plaintiff McGowan has a common-law riparian right to access the adjacent lagoon and defendant may not interfere with that right; and to the extent that the major site-plan approval for a marina granted to defendant interferes with plaintiffs’ right of use and quiet enjoyment of their properties, it is voided. [Decided April 18, 2008.] TAXATION – APPEAL – UNTIMELY FILING 35-2-0351 Bridgestone/Firestone Research Inc. v. Director, Division of Taxation, App. Div. (per curiam) (9 pp.) The Division of Taxation made repeated efforts to contact the plaintiff, Bridgestone, by mail and telephone pertaining to an estimated tax assessment. Bridgestone ultimately indicated that it would provide the information requested in the initial audit letter. The division, however, declined to review the information until Bridgestone signed a formal “Taxpayer’s Agreement Waiving Appeals from Possible Adjustment of Taxpayer’s Liability by Division of Taxation” (agreement). Among other statements, the agreement expressly stated that the 90-day time to appeal had expired and that the taxpayer had no right to appeal the assessment determination because of the lapse of the statute of limitations. Bridgestone declined to enter the agreement. Notwithstanding expiration of the statute of limitations, Bridgestone filed a complaint seeking to appeal the estimated tax assessment. The tax court granted summary judgment in favor of defendant on the ground that the tax appeal was not timely filed and Bridgestone appealed. The Appellate Division affirmed. [Decided April 28, 2008.] TORTS – EXCESSIVE FORCE – EXPERTS – JURY INSTRUCTIONS – POLICE – SEARCH AND SEIZURE 36-2-0318 Watters v. Emery et al., App. Div. (per curiam) (22 pp.) In this appeal of a jury verdict in favor of defendants on the claims of plaintiff, a passenger in the vehicle that was stopped, of excessive force and unreasonable seizure, the trial court did not err in denying plaintiff’s motion for a directed verdict as the amount of force used and whether it was objectively reasonable were disputed issues. Nor did the court err in determining that the jury could reasonably find defendant credible. Nor were the jury instructions insufficient, despite the judge’s ad-libs equating seizure with arrest, since the judge told the jury to ignore his ad-libs and focus on the written instructions and the issue was not whether plaintiff was seized but whether the seizure was reasonable. The admission of expert testimony regarding police procedures was not error. [Decided April 24, 2008.] WILLS AND ESTATES – REIMBURSEMENT TO ESTATE 38-2-0319 In the Matter of the Estate of Sasson, Deceased, App. Div. (per curiam) (14 pp.) In a prior appeal, the Appellate Division affirmed an order dismissing defendant Emily Springer’s palimony counterclaim against plaintiff, the Estate of John C. Sasson, thereby foreclosing her claim to certain estate assets, including a townhouse condominium. In this appeal, Springer challenged a subsequent order entered requiring her to reimburse the estate $60,518.67 for costs associated with her approximate two-year occupancy of the estate’s townhouse following Sasson’s death. The Appellate Division vacated that order insofar as it included payments made by the estate toward monthly principal on the townhouse’s mortgage and remanded to the Chancery Division for further proceedings, including a proof hearing to determine whether the mortgage principal payments are equitably consistent with fair rental value for the period of occupancy and the amount of mortgage principal, if any, the estate is entitled to in reimbursement. [Decided April 24, 2008.] FEDERAL COURT CASES BANKRUPTCY – RECOUPMENT OF UNEMPLOYMENT BENEFITS 42-7-0338 In the Matter of Seymoure; In the Matter of Yarbrough, Debtors, U.S. Dist. Ct. (Pisano, U.S.D.J.) (12 pp.) The Bankruptcy Court held that the N.J. Department of Labor violated the automatic stay of the bankruptcy proceedings by recouping debtors’ unemployment benefits, even though debtors fraudulently obtained those benefits. The Bankruptcy Court further found the violation of the stay to have been “willful” and ordered the NJDOL to pay debtors’ attorneys’ fees. In light of the unsettled law in this area, the court found that it was unclear that recoupment in this context is a violation of the stay, let alone a “willful” violation, which might trigger an award of attorneys’ fees and costs. Appellant’s motion for rehearing was granted. The court found that the U.S. Bankruptcy Court’s order assessing attorneys’ fees and costs against appellant was erroneous and reversed. [Filed April 21, 2008.] CIVIL PROCEDURE – ABSTENTION 07-8-0324 BIL Management Corp. v. N.J. Economic Development Authority, Third Cir. (Tucker, U.S.D.J.) (6 pp.) In this breach-of-contract action relating to defendant’s termination of a ground lease for property on the waterfront in Camden, where plaintiff filed nearly identical suits in both the state and federal courts, the District Court did not abuse its discretion in finding that, on balance, the Colorado River factors, favored abstention. However, the court erred in dismissing, rather than staying, plaintiff’s complaint. [Filed April 23, 2008.] CIVIL PROCEDURE – DIVERSITY JURISDICTION 07-7-0366 Plasteras v. Kindercare Learning Centers, Inc. et al., U.S. Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) In this memorandum opinion, the court dismisses this action to recover damages for personal injuries without prejudice to proceeding in state court after finding that it was unable to determine if the parties are citizens of different states in relation to each other because plaintiff had failed to properly investigate the citizenship of the parties – which included limited liability companies – before filing the action, but had filed a protection action in the state court. [Filed April 28, 2008.] CIVIL RIGHTS – DISCRIMINATION – SUMMARY JUDGMENT 46-8-0367 Dooley v. Roche Lab Inc. et al., Third Cir. (Mitchell, U.S.C.J.) (9 pp.) In this action brought by a 59-year-old African-American female sales representative, alleging unlawful discrimination on the basis of race and age and unlawful retaliation after defendant failed to promote her four times, issued a written reprimand, and reassigned some of her accounts, the District Court properly granted defendants’ motion for summary judgment. Plaintiff did not present evidence showing that defendants’ proffered reasons for its promotion decisions (inadequate clinical knowledge and clinical sales ability) were pretextual. She also failed to present evidence of a causal connection between her protected activity (internal complaints to human resources) and any other alleged retaliation. [Filed April 28, 2008.] CIVIL RIGHTS – LIMITATIONS OF ACTIONS – RACIAL PROFILING 46-7-0339 Dique v. Mulvey et al., U.S. Dist. Ct. (Hayden, U.S.D.J.) (16 pp.) In this civil rights action under 42 U.S.C. � 1983 seeking damages for false arrest and selective enforcement arising out of a traffic stop that resulted in the seizure of illegal drugs, defendants’ motions for summary judgment are granted. The false-arrest claim is time-barred under Wallace and the state’s alleged withholding of information regarding racial profiling does not entitle plaintiff to equitable tolling on this claim. Although plaintiff does make a case for equitable tolling of the selective-enforcement claim, that claim is also time-barred since, under the facts here, the latest trigger for the statute of limitations was July 2001, more than two years before his suit was filed, and the Heck bar does not apply to render the claim timely. [Filed April 24, 2008.] CIVIL RIGHTS – SEARCH and SEIZURE – � 1983 46-7-0340 Bey v. Del Fava et al., U.S. Dist. Ct. (Hillman, U.S.D.J.) (17 pp.) In this � 1983 action alleging violations of plaintiff’s Fourth Amendment rights in the search of his home for evidence of burglaries and thefts allegedly committed by his stepson, the claims against the municipal judge who signed the search warrant are dismissed because he is entitled to judicial immunity, those against the prosecutor’s office and the county are dismissed as plaintiff has not shown evidence of their involvement in the search, and those against the township are dismissed because plaintiff has not presented evidence of a municipal policy or custom that caused the police to violate his rights. The claims of lack of probable cause for the search, use of excessive force, and false arrest against the individual police officer are also dismissed given the existence of a search warrant, plaintiff’s history of violence, and the outstanding warrants for his arrest. [Filed April 23, 2008.] CONSTITUTIONAL LAW – VEHICLE SEARCH – � 1983 10-7-0341 Rohrabacher v. Olivio et al., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (10 pp.) Plaintiff’s � 1983 claims were based on allegations that N.J. State Trooper John Olivio violated plaintiff’s constitutional rights by engaging in an unlawful search of his motor vehicle at the scene of a single-car accident, and misrepresenting facts in connection with the search during the subsequent municipal trial. The court granted defendants’ motion for summary judgment. In reaching its decision, the court found that (1) the claims against the state police and Trooper Olivio were barred by the Eleventh Amendment; (2) the state police and Trooper Olivio were not “persons” amenable to suit under 42 U.S.C. � 1983; and (3) defendant Olivio was entitled to absolute immunity for his testimony as a witness during plaintiff’s municipal trial. [Filed April 23, 2008.] CRIMINAL LAW AND PROCEDURE 14-7-0327 Lewis v. Williams et al., U.S. Dist. Ct. (Brown, U.S.D.J.) (15 pp.) Lewis is incarcerated at a N.J. state prison facility. Defendants Williams, Viton and Regan were N.J. state prison officers at the time of the events at issue. Plaintiff claimed that defendants Viton and Regan “began to verbally abuse, berate and threaten him without cause or provocation” and that he was punched and kicked in the head and face repeatedly and suffered injuries that required treatment at an outside hospital. Plaintiff filed a complaint under 42 U.S.C. � 1983 against defendants Williams, Viton, Regan, Alaimo, Cathel, Trent and John Osvart. Plaintiff submitted that defendants violated his constitutional Eighth Amendment rights by using excessive force against him, and set forth claims of common-law assault and battery. As a threshold matter, the court found that defendant Cathel was not personally involved in the conduct complained of here, and that he was being sued in his official capacity only. Accordingly, he was entitled to absolute immunity under the Eleventh Amendment. The court further held that plaintiff set forth sufficient allegations to raise a nonspeculative claim that the remaining defendants were not entitled to absolute immunity from suit under the Eleventh Amendment. The suit was directed toward officials in their individual capacity. The court further held that there remain genuine issues of material fact as to whether defendants’ actions were reasonable in light of plaintiff’s allegedly hostile behavior, and thus, as to whether defendants are entitled to qualified immunity. In addition, there remain genuine issues of material fact as to the amount of force used on plaintiff, the extent of his injuries and whether defendants’ conduct could be deemed to have occurred outside of their scope of work, or willfully and therefore as to whether the N.J. Torts Claim Act bar applied. [Filed April 21, 2008.] CRIMINAL LAW AND PROCEDURE – SENTENCING GUIDELINES 14-8-0355 U.S. v. Clifton Barney a/k/a Doodles, Third Cir. (Rendell, U.S.C.J.) (5 pp.) Defendant Barney was sentenced to 150 months’ imprisonment for possession with intent to distribute more than 5 grams of crack cocaine. At sentencing, Barney sought a variance based on the significantly greater sentences recommended in the guidelines for offenses involving crack cocaine, as compared to those for offenses involving powder cocaine. He contended that the District Court did not make “a definitive ruling” on his request. Here, the court found no requirement in that case law for the District Court to do more than it did, where it considered the disparity in sentencing as a factor in its analysis under � 3553(a). The court found no error in the District Court’s analysis or resulting sentence and affirmed. The court noted, however, that its decision was rendered without prejudice to any right Barney may have to pursue a reduced sentence in the District Court, pursuant to � 3582(c)(2), based on the sentencing commission’s authorization of sentence reductions for defendants whose guidelines ranges were lowered by the Nov. 1, 2007, amendment to the crack cocaine sentencing ranges. [Filed April 25, 2008.] DAMAGES AND REMEDIES – COMMITMENT FEES – COMMERCIAL LENDING 60-7-0342 Construcciones Haus Soceidad et al. v. Kennedy Funding Inc et al., U.S. Dist. Ct. (Sheridan, U.S.D.J.) (12 pp.) This case involved a prospective borrower of Kennedy Funding Inc. who sought return of a commitment fee. The complaint stemmed from a commercial lending transaction between Construcciones (the borrower) and Kennedy (the lender) for construction of a development of single-family homes in Xochitepec, Mexico. The loan negotiations collapsed between the time of issuance of a loan commitment agreement and time of closing. According to the commitment, on hearing the “as is” value as determined by Specialty, Kennedy could require additional security if the disposition value was less than $3 million. Construcciones was reportedly flabbergasted by Kennedy’s “as is” valuation and believed Kennedy was acting in bad faith. As such the closing was doomed, and Kennedy refused to return the partial commitment fee. With regard to defendants NAFTA and Acosta, the court dismissed the complaint in its entirety. Plaintiff’s breach-of-contract claim against Wolfer was dismissed as he was not a party to the agreement. The court found there were sufficient facts alleged regarding the common-law fraud claim and the claim under the N.J. Consumer Fraud Act to withstand a motion to dismiss. The N.J. Racketeer Influenced and Corrupt Organization claims as asserted against Kennedy were dismissed, leaving one defendant, who did not meet the statutory definition of an enterprise. Because Kennedy and Construcciones entered into a contract, and the dispute is covered by that contract, the terms of the commitment controlled and barred a claim of unjust enrichment. As there was no contractual relationship between him and plaintiff, to the extent plaintiff can prove the elements of unjust enrichment as they apply to Wolfer, the court found that the count stands. Finally, the court agreed with defendant that the counts alleging that the contract was illusory and/or constituted an option contract must be dismissed. [Filed April 24, 2008.] DAMAGES AND REMEDIES – PUNITIVE DAMAGE ACT 60-7-0353 Pancrazio v. Greyhound Lines, Inc. et al., U.S. Dist. Ct. (Schneider, U.S.M.J.) (14 pp.) In this case arising out of an accident that occurred when the driver of the bus on which plaintiff was a passenger lost control of the bus, and in which defendants do not deny their negligence, defendants’ motion for partial summary judgment on plaintiff’s claim for punitive damages is granted since the conduct cited by plaintiff – excessive speed on a wet roadway, the driver had several traffic tickets in the past, and her pretrip inspection did not identify a deficiency in two tire treads (which evidence showed did not cause the accident) – although it would permit a finding of gross negligence, did not amount to clear and convincing evidence that defendants engaged in willful and wanton conduct. [Filed April 25, 2008.] JURISDICTION – DIVERSITY 24-7-0343 Weinstein v. Sleepy’s Inc., U.S. Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) The court determined that defendant Sleepy’s, L.L.C. (SLLC) failed to properly allege its own citizenship. Due to SLLC’s deficient allegations, the court was unable to determine if SLLC is deemed a citizen of a different state in relation to the plaintiff for purposes of jurisdiction under 28 U.S.C. � 1332. The court stated it is not possible to litigate under the diversity jurisdiction with details kept confidential from the judiciary. The court deemed SLLC – as it has members that are trusts benefitting New-Jersey-citizen beneficiaries – to be a citizen of, among other states, New Jersey. The court granted the order to show cause why the action should not be remanded to state court for lack of jurisdiction under 28 U.S.C. � 1332 and remanded to state court. [Filed April 22, 2008.] LABOR AND EMPLOYMENT – BREACH OF CONTRACT 25-7-0380 Hyman et al v. WM Financial Services Inc. et al, U.S. Dist. Ct. (Martini, U.S.D.J.) (9 pp.) Plaintiffs Susan Hyman, Christine L. Bonardi, and Barry N. Sugar are former employees of defendant WM Financial Services Inc. Plaintiffs alleged a number of employment claims against WM, two of which were relevant to this motion. First, plaintiffs alleged that after their employment ended, WM failed to pay them all wages due in a timely fashion, in violation of N.J.S.A. 34:11-4.3. Plaintiffs requested several forms of relief for this alleged violation, including compensatory damages, restitution, and – importantly -” penalties” under N.J.S.A. 34:11-4.10. Second, plaintiffs alleged that WM breached their employment contract. Plaintiffs alleged the existence of a contract implied by conduct, “including the promise of the defendant WMFS to pay plaintiffs . . . all amounts due to them in compliance with state and/or federal law.” WM alleged that “penalties” under 34.11-4.10 are not available to private plaintiffs. The court agreed that plaintiffs may not recover such penalties. However, the court found the mere fact that plaintiffs request unavailable administrative penalties does not justify dismissal of that count. Plaintiffs may be entitled to some other kind of relief if they succeed on this claim. Indeed, plaintiffs here requested an array of remedies, including compensatory damages and restitution. WM further alleged that promises to comply with the law are not enforceable in contract actions. The court found that plaintiffs’ contract claims stem largely from alleged violations of New Jersey statutes. Contractual agreements to comply with pre-existing legal duties are unenforceable for lack of consideration. Thus, WM’s failure to pay could not serve as the basis for a breach-of-contract claim. [Filed April 29, 2008.] PENSIONS – MISCALCULATION OF MONTHLY PENSION 56-7-0344 Bocchino v. Trustees of District of Council of Ironworkers of Northern New Jersey, U.S. Dist. Ct. (Sheridan, U.S.D.J.) (14 pp.) This case involved the interpretation of certain provisions of the pension plan of the Ironworkers District Council of Northern New Jersey. When fund administrator Peter A. Sclafani reviewed plaintiff Bocchino’s pension, he discovered that a pension plan analyst had miscalculated the monthly pension amount. Not only did Sclafani adjust Bocchino’s pension downward, he demanded that Bocchino return the overpayment. During employment, ironworkers receive a summary plan description of the pension plan as opposed to a complete set of plan documents. The summary advises that if there is a conflict between the wording of this summary and the official plan documents, the official documents will govern. The summary is silent about the delayed retirement benefit at issue here and the subsection regarding suspension of benefits only applies to retirees who are receiving a pension and return to work, as opposed to Bocchino, who delayed retirement beyond 65. The court found that there was a material omission that caused harm to Bocchino; however, because Bocchino was aware that the pension plan documents clearly addressed the issues and were controlling, the outcome here was not unexpected or unfair. The court further found equitable estoppel inapplicable as plaintiff submitted an application for retirement benefits before he received the letter setting forth the incorrect benefit amount and thus could not show that he detrimentally relied on the amount stated when deciding to retire. Moreover, there was no showing of fraud, or disparate treatment of Bocchino by the fund. The court also held that Bocchino was not required to reimburse the fund for overpayment as he was without fault, and the negligence was entirely on the trustees. [Filed April 23, 2008.] PUBLIC EMPLOYEES – DISCHARGE – DUE PROCESS – � 1983 ACTIONS – WHISTLEBLOWERS 33-7-0345 Gooden v. Township of Monroe et al., U.S. Dist. Ct. (Kugler, U.S.D.J.) (21 pp.) In this action alleging First Amendment retaliation claims, violation of the Conscientious Employee Protection Act, and violation of procedural due process rights, brought after the mayor discontinued plaintiff’s salary and advertised for a replacement during a hearing on his termination from his positions as chief financial officer, director of finance, and supervisor of accounts (a civil service position), in which plaintiff alleged that retaliation by municipal employees for his reporting of racist comments made by a council member made it impossible for him to do his jobs, the motions of defendants – various municipal officials and the estate of the councilman � for summary judgment are granted in part and denied in part. [Filed April 22, 2008.] PUBLIC EMPLOYEES – FAILURE TO RENEW CONTRACT 33-7-0354 Johnson v. City of Atlantic City et al., U.S. Dist. Ct. (Kugler, U.S.D.J.) (6 pp.) Plaintiff was employed as jobs coordinator for Atlantic City. When members of the Atlantic City city council debated whether to renew the jobs coordinator contract for a second year, Callaway, president of the city council, lobbied against renewal, accusing plaintiff of having bribed voters. The city council voted not to renew plaintiff’s contract. Plaintiff brought his case, pursuant to 42 U.S.C. � 1983, claiming violations of the First Amendment of the U.S. Constitution and Article I of the N.J. Constitution, as well as alleging claims for the torts of negligence and outrage. The court denied the motion for summary judgment by Callaway and Atlantic City. Calloway filed a motion for reconsideration. The court found that defendants did not show that the vote not to renew plaintiff’s contract was passed by means of established legislative procedures, and the court concluded as a result that Callaway was not immunized from liability. Although the vote was procedurally flawed for purposes of the legislative immunity analysis, the court found it did not necessarily follow that Callaway’s conduct could not have caused plaintiff’s harm, including the city’s failure to renew his contract. The court denied the motion for reconsideration. [Filed April 25, 2008.] SECURITIES – MUTUAL FUNDS – SHELF-SPACE ARRANGEMENTS 50-7-0335 Ulferts v. Franklin Resources, Inc. et al., U.S. Dist. Ct. (Martini, U.S.D.J.) (16 pp.) Plaintiff, a shareholder of several mutual funds, has failed to state a cognizable claim for relief in this action against the funds’ manager and distributor and their parent corporation alleging violations of the Securities and Exchange Act of 1934 and the Securities Act of 1933 based on their alleged failure to disclose “shelf-space” arrangements with the funds’ brokers, since defendants have no obligation to disclose such arrangements. The action is, therefore, dismissed with prejudice. [Filed April 24, 2008.]

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