16-2-8106 Hawk v. New Jersey Institute of Technology, App. Div. (Parrillo, P.J.A.D.) (17 pp.) A tenured professor at New Jersey Institute of Technology (NJIT) brought an action in the General Equity Part seeking to enjoin pending “detenure” proceedings against him, claiming deprivation of procedural due process in the university’s internal investigation of his conduct. The action was dismissed for failure to exhaust administrative remedies, and we affirmed. The assertion of a constitutional claim is but one factor to be considered in determining whether judicial intervention is justified, and in order to be relieved of the exhaustion requirement, that claim must be a colorable one and not dependent on facts to be developed at the administrative proceeding, or capable of being vindicated therein. Here, plaintiff’s constitutional claim does not rise to the level to warrant interlocutory judicial interference. The full panoply of procedural due process rights does not attend the administrative investigative stage and the process actually afforded plaintiff prehearing was more than adequate. [Decided Oct. 29, 2012.] [Digested at page 41.]
25-2-8087 A.D.P. v. ExxonMobil Research and Engineering Company, App. Div. (Espinosa, J.A.D.) (35 pp.) Plaintiff, a long-term employee, voluntarily disclosed to her employer that she was an alcoholic and was going to an inpatient rehabilitation program. At the time of her disclosure, plaintiff’s job performance was satisfactory and she was not the subject of any pending or threatened employment or disciplinary action. On her return, the employer required her to agree to conditions, including total abstinence and random alcohol testing for a minimum of two years, as a condition of employment. These conditions were not imposed pursuant to a “last chance agreement” but, rather, were required by ExxonMobil’s alcohol and drug use policy. Her employment was terminated nearly one year later when a Breathalyzer test revealed alcohol use. She filed suit, alleging discrimination based on her disability and wrongful termination. In this appeal, we consider whether summary judgment was properly granted to the employer. Viewing the record with favorable inferences drawn in favor of the plaintiff, the imposition of these conditions and the termination of plaintiff’s employment pursuant to the employer’s policy constituted direct evidence of discrimination. As a result, the burden of persuasion shifted to the employer, requiring it to show that the employment actions taken would have occurred even if it had not considered plaintiff’s disability, see McDevitt v. Bill Good Builders Inc., 175 N.J. 519, 525 (2003), a burden it failed to satisfy as a matter of law. We therefore conclude that summary judgment dismissing plaintiff’s disability discrimination claim was inappropriate. [Decided Oct. 26, 2012.] [Digested at page 40.]
34-2-8114 New Jersey Schools Development Authority v. Marcantuone, App. Div. (Fuentes, P.J.A.D.) (24 pp.) Plaintiff New Jersey Schools Development Authority provided the funding for East Orange to acquire by condemnation environmentally contaminated real property owned by defendants Joseph Marcantuone and Robert Gieson. Pursuant to Housing Authority of New Brunswick v. Suydam Investors, 177 N.J. 2 (2003), funds representing the estimated cost of remediation of the land were held in escrow pending a final determination on liability under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24. Relying on our decision in White Oak Funding Inc. v. Winning, 341 N.J. Super. 294 (App. Div.), certif. denied, 170 N.J. 209 (2001), the trial court held defendants were not liable as a matter of law for the cost of remediation because they were not “in any way responsible” for the contamination. The court also held that defendants were not the current owners of the property at the time the contamination was discovered because plaintiff had previously been vested with title as condemnor under N.J.S.A. 20:3-19. We reverse the trial court and hold that our decision in White Oak was in part implicitly superseded by the 2001 amendments to the Spill Act creating the “innocent purchaser” defense codified at N.J.S.A. 58:10-23.11g(d)(5). We remand for the court to determine whether defendants can establish, by a preponderance of the evidence, the four elements of the “innocent purchaser” defense. We also hold that in a postcondemnation proceeding to determine Spill Act liability under Suydam, defendants are deemed the “current owners” of the property, notwithstanding N.J.S.A. 20:3-19. [Decided Oct. 29, 2012.] [Digested at page 42.]
35-5-8116 Girls Friendly Society of Pennsylvania v. City of Cape May, Tax Ct. (Brennan, J.T.C.) (25 pp.) The court held that the taxpayer’s use of a Christian retreat house was reasonably necessary to achieve the charitable and religious purposes of the organization and that the actual and dominant use of the property was by and for the benefit of the young female members. Occasional simultaneous use of portions of the property by restricted individuals and entities for a fee does not destroy the exemption. [Decided Oct. 26, 2012.]
35-5-8090 BIS LP Inc. v. Dir., Div. of Taxation, Tax Ct. (Bianco, J.T.C.) (11 pp.) On remand de novo from the judgment of the Appellate Division, the Tax Court granted plaintiff’s motion for summary judgment and denied defendant’s motion for summary judgment, finding that plaintiff is entitled to receive the $1,480,524 tax refund plus interest for fiscal year 2003 previously ordered by the Tax Court. The court found that pursuant to N.J.A.C. 18:7-17.6, BIS LP was the proper entity to receive the refunds even though payments were originally remitted to the state by a third party. Defendant’s reliance on N.J.S.A. 54:10A-15.7 and 54:10A-15.11 to deny BIS LP the refund ignored the clear language of N.J.A.C. 18:7-17.6, which is the controlling authority on the issue presented to the court. [Decided Oct. 25, 2012.] [Digested at page 42.]
35-5-8091 Wellington v. Township of Hillsborough, Tax Ct. (DeAlmeida, P.J.T.C.) (20 pp.) The court held that a veteran who suffered 100 percent permanent disabilities as a result of exposure to enemy chemical weapons during Operation Northern Watch/Operation Southern Watch qualifies for exemption from local property taxes for his dwelling and lot pursuant to N.J.S.A. 54:4-3.30. The fact that the veteran’s exposure to enemy chemical weapons took place in the United States, where the weapons were transported by the military for analysis, does not vitiate the exemption. According to N.J.S.A. 54:4-8.10, the theater of operation of Operation Northern Watch/Operation Southern Watch was not limited to the Arabian Peninsula and Persian Gulf. In addition, the court held that the veteran’s failure to file a written claim for exemption with the municipal tax assessor did not vitiate the exemption. Finally, court held that N.J.A.C. 18:28-2.10(b), which provides that a veteran who owns his or her dwelling as joint tenants with someone other than a registered domestic partner, is without statutory foundation and is invalid. [Decided Oct. 24, 2012.]
14-8-8080 United States v. Kouevi, Third Cir. (McKee, U.S.D.J.) (24 pp.) Geoffry Kouevi appeals his convictions for visa fraud and conspiracy to commit visa fraud. His primary argument is that his conduct is not criminalized by the part of the statute under which he was indicted, 18 U.S.C. § 1546(a). He claims that § 1546(a) does not criminalize activities involving authentic immigration documents that were obtained by fraud. His appeal raises a question of statutory construction that is an issue of first impression in the Third Circuit. The circuit panel finds that the plain language of the statute reveals that the first paragraph of § 1546(a) must be read to prohibit the possession or use of authentic immigration documents that are obtained by fraud. Kouevi’s convictions are affirmed. [Filed Oct. 24, 2012.]
50-7-8105 In re Johnson & Johnson Derivative Litigation, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (53 pp.) Before the court is a motion to approve the final settlement reached between plaintiff-shareholders and nominal defendant J&J Corporation in several consolidated shareholder derivative actions, as well as motions to intervene and dismiss by an objector to the settlement. Through the settlement, J&J agrees to institute corporate governance changes and pay up to $10 million in attorney fees and $450,000 in costs, subject to the court’s approval. The court will approve the settlement and appoint a special master to aid the court in determining reasonable attorney fees and costs. The court denies the objector’s motions to intervene and to dismiss. [Filed Oct. 26, 2012.] [Digested at page 43.]