STATE COURT CASES
 
ADMINISTRATIVE LAW — CIVIL SERVICE COMMISSION
01-2-9947 I/M/O Salamandra, App. Div. (per curiam) (8 pp.) Salamandra appeals the Civil Service Commission decision upholding his removal from his employment with the New Jersey State Parole Board for conduct unbecoming a public employee after he pleaded guilty to driving under the influence, leaving the scene of an accident, and related charges. Citing the deference ordinarily accorded to final agency actions unless they are arbitrary, capricious or unreasonable or not supported by substantial credible evidence, the panel affirms, noting that the evidence on which an agency decision is reached may include hearsay evidence provided, as was the case here, the findings are not entirely based on hearsay evidence, and that the sanction of removal was not so disproportionate to the offense as to be shocking to a sense of fairness.
 
CIVIL PROCEDURE — JUDGMENTS
07-2-9948 The Portofino Condominiums Association, Inc. v. Portofino Waterfront Urban Renewal, L.L.C., App. Div. (per curiam) (12 pp.) Plaintiff, The Portofino Condominiums Association, Inc., filed a complaint against several defendants, stemming from the conversion of an apartment building into a condominium administered by plaintiff. Defendant Portofino Waterfront Urban Renewal, LLC, appeals from final judgment of almost $4 million entered against it by the Law Division after its pleadings were suppressed with prejudice for discovery violations. Within weeks after the judgment was entered, the Appellate Division decided A & M Farm & Garden Center v. American Sprinkler Mechanical L.L.C., which confirmed that the purpose of the two-tier procedure established by Rule 4:23-5(a) is to compel discovery rather than to punish the delinquent party by dismissing or suppressing its pleading. Here, the trial court’s order suppressing defendants’ answer with prejudice failed to comply with the requirements of the rule. The court proceeded under the mistaken belief that defendants had not filed opposition to plaintiff’s motion. But even under that mistaken impression, the court was required to compel the delinquent party’s attorney to appear in court and to explain compliance with the procedural requirements of the rule and the circumstance of the discovery violation. Finding default judgment was improperly entered, the appellate panel reverses.
 
ENVIRONMENTAL LAW — EVIDENCE
17-3-9949 Drinker Biddle & Reath v. New Jersey Department of Law & Public Safety, Division of Law, Law Div. — Mercer Co. (Innes, P.J. Ch.) (8 pp.) Plaintiff Drinker Biddle & Reath sought access to unfiled discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection against ExxonMobil Corp. pursuant to OPRA and the common-law right of access. The court holds that the unfiled discovery is exempt from public disclosure under N.J.S.A. 47:1A-9b and the common-law right of access. [Decided Dec. 18, 2012.] [Approved for publication.]
 
FAMILY LAW
20-2-9950 Koeppel v. Pierson, App. Div. (per curiam) (11 pp.) Defendant Justin Pierson appeals from the Family Part order denying his motion to reduce plaintiff Patricia Koeppel’s visitation time with Jane, his daughter and plaintiff’s granddaughter. Defendant and Nicole Connelly are the parents of Jane. Since a few months after Jane’s birth, defendant, and at times Connelly, resided with plaintiff, defendant’s mother. Defendant’s principal argument concerns the Grandparent Visitation Statute. There is a presumption favoring deference to a fit parent’s choice about visitation which must be overcome before the court may enter an order requiring visitation with grandparents as being in the child’s best interest. Here, implicit in the judge’s preservation of plaintiff’s long-standing joint custody status and the visitation award is a finding that plaintiff, by virtue of living with Jane for over six years and being the court-designated parent of primary residence for five years, was a psychological parent to the child. A biological parent and a grandparent with psychological parent status stand in parity to one another. The appellate panel concludes that the court did not err in determining that the evidence of changed circumstances was inadequate to establish a prima facie case warranting either a change in visitation or a plenary hearing. The panel rejects defendant’s claim that, although he previously consented to visitation, the matter should be treated as a new request by the grandparent to have visitation, warranting her showing that harm to the child would result from not providing visitation. The undisputed facts show that plaintiff is Jane’s psychological parent.
 
FAMILY LAW
20-2-9951 New Jersey Division of Youth and Family Services v. J.M.H., App. Div. (per curiam) (10 pp.) On defendant’s appeal, the panel reverses the finding that he had abused or neglected his child pursuant to N.J.S.A. 9:6-8.21c(4)(b). The judge made no finding, nor is there competent evidence suggesting that defendant’s conduct was grossly negligent or reckless so as to cause a minimum degree of care where the child was not unsupervised when his eye was struck by another child and defendant took immediate steps to separate the children, and there is no competent credible evidence that defendant pulled the child’s hair or that the injury occurred when the child was in his care. 
 
FAMILY LAW
20-2-9952 S.M. v. G.M., App. Div. (per curiam) (5 pp.) Defendant appeals from a final restraining order entered pursuant to the Prevention of Domestic Violence Act. Citing the deference given to a trial court’s factual findings, particularly when the evidence is mostly testimonial and involves question of credibility, and the family courts’ expertise in family matters, the panel affirms, finding no basis to intervene.
 
PUBLIC RECORDS
52-2-9953 Renna v. County of Union, App. Div. (per curiam) (7 pp.) Plaintiff Tina Renna filed a complaint alleging that defendant County of Union violated the Open Public Records Act (OPRA) and the common law right of access by failing to disclose records pertaining to a police investigation. Plaintiff submitted a request under OPRA and the common law right of access for copies of “all investigations, including county police, sheriff and prosecutor, into the matter involving former County employee Patrick Scanlon, Jr." In response, the County admitted the requested documents were on file with the County Police, but denied access because they were "criminal investigatory records" exempt from disclosure. Plaintiff appeals from the order dismissing her complaint with prejudice. The appellate panel affirms, concluding that the records were not subject to disclosure pursuant to OPRA or the common law right of access. Assuming the requested documents are government records, they were exempt from disclosure. Further, the County’s interest in preventing disclosure of documents relating to an active criminal investigation far outweighed plaintiff’s right to access.
 
REAL ESTATE
34-2-9954 Wells Fargo Bank, N.A. v. Harrison, Chancery Div.-Bergen Cy. (Doyne, A.J.S.C.) (15 pp.) In this mortgage foreclosure matter, before the court is a motion filed on behalf of defendant Audrey Harrison seeking leave to file an amended answer and to assert a third-party complaint. Defendant seeks to assert various claims against enumerated parties that were dismissed in plaintiff’s Law Division action. Defendant’s motion is denied. The claims defendant seeks to assert as a third-party plaintiff are essentially the same claims defendant pursued in the ongoing Law Division action. Although some of the allegations which defendant seeks to assert in a third-party complaint were not previously asserted in the Law Division action, they may not be brought in the foreclosure action (e.g., the TILA claim and the alleged violation of covenant of good faith and fair dealing). Such claims are precluded from joinder by virtue of being non-germane. The claims which defendant seeks to pursue in the foreclosure action are appropriately matters brought in the Law Division. Moreover, Judge Conte previously denied defendant’s motion in the Law Division action to reinstate similar claims against the proposed third-party defendants. As such, there has already been a determination in the Law Division regarding these claims.
 
TAXATION
35-5-9955 South Brunswick Twp. v. Princeton Orchards Assocs. LLC, Tax Court (Sundar, J.T.C.) (21 pp.) In this action involving dual property tax appeals – one a petition of appeal by the township before the Middlesex County Board of Taxation appealing the $5million local property assessment imposed for tax year 2011on Block 31, Lot 35.06, and the other a complaint filed in the Tax Court by Princeton Orchards challenging the same assessment in which the township filed a counterclaim that was dismissed – Princeton Orchards seeks reconsideration of the tax court’s sua sponte order reinstating the township’s complaint , which had been dismissed with prejudice. The court finds that the sua sponte ruling raises concerns of essential due process and, although Princeton Orchards has not provided any new evidence or law in support of its reconsideration motion, it examines Princeton Orchards’ arguments in support of the motion. However, the court finds that its opinion was proper. It says that although N.J.S.A. 54:3-21 provides that an appeal to the Tax Court gives it jurisdiction over the entire matter, it must be harmonized with the statute’s overall intent to give the taxpayer and the taxing district an independent right to appeal an assessment, each of which is an independent cause of action. Therefore, the court rejects Princeton Orchard’s argument that the statute means that a party that filed a petition in the county board is thereafter barred from litigating the matter as a plaintiff in the Tax Court unless it filed a timely counterclaim in the Tax Court against the direct appeal filed by the other party. [Filed April 22, 2013]
 
TORTS
36-2-9956 Hand v. St. Michael’s Medical Center, App. Div. (per curiam) (18 pp.) In this medical malpractice action, Plaintiff, as executor of Francis Hand’s estate and on her own behalf, appeals judgments in favor of defendants Dr. Constantino Costeas and Dr. Michael Phung. The claim against Dr. Phung was dismissed on summary judgment, and the claims against Dr. Costeas were tried and dismissed at the close of plaintiff’s case. Dr. Phung recommended that Hand see Dr. Costeas for an evaluation to determine whether he was a candidate for a Radiofrequency Catheter Ablation (RFA). Dr. Costeas successfully completed the RFA. However, Hand developed a hematoma at the site of a sheath in his neck and experienced difficulty swallowing and breathing. Dr. Costeas removed the sheath and attempted to stop the bleeding. Hand was intubated and died without regaining consciousness. Plaintiff argues that Dr. Phung led Dr. Costeas to believe that Hand’s atrial fibrillation was not responsive to medication or that Hand could not tolerate it, which led Dr. Costeas to recommend the RFA. Plaintiff offered no expert evidence establishing the standard of care governing a referring doctor’s obligation to convey information to a specialist. Dr. Phung was entitled to summary judgment. In granting Dr. Costeas’ motion for dismissal, the court determined that plaintiff failed to establish risks or alternatives to the RFA procedure known to the medical community; failed to present evidence that Dr. Costeas breached his duty to obtain informed consent; and failed to provide evidence that a reasonable patient in Hand’s condition would have opted not to have the RFA if properly informed. Finding no reversible error in any of the determinations, the appellate panel affirms.
 
TORTS
36-2-9957 Hernandez v. North Jersey Neurosurgical Associates, App. Div. (per curiam) (22 pp.) On leave granted, defendant Ganepola A. Ganeploa, M.D., appeals the trial court’s interlocutory order denying his motion to vacate the default entered against him in this medical malpractice action because his designated trial attorney was not available to begin trial on the seventh scheduled trial date. The panel holds that, once trial attorney designation has been waived by the parties or disregarded by the court, formally and with notice, the parties and attorneys may not rely on designation of trial counsel to adjourn a trial date – designated trial attorneys must anticipate and make arrangements to hand the matter over to a substituted, competent, and prepared attorney to try the case when they cannot attend the trial themselves. However, the panel finds that here, where four adjournments were granted after the presiding judge’s scheduling letters stated that no further adjournments would be granted, there was insufficient notice to counsel that the seventh trial date was inflexible and would not be subject to the availability of counsel. The panel therefore reverses the denial of the motion to vacate default and remands for scheduling of a reasonable trial date which Ganepola and his attorney, or a substituted attorney, must honor. 
 
CRIMINAL LAW — EVIDENCE
14-2-9958 State v. Terry, App. Div. (Leone, J.S.C., temporarily assigned) (33 pp.) The state intercepted cellphone calls and texts in which a husband and wife allegedly conspired to commit crimes. The trial judge denied defendants’ motion to exclude their communications, and the court granted leave to appeal. The court held that N.J.S.A. 2A:156A-11, which requires a special need before intercepting communications in “a place used primarily for habitation for a husband and wife,” does not require a special need to wiretap a cellphone used by a married person. The court further held that interception does not vitiate the marital communications privilege, because N.J.S.A. 2A:156A-11 provides that “[n]o otherwise privileged … communication intercepted [under the Wiretap Act] shall lose its privileged character.” The trial judge adopted a crime-fraud exception to the marital communications privilege, N.J.R.E. 509, citing federal decisions, other states’ cases, and the crime-fraud exception to the attorney-client privilege, N.J.R.E. 504(2)(a). Although there may well be compelling reasons to add such an exception, the court held that, under State v. Byrd, 198 N.J. 319 (2009), and State v. Mauti, 208 N.J. 519 (2012), such an exception to a privilege enacted by the Legislature can be added only by rule or statute pursuant to the Evidence Act, N.J.S.A. 2A:84A-1 to -49. [Approved for publication.]
 
CRIMINAL LAW — RIGHT TO COUNSEL
14-1-9959 In the Matter of Subpoena Duces Tecum on Custodian of Records, Crim. Div. Manager, Morris County, Sup. Ct. (per curiam) (34 pp.)The subpoena was properly quashed because defendant is entitled to the benefit of the longstanding practice embodied in Directive 1-06 — that “information on the intake form may not be used in grand jury proceedings or at trial.” For future cases, the directive is modified to permit disclosure of UDIR forms to investigate and prosecute a defendant’s misrepresentation of financial status in limited circumstances.
 
FEDERAL COURT CASES
 
ALTERNATIVE DISPUTE RESOLUTION
03-7-9960 Khan v. Dell Inc., Dist. Ct. (Shipp, U.S.D.J.) (8 pp.) Plaintiff alleges that defendant sold him a defective laptop. The terms and conditions of sale contained an arbitration clause that named the National Arbitration Forum as the arbitrator. Because NAF was no longer available, the District Court denied Dell’s motion to compel arbitration. The Third Circuit vacated, finding that it was at best ambiguous whether the parties chose to use only the NAF. It remanded for resolution of whether the arbitration clause is unconscionable. On remand, plaintiff sought discovery as to whether NAF was integral to the parties’ arbitration agreement and on whether the provision was unconscionable. Plaintiff moves to vacate the court’s denial of discovery. The court denies the motion, finding that (1) the motion fails to meet the procedural requirements of Rule 60(b) because such a motion requires a final judgment, order or proceeding and orders regarding discovery do not fall within the scope of a final judgment or order, and (2) the motion to vacate does not meet the requirements of local rule 7.1 because plaintiff has failed to proffer any change in law, unconsidered evidence or any persuasive argument that the court has committed a clear error of law which requires correction where the Third Circuit clearly concluded that, even with some ambiguity, the presumption in favor of arbitration required a finding that NAF was not integral to the terms and conditions; the Third Circuit’s opinion must be read as finding that NAF was not integral to the parties’ agreement; and there is no indication in the opinion that the Third Circuit believed that further discovery on the matter would be required. [Filed April 26, 2013]
 
CIVIL RIGHTS
46-8-9961 Abdul-Aziz v. Nwachukwu, Third Circuit (per curiam.) (8 pp.) Abdul-Aziz, a New Jersey prisoner proceeding pro se, filed a complaint alleging that two prison doctors (Defendants) violated his Eighth Amendment rights. The District Court credited Defendants’ assertion that there was no appeal in Abdul-Aziz’s file, and granted Defendants’ motion to dismiss because he failed to administratively exhaust his claims. In support of their alternative motion for summary judgment, Defendants submitted copies of Abdul-Aziz’s medical records. The District Court determined that because the records were replete with instances of medical care provided for Abdul-Aziz, he could not demonstrate that Defendants had been deliberately indifferent to his medical needs. After Defendants discovered that Abdul-Aziz had in fact filed an appeal, they filed a motion for a summary remand in which they expressly withdrew the failure-to-exhaust defense. The circuit panel denies the motion in light of the District Court’s alternative holding, but agrees that the exhaustion ruling cannot stand. The panel further rejects the District Court’s ruling that Abdul-Aziz had not shown a genuine issue regarding Defendants’ deliberate indifference sufficient to survive summary judgment. First, summary judgment appears premature. Also, although Abdul-Aziz’s medical records demonstrate that he received some treatment for his condition, they do not foreclose a claim of deliberate indifference. The panel vacates the judgment and remands the case to the District Court. [Filed April 23, 2013]
 
CONSTITUTIONAL LAW
10-2-9962 Club 35, LLC v. Bo rough of Sayreville, Dist. Ct. (Shipp, U.S.D.J.) (6 pp.) Club 35 is a gentleman’s club in Sayreville, New Jersey. Acciardi is the owner. Club 35 is a bring-your-own-beverage ("BYOB") establishment. On July 13, 2009, the Borough adopted an ordinance which prohibits BYOB practices unless an establishment is considered a restaurant. Acciardi was arrested for violation of the Ordinance on April 21, 2010. Plaintiffs filed an action in New Jersey Superior Court on July 22, 2009, seeking to have the Ordinance struck down. The Appellate Division held that the ordinance was preempted by state law and invalidated the Ordinance. On May 17, 2012, Plaintiffs initiated this suit alleging that the Borough violated Club 35′s property rights and caused a loss of customers by instituting and enforcing the Ordinance in violation of 42 U.S.C. §§ 1983 and 1985 as well as N.J. Stat. Ann. § 2C:34-7. Plaintiffs further asserted that Acciardi’s § 1983 rights were violated by the adoption of the Ordinance and her arrest. Defendant argues the complaint must be dismissed because it was not filed within the applicable statute of limitations and no reason to toll or expand that period exists. In New Jersey, the statute of limitations for § 1983 and § 1985 claims is two years. This suit was initiated almost three years after the adoption of the Ordinance and more than two years after Acciardi’s arrest. The Court rejects Plaintiff’s assertion that the "continuing violation doctrine" applies. Defendants’ motion to dismiss is granted and plaintiff’s complaint is dismissed with prejudice. [Filed April 23, 2013]
 
CONTRACTS
11-7-9963 Interlink Group Corp. USA Inc. v. American Trade and Financial Corp., Dist. Ct. (Hochberg, U.S.D.J.) (7 pp.) In this action arising out of a non-competition, non-disclosure and non-solicitation agreement between the parties in which Interlink asserts claims for breach of contract, unjust enrichment, promissory estoppel and tortious interference with business relations and defendants have filed a counterclaim alleging identical clams and also seek a declaratory judgment that the NCA is unenforceable, the court denies Interlink’s motion for a preliminary injunction, finding that Interlink is seeking the injunction to allay its fears and has presented no persuasive evidence that defendants have or will breach the NCA, and thus it has not met its burden to showing irreparable harm. The court denies Interlink’s motion to dismiss count 5, which seeks a declaratory judgment that the NCA is unenforceable and a nullity, finding that its claims address the merits of defendant’s claim for declaratory judgment and can be raised when the litigation reaches the merits stage. However, the court declines to exercise its jurisdiction over that count and it is dismissed. The parties are referred to mediation. [Filed April 25, 2013]
 
EVIDENCE — EXPERT WITNESSES
19-7-9964 U.S. Accu-Measurements LLC v. Ruby Tuesday Inc., Dist. Ct. (McNulty, U.S.D.J.) (17 pp.) The parties to this action dispute the scope of a contingent fee provision in their agreement under which plaintiffs audited leases to determine if defendant was being overcharged by its landlords. Defendant moves to preclude the damages expert proffered by plaintiffs; plaintiffs move to preclude the expert on damages and the expert on the restaurant business proffered by defendant. The court finds that the proffered expert testimony comports with the applicable legal standards under Rule 702 and Daubert and denies both parties’ motions. Defendant’s motion for summary judgment, which assumes the exclusion of plaintiffs’ damages expert, is denied since the court finds that his testimony should not be excluded. [Filed April 26, 2013]
 
INSURANCE
23-7-9965 Westwood Products Inc. v. Great American E & S Ins. Co., Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) Plaintiff, which is a defendant in an action pending in the Ontario Superior Court of Justice, filed this action seeking a judgment declaring that defendant-insurer is obligated to defend and indemnify it in the Canadian action and that defendant insurance agent is liable for any defense costs and indemnification not provided by the insurer. The court ordered the parties to show cause why this action should not be stayed and administratively terminated or dismissed. Since neither plaintiff not the insurer opposes a stay of this action, and the agent is deemed to unconditionally support a stay since he has not responded to the order to show cause, the court enters an order staying and administratively terminating the action. The court declines to consider the insurer’s informal request to enjoin prosecution of the state court action filed by plaintiff seeking a defense and indemnification, noting that if the insurer want to enjoin that action, it should take appropriate action before the state court. [Filed April 25, 2013]