01-2-0214 Lavezzi v. State of New Jersey, App. Div. (per curiam) (10 pp.) Plaintiffs filed this action alleging negligence, gross negligence and conversion after finding that many items of their personal property that had been seized by agents of the Essex County Prosecutor’s Office during a search of their home pursuant to a warrant and then released when no criminal complaint was filed and no indictment returned had been damaged or lost. The county appeals from the attorney general’s denial of a request for defense and indemnification of the prosecutor’s office employees. The panel affirms, finding that the attorney general did not abuse his discretion in finding that the property was held for administrative purpose and there thus was no duty to provide a defense and indemnification since the county has failed to demonstrate that for any significant portion of the time the property was in storage, it was being marshaled for any law-enforcement purpose. [Decided June 7, 2013.]
01-2-0233 Dolphin Father, L.L.C. v. Municipal Bd. of Alcoholic Beverage Control of Newark, App. Div. (per curiam) (28 pp.) Appellant Dolphin Father, the holder of a liquor license in Newark, appeals from a final agency decision of the Division of Alcoholic Beverage Control requiring it to relocate its liquor store business as a special condition of the renewal of its license. The division’s acting director imposed the special condition in light of strong community opposition to the liquor store being reopened on premises that are in close proximity to schools, churches and a playground, and where there had been prior incidents of violence, drug dealing, prostitution and other harmful activities when the business was operated there by a previous licensee. Appellant contends that the community opposition was untimely, that it has been wrongfully deprived of an opportunity to recoup a return on its investment in renovating the premises, and that the division’s ruling is arbitrary and capricious. Applying a limited scope of review in deference to the division’s regulatory expertise, and recognizing its well-settled legal authority to impose a special condition of relocation in certain circumstances, the panel affirms, without prejudice to appellant presenting to the division, in connection with its upcoming license renewal application, evidence that it is infeasible for the liquor business to be relocated elsewhere in Newark, and arguing that the special condition therefore should be reconsidered. [Decided June 10, 2013.]
01-2-0244 In the Matter of Carter, App. Div. (per curiam) (13 pp.) Appellant, a county corrections officer, appeals the final administrative decision of the Civil Service Commission rejecting the administrative law judge’s recommendation that the disciplinary charges against him be dismissed and upholding the imposition by the county of a 120-day suspension arising out of an incident in which he struck an unruly inmate in the face with a closed fist and then indicated in an incident report that the inmate was subdued “with minimum force.” The panel affirms, finding that the commission adequately explained its reasons for reaching a different result than the ALJ, that its conclusion is fully consistent with the county’s regulations, which prohibit the use of force to the head in the absence of a life-threatening situation, that the ALJ did not determine that appellant faced a life-threatening situation, which is a prerequisite for his action, that the ALJ’s explanation of Carter’s report — that it reflected his estimation of the minimal force required — does not address whether he accurately described what happened, that a closed-fist punch to the head cannot accurately be described as minimum force, and that the commission’s decision was not arbitrary, capricious or unreasonable. [Decided June 11, 2013.]
01-2-0245 In the Matter of Thompson, App. Div. (per curiam) (3 pp.) Plaintiff, formerly employed by the Division of Taxation and suspended pending disposition of criminal charges that were ultimately dismissed, appeals from the final administrative action of the Civil Service Commission affirming the denial of her requests for additional back pay, vacation and administrative leave than was awarded. The panel concludes that the commission’s decision should be affirmed substantially for the reasons stated in its written determination and affirms. [Decided June 11, 2013.]
01-2-0257 In the Matter of Cumberlander, App. Div. (per curiam) (10 pp.) Appellant appeals from the final determination of the Civil Service Commission adopting the findings of the administrative law judge upholding the charges of conduct unbecoming a public employee and undue familiarity with an inmate and terminating his employment with the Department of Corrections. The panel affirms, finding that where appellant admitted that he accepted food from an inmate and had done so in the past — fraternization for which the department has a no-tolerance policy in light of the need to maintain discipline and security — and in light of his extensive prior disciplinary record, appellant’s termination does not shock its sense of fairness. [Decided June 12, 2013.]
03-2-0198 Grelu Consulting Inc. v. Patel, App. Div. (per curiam) (14 pp.) In this matter arising out of a dispute involving the purchase and operation of two Dunkin’ Donuts franchises between plaintiff (three members of a partnership) and defendant (fourth remaining partner) and others not involved in the appeal, in which the trial judge ordered that any claims asserted in the complaint, counterclaim or third-party complaint by any signatory to the partnership agreement be referred to arbitration pursuant to the arbitration clause in the agreement, defendant appeals from the judge’s interpretation of the arbitration clause as permitting each of the plaintiff-partners to select an arbitrator with each of those arbitrators selecting another, for a total of six, and permitting defendant to appoint one who may select another for a total of two arbitrators. Analyzing the wording of the clause and deeming it incongruous, and accepting the simplest explanation for the wording of the clause, the panel concludes that the unusual formation of the arbitration panel is the result of simple drafting errors, and, interpreting the language so as to ensure fairness, the panel concludes that the clause permits the three partners whose interests are so aligned that they are represented by the same attorney to appoint one arbitrator, defendant to appoint one arbitrator, and the arbitrators to appoint a third. Further, the costs and reasonable attorney fees for each partner in the conduct of the arbitration shall be borne by the partners in accordance with their interests in the partnership as reflected in the agreement. [Decided June 6, 2013.]
03-2-0215 Pagan v. Smith, App. Div. (per curiam) (12 pp.) Defendant appeals the Law Division order denying her request to schedule a trial de novo of the parties’ dispute, filed more than 30 days after the arbitration award in favor of plaintiff. The order also vacated an order of dismissal entered because plaintiff did not file for a confirmation of the award within 50 days, confirmed the award, and added prejudgment interest. The panel affirms, citing the policies behind ADR, and finding that defendant failed to show that she materially changed her position in reliance on the dismissal and that her evidence supporting her claim that plaintiff was unjustly enriched is insufficient support for her argument for vacation or modification. However, the panel finds that plaintiff’s failure to timely file for confirmation warrants suspension of prejudgment period during the period between expiration of the 50-day filing period and the date of entry of the order reinstating the complaint and confirming the award. [Decided June 7, 2013.]
12-2-0199 Leach v. Princeton Surgiplex, L.L.C., App. Div. (per curiam) (16 pp.) In 2002, three physicians, plaintiff Thomas Leach and defendants Michael Grenis and Leon Costa, formed a limited liability company, defendant Princeton Surgiplex, L.L.C. Pursuant to their operating agreement, Surgiplex was regularly appraised by Physicians Business Advisors (PBA), which determined Surgiplex’s fair market value to be $3.6 million as of Dec. 31, 2004, and $5.9 million as of June 30, 2006. Plaintiff resigned from Surgiplex effective Dec. 31, 2008. The operating agreement required that Surgiplex purchase a resigning member’s interest based on that member’s percentage interest in Surgiplex multiplied by its fair market value. Surgiplex retained defendant 7/49 Solutions, L.L.C., to determine fair market value. Defendant David Shuffler conducted the appraisal and determined the fair market value of Surgiplex to be $2.325 million as of June 30, 2008. Plaintiff commenced this action, alleging breach of contract, breach of the covenant of good faith and fair dealing, fraud and negligent misrepresentation, civil conspiracy and breach of fiduciary duties. Plaintiff’s complaint also sought relief from 7/49 and Shuffler based on fraud and negligent misrepresentation. Defendants obtained summary judgment. The appellate panel reverses, finding there is a genuine factual dispute about whether 7/49’s apparent departure in methodology from the appraisals conducted prior to plaintiff’s resignation from Surgiplex and based on assertions contained in plaintiff’s expert’s report. [Decided June 6, 2013.]
07-2-0246 Sargese v. Horizon Healthcare Services Inc., App. Div. (per curiam) (18 pp.) Plaintiff New Jersey Psychological Association and two patients who receive health benefits pursuant to the State Health Benefits Program filed this action against defendants seeking a declaration that defendants Horizon and Magellan Health Services violated the New Jersey Practicing Psychology Licensing Act by requiring psychologists to disclose confidential patient treatment information in connection with the precertification process and/or the process for authorizing continuing treatment or approving payment for mental health services. A substantially similar suit filed by the NJPA and a member psychologist in Mercer County had been dismissed for lack of standing. By leave granted by the Supreme Court, Horizon and Magellan appeal from the order of the Chancery Division, Essex County, denying their motion to dismiss the complaint. Because the Essex court failed to grant preclusive effect to the determination made by a court of concurrent jurisdiction that NJPA lacked standing in an action that raised the same substantive claims, and because the patient plaintiffs failed to exhaust their administrative remedies, the panel reverses and remands for dismissal of the complaint. [Decided June 11, 2013.]
10-3-0216 Krakora v. The County of Gloucester Board of Chosen Freeholders, Law Div. — Burlington Co. (Bookbinder, J.S.C.) (14 pp.) This is an action in lieu of prerogative writs challenging the closure of the Gloucester County Adult Correctional Facility (jail) brought by the public defender, the Office of the Public Defender, and certain individually named pretrial detainees (plaintiffs). Plaintiffs are seeking preliminary restraints to enjoin Gloucester County from closing the jail and transferring detainees to Burlington County, Cumberland County, Salem County and Essex County (defendants). Plaintiffs argue the detainees will suffer irreparable harm to their constitutional rights if they are transferred from Gloucester County, where counsel, witnesses, family and friends reside and that transfer will curtail their ability to confer with appointed counsel in order to defend themselves. Finding plaintiffs have not demonstrated by clear and convincing evidence that they will suffer immediate and irreparable harm, the court denies the application for preliminary restraints. Because there are disputed facts at issue, defendants’ motion to dismiss is denied. [Decided June 6, 2013.]
11-2-0258 General Electric Capital Corp. v. Imagining Center of Oradell, L.L.C., App. Div. (per curiam) (15 pp.) In this action arising out of two master leases defendant ICO entered into with plaintiff GECC for the lease of several pieces of medical imaging equipment, filed after ICO defaulted on the payments, defendants John Mavroudis (JM), Thomas Dinardo, Michael Mavroudis and Joseph Belasco, who executed guarantees for ICO’s obligations under the leases, appeal from an order granting summary judgment in favor of plaintiff and a judgment against them of $2,503,551.90, plus postjudgment interest and attorney fees. Finding that the motion judge correctly determined that there was no genuine issue of material fact and that GECC was entitled to judgment on its claims against the guarantors as a matter of law since the statements in JM’s affidavit failed to raise a genuine issue of material fact regarding alleged fraudulent inducement and that even if they were sufficient to support such a claim, the guarantors waived any such defense when they entered into the restructuring agreement, the panel affirms and remands for consideration of GECC’s claim for attorney fees and costs. [Decided June 12, 2013.]
14-2-0209 State v. Murray, App. Div. (per curiam) (9 pp.) Following the denial of his motion to suppress evidence, defendant pleaded guilty to second-degree certain persons not to possess firearms. The appellate panel agrees with defendant that the judge failed to make any credibility determinations; because the entire motion turned on the competing, and diametrically opposed, testimony of the state’s and defense witnesses, this omission compels the panel to reverse and remand the matter for further proceedings. On remand, the judge shall expressly comply with the requirements of Rule 1:7-4(a). If, after doing so, he concludes the credible evidence supports application of the plain-view exception to the warrant requirement, he shall enter the appropriate order denying defendant’s motion to suppress. If, however, the judge determines the credible facts do not support application of the plain-view exception, he shall grant defendant’s motion to suppress and vacate his guilty plea. [Decided June 6, 2013.]
14-2-0242 State v. Dennis, App. Div. (per curiam) (11 pp.) Defendant, who entered a guilty plea in Hudson County to aggravated manslaughter, appeals from the denial of his petition for postconviction relief. The panel reverses and remands for resentencing, finding that where defendant entered his guilty plea with the understanding that the Hudson County sentence was to be served concurrent to an anticipated sentence on his then-pending unrelated murder charges in Monmouth County but that condition was never fulfilled, his attorney could have filed a motion in Hudson County to resentence defendant after the Monmouth sentence was imposed so that defendant could serve the Hudson County term concurrently and counsel’s failure to secure the full benefit of the bargain he negotiated constitutes at least a prima facie case of ineffective assistance that requires resentencing to make the Hudson County sentence concurrent to the Monmouth County sentence. [Decided June 10, 2013.]
14-2-0243 State v. Rahilly, App. Div. (per curiam) (12 pp.) Defendant, who rejected the state’s offer that he be sentenced to eight years and instead entered an “open plea” of guilty to first-degree robbery, appeals from the denial of his petition for postconviction relief. The panel reverses and remands to permit defendant to withdraw his guilty plea, finding that, in advising defendant that the judge would have to find that mitigating factors “far outweighed” or “highly” outweighed the aggravating factors to sentence him to a term of less than 10 years, his attorney did not accurately advise him of the consequences of “pleading open,” i.e., without a sentencing agreement, and did not sufficiently explain the law to conform to the requirement of effective assistance of counsel and that counsel’s presenting the option of rejecting the sentence reduction represents ineffective assistance and the fact that he recommended against this option did not render his assistance effective. [Decided June 10, 2013.]
14-2-0251 State v. Damico, App. Div. (per curiam) (15 pp.) Defendant, who pleaded guilty to attempted kidnapping and attempted luring in exchange for the dismissal of all other charges in two indictments, appeals from the denial of his motion for reconsideration of the denial of his motion for postconviction relief, claiming that he would not have pleaded guilty had his attorney represented him effectively by telling him he might be subject to civil commitment under the Sexually Violent Predator Act after serving his prison term, and that this first PCR attorney was ineffective for failing to raise the issue. The panel concludes that he is entitled to a hearing on his claims and therefore reverses the order denying his PCR petition without a hearing and remands for a hearing. [Decided June 11, 2013.]
14-2-0266 State v. Miller, App. Div. (per curiam) (13 pp.) The state appeals from the Law Division order reversing defendant’s municipal court conviction for driving under the influence based on a determination that his right to a speedy trial was violated by the delay in bringing the case to trial and that the municipal judge violated defendant’s right to fundamental fairness by not proceeding to trial on the scheduled date. The panel reverses, finding that the court erred in its application of the Barker test and that its findings were unsupported by sufficient credible evidence. Rather, where defendant entered a guilty plea 117 days after his arrest, the length of the delay was not excessive; while the delay in providing discovery was attributable to the state, the record supports a conclusion that the delay was neither deliberate nor excessive and the reasons for the delay were valid; once defendant asserted his right to a speedy trial, the matter was resolved promptly; and there is nothing in the record to support the Law Division’s conclusion that defendant was forced to present his case without the assistance of an expert witness because he could not afford to have him return for the adjourned trial date and the adjournment did not result in prejudice to defendant of a constitutional dimension since defendant has cited no authority for extending his Sixth Amendment right to counsel to include the right to the services of expert witnesses. [Decided June 12, 2013.]
16-2-0234 White v. Bd. of Educa. of Glassboro, App. Div. (per curiam) (11 pp.) Linda White appeals from a final agency decision of the commissioner of the Board of Education that adopted the initial decision of the administrative law judge holding that she had not acquired tenure rights in the position of a secretary, and that her termination due to a reduction in force was not arbitrary, capricious or unreasonable. Petitioner argues that she became a tenured secretary pursuant to N.J.S.A. 18A:17-2, and that she did not receive notice of a possible layoff as required by the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21. The panel affirms substantially for the reasons articulated by the commissioner and the ALJ: that although petitioner had been employed for 11 and a half years, she had worked as a secretary for only one year and her performance of some secretarial duties while employed as a data processor technician and data processor did not warrant classifying her as a secretary during those years and she thus did not meet the statutory requirements for tenure. [Decided June 10, 2013.]
20-2-0217 Fitzgerald v. Duff, App. Div. (per curiam) (14p.) Plaintiff is the maternal grandmother and legal custodian of defendant’s 7-year-old child. Defendant appeals from an order denying reconsideration of an order fixing his child-support obligation after imputing income at a level defendant maintains was unfounded. On reconsideration, defendant justifiably sought an explanation of why the trial judge imputed $100,000 income, despite his tax documentation and other proofs, albeit limited, rebutting plaintiff’s contentions. The court had an obligation to consider all of the evidence, identify what was accepted, what was rejected, and why it was rejected in light of evidence in the record. The dispute of material facts in this matter is squarely presented. The appellate panel reverses the order denying reconsideration and remands the matter to the Family Part for further proceedings, including a plenary hearing if necessary to defendant’s income and/or his ability to earn income for the purpose of calculating child support. [Decided June 7, 2013.]
20-2-0218 Kaznosky v. Kaznosky, App. Div. (per curiam) (10 pp.) Defendant appeals from the Family Part order that denied his motion to vacate a default judgment of divorce and file an answer and counterclaim. Defendant, who initially proceeded pro se, asserted that he was “completely unaware of the process” that resulted in the entry of the judgment. The appellate panel finds the trial court’s decision is based on an inaccurate factual predicate. The court stated in its decision that defendant voluntarily entered into the parties’ FJOD. The record does not support that statement. To the contrary, when he appeared at the proof hearing, defendant protested the amount of weekly child support, and stated explicitly, “I cannot afford to pay that without becoming homeless and having to claim bankruptcy.” In response, the court informed defendant that by not filing an answer, and by not filing a motion to vacate the default, defendant gave up his right to dispute the FJOD. It cannot be said with certainty that the trial court would have ruled the same way had it not mistakenly believed defendant had consented to the judgment. The panel concludes the trial court mistakenly exercised its discretion by deciding defendant’s motion based on a factually incorrect basis and reverses and remands. [Decided June 7, 2013.]
20-2-0219 L.M. v. J.B., App. Div. (per curiam) (3 pp.) Defendant appeals from a final restraining order entered in favor of plaintiff, his ex-wife, pursuant to the Prevention of Domestic Violence Act. The panel affirms, finding that the judge properly applied the principles in Silver and his finding that prior events showed the need for an FRO to prevent further abuse is entitled to deference. [Decided June 7, 2013.]
20-2-0235 A.R. v. G.R., App. Div. (per curiam) (7 pp.) Defendant appeals from a final restraining order entered under the Prevention of Domestic Violence Act. The panel reverses and remands for a new hearing because the judge erred by failing to inform defendant of his right to cross-examine plaintiff, failing to find a predicate act of domestic violence, and failing to determine under Silver whether plaintiff needed continued protection. [Decided June 10, 2013.]
20-2-0236 State v. C.C.L., App. Div. (per curiam) (11 pp.) Defendant appeals from the order finding her guilty of two counts of contempt of a final restraining order issued under the Prevention of Domestic Violence Act, arising out of the parties’ exchange of emails regarding the children, a storage unit and financial matters and telephone calls from defendant to her former husband asking to speak to the children. The panel reverses, finding that the conduct was of a trivial nature that did not warrant guilty findings in the factual circumstances, including that defendant’s former husband had initiated numerous contacts outside the bounds of the FRO. The panel remands for entry of an order dismissing the complaints and for consideration of whether the FRO should be clarified to be certain that both sides understand what they can and cannot address in their emails, texts and phone calls. [Decided June 10, 2013.]
20-2-0247 Fletcher v. Euston, App. Div. (per curiam) (10 pp.) Plaintiff appeals from the order requiring him to contribute to his children’s college expenses. The panel affirms the order to the extent that it required Fletcher to contribute to his children’s college expenses, finding that Newburgh factors 1 and 2 are satisfied since the parties agreed in their PSA that they would share such expense after the children had applied for all available student loans, scholarships and grants, which was done here, and that factors 5, 7 and 12 were satisfied since the children qualified to attend college and they received an appropriate education at college. The panel remands for further consideration of the Newburgh factors relating to whether the actual expenses or some lesser amount should be used as the basis for reimbursement, the allocation between the parties, and the amount of the monthly payment in light of the factual dispute concerning the origin of the conceded lack of relationship between Fletcher and his children and the fact that there was no effort to address college expense with him before the children started college. [Decided June 11, 2013.]
20-2-0260 K.K. v. W.L., App. Div. (per curiam) (8 pp.) Plaintiff-mother appeals from a Family Part order that transferred, “temporarily and without prejudice,” primary residential custody of her then-13-year-old son, T.L., to defendant, her ex-husband, who lives in Virginia. Because the record provides no indication that the Family Part made the necessary findings and conclusions in support of its decision, the panel reverses and remands for further proceedings. [Decided June 12, 2013.]
22-2-0220 In the Matter of the Civil Commitment of J.E., App. Div. (per curiam) (11 pp.) J.E. appeals from the civil commitment order that continued his involuntary commitment pursuant to N.J.S.A. 30:4-27.15 to the Essex County Hospital Center and scheduled a review hearing for the following month. A psychiatrist examined J.E. and reported that J.E. was unable to take care of himself medically or psychiatrically. Based on J.E.’s delusional symptoms, the psychiatrist believed he was dangerous to himself, a condition warranting continuing involuntary commitment. Contrary to J.E.’s arguments, the state produced clear and convincing evidence that he posed a danger to himself. J.E. does not dispute the psychiatrist’s opinion that he was severely delusional. The appellate panel finds no clear error or mistake warranting reversal of the court’s decision to continue involuntary commitment. [Decided June 7, 2013.]
23-2-0200 State Farm Fire and Casualty Company v. Carbo, App. Div. (per curiam) (9 pp.) Nanassy appeals from orders that granted summary judgment to State Farm Fire and Casualty Company, denied her cross-motion for summary judgment and entered a default judgment against defendant Robert Carbo. In 2010, Nanassy filed a complaint against Carbo, alleging that he physically assaulted her, without cause or provocation, in the office where Nanassy was employed. State Farm filed a declaratory judgment action seeking a determination that it was not required to defend or indemnify Carbo in the lawsuit. Nanassy contends that State Farm was not entitled to summary judgment because there was a genuine issue of fact as to whether Carbo subjectively intended to cause the specific injuries she sustained. Carbo was covered by a homeowner’s insurance policy issued by State Farm. However, the policy excludes coverage for bodily injury or property damage that “is either expected or intended by the insured” or “the result of” the insured’s “willful and malicious acts[.]” The motion judge found that Nanassy alleged that Carbo engaged in intentional conduct, and there was no factual basis for her claim that he struck her negligently. Nanassy claims that Carbo struck her in the face with his fist and she sustained injuries to her eyes. Such injuries are the probable result of the conduct alleged. The motion judge correctly determined that Carbo was not entitled to coverage for the claims against him in the underlying action, and State Farm was entitled to summary judgment. [Decided June 6, 2013.]
25-2-0201 In the Matter of Monmouth County Layoffs, App. Div. (per curiam) (17 pp.) Appellant Monmouth County Corrections P.B.A. Local No. 240 appeals from the Public Employment Relations Commission (PERC) final agency action dismissing its unfair-practice charges against the county arising out of its implementation of a countywide layoff plan in early 2009. The panel affirms, finding an abundance of credible evidence to support the expressed factual findings that the county’s action was not motivated by anti-union animus but a severe budgetary shortfall and the desire to save funds, and that the administrative law judge properly recognized and integrated the totality of the circumstances into his determination and his disposition, including that the county did not refuse to negotiate in good faith and did not single out Local 240 for retaliation because it refused an across-the-board salary freeze. The panel concludes that the ALJ’s decision was not arbitrary, capricious or unreasonable and there is no basis to substitute its judgment for the agency decision. [Decided June 6, 2013.]
25-2-0238 In the Matter of Burlington County Prosecutor’s Office, App. Div. (per curiam) (13 pp.) The Burlington County Prosecutor’s Office and Burlington County appeal from a final agency decision by the New Jersey Public Employment Relations Commission affirming an interest arbitration award permitting a salary increase for prosecutor’s office detectives. The panel rejects the county’s claims that the raises implicate the 2 percent salary cap enacted pursuant to N.J.S.A. 34:13A-16.7 without discussion. It then considers PERC’s consideration of the nine factors in N.J.S.A. 34:13A-16g and concludes that the arbitrator did not address salary increases in comparable areas of private employment, as required by 16g(2), inappropriately relied on the county’s ability to pay instead of focusing on the financial impact on the county as required by 16g(6), and did not indicate which factors he deemed relevant nor explain why others were irrelevant, as the statute requires. The matter is remanded to develop a record regarding the 16g analysis consistent with the opinion. [Decided June 10, 2013.]
25-2-0248 Thomas v. Borough of Monmouth Beach, App. Div. (per curiam) (7 pp.) Plaintiff, a probationary police officer at the time he was terminated, appeals from the trial court’s denial of his motion to amend his complaint — to add a claim that his termination violated the Veteran’s Tenure Act — after argument on cross-motions for summary judgment. The panel affirms, concluding that the proposed new claim is without legal merit because it applies to a qualifying veteran whose term of employment is not fixed by law. As a probationary officer, appellant was serving a one-year term that applied despite the fact that a one-year term was not necessary to permit him to attend a police training academy — since he had already done so — since the municipality was entitled to one year to evaluate his suitability for the position, the other purpose of the fixed term. [Decided June 11, 2013.]
25-2-0202 Diaz-Paredes v. Whole Foods Market Group Inc., App. Div. (per curiam) (9 pp.) Plaintiff appeals from the grant of summary judgment to defendants Whole Foods Market Group Inc., two supervisors and unidentified employees. The order dismissed the remaining count of her complaint alleging that defendants’ termination of her employment violated New Jersey’s Law Against Discrimination. Plaintiff’s complaint alleged that she was compelled to return to work before obtaining medical clearance, was required to carry heavy boxes, and was initially offered a position at which she would have difficulties because of her limited language skills. Therefore, she alleged, her discharge from employment based on her improper use of her employee discount card was pretextual. Plaintiff did not present any evidence that defendants perceived her as disabled or that she actually was disabled. In any event, plaintiff acknowledged that others had been terminated for violations of the discount card program and she fails to point to any circumstance that cuts against defendants’ claim that they adhered to the discount card protocol and fired her because she did not comply. Having failed to present evidence of discriminatory conduct, plaintiff has not demonstrated that the court erred in its grant of summary judgment. [Decided June 6, 2013.]
26-2-0203 Courter v. Absecon Planning Bd., App. Div. (per curiam) (20 pp.) Plaintiffs appeal from the Law Division’s decision affirming defendant board’s resolution approving defendant Boardwalk Development and Design Company’s amended site-plan application, pursuant to the Age Restricted Development Conversion Law, N.J.S.A. 45:22A-46.3 to -46.16, to remove the age restriction on a proposed residential development and allowing changes to several aspects of the previously approved site plan. The panel affirms substantially for the reasons expressed below. It adds that Boardwalk did not need to apply to the zoning board to adjust the maximum height and permit new uses for the parcels not included in the original approvals since Najduch and N.J.S.A. 40A:55D-70(d) have no application here where any variances from the use and height must be obtained through the town council’s amendment to the redevelopment plan, the planning board could condition its approvals on future decisions made by the council, and nothing in the Local Redevelopment and Housing Law, the MLUL or the redevelopment plan expressly prohibits Boardwalk from first going to the planning board for site-plan review and then to the council for amendment to the redevelopment plan. Further, the planning board’s decision that Boardwalk’s application met the requirements for conversion did not violate preconditions of the Conversion Law requiring that preliminary or final approval for construction of the development have been granted prior to July 2, 2009, since its application did not include changes substantial enough to constitute a new application and the original approval date governs. Finally, statements of the board’s chairman to the press did not require that he recuse himself. [Decided June 6, 2013.]
26-2-0204 Price v. K&J Union City, L.L.C., App. Div. (per curiam) (8 pp.) Plaintiff filed a complaint in the Law Division, challenging a decision by the Union City Zoning Board of Adjustment to grant certain variances to defendants K&J Union City and 608 24th Street (the applicants). Plaintiff appeals from an order dismissing his complaint with prejudice. The applicants are owners of four contiguous lots, which form an irregular, rectangular lot in Union City. The property is located in the city’s R-Zone, in which one, two and four-family residential buildings are permitted, with a limit of 40 feet in height and a lot coverage of 40 percent. The applicants have operated a scrap metal yard on the property as a nonconforming use for more than 20 years. They propose to develop the property by constructing two four-story, 15-unit buildings, one facing 24th St. and one facing 25th St., over a partially below-grade parking garage. The appellate panel affirms the dismissal of plaintiff’s complaint, rejecting plaintiff’s arguments that (1) the applicants failed to justify the issuance of a (d)(1) use variance; (2) the applicants did not present an enhanced quality of proof for the use variance; (3) the applicants did not prove special reasons for the (d)(5) density variance; (4) no special reasons were provided for the (d)(6) height variance; and (5) the variances granted impair the zoning ordinance. There was sufficient credible evidence in the record for the board’s finding that the applicants had satisfied the criteria for issuance of the variances. [Decided June 6, 2013.]
34-2-0205 Deutsche Bank National Trust Company v. Hochmeyer, App. Div. (per curiam) (12 pp.) Defendant challenged plaintiff’s right to file a foreclosure complaint, a defense rejected at summary judgment, and reasserted the claim in a postjudgment, presheriff’s sale application to vacate final judgment. Defendant appeals from the denial of his motion to vacate the final judgment of foreclosure, claiming plaintiff lacked standing to foreclose. The court found defendant was not entitled to relief because of unreasonable delay. On appeal, defendant argues that plaintiff’s alleged lack of standing must not be ignored and the judgment must be set aside. Standing is not a jurisdictional issue here; a foreclosure judgment obtained by a party that lacked standing is not “void” within the meaning of Rule 4:50-1(d). Equitable considerations may justify rejection of a foreclosure defendant’s belated attack on a plaintiff’s lack of standing. Defendant’s motion to vacate, submitted four years following entry of summary judgment and more than two years after entry of final judgment, was not filed within a reasonable time as required by Rule 4:50-2. The panel rejects defendant’s argument that the judgment was obtained by fraud. The motion was properly denied. [Decided June 6, 2013.]
34-2-0239 Adel v. NFPS Inc., App. Div. (per curiam) (11 pp.) The Maltese and Galesi families jointly acquired and developed property. On dissolution of that relationship, they divided the property and the Maltese family came to own 40 Galesi Drive. The deed stated that it was subject to a right of first refusal. The property was then transferred to 40 Galesi, L.L.C., after the grantees chose not to exercise their right of first refusal but the transferring deed did not state that it was subject to a right of first refusal. The property was then the subject of a foreclosure action with Wachovia the successful bidder. It transferred title to NFPS and NFPS contracted to sell it to plaintiff Alfred Adel, who assigned his rights to plaintiff Wentworth. However, Michael Galesi claimed the right to purchase the property pursuant to the original agreement and plaintiffs filed this action against NFPS and Galesi. The Chancery Division declared the invalidity of the right of first refusal. The panel affirms, finding that Galesi’s interpretation that the right of first refusal ran with the land is not clearly and unambiguously expressed in the original agreement, the right of first refusal had no further application once title to the property was transferred to 40 Galesi LLC and the transaction between NFPS and Adel was not — and any future transactions will not be — inhibited by the original agreement. [Decided June 10, 2013.]
34-2-0261 Township of Montville v. Lotta Lettuce J.T.S. Farms, L.L.C., App. Div. (per curiam) (26 pp.) This is an eminent domain and declaratory judgment action relating to a farmer’s well and the water rights associated with land in Montville. Plaintiff township appeals from the Law Division’s orders that found (1) aspects of Montville’s ordinance restricting the establishment and operation of wells within the municipality was pre-empted by state law and defendant Department of Environmental Protection regulations; (2) Montville had temporarily taken certain property rights of defendant Lotta Lettuce through inverse condemnation; and (3) Lotta Lettuce was entitled to reallocation of certain costs, disbursements and expenses pursuant to N.J.S.A. 20:3-26(c). The panel affirms on the issue of pre-emption, finding that the ordinance prohibiting new irrigation wells in the vicinity of the Towaco Valley Aquifer, thereby preventing Lotta Lettuce’s implementation of the permit it received from the DEP to use the municipal monitoring well on its property for irrigation, was pre-empted and ineffectual. Further, since Lotta Lettuce never asserted a state or federal constitutional takings claim, either temporary, permanent or by inverse condemnation, nor did it claim that Montville physically entered its property, and it merely sought vague declaratory relief relating to the proper disposition of the monitoring well, the panel holds that the Law Division’s sua sponte conversion of what had been pleaded as a declaratory judgment counterclaim into an inverse condemnation action was a mistake. The panel also holds that even if the claim were properly and timely presented, Lotta Lettuce never proved it’s entitled to inverse condemnation remedies since it failed to present sufficient evidence to show that Montville deprived it of all economically beneficial use of its property. Thus, the panel holds that the motion court’s declaration that inverse condemnation had occurred was incorrect and its reallocation of expenses under N.J.S.A. 20:3-26(c) was unwarranted. [Decided June 12, 2013.]
34-2-0240 PHH Mortgage Corp. v. Garner, App. Div. (per curiam) (14 pp.) Defendant appeals from the denial of her motion to vacate a foreclosure judgment arguing that the judgment was improperly entered due to lack of notice of intent to foreclose and PHH’s lack of standing to bring the complaint. The panel affirms, finding that, inter alia, the notice of intent to foreclose that PHH served on defendant was not deficient since it properly listed PHH, not Mortgage Electronic Registration Systems Inc., as the lender, despite MERS’ designation as the mortgagee as a nominee for PHH, and defendant was not entitled to dismissal of the complaint because the notice informed her that she was in default and gave her the information necessary to cure the default; and PHH did not lack standing to file the complaint despite MERS’ designation as nominee since that designation provided only administrative benefits and left PHH as the owner of both the mortgage and the note. [Decided June 10, 2013.]
34-2-0249 Adams Associates, L.L.C. v. Eastern Savings Bank FSB, App. Div. (per curiam) (9 pp.) This appeal considers whether the trial court erred in granting summary judgment with regard to the meaning of a mortgage estoppel certificate and other related documents that memorialized the parties’ transaction. Because the handwritten changes made to the mortgage estoppel certificate suggested more than one plausible interpretation of the parties’ intent, the panel finds the document ambiguous and, therefore, reverses and remands for further proceedings. [Decided June 11, 2013.]
35-5-0221 Respond Inc. v. Camden, Tax Ct. (DeAlmeida, J.T.C.) (10 pp.) Plaintiff, a nonprofit charitable corporation organized exclusively for charitable purposes, owns numerous parcels of real property in Camden on which it performs various types of charitable works. The properties had been treated as exempt from local property taxes for many years prior to 2011, when the municipal assessor revoked the exemptions. On appeal, the Tax Court declared the properties exempt from local property taxes for tax year 2011, finding that plaintiff’s use of the properties qualified for an exemption under class 15D. The parties then submitted stipulations of settlement to the county board acknowledging that since plaintiffs’ use of the properties had not changed from 2011 to 2012, the properties were entitled to a class 15D exemption for 2012. However, the board disregarded the stipulations and, without a hearing or making findings of fact, declared the properties exempt under class 15F for tax year 2012. The court grants plaintiff’s motion for summary judgment, finding that the properties are exempt from taxation under class 15D, finding that the board’s action contravenes N.J.A.C. 18:12A-1.9(i), which provides that if the board disapproves a proposed settlement, it must notify the parties of its disapproval and schedule a hearing, and that nothing in the record supports a determination that the properties be designated as class 15F. [Decided May 20, 2013.]
35-2-0241 Estate of Warshaw v. Director, Div. of Taxation, App. Div. (per curiam) (8 pp.) At the time of his death, the decedent owned an Individual Retirement Account with Bernard L. Madoff Investment Securities, which was transferred to a trust for the benefit of his widow after his death. The estate paid resident estate taxes of $88,677 but, on Madoff’s arrest on charges of securities fraud, sought a refund of that amount, contending that the IRA was worthless because of Madoff’s arrest. The division denied the request. Defendant now appeals from the Tax Court’s grant of summary judgment to the estate allowing a tax refund. Finding that an estate is to be valued at the death of the decedent, that there is no evidence that suggests anyone knew that Madoff Securities was running a Ponzi scheme around the date of decedent’s death and, as a result, there was no basis to question the date-of-death value of the IRA, especially since the widow continued to receive substantial distributions for two years, the panel holds that the record lacks substantial evidence to support the Tax Court’s determination, which is reversed. [Decided June 10, 2013.]
35-5-0262 Cohen v. Director, Division of Taxation, Tax Ct. (Andresini, J.T.C.) (13 pp.) In this action in which plaintiffs contend that defendant improperly subjected the distribution they received from Conway Stores Inc., an “S” corporation, to tax under the New Jersey Gross Income Tax Act and seek an abatement of the assessment, and defendant contends that the distribution is properly taxable and that the assessment is correct, the court denies plaintiffs’ motion for summary judgment and grants defendant’s cross-motion for summary judgment dismissing the complaint, finding that plaintiff’s attempt to offset the distribution against the N.J. Accumulated Adjustment Account fails because the N.J. .AAA balance is negative when the 1997 ending balance is properly carried forward to the beginning balance in 1998, which plaintiffs failed to do, and where plaintiffs failed to provide any evidence or explanation for this treatment, and plaintiffs have not provided any cogent evidence in support of their self-prepared “proposed calculations.” [Filed May 23, 2013.]
35-2-0263 Murphy v. Director, Division of Taxation, App. Div. (per curiam) (19 pp.) Plaintiffs appeal from a decision of the Tax Court denying their motion for summary judgment and granting summary judgment in favor of defendant, which had denied plaintiffs’ request for a refund of income taxes previously paid, on the basis that plaintiffs properly included the income when received in 2005, and although their request for refund was timely, the terms of the settlement reached with the U.S. attorney and the bankruptcy trustee that required them to return $10 million received pursuant to a leveraged buyout and initial public offering did not alter their entitlement to the 2005 funds, obviating any refund request. The panel holds that the claimed refund does not present an error in the original income reported on the 2005 NJ-1040 or in the calculation of the taxes paid, there are no provisions in the act allowing recomputation of income previously claimed because the taxpayer settles a suit based on theories attacking the transactions underlying the income payments, and there has been no adjudication that plaintiffs wrongfully received and/or had no legal entitlement to the LBO and dividend payments. Thus, the 2008 settlement may not serve as a basis to retroactively recalculate plaintiffs’ 2005 taxable income for the purposes of recovering a refund. [Decided June 12, 2013.]
36-2-0207 Hinojosa v. Castaldo, App. Div. (per curiam) (19 pp.) Plaintiffs appeal from the summary judgment dismissal of the personal injury and per quod complaint filed under the Tort Claims Act and from the denial of their motion for reconsideration. The trial court dismissed the complaint after determining that the injuries plaintiff Marcelino Hinojosa sustained when a school bus struck the Lexus he was driving did not meet the TCA’s threshold for recovering pain and suffering damages. The panel affirms, finding that plaintiff’s chiropractor was the only expert who rendered an opinion that plaintiff had sustained a permanent injury in the accident and his report was of questionable validity. Moreover, even accepting the chiropractor’s opinion that plaintiff’s thoracic and lumbrosacral sprains and strains are permanent, the injuries are not “significant” under TCA. Nor does the chiropractor’s opinion that plaintiff’s knee symptoms were permanent create a triable issue where surgery had been suggested as a possible cure but plaintiff had not scheduled it and no doctor opined that the injury was permanent even with the surgery. Nor did the court err in denying the motion for reconsideration where, inter alia, the documents plaintiff submitted with his motion were not competent evidence that would have defeated defendants’ summary judgment motion and did not meet the reconsideration standard. [Decided June 6, 2013.]
36-2-0208 Solano v. Ducktown Tavern & Liquor, App. Div. (per curiam) (5 pp.) On appeal in this action alleging that plaintiff was injured when he was forcefully ejected from the tavern, plaintiff asserts a right to a new trial on all issues, claiming that the jury’s allocation of liability — 60 percent to defendant, 40 percent to plaintiff — was against the weight of the evidence and likely generated the low damage award of $20,000, which was molded to $12,000. The panel finds insufficient merit in plaintiff’s arguments to warrant discussion in a written opinion. It adds only that there was evidence, which the jury was entitled to credit, that plaintiff was disruptive and there were grounds for his removal and that from his admitted consumption of eight to 10 beers before the incident, the jury could have inferred that he was unruly and inebriated, which could have impaired his judgment and coordinated and contributed to his fall, even though defendant produced no direct evidence refuting plaintiff’s version of events. [Decided June 6, 2013.]
36-2-0222 Kowalewski v. Port Authority Trans-Hudson Corp., App. Div. (per curiam) (27 pp.) Plaintiff appeals from the trial court’s orders barring his liability expert’s testimony as a net opinion and granting summary judgment dismissal of his action under the Federal Employers’ Liability Act alleging that as a train repairman for the PA Trans-Hudson Corporation, he was negligently exposed to excessive and harmful cumulative trauma to his elbows, causing injury and disability. The panel affirms, finding (1) no clear error in the determination to preclude the expert from testifying that the PATH workplace was unsafe because his opinion was a net opinion regarding both the standard of care that PATH was obliged to meet and the conclusion that the breach of that standard caused plaintiff’s injury, and (2) summary judgment was appropriately granted since absent the expert’s opinion plaintiff failed to present sufficient evidence to support his claim that PATH was negligent and that its negligence caused his injury. [Decided June 7, 2013.]
36-2-0264 Family Karate Center Inc. v. Master Peters Academy of Martial Arts, L.L.C., App. Div. (per curiam) (26 pp.) In this action asserting claims for slander, product disparagement, misappropriation of trade secrets, tortious inducement to have students breach their contracts with FKC, and tortious inducement to have FKC’s employees breach their contracts, plaintiffs appeal from the grant of summary judgment to defendants. The panel affirms, finding, inter alia, (1) summary judgment was properly granted on the slander claim since there is no reasonable conclusion other than that plaintiff Patakos, FKC’s owner, had fired defendant Trikilas, Master Peters’ owner, for refusing to sign a noncompete agreement and thus his telling others that he had been “fired” was not defamatory; (2) summary judgment dismissing the product-disparagement claim was proper because there is no evidence that Trikilas made a false or disparaging statement regarding plaintiffs; and (3) the claim of misappropriation of trade secrets was properly dismissed because plaintiffs have not offered any proof that Trikilas used their client list. [Decided June 12, 2013.]
36-2-0265 Feldman v. Outback Steakhouse of Florida Inc., App. Div. (per curiam) (14 pp.) Defendants appeal from a judgment awarding defendant $552,000.93 based on a molded jury verdict in this action alleging that she was severely injured in a fall caused by a defect in the sidewalk outside an Outback Steakhouse restaurant. Defendants contend that the trial judge erred in giving a spoliation charge based on defendants’ failure to produce an incident report concerning plaintiff’s fall; excluding evidence that the court found was irrelevant to plaintiff’s future wage loss; and calculating past lost wages for purposes of awarding plaintiff prejudgment interest. They also challenge a protective order directing that defendants’ counsel return certain privileged materials that plaintiff’s counsel inadvertently sent to defendants’ insurance company during settlement negotiations. The panel concludes that the trial court did not abuse its discretion in making the challenged rulings, the verdict was not a miscarriage of justice, and defendants’ appellate contentions are entirely without merit and affirms. [Decided June 12, 2013.]
38-2-0250 In the Matter of Ehrlich, App. Div. (per curiam) (7 pp.) Appellant, the primary beneficiary of his deceased uncle’s estate, appeals from the denial of his Rule 4:50-1 motion to vacate an order approving the interim accounting by the temporary administrator of the estate, claiming that the accounting failed to include certain specified assets of the estate. The panel affirms substantially for the reasons expressed below: that the specified assets were added to the estate after the interim accounting and are being/will be added to the estate and will be reflected in the final accounting. The panel adds that there is no basis for disturbing the order approving the intermediate accounting where appellant admittedly knew the accounting was incomplete on his receipt of the document but did not file exceptions or voice any objection to the accounting at the hearing on its approval. Moreover, it was acknowledged that the accounting was interim and that the final accounting would include the assets belatedly brought to the administrator’s attention by appellant. Under the circumstances, the matter involves neither newly discovered evidence nor exceptional circumstances to warrant a vacatur of the order approving the intermediate accounting. [Decided June 11, 2013.]
42-6-0267 In re Fejes, U.S. Bank. Ct. (Ferguson, U.S.B.J.) (7 pp.) Plaintiff Repack holds a $56,698 judgment against the debtor based on a default under certain loan agreements. Pending is his fourth amended complaint seeking to deny the debtor a discharge where she did not list her interest in a co-op apartment in Hungary in her petition or schedules, did not mention the co-op to the Chapter 7 trustee at the meeting of creditors, and filed an amendment to Schedule B listing a 50 percent interest in the apartment two months after the filing of this adversary proceeding. At issue is whether the two remaining elements of plaintiff’s 11 U.S.C. § 727(a)(4)(D) count — knowledge that a false statement was made and fraudulent intent — have been established, the court having already found that Repack has established that defendant made a statement under oath that was false and that was related materially to the bankruptcy case. The court finds that Repack has sustained his burden of establishing the remaining two elements and enters judgment in his favor. [Filed May 29, 2013.]
07-7-0252 Smith v. Manasquan Savings Bank, U.S. Dist. Ct. (Pisano, U.S.D.J.) (3 pp.) This matter comes before the court as an appeal of U.S. Bankruptcy Court Judge Lyon’s denial of the debtor/appellant’s motion for reconsideration of a prior order. The appeal was dismissed for failure to file an appellate brief, despite numerous extensions of time to do so. Appellant then filed a notice of appeal and now moves to proceed in forma pauperis and to recuse the presiding judge. The court denies the motion to proceed in forma pauperis, concluding that plaintiff has sufficient resources to enable her to pay the requisite fees associated with this action. It also denies the motion to recuse, finding that it is essentially a motion for reconsideration of the order denying her previous motion for recusal and that she cannot revisit arguments previously considered and rejected, particularly in a case that has been closed due to her failure to file an appellate brief and comply with the court’s orders. [Filed May 24, 2013.]
07-7-0223 Smart Pharmacy Inc. v. Medco Health Solutions Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) Defendant Medco Health Solutions Inc. filed a motion to dismiss the complaint filed by plaintiffs Smart Pharmacy Inc. and Highland Pharmacy, L.L.C., individually and on behalf of others similarly situated, alleging that defendant’s practices in connection with the reimbursement for pharmaceutical services breached various states’ laws. Plaintiffs seek to recover monies recouped by defendant under allegedly abusive audit procedures. Plaintiffs seek to represent three classes of pharmacies nationwide in a putative class action. The court is convinced that plaintiffs have sufficiently pleaded a clear and definite promise made by defendant to plaintiffs. Although defendant maintains the right to audit plaintiffs’ claims submissions, the court does not believe that this type of audit is factually similar to those in the cases cited by defendants that gave rise to a finding of “indefinite promises.” Here, defendants represented that the promise of payment should be relied on. It would be inappropriate to dismiss the promissory estoppel claims. As plaintiffs have sufficiently pleaded a promise to give rise to a claim of promissory estoppel, the court also finds that reliance was reasonable. Defendant’s motion to dismiss is denied. [Filed May 14, 2013.]
07-7-0224 Maher Terminals, L.L.C. v. The Port Authority of New York and New Jersey, U.S. Dist. Ct. (Hammer, U.S.M.J.) (5 pp.) In this action asserting that defendants’ port charges and fees, including marine terminal charges and fees, and increases in marine terminal charges and fees, for plaintiff’s marine container terminal operations are unlawful and violate various federal statutes, the court denies defendants’ request for a stay of discovery pending the determination of defendants’ pending motion to dismiss, finding that defendants have failed to satisfy their burden of showing good cause sufficient to justify granting a stay since the motion does not dictate a clear and unmistakable result for either party and they provide no evidence that proceeding with discovery will be unduly burdensome. [Filed May 22, 2013.]
46-8-0210 Southerland v. County of Hudson, Third Cir. (per curiam) (7 pp.) Southerland, an inmate, appeals from the district court’s order sua sponte dismissing his civil rights complaint. Southerland, proceeding pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, alleging that his civil rights were violated by law enforcement officers during an investigation, and by corrections officials during his pretrial detention at the Hudson County Correctional Center (HCCC). The circuit panel affirms the district court’s dismissal of Southerland’s claim that his civil rights were violated when police officers entered the residence he shared with his former girlfriend to investigate her disappearance. The district court correctly found that this claim was time-barred and that no meritorious tolling issues were present. The panel also affirms the dismissal of Southerland’s claim that an officer provided false testimony regarding the investigation at an evidentiary hearing. With respect to Southerland’s claims involving his pretrial detention at HCCC, the panel affirms the dismissal of Southerland’s access-to-the-courts claim. However, the panel vacates the dismissal of Southerland’s claim that his confinement in the segregation cellblock was unconstitutional. Because Southerland’s complaint stated a claim that his pretrial confinement constituted “punishment” in contravention of the Due Process Clause, the district court erred by sua sponte dismissing the claim. [Filed May 10, 2013.]
46-7-0225 Mitchell v. Fuentes, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (19 pp.) Plaintiff, a black male, asserts violations of his state and federal constitutional rights and the New Jersey Civil Rights Act arising out of a traffic stop and resulting citations. Defendants move to dismiss all counts; plaintiff moves for leave to amend his complaint. The court grants the motion to dismiss the Fourth Amendment § 1983 claim, concluding that collateral estoppel applies to bar him from relitigating the asserted lack of probable cause for the stop in light of the state court affirmance of his speeding conviction. Plaintiff’s attempt to amend his complaint with respect to his Fourth Amendment claim is denied as futile. The court grants plaintiff leave to amend his Fourteenth Amendment claim that his right to equal protection was violated because defendants engaged in racial profiling in effecting the traffic stop, finding that his proposed amended complaint — that the motor vehicle stop was motivated by a discriminatory purpose where he was driving a sports car with a white female passenger — adequately states a claim of racial profiling. Similarly, plaintiff is granted leave to amend his § 1985 claim of a conspiracy to racially target and stop him and a § 1986 claim of failure to prevent a § 1985 violation because the proposed amended complaint adequately states those claims. Plaintiff’s § 1983 failure-to-train claim against defendant Fuentes is dismissed as he does not point to any specific official policy, custom or decision other than the generalized allegation that there have been complaints over the years of racism on the part of the New Jersey State Police. [Filed May 22, 2013.]
11-7-0253 Short v. Great Atlantic & Pacific Tea Co., U.S. Dist. Ct. (Linares, U.S.D.J.) (7 pp.) During the pendency of this action against A&P, plaintiff filed a Pennsylvania state court action against Pathmark Stores Inc., which defendants A&P and Superfresh Food Market Inc. maintain is a subsidiary of A&P and an affiliate of Superfresh, which resulted in a settlement that contained a release. Defendants in this action move to dismiss on the basis that the release bars the claims here. The court denies the motion, holding that the settlement unambiguously released all claims related to and arising from the facts in the state court action but that it cannot say that the settlement unambiguously releases the claims at issue here. Further, the court finds that it is unclear that Pathmark Stores is indeed a subsidiary of A&P and an affiliate of Superfresh such that they would be covered by the terms of the release. [Filed May 23, 2013.]
15-7-0268 White v. Solomon and Solomon P.C., U.S. Dist. Ct. (Cecchi, U.S.D.J.) (5 pp.) Finding that plaintiff merely recites the elements of the Fair Debt Collection Practices Act and claims that defendant’s alleged conduct, in contacting her for payment of an alleged consumer debt and threatening to garnish her wages and those of her son, violated that statute, but does not indicate, among other things, how defendant’s actions are violative of the statute, and concluding that her bare-bones allegations are insufficient as a matter of law to survive defendant’s motion for dismissal, the court grants defendant’s motion to dismiss without prejudice and gives plaintiff 14 days in which to file an amended complaint that cures the pleading deficiencies. [Filed May 28, 2013.]
15-7-0269 Paone v. Peck, U.S. Dist. Ct. (Cooper, U.S.D.J.) (8 pp.) Plaintiff, appointed by the N.J. Superior Court as receiver of New Jersey property in which Deborah Peck has an ownership interest to aid Frederik Komen in executing a money judgment in his favor against Deborah, filed this action against George and Deborah Peck seeking sale of a parcel of their real estate with her share to go toward satisfaction of the Komen judgment. George argues that neither Paone nor Komen have a lien against his interest in the property and may not sell his interest to satisfy Deborah’s obligation. Deborah is named in several proceedings in the U.S. Bankruptcy Court for the Southern District of Florida and that court issued a permanent injunction enjoining her from selling or transferring assets that might be subject to its oversight. Finding that the issues in this action are intertwined with the bankruptcy proceedings, the court transfers the claims asserted herein to the U.S. District Court for the Southern District of Florida with the assumption that it will refer the claims to the bankruptcy court. If that court finds that it has no jurisdiction over the claims and transfers the matter back to New Jersey, the court indicates it will abstain and remand the action to state court. [Filed May 28, 2013.]
14-7-0231 Vispisiano v. New Jersey, U.S. Dist. Ct. (Sheridan, U.S.D.J.) (9 pp.) Plaintiff, a pretrial detainee housed at the Somerset County Jail, filed this action alleging violations of his constitutional rights arising out of the disciplinary procedures followed after a disturbance in the pod in which he was housed. The court dismisses the claims against New Jersey since it is immune from suit under the Eleventh Amendment. The claims against the individual defendants other than officer Apisa are dismissed because plaintiff has not pleaded the personal involvement of anyone other than Apisa. The due process claims against Apisa, asserting violations of the standards in Wolff v. McDonnell for disciplinary proceedings, are permitted to proceed. [Filed May 21, 2013.]
14-8-0232 United States v. Palillero, Third Cir. (McKee, U.S.C.J.) (5 pp.) Defendant, who pleaded guilty to distributing 50 grams or more of methamphetamine, appeals from the bottom-of-the-guidelines-range sentence of 70 months, to be followed by three years of supervised release. Finding that, in imposing sentence, the district court erroneously found that it did not have authority to reject a guideline on policy grounds unless it was applying the guidelines for crack cocaine, the court vacates the sentence and remands for further proceedings, noting that on remand, the district court is free to adopt defendant’s policy argument and impose a different sentence if it chooses to do so, but it is clearly not required to. [Filed May 22, 2013.]
23-7-0212 National Interstate Insurance Co. v. Champion Truck Lines Services Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (6 pp.) The issue in this declaratory judgment action is which insurer, plaintiff National Interstate Insurance Co. or defendant Carolina Casualty Insurance Company, is the primary insurer for an accident. A tractor-trailer driven by third-party defendant Paul Dillard, an employee of defendant Champion Truck Lines Services Inc., struck and injured defendant John Davis. Champion was insured by Carolina Casualty. The court directed Champion and Davis to show cause why judgment should not be entered in favor of National Interstate declaring that Carolina Casualty is the primary insurer. Champion and third-party defendant Northstar Services Ltd., which is insured by National Interstate, had a verbal agreement for Champion to handle several container deliveries for Northstar. Dillard was returning a chassis used in one of the deliveries when he struck Davis. Champion’s policy is primary if Northstar did not “hire” the vehicle in the accident. The court holds that Northstar did not “hire” Dillard and his truck and that the Carolina Casualty policy is the primary policy. The court will therefore omit any reference to Northstar being a primary insured under the Carolina Casualty policy. [Filed May 9, 2013.]
23-7-0226 National Casualty Company v. Hertz Equipment Rental Corp., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (4 pp.) Defendant Hertz Equipment Rental Corporation filed a motion to dismiss or, in the alternative, stay the declaratory judgment action filed by plaintiff National Casualty Company, seeking a declaration that it has no duty to defend or indemnify its insured, Hertz, in connection with a putative class action pending in Kansas state court. The Kansas action was commenced by Fun Services of Kansas City against Hertz alleging violations of the Telephone Consumer Protection Act and common-law conversion. Fun Services brought a similar declaratory judgment action in Wisconsin state court against Hertz and National Casualty weeks before plaintiff filed this action. Hertz has moved to dismiss this action in light of the allegedly duplicative but first-filed Wisconsin action. Both cases going forward would result in duplicative litigation and could result in conflicting judgments. The issues in this action can be better settled in the Wisconsin action, which was filed first. That case also includes Fun Services, who is the plaintiff in the underlying Kansas action, and the dispute involves state as opposed to federal law. Although plaintiff here argues that the Wisconsin suit will likely be dismissed because Fun Services lacks standing, the court is not convinced that it should exercise jurisdiction for that reason, and the standing issue should be decided by the Wisconsin court. The court declines to exercise jurisdiction and dismisses plaintiff’s complaint. [Filed May 21, 2013.]
23-7-0227 National Specialty Insurance Company v. Papa, U.S. Dist. Ct. (Bumb, U.S.D.J.) (16 pp.) Defendant Mark IV Transport and Logistics moves to vacate the clerk’s entry of default. Following a motor vehicle accident, Charles Minor filed suit in the Superior Court of New Jersey, against Walter Benkius; Rancocas Valley Warehouse & Trucking — the owner of the tractor-trailer and, allegedly, Benkius’ employer; and Mark IV — also alleged to be Benkius’ employer. Rancocas maintains an insurance policy with plaintiff National Specialty Insurance Co. The policy insures Rancocas for use of the tractor-trailer and others using it with Rancocas’ permission, provided that they are not using it for non-Rancocas business, or under the terms of a written lease. Plaintiff filed a complaint in this court seeking a declaratory judgment that, under the policy, it has no duty to defend or indemnify defendants. Plaintiff argues that, on the date of the accident, the tractor-trailer was being used under a written lease agreement and for “business other than that of Rancoca” — both of which are conditions under which plaintiff disclaims coverage. The court denies Mark IV’s motion to vacate and grants Mark IV a final opportunity to offer a meritorious defense to this action. [Filed March 14, 2013.]
23-7-0228 National Specialty Insurance Company v. Papa, U.S. Dist. Ct. (Bumb, U.S.D.J.) (8 pp.) Following a motor vehicle accident, Charles Minor filed suit in the Superior Court of New Jersey against Walter Benkius; Rancocas Valley Warehouse & Trucking — the owner of the tractor-trailer and, allegedly, Benkius’ employer; and Mark IV Transport and Logistics — also alleged to be Benkius’ employer. Rancocas maintained an insurance policy with plaintiff National Specialty Insurance Co. The policy insures Rancocas for use of the tractor-trailer and others using it with Rancocas’ permission, provided that they are not using it under a lease for non-Rancocas business. Plaintiff filed a complaint in this court seeking a declaratory judgment that, under the policy, it has no duty to defend or indemnify defendants. Plaintiff alleged that, on the date of the accident, the tractor-trailer was being used under a lease agreement for “business other than that of Rancocas” — a condition under which plaintiff disclaims coverage. Mark IV moved to vacate the entry of default, which the court denied, further allowing Mark IV 30 days to submit meritorious defenses that would justify vacating default. Mark IV failed to do so. Because Mark IV has provided no ground to disturb the court’s prior analysis, the court finds that entry of default judgment is appropriate. [Filed May 9, 2013.]
53-7-0254 ZoomEssence Inc. v. International Flavors and Fragrances Inc., U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (10 pp.) In this action for misappropriation of a trade secret, breach of contract and the duty of good faith and fair dealing while engaged in that misappropriation, common-law unfair competition and unjust enrichment, defendant IFF moves to bifurcate the trial between liability and damages and to stay all damages-related discovery. The court denies the motion to bifurcate, finding that IFF has not shown that this case would be any more complex than the average or typical trade-secret case, that it has not cited to a single case of misappropriation of trade secrets where bifurcation was ordered, and that jury instructions are an appropriate mechanism to minimize any confusion the jury might experience. Further, several of the same witnesses will be used in both areas and a single trial will not prejudice either party. The court denies the motion to stay damages-related discovery because it finds that bifurcation is not warranted. [Filed May 23, 2013.]
25-7-0229 Gianfrancesco v. Laborers International Union of North America Local 594, U.S. Dist. Ct. (Thompson, U.S.D.J.) (9 pp.) In this action asserting that plaintiff was terminated in retaliation for acting as a whistle-blower in violation of the New Jersey Conscientious Employee Protection Act after he reported a number of alleged wrongdoings and illegalities at the union that he discovered in the course of his employment, in which the court granted summary judgment after finding that plaintiff’s whistle-blowing activities fell within his job duties, defendants move for sanctions and attorney fees. The court denies the motion, finding that, although it recognized the job-duty exception, it cannot say that the exception is so well-settled as to necessitate sanctions here. [Filed May 24, 2013.]
25-7-0230 Kush v. United Food and Commercial Workers Union Local 152, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (14 pp.) Plaintiff, a member of United Food and Commercial Workers Union Local 152, CLC, is a former employee of defendant Case Pork Roll Company Inc., who claims that he was wrongfully terminated. Plaintiff grieved to the union, but the union made a determination that plaintiff’s grievance against Case would not proceed to arbitration. In his complaint, plaintiff alleges first that the union failed to fairly represent him in his grievance, and second, that Case breached their collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, by wrongfully terminating plaintiff. Here, Case moves to dismiss plaintiff’s claims on the basis that plaintiff failed to exhaust available intra-union remedies prior to instituting this action. Both the union and plaintiff oppose defendant’s motion. The court finds that plaintiff has not exhausted intra-union grievance procedures with respect to his fair-representation claim against the union and, as a result, it appears that his claims against both Case and the union would be dismissed based on that failure alone. Nevertheless, based on the union’s resistance to exhaustion, the union or plaintiff may present to the court any additional bases that they believe would relieve plaintiff’s duty to exhaust his administrative remedies. Defendant’s motion to dismiss is denied at this time. [Filed May 14, 2103]
25-7-0255 Everett v. State of New Jersey (Department of Corrections), U.S. Dist. Ct. (Cooper, U.S.D.J.) (12 pp.) Plaintiff, a former employee of the Special Investigations Division of the New Jersey Department of Corrections, alleges that defendants unlawfully retaliated against him for exercising his rights under the Family Medical Leave Act and for unrelated whistle-blowing activity, in violation of the New Jersey Conscientious Employee Protection Act. Defendants — the department, the commissioner and individual employees — move for summary judgment. The court finds that plaintiff has failed to establish a prima facie claim of retaliation under the FMLA because he has failed to show that at least one genuine issue of disputed fact exists by reference to the record, and even if his argument were considered on the merits, his argument that he was removed as chief investigator because he took intermittent family leave approximately nine months earlier runs afoul of the well-settled law regarding temporal proximity. That claim is dismissed. Having resolved all claims over which the court has original jurisdiction, the court dismisses the CEPA claim without prejudice to recommence that part of the action in state court. [Filed May 28, 2013.]
25-7-0270 Harrocks v. Saker ShopRites Inc., U.S. Dist. Ct. (Cooper, U.S.D.J.) (7 pp.) In this action asserting claims for breach of contract and defamation against plaintiff’s former employer arising out of her termination after she allegedly brought a small plastic bag to work containing a CDS, the court denies the employer’s motion to dismiss the breach-of-contract claim either as untimely or for failure to exhaust administrative remedies because, reading the collective-bargaining agreement in the manner most favorable to plaintiff, the court says it appears that the union may have been responsible for furthering the grievance process and, therefore, it is unable to determine at this stage when or whether plaintiff received notice that the union would not further proceed with the grievance procedure outline in the CBA, whether the union or plaintiff bore responsibility for furthering the grievance proceedings, and when the limitations period relating to the breach-of-contract claim began to accrue. The court denies the motion to dismiss the defamation claim because the complaint shows that the statements were made during grievance proceedings. [Filed May 28, 2013.]
32-7-0271 Durkin v. Wabash National, U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (30 pp.) In this action arising out of the death of William Gangell when the load on the tractor-trailer he was driving shifted forward during a braking maneuver, collapsing the bulkhead of the truck and pinning him inside, in which the only remaining defendant is Wabash, against whom plaintiff asserts a claim for failure to warn, the court grants defendant’s motion for summary judgment, finding that while there are genuine issues of material fact that preclude a determination of whether a duty to warn exits in this case, even assuming that defendant owed a duty of care to Gangell, there are no questions of fact precluding summary judgment on the issue of proximate cause where plaintiff conceded at oral argument that the heeding presumption would be rebutted in light of Gangell’s documented history of disregarding warnings and, in addition, the proposed warning would not have yielded a different result. A reasonable juror could not conclude that the failure to warn Gangell of the nature of the protection, or lack of protection, of the bulkhead was a proximate cause of the accident. [Filed May 29, 2013.]
50-7-0256 Manning v. Merrill Lynch, Pierce, Fenner & Smith Inc., U.S. Dist. Ct. (Linares, U.S.D.J.) (8 pp.) Plaintiffs move for certification of an interlocutory appeal or, in the alternative, for reconsideration of the court’s denial of their motion to remand the matter to state court. The court finds that plaintiffs have satisfied the requirements of 28 U.S.C. § 1292(b) — since whether the court has subject-matter jurisdiction is a controlling question of law, there is substantial ground for difference here as evinced by the different outcomes reached by the court and the magistrate judge in this case, as well as those of other courts in the district dealing with similar issues, and there is little doubt that an immediate appeal may ultimately advance the termination of the litigation — and it therefore certifies for interlocutory appeal the question of whether remand is appropriate. The court denies plaintiffs’ motion for reconsideration, finding that they have failed to show that reconsideration is appropriate as they do not point to an intervening change in controlling law or the availability of new evidence and they do not show the need to correct a clear error of law or prevent manifest injustice since no party has pointed to controlling authority on whether § 27 of the Exchange Act provides exclusive federal jurisdiction where, as here, state claims are predicated on a violation of the Exchange Act and plaintiffs do not contend that the court overlooked any controlling authority on the issue. [Filed May 23, 2013.]
36-7-0213 Haney v. Harrah’s Atlantic City, U.S. Dist. Ct. (Simandle, U.S.D.J.) (5 pp.) Plaintiffs David Haney and Crystal Haney, husband and wife, seek damages from defendant Harrah’s Atlantic City Operating Company and other Harrah’s companies for injuries that David sustained in a slip and fall. Defendants filed a motion to dismiss Crystal’s claims and award attorney fees and costs. Despite multiple efforts over the course of one year to schedule her deposition, Crystal failed to appear. Her failure to appear is her personal responsibility because plaintiffs’ counsel tried to contact her and informed her that failure to appear could result in dismissal. Her failure to appear prejudices her adversary because defendants need to depose her to learn how her husband’s injury has impacted her. Her repeated failures to appear and to respond to plaintiffs’ counsel’s attempts to contact her show a history of dilatoriness. Her conduct shows that her failure to participate in this litigation is willful. She has been informed of the pendency of this dismissal motion and has offered no promise to appear for a deposition and no willingness to continue to pursue her consortium claim. Plaintiffs’ and defendants’ counsel agree that dismissal is the appropriate sanction. It appears that her claim of loss of consortium has little merit due to her separation from her husband. The court grants defendants’ motion to dismiss Crystal Haney’s claims and dismisses as moot defendants’ motion to award fees and costs. [Filed May 9, 2013.]