01-2-0497 Jones v. Board of Review, App. Div. (per curiam) (7 pp.) Appellant appeals from a final decision of the Board of Review that found her unemployment claims invalid under N.J.S.A. 43:21-19(i)(7)(C) and determined she was liable for a refund of benefits received. The panel affirms, holding that the board properly found that appellant’s employment could not be used to establish a valid unemployment claim because she worked for a single-member limited liability company owned by her husband and thus she worked for her husband and that employment is excluded under N.J.S.A. 43:21-19(i)(7)(C) , and she is required to repay the unemployment benefits received pursuant to N.J.S.A. 43:21-16(d). [Decided July 2, 2013.]

03-2-0475 Sandalwood Debt Fund A, L.P. v. KPMG, App. Div. (per curiam) (20 pp.) In this matter related to the fraudulent Ponzi investment scheme run by Bernard Madoff, in which plaintiffs, limited partners of three hedge funds that served as feeder funds to Madoff and that were managed by Tremont Partners as their general partner, asserted claims for professional malpractice, breach of fiduciary duty, negligent misrepresentation and breach of contract against defendant-independent auditor, which had been hired by the funds to audit their financial condition, plaintiffs appeal from the Law Division order granting defendant KPMG’s motion to stay the action against it and to compel arbitration. The panel affirms, finding that on the facts here, plaintiffs’ claims are bound by KPMG’s engagement letters with Tremont Partners Inc., Tremont Capital Management Inc. and Rye Investment Management, which provided arbitration as the sole method of dispute resolution. [Decided July 1, 2013.]

06-2-0456 Capital One N.A. v. Finmar Associates, App. Div. (per curiam) (11 pp.) Defendant obtained a loan from North Fork Bank secured by a commercial mortgage and personal guarantees, but failed to make any payment. Plaintiff, which had acquired North Fork Bank through a merger, filed a complaint alleging, inter alia, breach of contract for default of payment obligations. Eventually, a default judgment was entered, the judge finding that Capital One had standing to enforce the note and defendants failed to satisfy the requisites of Rule 4:43-3. Defendant appeals from the denial of its motion pursuant to Rule 4:50-1 to vacate the default judgment and for permission to file an answer to assert both excusable neglect and Capital One’s alleged lack of standing. The panel affirms, finding that defendant is not entitled to relief because it has not shown that the failure to answer or otherwise appear and defend was excusable under the circumstances and it has not shown a meritorious defense since Capital One has standing because it was vested with the right to sue on the instruments without having to present a separate assignment of the instruments by virtue of the merger. [Decided June 28, 2013.]

46-2-0499 Brown v. Middlesex Management, App. Div. (per curiam) (5 pp.) Plaintiff appeals from a decision of the director of the Division on Civil Rights finding no probable cause to her allegations that she was denied an apartment at the complex managed by defendant because of her race and her participation in the Section 8 housing subsidy program. The panel affirms, finding that the director’s determination that the refusal was based on negative information in a credit report, including several prior eviction proceedings and two accounts in collection, was properly based on facts in the record and is consonant with relevant statutory provisions. [Decided July 2, 2013.]

09-2-0476 Chiesa v. Levine, App. Div. (per curiam) (6 pp.) In this action in which appellant was found to have violated numerous provisions of the Consumer Fraud Act and the Charitable Registration and Investigation Act, both individually and doing business as Al’s Special Friends, in connection with his sale of diseased pets and his refusal to return his customer’s money or reimburse them for their veterinary bills, the panel affirms the trial court’s grant of plaintiffs’ motion for summary judgment and its imposition of statutory penalties and counsel fees and an injunction against future violations, finding that the penalties imposed were soundly based in the law and in competent supporting proof and that Rule 4:46-1 plainly gives the trial court discretion to entertain a motion for summary judgment less than 30 days before a trial date where good cause exists for doing so and here, such good cause was manifestly present in light of the unrefuted nature of plaintiffs’ factual proofs as to the four representative consumers. [Decided July 1, 2013.]

11-2-0457 In the Matter of the Petition of Thomas-United Inc. v. Atlantic Cape Community College, App. Div. (per curiam) (29 pp.) Plaintiff Thomas-United Inc., the second lowest bidder, appeals from the final decision of the Atlantic Cape Community College board of trustees awarding its kitchen installation contract to Todd Devin Food Equipment Inc., the lowest bidder, for the Caesar Entertainment Wing for Hospitality and Gaming Studies Food Service Equipment Project notwithstanding that Devin had submitted an incomplete New Jersey Department of Treasury, Division of Property Management and Construction Form 701 for Uncompleted Contracts (Form 701) that left blank the line certifying the amount of uncompleted contracts. The panel reverses, concluding that ACCC erred by determining that Devin’s bid deviation was an immaterial and waivable defect, and by accepting a postopening submission from Devin of a properly completed Form 701. [Decided June 28, 2013.]

11-2-0477 Luma Enterprises v. Hunter Homes & Remodeling, App. Div. (per curiam) (18 pp.) By leave granted, plaintiff Luma Enterprises appeals from the interlocutory order granting summary judgment in favor of all defendants except Hunter Homes & Remodeling (HHR), a defunct company. Plaintiff also appeals from an order denying its motion to amend its complaint and for reconsideration. Luma and HHR contracted to renovate a structure. HHR was a New Jersey limited liability company formed by Joseph Hunter and his wife, Jennifer. The reality is that HHR had no underlying substance and no capital. Absent a piercing of the corporate veil, Luma lacks an adequate remedy at law. The appellate panel concludes that genuine issues of fact existed that precluded summary judgment with respect to Luma’s claims that the corporate veil should be pierced and that the Hunters should be held personally liable for the alleged breach of contract. The panel reverses that part of the court’s order and remands for trial against the individual defendants. [Decided July 1, 2013.]

11-2-0500 KS Engineering P.C. v. Tony Gomes Construction Co. Inc., App. Div. (per curiam) (5 pp.) Plaintiff contracted with defendant to provide engineering services in connection with a construction project awarded to defendant. The contract provided for payment of $23,000 on completion of each of three specified milestones. The parties dispute the amount to which plaintiff is entitled for work done before defendant notified it to stop work. Defendant appeals from the judge’s conclusion that plaintiff was entitled to $23,000 based on the conclusions that plaintiff had completed the first milestone in the contract and that Gomes’ testimony to the contrary was not credible. Finding that there is substantial credible evidence to support the judge’s factual findings, the panel affirms. [Decided July 2, 2013.]

14-2-0463 State in the Interest of K.B., App. Div. (per curiam) (15 pp.) K.B., a 16-year-old juvenile at the time of the offense, appeals from an adjudication of delinquency for an offense that, if committed by an adult, would have constituted aggravated sexual assault. The panel finds that even if K.B. were put on notice of a charge under N.J.S.A. 2C:14-2(a)(7), the evidence was insufficient to support a conviction of that offense since the fact that the victim was 14 years old and a virgin is insufficient to render her “helpless,” “mentally incapacitated” or “incapable of providing consent” under the statute. As to the charge under 2C:14-2(a)(5), the panel says the statutory elements of penetration, physical force and coercion have been met but that it is not convinced that the state carried its burden or that the judge made adequate findings that K.B. was “aided or abetted by one or more other persons” as additionally required for a conviction under 2C:14-2(a)(5). It finds that the record supports a guilty adjudication beyond a reasonable doubt as to the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and remands for a new disposition. [Decided June 28, 2013.]

14-2-0464 State v. Muhammad, App. Div. (per curiam) (20 pp.) Plaintiff, convicted of first-degree murder, weapons offenses and hindering prosecution, appeals from his convictions and his sentence. The panel affirms the convictions but remands for entry of an amended judgment reflecting that defendant must serve 85 percent of the life sentence, which is presumed to be 75 years, or 63 years and nine months, without parole, the correct NERA sentence. [Decided June 28, 2013.]

14-2-0489 State v. Raimondo, App. Div. (per curiam) (38 pp.) Defendant’s convictions for terroristic threats, possession of an illegal butterfly knife and/or switchblade, and a certain persons weapons offense are reversed and the matter is remanded for retrial because of the cumulative error where (1) evidence regarding the knives that were seized by police executing a domestic-violence search warrant should have been suppressed under Harris; (2) the jury charge on terroristic threats was flawed because it prejudicially allowed defendant to be convicted of terroristic threats based on a threatened act of simple assault and the error amounted to plain error; (3) the court erred in not sanitizing defendant’s prior Florida conviction for kidnapping; and (4) the court erred in prohibiting defense counsel from cross-examining defendant’s wife about her prior inconsistent testimony regarding her false statement on her application for PTI, which error is sufficient to warrant a new trial. [Decided July 1, 2013.]

14-2-0490 Jenkins v. New Jersey Department of Corrections, App. Div. (per curiam) (5 pp.) Jenkins appeals from the final decision of the Department of Corrections (DOC) denying his request for a rule exemption to allow him to gain full minimum custody status. Jenkins is serving a sentence of 45 years with a 15-year mandatory minimum imposed in 1997 for the crime of robbery. He was previously convicted of arson in 1985. The administrative code precludes an inmate from obtaining full minimum status if he has a prior arson conviction. The appellate panel remands to allow the DOC to explain its reasons for denying Jenkins an exemption from this rule. [Decided July 1, 2013.]

14-2-0491 In the Matter of the Civil Commitment of C.H., App. Div. (per curiam) (27 pp.) The state appeals from an order dismissing its petition for civil commitment of C.H. pursuant to the Sexually Violent Predator Act. The Appellate Division stayed C.H.’s release from the New Jersey Special Treatment Unit pending this accelerated appeal. On appeal, the state argues that the judge erroneously found that C.H. is not highly likely to sexually reoffend. The state contends that the judge abused his discretion by failing to properly evaluate C.H.’s predisposition to commit sexually violent acts due to his undisputed antisocial personality disorder. Although the judge was empowered to accept or reject the various expert opinions and was permitted to evaluate those opinions in light of all the evidence in the record, the appellate panel concludes here that the grounds he articulated demonstrate a mistaken exercise of discretion, and reverses. [Decided July 1, 2013.]

14-2-0508 State v. Rosario, App. Div. (per curiam) (9 pp.) Defendant appeals from an order denying his petition for postconviction relief (PCR). Without the benefit of oral argument, the PCR court denied defendant’s petition because it was not timely filed, where the judgment of conviction was entered on Feb. 20, 2004, and the PCR petition was filed on April 30, 2009. Although the trial judge has discretion regarding whether to grant oral argument, there is a strong presumption in favor of it on a petition for PCR. Given the short interval that elapsed after the five-year limitation period ended, the trial court erred in stringently upholding the procedural time-bar, especially in light of the fact that the court had not heard oral argument. The appellate panel remands for a determination as to whether defendant has met the requirements for relaxing the procedural time-bar. [Decided July 2, 2013.]

14-2-0509 State v. Marcano, App. Div. (per curiam) (8 pp.) Defendant is charged with uttering a forged instrument, attempting to obtain a controlled dangerous substance by fraud, and attempting to obtain prescription legend drugs. By leave granted, the state appeals from the trial court’s order limiting the testimony of the state’s principal witness. The appellate panel reverses, finding that the physician-patient privilege does not bar defendant’s doctor from testifying regarding defendant’s efforts to obtain a prescription for Percocet during an office visit. [Decided July 2, 2013.]

20-2-0458 N.B. v. A.B., App. Div. (per curiam) (7 pp.) Defendant appeals from the final restraining order entered in favor of plaintiff pursuant to the Prevention of Domestic Violence Act. The panel affirms, concluding that A.B.’s conduct on Feb. 25, 2012, coupled with what the trial court viewed as an ongoing, tumultuous relationship since the inception of the marriage was sufficient to engender the conclusion that a final restraining order was necessary and appropriate. The panel says the court was free to treat A.B.’s blanket assertion that he never struck his wife as not credible and it declines to second-guess that eminently supportable conclusion. [Decided June 28, 2013.]

20-2-0478 Lee v. Lee, App. Div. (per curiam) (9 pp.) Plaintiff appeals from a January 2012 order that, among other things, denied her requests for (1) monetary sanctions and a bench warrant; (2) counsel fees from defendant imposed by an August 2011 order; (3) statements of the children’s college accounts, in accordance with the matrimonial settlement agreement, and reimbursement to those accounts from defendant; (4) sanctions; (5) consultation only, but not agreement, regarding summer camp and extracurricular activities; (6) reimbursement representing 61 percent of defendant’s share of summer camp and extracurricular expenses; and (7) payment of 61 percent of all future dance expenses. The panel reverses and remands for further proceedings because, where defendant was unemployed at the time he entered into the MSA, his employment status did not constitute changed circumstances and before exercising its discretion to modify the MSA, the court should have required, at a minimum, that he submit an updated case information statement and any other necessary financial information so that the court could have determined whether changed circumstances existed warranting relief. [Decided July 1, 2013.]

20-2-0479 Flynn v. Flynn, App. Div. (per curiam) (5 pp.) Defendant appeals from an order directing her to provide financial information to plaintiff and an order denying her motion for reconsideration. In this case, the parties agreed they would exchange W-2’s or other income information by Feb. 15 of each year (beginning 2007) for the purpose of determining whether there was a change of circumstances. Therefore, the orders entered were consistent with the parties’ property settlement agreement, and were a reasonable exercise of judicial discretion. [Decided July 1, 2013.]

20-2-0480 O.K.-H. v. D.H., App. Div. (per curiam) (9 pp.) Defendant appeals from the denial of his motion to vacate a domestic-violence final restraining order (FRO) entered in his absence. Defendant asserted that his absence was due to a medical reason. The trial judge decided, on the papers submitted, defendant and his doctor were not credible, and, therefore, defendant was abusing the system. This determination should not have been made on the papers alone. Further, where defendant retained counsel before the final hearing on the FRO on a case less than 1 month old, and counsel requested a brief adjournment, the court should have granted the request. Moreover, defendant’s doctor’s note provided a sufficient medical reason for defendant’s absence from the hearing. Because the trial judge mistakenly exercised her discretion in denying the motion, the appellate panel reverses and remands for a new hearing on plaintiff’s complaint. [Decided July 1, 2013.]

20-2-0501 Black v. Black, App. Div. (per curiam) (5 pp.) Defendant appeals from the orders denying his motion to terminate alimony and child support and for reconsideration. The panel reverses, finding that defendant, a contractor who suffers from certain ailments that have prevented him from performing physical labor and who has begun collecting Supplemental Security Income although he has not been determined to be permanently disabled, has made a prima facie showing of changed circumstances. The matter is remanded for disclosure of the parties’ financial status and a determination of whether there are changed circumstances sufficient to adjust defendant’s obligations for child support and alimony. [Decided July 2, 2013.]

25-2-0482 In the Matter of the Tenure Hearing of Roth, App. Div. (per curiam) (19 pp.) Steven E. Roth Jr. appeals from a final decision of the commissioner of the Department of Education that adopted the administrative law judge’s finding of unbecoming conduct but modified the penalty, granting the Board of Education of the Gloucester County Special Services School District’s request that Roth’s employment be terminated. The charges arose following an incident between Roth and J.A., a 15-year-old student who videotaped the incident. Roth acknowledged that some of the statements he made on the video could be characterized as threats. The appellate panel finds there was sufficient evidence in the record to support the commissioner’s decision to terminate Roth’s tenure. [Decided July 1, 2013.]

25-2-0503 Searles v. Board of Review, App. Div. (per curiam) (5 pp.) Searles appeals from a final decision of the Board of Review dismissing her appeal from the denial of unemployment compensation benefits as untimely because it was filed more than three years after the expiration of the statutory 10-day period and good cause was not shown for such late filing. In her letter of appeal, Searles alleges she was in a car accident on May 3, 2007, and for this reason she was unable to appeal the Appeal Tribunal’s July 18, 2007 decision. However, this accident did not prevent Searles from appealing the Appeal Tribunal’s May 15, 2007, decision. Also, Searles failed to provide any medical documentation regarding her injuries. The appellate panel affirms the board’s final decision. [Decided July 2, 2013.]

25-2-0504 Toll v. Sills Cummis & Gross, App. Div. (per curiam) (20 pp.) Plaintiff James Toll, a 52-year-old attorney, had been employed by defendant Sills Cummis & Gross for 22 years when his employment was terminated. Plaintiff appeals from orders of the Law Division granting summary judgment to defendant on plaintiff’s age discrimination claim and defendant’s counterclaim for conversion of a referral fee; and granting a directed verdict to defendant on his claim of retaliation. The appellate panel affirms. As to the age discrimination claim, plaintiff has not met his burden of demonstrating that defendants’ proffered legitimate, nondiscriminatory reasons for his termination were pretextual. As to the claim of retaliatory discharge, plaintiff failed to establish that his termination, which occurred in September 2007, was in retaliation for the December 2006 letter from plaintiff’s counsel claiming age discrimination. As to the conversion claim, plaintiff was the agent of defendant acting within the scope of his employment and the fee belongs to defendant. [Decided July 2, 2013.]

26-2-0483 Trachtenberg v. SGS Development, App. Div. (per curiam) (20 pp.) Defendant SGS Development filed a development application with the Edgewater Board of Adjustment to construct a nine-story residential building in a multifamily residential zone that permits a variety of residential uses with a maximum of three stories and a height of 35 feet. The application required several (d) variances, including a (d)(6) variance for building height and at least six 70(c) variances. SGS did not seek a (d)(1) variance. After the board denied the application and SGS sued, the parties entered into a settlement that resulted in approval of a building 11 feet lower but otherwise identical to the original application. Plaintiff appeals from the dismissal of his action in lieu of prerogative writs challenging the approval and affirming the board’s decision to approve the settlement. The panel reverses the Law Division’s judgment and vacates the board’s action, finding that the Law Division erred in concluding that the proposed structure met the ordinance’s definition of a garden apartment and, therefore, a (d)(1) variance was a prerequisite to the application since the proposed structure was not a permitted use in the zone and the board’s approval was thus legally flawed. The panel also holds that the judicial settlement did not immunize SGS from a merits review of its application. [Decided July 1, 2013.]

26-4-0484 New Jersey State Agriculture Development Committee, Hunterdon County, Franklin Twp. v. Quaker Valley Farms, Ch. Div. — Hunterdon Co. (Buchsbaum, J.S.C.) (12 pp.) Having previously decided that defendants had violated the Agricultural Deed of Easement restricting the use of their farm, the court now considers the remedy of remediation for the violation. The court orders the restoration of top soil throughout the site and that the existing soil stockpiles can be used. It also issues orders as to the depth of top soil and slope gradient to be achieved in each area at issue. Defendants are to prepare a remediation plan meeting the criteria set forth to which plaintiffs shall have an opportunity to respond. [Decided June 25, 2013.]

26-2-0505 The Salt & Light Company Inc. v. Township of Willingboro Zoning Board of Adjustment, App. Div. (per curiam) (6 pp.) In a neighborhood that was zoned for single-family homes, plaintiff, The Salt & Light Company, sought to convert a residence to a three-family unit to provide transitional housing for the homeless. Defendant Willingboro Zoning Board of Adjustment denied the use variance. The court reversed the denial of the use variance and remanded for a determination as to plaintiff’s application for a parking variance and site-plan waiver, which defendant denied. Plaintiff appeals from the order subsequently granting defendant s motion for reconsideration of the denial of the use variance, reversing the grant of the use variance, and denying plaintiff’s motion for summary judgment. The appellate panel affirms. The Municipal Land Use Law provides that a variance, even for an inherently beneficial use, must not be granted if it will substantially impair the intent and the purpose of the zoning plan. Here, conversion of a single-family property to a three-family residence would substantially impair the zoning plan, which was intended for single-family homes. [Decided July 2, 2013.]

27-2-0443 East Coast The Fairways Apartments v. Leach, App. Div. (per curiam) (15 pp.) Defendants appeal from an order of the Special Civil Part granting judgment of possession to plaintiff, their landlord, on its complaint for eviction under N.J.S.A. 2A:18-61.1(i), which alleged that defendants refused to accept reasonable changes in the terms of their lease at lease renewal. Defendants argue on appeal that the “revised” lease, which incorporated some of the suggestions made by the trial judge, is still unreasonable. Defendants contend that the trial judge never addressed several of the changes they challenged, and that the revisions he suggested did not obviate the problems they originally raised. The appellate panel reverses and remands due to the failure of the trial judge to make findings of fact and set forth his conclusions of law. Not only did the trial judge fail to address every provision in the proposed new lease challenged by defendants, but the trial judge also failed to explain his conclusions by relating them to the standards of reasonableness governing N.J.S.A. 2A:18-61.1(i). [Decided June 27, 2013.]

27-2-0459 Pollock v. Coachman Manor, App. Div. (per curiam) (9 pp.) Plaintiff appeals from the grant of summary judgment dismissing her personal-injury complaint against defendants Coachman Manor and Siyata Associates, which owned the apartment complex where plaintiff lived (collectively, defendant landlord). Plaintiff filed a complaint against defendant landlord alleging negligence arising from the malfunction of her oven, which caused her to suffer burn injuries in February 2009. Plaintiff argues on appeal that the two complaints she made to the defendant landlord during 2006 and 2007 were sufficient to support the application of res ipsa loquitur, and that the motion judge erred in concluding otherwise. Although plaintiff was not required to exclude all other possible causes of the incident, she was required to establish that it is more probable than not that defendant’s conduct, or the manner in which the oven was maintained, were proximate causes of the accident. This was not done here. The prior incidents did not satisfy plaintiff’s burden of producing evidence reducing the likelihood of other causes of the incident so that the greater probability of fault lies at defendant’s door. [Decided June 28, 2013.]

04-2-0460 Abulkhair v. Smith, App. Div. (per curiam) (7 pp.) Plaintiff appeals from separate Law Division orders that consolidated plaintiff’s two legal-malpractice actions, denied his motion to have the trial judge recuse herself, and dismissed the complaints with prejudice. Plaintiff claimed that because the judge’s spouse was a partner in the law firm that had represented a defendant in one of the actions out of which plaintiff’s legal-malpractice case arose, she had a conflict. After denying plaintiff’s motion to recuse herself, finding that any connection between the underlying action and pending malpractice case was too remote to pose a conflict, the judge attempted to address an application defendants had filed based on plaintiff’s failure to file an affidavit of merit. Plaintiff interrupted her and ultimately left the courtroom. The judge entered an order denying defendants’ motion to dismiss the complaints based on the affidavit-of-merit statute but provided plaintiff an additional 60 days to file an affidavit of merit. When plaintiff did not do so, defendants filed a motion to dismiss with prejudice. On the return date of defendants’ motion, plaintiff did not appear. The judge granted defendants’ motion. The appellate panel affirms the dismissal of plaintiff’s complaint. Plaintiff had no right to refuse to participate in court proceedings after the trial judge properly declined to recuse herself. [Decided June 28, 2013.]

29-2-0485 Maloney v. Hackensack University Medical Center, App. Div. (per curiam) (8 pp.) Plaintiff was admitted to defendant hospital, where she underwent emergency surgery and was discharged the following day, but she developed complications from an infection and was readmitted the next day. She was placed in restraints for her safety and then signed herself out against medical advice. She now claims that defendants, the hospital and two nurses, restrained her against her will, subjected her to battery and unlawful touching, negligently and intentionally caused her emotional and physical distress, invaded her privacy, disclosed information about her without consent, and engaged in libel, slander, defamation and the tort of outrage. She appeals from the dismissal of her action for failure to file an affidavit of merit. The panel affirms substantially for the reasons expressed below: plaintiff’s claims are clearly premised on allegations of medical malpractice or negligence that implicate professional standards of care and require an AOM and were not excepted from the AOM requirement by virtue of the common knowledge doctrine. [Decided July 1, 2013.]

34-2-0444 Bonnabel v. Township of River Vale, App. Div. (per curiam) (11 pp.) Plaintiff challenges the validity of the 2010 fair-share ordinance adopted by River Vale to meet its Mount Laurel housing obligations. Plaintiff is the owner of a tract of land that was not included in the township’s “Third Round Housing Element and Fair Share Plan.” He filed a complaint in lieu of prerogative writs to invalidate the township’s fair-share ordinance, which was adopted in two parts. Before the trial court, plaintiff argued that (1) the public notice advertising the fair-share ordinance was defective because it did not include the time and place where residents could obtain a free copy of the proposed ordinance; and (2) adoption of the ordinance was arbitrary, capricious and unreasonable because the council members did not review and adopt the ordinance in its entirety. The trial court dismissed plaintiff’s complaint with prejudice, concluding that the township’s publication error was a technical violation of N.J.S.A. 40:49-2 and the notice substantially complied with the statute. The court also found that the fair-share ordinance was not arbitrary, capricious or unreasonable because the township had quickly rectified the printing error by adopting the second ordinance. The appellate panel agrees and affirms. The public notice explained the nature and purpose of the ordinance, accurately provided the time and place of the public hearing, and pronounced that all interested persons would be given an opportunity to be heard. Under the arbitrary, capricious and unreasonable standard of review, there is no basis to set aside the two ordinances. [Decided June 27, 2013.]

34-2-0445 Guiuan v. LaSalle Bank National Association, Trustee, App. Div. (per curiam) (8 pp.) Guiuan was a defendant in a mortgage foreclosure action in which final judgment by default was entered on April 12, 2007. The subject property, a condominium, was sold at sheriff’s sale on Oct. 7, 2008, for $100 to LaSalle Bank, the mortgagee. LaSalle Bank subsequently sold the real estate to Dibada Investments on March 23, 2009. On Sept. 1, 2010, Dibada sold the property to Carla Perez. On May 31, 2011, Guiuan filed a complaint against all parties involved in the mortgage foreclosure, and various John Does, asserting multiple causes of action based on the court’s alleged lack of jurisdiction in the foreclosure. Guiuan further claimed that because of a defect in the assignment, all defendants had engaged in fraudulent transfers and demanded as relief the return of the property. The Law Division judge granted motions for summary judgment, dismissing the complaint based on res judicata, collateral estoppel and the entire-controversy doctrine. The appellate panel affirms for those reasons, noting that by filing this separate proceeding against all the participants in the mortgage foreclosure, from bank attorneys to bona fide purchasers, Guiuan is attempting to do an end run around the judgment of foreclosure in order to regain her property in a different forum. [Decided June 27, 2013.]

34-2-0486 Fairview Heights Condominium Association Inc. v. R.L. Investors, App. Div. (per curiam) (13 pp.) Plaintiff Fairview Heights Condominium Association Inc. appeals from the order entered following a remand proceeding dismissing all of the remaining counts of its first amended complaint against defendant R.L. Investors (RLI), the condominium developer, based on the statute of repose. A remand was limited to a determination of whether the improvement to the building here resulted in an unsafe and defective condition that would implicate the statute of repose. What is significant is that the triggering point is tied to substantial completion of the construction project itself, rather than other factors such as obtaining a certificate of occupancy or, as plaintiffs would urge, relinquishment of control of the association by defendants. The condominium was substantially completed in 1988. The trial judge correctly declined to allow the association’s claims against RLI, filed more than 20 years later, to proceed. [Decided July 1, 2013.]

34-2-0506 Fields Development Group Co. v. 79-01 Associates, App. Div. (per curiam) (14 pp.) Plaintiff Fields Development Group Co. entered into a contract to purchase defendant 79-01 Associates’ property located in Jersey City. Defendant did not fulfill its Industrial Site Recovery Act obligation and therefore was never able to proceed to closing. Plaintiff filed a complaint against defendant and its attorney, alleging breach of contract and exercise of unlawful dominion over the contract deposit. Defendant filed an answer and counterclaims, seeking dismissal of plaintiff’s complaint and alleging a breach of contract entitling defendant to keep the deposit. Both parties moved for summary judgment. The appellate panel affirms the order of the Law Division granting summary judgment in favor of plaintiff, and ordering its attorney to remit the deposit being held in trust by him to plaintiff. [Decided July 2, 2013.]

34-2-0446 Deutsche Bank National Trust Co. v. Vezeriannis, App. Div (per curiam) (15 pp.) Plaintiff appeals from the Chancery Division order that entered summary judgment against it, dismissed its foreclosure complaint and discharged its mortgage on real estate owned by the borrowers here, where EAM Settlement Services, the settlement agent for Lend America, wired mortgage payoff funds to the Bank of America account for Citi Residential, the attorney in fact for Ameriquest, to pay off the Ameriquest mortgage on the property but, because the wire did not include a reference to the borrowers or the loan number, Citi returned the funds to EAM, and eventually plaintiff, to which the Ameriquest mortgage was assigned, filed the foreclosure action. Rejecting plaintiff’s claim that EAM’s wire transfer to BOA was a “funds transfer” subject to U.C.C. 4A and that because the wire did not identify the Ameriquest loan number, Citi was obligated by U.C.C. 4A to return the funds, and finding that Citi’s preclosing fax to Lend America was not part of the funds transfer and was not subject to U.C.C. 4A, the panel affirms, concluding that the Chancery Division judge properly weighed the countervailing considerations, applied appropriate equitable principles, and struck a balance in favor of borrowers. [Decided June 27, 2013.]

34-2-0447 Deutsche Bank National Trust v. Eddings, App. Div. (per curiam) (9 pp.) In this mortgage foreclosure action, defendants appeal from the denial of their motion to stay eviction and vacate a final judgment of foreclosure entered four and one-half years ago. The motion was denied as time-barred. The panel affirms substantially for the reasons expressed below. Here, where Deutsche Bank filed a foreclosure complaint before MERS assigned it the mortgage but presented certified copies of the note, mortgage and assignment of mortgage in its application for final judgment; defendants have not denied responsibility for the mortgage debt; they were represented by counsel, contested the foreclosure by filing an answer, and opted not to oppose summary judgment; they participated in the action and actively tried to resolve it through attempts at modifying their loan and discharging their mortgage through a short sale, equity bars their attempt to reopen the judgment to litigate standing issues they had every opportunity to litigate before judgment was entered and their motion to repen the judgment was filed beyond any reasonable time permitted by Rule 4:50-2. [Decided June 27, 2013.]

35-5-0487 Marcelino v. Dir., Div. of Taxation, Tax Ct. (Sundar, J.T.C.) (9 pp.) This is the court’s decision in connection with plaintiff’s challenge to defendant director of the Division of Taxation’s final determination that demanded a repayment of $800 because plaintiff, as a 50 percent co-owner of his residence, was entitled to only a portion of the 2008 homeowner’s rebate. Plaintiff argues that pursuant to his divorce judgment, he was required to pay 100 percent of the property taxes on his residence, and was granted all of the attendant tax benefits. Although plaintiff’s ex-spouse is a nonresident and not entitled to the remaining portion of the rebate, the divorce judgment did not provide that title to the house was transferred 100 percent to defendant. The court finds that the plain language of the statute limits the rebate amongst co-owners to their respective percentages of interest in the homestead. The director’s final determination seeking a refund is proper. [Decided June 19, 2013.]

35-5-0488 New Ventures Management Inc. v. City of Camden, Tax Ct. (DeAlmeida, J.T.C.) (12 pp.) This is the court’s opinion granting plaintiff’s motion for summary judgment. The court concludes that plaintiff’s real property in Camden is exempt from local property taxes for tax year 2012. The city offered no meaningful defense for its assessor’s decision to revoke a longstanding exemption for the property owned by a nonprofit corporation providing valuable charitable services. The appellate panel determines that plaintiff meets all of the statutory criteria for an exemption. [Decided June 25, 2013.]

36-2-0448 Pizzuto v. Adams, App. Div. (per curiam) (8 pp.) Plaintiff, who lost vision in one eye after a fight at a party, appeals from the grant of summary judgment to defendants, friends of the host of the party. The party was held at the home of a 17-year-old girl whose parents were out of town and did not know about the party. Defendants did not bring food, beverages or other supplies to the party and there was no evidence that they knew there would be alcohol at the party, planned to have alcohol at the party, brought alcohol to the party or served alcohol to any guests. Plaintiff, who was underage, went to the party with four companions, only one of whom was an invited guests, brought and consumed alcohol, got drunk, and got into the altercation that led to the loss of his vision. The panel affirms, finding that the case was ripe for summary judgment and that there is no support for the proposition that someone who helps a friend plan a social event can be held liable, on that basis alone, for a mishap that occurs at the event hosted by the friend. [Decided June 27, 2013.]

36-2-0507 Awad v. Forest Realty Management, App. Div. (per curiam) (7 pp.) Plaintiff appeals from the Law Division’s grant of defendants’ motion for summary judgment in this action filed after plaintiff, a tenant in an apartment complex owned and managed by defendants, voluntarily left her apartment after observing a fire in a neighboring unit that was caused by lint buildup and tripped and fell over a fire hose when she went to speak with firefighters regarding the neighbor’s cat, which was still in the apartment. The panel affirms, agreeing with the motion judge that plaintiff’s injuries were not foreseeable because her voluntary actions in leaving her apartment and then approaching the firefighters broke the chain of causation between defendants’ negligence and her injuries. [Decided July 2, 2013.]

39-2-0461 Peterson v. Home Depot Supply, App. Div. (per curiam) (12 pp.) Peterson appeals from the Judge of Compensation’s decision to dismiss his claim petition for workers’ compensation benefits. Peterson alleged that, as a result of his employment with Home Depot Supply, he suffered from multiple permanent orthopedic and neurological injuries. The court granted Home Depot’s motion to implead Peterson’s previous employer, M. Bernstein & Sons. The JOC dismissed Peterson’s claim petition against Bernstein for failure to sustain his burden of proof. The claim against Home Depot was also dismissed. The appellate panel affirms the JOC’s finding that there was no objective medical evidence of occupational disease. The judge accepted defendants’ experts’ opinions that Peterson’s back injuries were not work-related, but rather due to the aging process and genetics. The panel rejects Peterson’s arguments that the judge improperly rejected the medical opinions of his experts and should have disregarded defendants’ experts’ testimony. [Decided June 28, 2013.]

39-2-0462 Robinson v. Tishman Construction Corp. of New Jersey, App. Div. (per curiam) (13 pp.) Plaintiff appeals from an order that granted summary judgment to defendant Tishman Construction Corp. of New Jersey and dismissed his negligence action as barred by the immunity provision of the Workers’ Compensation Act. Plaintiff filed two employee claim petitions seeking workers’ compensation benefits. The first named Tishman, the construction manager of the site, as a respondent. The second named Air Joy Heating and Cooling Inc., the heating, ventilation and air conditioning subcontractor for which plaintiff worked directly, as a respondent. Both Tishman and Air Joy paid workers’ compensation benefits to him as part of a settlement agreement. Plaintiff explicitly sought workers’ compensation benefits from Tishman, alleging that Tishman was his employer. On appeal, he nonetheless contends that he is permitted to pursue a negligence action against Tishman because Tishman was not his employer. Summary judgment is affirmed in favor of Tishman. The appellate panel finds Tishman was plaintiff’s employer at the time of the accident and therefore entitled to immunity under the act for any alleged negligence. [Decided June 28, 2013.]


01-8-0466 United States v. New Jersey, Third Cir. (Fuentes, U.S.C.J.) (4 pp.) In this matter alleging that the New Jersey Civil Service Commission’s selection process for police sergeant positions had a disparate impact on black and Hispanic applicants in violation of Title VII of the Civil Rights Act of 1964, which resulted in a consent decree, the Third Circuit affirms the district court’s denial of the motions filed by a group of Paterson police officers to intervene as of right, for discovery, and for a preliminary injunction, concluding that the decree represents a settlement that is fair, adequate, reasonable and consistent with law, and the objectors’ motion to intervene was untimely and therefore properly denied. [Filed June 13, 2013.]

42-7-0449 In re Arts des Provinces de France Inc., U.S. Dist. Ct. (Cavanuagh, U.S.D.J.) (8 pp.) First Data Services, which processed credit card sales and provided other services to the debtor, appeals from an order of the bankruptcy court scheduling a consolidated evidentiary hearing on the turnover of property of the estate. FDS had objected to the turnover motion and had filed a motion to lift the stay and for relief so that it could assert its contractual rights pursuant to its merchant agreement with the debtor under which a reserve fund had been established in order to protect FDS from obligations it had to pay on behalf of the debtor to third parties. The court affirms, holding that while it is apparent that the automatic stay in this instance exceeded the time constraints of § 362(e)(1), the bankruptcy court did not err in continuing the automatic stay as to FDS because FDS acted inherently inconsistently with adherence to the time constraints of § 362(e)(1) by (1) cross-moving for a stay of relief and for allowance and payment of an administrative expense; and (2) failing to assert their rights under § 362(e)(l) by participating in discovery and failing to oppose a request for the adjournment of a motion for relief, and thus implicitly waived its rights under § 362(e)(l). [Filed June 12, 2013.]

42-7-0467 In re B and B Construction, U.S. Dist. Ct. (Shipp, U.S.D.J.) (7 pp.) Bond Safeguard Insurance Co. appeals an order ppproving the trustee’s settlement, which memorialized a hearing before the bankruptcy court. The settlement order approved a settlement between the trustee and the Ocean County Utilities Authority (OCUA). Bond Safeguard executed performance and payment bonds relating to a contract between the debtor and OCUA. The debtor filed for Chapter 7 relief. Bond Safeguard alleges that it was advised by OCUA that $600,000 remains in the OCUA contract, but the lowest bid to complete the OCUA contract is $1 million and Bond Safeguard is expected to cover the difference. The settlement called for OCUA to reject the contract and OCUA would pay the trustee $5,645.27 in retainage and $61,680 for work performed by the debtor (settlement funds). Bond Safeguard’s objection was overruled and the bankruptcy court approved the proposed settlement. Bond Safeguard argues that it has “priority in the funds,” and the “funds are not property of the estate and should not be paid to the Trustee.” The settlement order is affirmed in part and modified so that a statutory trust is imposed on the settlement funds. The settlement order is reversed in part and remanded so that the bankruptcy court may determine to what extent, if any, Bond Safeguard’s equitable subrogation rights have accrued. To the extent those rights have accrued, Bond Safeguard is entitled to payment from the settlement funds. [Filed May 31, 2013.]

42-6-0468 In the Matter of Yampell, U.S. Bank. Ct. (Wizmur, U.S.B.J.) (10 pp.) The debtor seeks to avoid, pursuant to 11 U.S.C. § 522(f), several liens asserted against his principal residence (the Fenwick Road property) and a second property (the Peyton Avenue property). Here, the tax liens sought to be avoided must be characterized as statutory liens, and not judicial liens. The debtor may not use § 522(f) to avoid statutory tax liens. The debtor’s motion to avoid the two tax liens is denied. The debtor listed the Fenwick Road property as his principal residence and appropriately claimed a homestead exemption on that property pursuant to § 522(d)(1). Accordingly, he would not also be entitled to a homestead exemption for the Peyton Avenue property. He has not asserted any other basis to support entitlement to an exemption in the Peyton Avenue property. Since the debtor is not entitled to an exemption under § 522(d), there cannot be impairment, and relief under § 522(f) would not otherwise be available to the debtor. Because the liens on this property are not avoidable, they remain enforceable and will survive the debtor’s discharge in bankruptcy. The debtor’s motion with respect to the judicial liens is granted as to his principal residence and denied as to his second parcel of real property. [Filed May 31, 2013.]

42-7-0492 W.A.S. Terminals Corp v. Landau, U.S. Dist. Ct. (Linares, U.S.D.J.) (7 pp.) Landau filed a motion to stay this matter pending the determination by the bankruptcy court of disputed claims between W.A.S. Terminals Corp. and 126 LLC; to dismiss this matter for failure to join 126 LLC as a party; to dismiss this matter for lack of subject-matter jurisdiction for failure to plead that the amount in controversy exceeds the jurisdictional amount; and to dismiss two causes of action for failure to state a claim. The court denies Landau’s motion to dismiss for lack of subject-matter jurisdiction. The court grants Landau’s motion to stay the proceeding pending the determination by the bankruptcy court of disputed claims between W.A.S. Terminals and 126 LLC. The court declines to address Landau’s other motions at this time. [Filed June 4, 2013.]

07-7-0493 Schiano v. MBNA, U.S. Dist. Ct. (Hammer, U.S.M.J.) (54 pp.) In this matter relating to the refinancing of plaintiff’s mortgage, before the court is plaintiffs’ renewed motion to amend their second amended complaint (SAC). Plaintiffs seek to remove several causes of action, add numerous parties to other causes of action, and assert a new quiet title claim against defendants. Plaintiffs’ motion for leave to amend the SAC is granted in part and denied in part. Plaintiffs’ motion to withdraw claims for violations of the Fourteenth Amendment, RICO and conspiracy is granted. Plaintiffs’ motion for leave to amend the SAC to add any new claims or defendants is denied. [Filed Feb. 11, 2013.]

07-7-0494 Schiano v. MBNA, U.S. Dist. Ct (Linares, U.S.D.J.) (8 pp.) This matter comes before the court by way of plaintiffs’ appeal of Magistrate Judge Hammer’s opinion and order of Feb. 11, 2013, granting in part and denying in part plaintiffs’ motion for leave to file a third amended complaint (TAC) and Judge Hammer’s order denying plaintiffs’ motion for reconsideration. Because Judge Hammer granted plaintiffs ample opportunity to cure the deficiencies in their proposed TAC, and in light of the extensive reasons for denying leave to amend that are set forth both in the Feb. 11 opinion and order and in the order denying reconsideration, the court finds that Judge Hammer did not abuse his discretion in declining to grant plaintiffs further leave to file a TAC. [Filed June 3, 2013.]

07-7-0510 Giles v. Phelan, Hallinan, & Schmieg, U.S. Dist. Ct. (Simandle, U.S.D.J.) (32 pp.) Plaintiffs bring this proposed class action for damages under the Racketeering Influenced and Corrupt Organizations Act (RICO), alleging that defendants engaged in a scheme to prosecute fraudulent mortgage foreclosure lawsuits. This case presents several novel issues in this circuit, including whether the New Jersey litigation privilege bars federal RICO claims against lawyers, parties, and their representatives arising from litigation practices and whether the Noerr-Pennington doctrine bars federal RICO claims based on state foreclosure litigation. The court holds that the New Jersey litigation privilege does not bar the federal RICO claims pleaded in this case. Plaintiffs’ claims are based on defendants’ actions in petitioning the state foreclosure court. However, the court holds that the Noerr-Pennington doctrine bars plaintiffs’ RICO claims arising out of defendants’ prosecution of the Ocean County Superior Court foreclosure action because the doctrine applies to petitioning activity in all governmental departments, including the courts, and because the doctrine has expanded beyond its antitrust origins. Even if the Noerr-Pennington doctrine did not bar this action, plaintiffs’ RICO claims would still fail because plaintiffs have not pleaded that defendants’ actions were the proximate cause of their injuries. Plaintiffs’ RICO claims are dismissed with prejudice. [Filed June 4, 2013.]

07-7-0450 Huntington Learning Center Inc. v. Read It, U.S. Dist Ct. (Walls, S.U.S.D.J.) (12 pp.) Plaintiff Huntington Learning Center (HLC) filed a complaint against defendants Read It, N.C., Wallace Educational Holdings, L.L.C. (WEH), Sara Wallace, Ashley Wallace, Brenda Wallace and Willie Wallace, alleging trademark infringement and breach of contract. Defendants filed a motion to dismiss alleging lack of personal jurisdiction, improper venue and, in the alternative, requesting a transfer to a federal district court in northern Carolina. WEH and HLC executed Huntington Learning Center’s franchise agreement whereby HLC granted WEH the right to establish and operate a HLC franchise in Wilmington, N.C. Defendants signed three forum-selection provisions expressly consenting to the jurisdiction of this court. The court rejects defendants’ arguments that the court lacks jurisdiction under the New Jersey Franchise Practices Act (NJFPA) and because the forum-selection clauses are invalid. The franchise agreements do not contemplate a place of business within New Jersey and thus are not covered by the NJFPA. The franchise agreements are valid and enforceable. The court has personal jurisdiction over defendants under their consent in their franchise agreements’ forum-selection clauses. Venue is proper in the district of New Jersey. The court finds no compelling reason to transfer. Defendants’ motion to dismiss and request for transfer are denied. [Filed May 30, 2013.]

46-7-0451 Grande v. Keansburg Borough, U.S. Dist. Ct. (Pisano, U.S.D.J.) (30 pp.) In this 42 U.S.C. § 1983 action alleging that a police officer used excessive force against plaintiffs Laura and Annmarie Grande when he went to their house to execute a warrant, the court grants in part and denies in part defendants’ partial motion to dismiss. The court dismisses, inter alia, (1) the § 1983 excessive-force claim of Annmarie, who was 11 years old at the time of the incident and who was adjudicated a delinquent of aggravated assault as a result of the incident, finding that the claim is barred by the Heck doctrine; (2) Annmarie’s federal and state law abuse-of-process claims since she was convicted of the charges with which she was charged and the arrest therefore was not based on some objective other than for what it was intended; (3) the § 1983 charges against the police chief and deputy chief in their individual capacities because plaintiffs fail to allege that they personally participated, condoned or even knew of the officer’s allegedly improper conduct; (3) loss of consortium since loss of consortium is not cognizable under § 1983. The motion to dismiss is denied with respect to the (1) supervisory liability claim against the police chief and deputy chief because plaintiffs have identified a specific supervisory practice that defendants failed to employ and a reasonable inference may be made that the failure to train subordinates on excessive force created the unreasonable risk of excessive force to plaintiffs and that defendants were aware that an unreasonable risk existed; (2) Monell claims against the borough because plaintiffs identified challenged policies, practices or customs and attributed the policy, practice or custom to the borough, and they asserted a causal link between the policy, practice or custom and the injuries they suffered. [Filed June 13, 2013.]

46-8-0452 Mendez v. New Jersey State Lottery Commission, Third Cir. (per curiam) (6 pp.) In this 42 U.S.C. § 1983 action stemming from plaintiff’s prolonged dispute over a winning lottery ticket, which spawned two suits in state court, the first of which was decided against plaintiff and, in the second, the complaint was eventually dismissed, pro se plaintiff alleges that the state and nonstate defendants denied him his due process rights. He appeals from the district court’s order granting defendants’ motion to dismiss, denying his motion for default judgment, and dismissing the defendants for failure to serve. The court affirms, finding that (1) the district court did not abuse its discretion by not entering a default judgment against the state defendants since the action is barred by the Eleventh Amendment; (2) the district court properly granted the nonstate defendants’ motions to dismiss because plaintiff failed to allege how the various named attorneys acted under color of state law so as to deprive him of his civil rights; and (3) Mendez failed to state a claim under 42 U.S.C. § 1985(3), as nowhere did he allege that the nonstate defendants, or any other defendants, entered into a conspiracy motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus. [Filed June 13, 2013.]

46-7-0511 Carney v. Pennsauken Township Police Department, U.S. Dist. Ct. (Kugler, U.S.D.J.) (8 pp.) Plaintiff was arrested and charged for allegedly forging a prescription. The charges were dismissed after plaintiff provided evidence that the prescription was for his mother. Plaintiff argues that due to the actions of defendants CVS and Wanda Frey, he was detained for three hours and was forced to pay an attorney to contest the baseless charges against him. CVS and Frey move to dismiss plaintiff’s §1983 claim for failure to state a claim, arguing that plaintiff cannot allege that defendants initiated a criminal proceeding against him, as required for a viable malicious-prosecution claim. Plaintiff counters that defendants initiated the proceeding when Frey maliciously reported to the police that plaintiff’s mother was a “narcotics seeker” and deceptively induced plaintiff to wait at CVS to be arrested. Because plaintiff has not satisfied the “initiation” requirement for malicious prosecution, defendants’ motion to dismiss is granted. [Filed June 3, 2013.]

09-7-0495 Lynch v. Tropicana Products Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (22 pp.) Plaintiffs, who are purchasers of Tropicana’s orange juice, assert that Tropicana has been falsely claiming that its modified “not from concentrate” orange juice is 100 percent pure and natural orange juice. They assert claims for violations of the consumer protection laws of various states and for unjust enrichment and breach of express warranty. Defendants’ motion to dismiss is granted in part and denied in part. The court finds that (1) plaintiffs’ claims regarding defendants’ failure to disclose its production processes, including the addition of flavor packages, are not pre-empted by the Food, Drug and Cosmetic Act as amended by the Nutrition Labeling and Education Act, or by the safe-harbor doctrine because the claims involve an alleged failure to meet the requirements of federal law, not a standard that deviates from or adds to such requirements; (2) allowing the case to proceed to the discovery phase will provide the court with a more detailed answer to whether plaintiffs have sufficiently alleged facts demonstrating a reasonable expectation that the juice processing was all natural that was induced by a misrepresentation; (3) plaintiffs have satisfied Rule 9(b); (4) plaintiffs have established that they suffered an ascertainable loss in accordance with New York and New Jersey consumer protection laws, they have sufficiently pleaded a claim for unfair trade practices and breach of warranty under Wisconsin law but not false and deceptive advertising or for punitive damages, they have sufficiently pleaded an unjust-enrichment claim under New Jersey law, and they have not sufficiently pleaded a claim for “violation of the state consumer protection laws of various statutes.” [Filed June 12, 2013.]

11-7-0469 Jackson Hewitt Inc. v. Luke, U.S. Dist. Ct. (Linares, U.S.D.J.) (8 pp.) This action arises out of an alleged franchise relationship between the parties. Jackson Hewitt maintains that Terry Luke failed to remit specific payments to Jackson Hewitt pursuant to the terms of the franchise agreement, and, as a result, Jackson Hewitt terminated the franchise agreement. Before the court is plaintiff/counterclaim-defendant Jackson Hewitt Inc.’s motion to dismiss defendant/counterclaimant Luke’s counterclaims. In the alternative, Jackson Hewitt moves for a more definite statement. In addition, Jackson Hewitt requests that the court strike Luke’s demand for a jury trial in light of relevant provisions of the franchise agreement. che Court finds dismissal of the counterclaim appropriate and, accordingly. denies as moot Jackson Hewitt’s motion for a more definite statement. In addition, the court finds it would be premature to strike Luke’s jury demand. [Filed June 4, 2013.]

15-7-0496 Wilson v. Mattleman, Weinroth & Miller, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (12 pp.) Plaintiff alleges that defendants violated the Debt Collection Practices Act by failing to provide an adequate debt validation statement as required by 15 U.S.C. § 1692g(a)(3) and by engaging in deceptive and illegal debt collection practices in violation of § 1692e(10). Defendants’ motion to dismiss is denied as to the § 1692g(a)(3) claim because plaintiff has stated a plausible claim for relief where a reading of defendants’ letter to plaintiff from the perspective of the least-sophisticated debtor shows that its letter does not notify her that her debt would be assumed valid if she did not respond within 30 days. The motion to dismiss is granted with respect to the § 1692e(10) claim because plaintiff has failed to support her claim with any allegations suggesting that a least-sophisticated debtor could have a competing interpretation of defendants’ letter. [Filed June 12, 2013.]

14-7-0455 Harris v. Ricci, U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (25 pp.) Underlying plaintiff’s complaint was a disciplinary hearing that occurred after he wrote and submitted for mailing two letters using certain “code words” commonly used by gang members and sent money to a woman who was a member of another inmate’s family, as a result of which plaintiff was transferred to another prison facility and eventually housed at a special housing unit (SHU) where others presumed to be gang members were housed for additional surveillance. The only remaining claims relate to the disciplinary hearing. Defendant alleges that defendants refused to give him the letters with the code words, thus depriving him of a meaningful opportunity to ascertain the charges against him and that the officer who conducted the hearing improperly based his findings on investigatory conclusions by another officer rather than on his own review of the letters and erroneously identified certain evidence. The court dismisses the claims against all officers other than the hearing officer because plaintiff’s claims fail to show personal involvement by those officers; awards plaintiff nominal damages of $1 for the hearing officer’s failure to permit him to review the letters and to rely on his own review of the letters; awards plaintiff nominal attorney fees of $30; and denies plaintiff’s motion for leave to amend as moot or, alternatively, as futile. [Filed June 11, 2013.]

20-7-0453 Bresko v. Critchley, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (7 pp.) This matter was commenced in the Northern District of Florida by two Florida residents — the noncustodial, noncohabitation, non-in-loco-parentis paternal grandmother and aunt of two minors. The mother and father are in the midst of two proceedings in the New Jersey state courts. One proceeding is a divorce action; the other is a domestic violence matter. The state judge entered an order barring plaintiffs from further filings in support of the father and from having contact with the minors until a hearing is held. Plaintiffs filed a complaint, naming as defendants the judges in the state court actions, a DYFS employee, New Jersey Battered Women Services, the mother’s attorney and the attorney’s malpractice insurance carrier. The court addressed numerous threshold deficiencies of plaintiffs’ position and dismissed the pleading. However, the court directed plaintiffs to submit a written statement listing clearly and concisely each claim they wish to allege. Plaintiffs did not comply with the court’s order and instead submitted a motion to vacate. Plaintiffs’ motion can be construed as asserting that the state courts violated their procedural due process rights by barring plaintiffs from contact with the minors. This claim is without merit. Plaintiffs lack a constitutionally protected liberty interest in associating with the children. Plaintiffs’ complaint is dismissed without prejudice. [Filed May 30, 2013.]

51-8-0512 Gonzalez-Ramirez v. Secretary of the U.S. Department of Homeland Security, Third Cir. (Aldisert, U.S.C.J.) (7 pp.) Appellant Orlando Rodriguez, warden of the Elizabeth Detention Center in Ne