STATE COURT CASES

ADMINISTRATIVE LAW – CIVIL SERVICE COMMISSION

01-2-0588 In the Matter of Cooper, App. Div. (per curiam) (12 pp.) Appellant, a police officer for the Department of Human Services, appeals from the final decision of the Civil Service Commission finding him in violation of N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee, and several administrative orders and imposing a 40-day suspension. The panel affirms, finding that the disciplinary violations – including the selling of a diet drink while on duty without permission – were supported by sufficient credible evidence and the seriousness of his offenses – including his repeated belittling and offensive behavior toward a co-worker meant to intimidate her into purchasing his product – and the higher standard of conduct required of police officers warranted the sanction imposed.

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CONTRACTS

11-2-0589 Sunkavally v. Komminent, App. Div. (per curiam) (21 pp.) This breach-of-contract case arose from disputes over the construction of two houses and the conduct of two construction companies. Defendants appeal from a portion of a final judgment, granting plaintiff $246,759 in damages, following a bench trial and from an order denying their reconsideration motion. Plaintiff Sunkavally, together with third-party defendants Venu Marri and VMS Construction (VMS), cross-appeal from a provision of the final judgment dismissing all remaining claims. The appellate panel concludes that, except for the calculation of Sunkavally's damage award, the trial judge's decision is supported by sufficient credible evidence and is consistent with applicable law. Although the trial judge miscalculated Sunkavally's damages, the correct sum can be readily calculated from the record evidence. Accordingly, the panel modifies the judgment in favor of Sunkavally by reducing it from $246,000 to $104,000 and affirms the judgment as modified.

CONTRACTS – PUBLIC BIDDING

11-2-0590 In the Matter of the Protest of Scheduled Award of Term Contract T2813 FRP 12-X-22361, App. Div. (per curiam) (28 pp.) Appellant HFL Sport Science Inc. appeals from the final agency decision of the director of the Division of Purchase and Property in the Department of the Treasury rescinding the award of a state contract to perform equine drug testing on racehorses to HFL and re-awarding the contract to Truesdail Laboratories Inc., based on its finding that HFL's failure to provide complete disclosure of all levels of its ownership structure on its ownership disclosure form at the time its proposal was submitted rendered the proposal incurably nonresponsive to the FRP and ineligible for a contract award, notwithstanding HFL's response to the agency's request for clarification. The panel affirms, finding, inter alia, that N.J.S.A. 52:25-24.2 requires disclosure of corporate or entity ownership, not only of individuals who hold a 10 percent or greater interest in the bidder; the information provided in HFL's bid did not substantially comply with N.J.S.A. 52:25-24.2 – the bid was facially invalid and the defect in the ownership information provided was material and incurable through postbid clarification; the award of the bid was not the result of favoritism toward Truesdail and there was no impropriety in the director having raised the issue of HFL's statutory compliance sua sponte.

ELECTION AND POLITICAL LAW

21-1-0591 In re Plan for the Abolition of the Council on Affordable Housing, Sup. Ct. (Rabner, C.J.) (82 pp., including dissent by Patterson, J.) Because COAH is “in, but not of,” an Executive Branch department, the plain language of the Reorganization Act, which extends the Chief Executive’s authority only to agencies that are “of the executive branch,” N.J.S.A. 52:14C-3(a)(1), does not encompass, and thus does not authorize the Governor to abolish, an independent agency like COAH. To abolish independent agencies, the legislative and executive branches must enact new laws that are passed by the Senate and Assembly and signed by the Governor.

FAMILY LAW

20-2-0592 New Jersey Division of Youth and Family Services v. M.T., App. Div. (per curiam) (14 pp.) Defendant M.T. Sr. appeals from the order, following a fact-finding hearing, determining he medically neglected his obese 16-year-old son M.T. (Max) by failing to follow up with medical referrals. He challenges the trial court's finding that the Division of Youth and Family Services proved abuse or neglect. Although the law guardian supported the division's application before the trial court, it now supports appellant's position. The appellate panel reverses, finding there was no harm and insufficient evidence that Max was at risk of imminent harm. The division failed to demonstrate by a preponderance of the competent evidence that the appellant's conduct was sufficient under law to constitute medical neglect.

FAMILY LAW

20-2-0593 Bennett v. Bennett, App. Div. (per curiam) (4 pp.) Defendant appeals from the order denying portions of her postjudgment matrimonial motion. She argues that the court erred in (1) denying her request for financial discovery based on changed circumstances; (2) denying her request for a hearing to determine college allocations for the parties’ two children; (3) denying her request for reimbursement of certain of the children's medical expenses; (4) retroactively modifying plaintiff's percentage responsibility from 75 percent to 64.70 percent; and (5) denying her request for an increase in life insurance. The appellate panel affirms substantially for the reasons stated by Judge Wright in his written statement of reasons. Judge Wright found that defendant failed to present a prima facie showing of changed circumstances that would trigger financial disclosure. Defendant's primary argument is that the 2010 order "established the child support based upon the parties' financial circumstances and the children's needs in 2004." Although the 2010 order was made retroactive to 2004, the order established plaintiff's child-support obligation, and the parties' respective share of income, as of the date of the 2010 order. To make a prima facie showing to obtain discovery, defendant was required to show a change of circumstances from the entry of the 2010 order, not the 2004 order, which she failed to do.

FAMILY LAW

20-2-0594 Bell v. Bell, App. Div. (per curiam) (10 pp.) Plaintiff appeals from various aspects of postjudgment orders of the Family Part. The panel concludes that the court correctly excluded defendant's Temporary Assistance to Needy Families benefits from his gross income under the child-support guidelines but in suspending his payment obligation completely because of his TANF eligibility, the court overlooked the possibility that the ability to earn additional income may be imputed to a parent who is the recipient of TANF or other means-tested government benefits. Because the judge did not make the necessary findings regarding defendant's ability to earn additional income, the panel remands for a retrospective assessment of whether any income should have been imputed to him during the period he was receiving TANF benefits. As to the remaining issues, which fundamentally pertain to custody and visitation, because the panel finds that the matrimonial settlement agreement, which plaintiff seeks to enforce, and the psychologist's expert recommendations have become stale with the passage of time, it remands for reconsideration by the Family Part, in anticipation that the court arrange, if it is financially feasible, for an updated expert evaluation of the child.

LABOR AND EMPLOYMENT

25-2-0595 Hodavance v. Board of Trustees, Police and Firemen’s Retirement System, App. Div. (per curiam) (9 pp.) Hodavance was hired by Hillside as a police officer in 1995. He appeals from a decision of the board of trustees of the Public Employees' Retirement System, which found he did not qualify for an accidental disability pension. The appellate panel affirms the board's decision. In this case, the administrative law judge appropriately determined that Hodavance was not entitled to an accidental disability pension because there was no threat of danger to his personal safety when he arrived at a murder scene, and he did not experience a traumatic event. In addition, Hodavance's disability did not result from his regular or assigned duties because he was not scheduled to work on the day the event occurred, he was not ordered to work that day, and he was not paid for his work that day.

LANDLORD/TENANT LAW

27-2-0596 Ejdys v. Estate of Herrsche, App. Div. (per curiam) (6 pp.) In this action alleging that the estate of John Herrsche unlawfully withheld $1,295 of plaintiff's $1,600 security deposit at the conclusion of a residential lease, which resulted in a default judgment against the estate after its administrator failed to appear at the rescheduled trial, defendant appeals the denial of its motion to vacate the default judgment and its motion for reconsideration. The panel reverses, finding that the judge abused his discretion in denying defendant's timely motion to vacate here, where defendant's bona fide efforts to address plaintiff's complaint are amply demonstrated by her timely, initial request for an adjournment of the trial date, and by her prompt retention of counsel, who then timely filed the motion to vacate. The panel says the record provides no basis to challenge defendant's certification that she did not receive notice of the new trial date.

PUBLIC RECORDS

52-4-0597 62-64 Main Street v. The City of Hackensack, Ch. Div. – Bergen Co. (Doyne, A.J.S.C.) (14 pp.) Plaintiffs sought a judgment declaring defendant, the city of Hackensack, in violation of the Open Public Records Act (OPRA). Plaintiffs sought records related to the rehabilitation plan adopted by the city council. The appellate panel concludes that the baseless denial of plaintiffs’ OPRA request compels a finding in their favor. Not only was the request clear and unambiguous, defendant and its counsel were aware of the specific records being sought. Even if an ambiguity existed, defendant failed to provide invoices for records clearly sought. In addition to defendant’s counsel also representing defendant in the pending rehabilitation challenge, the provision of some invoices suggests an awareness of the material plaintiffs requested. Defendant shall promptly provide all the requested invoices and records in plaintiffs’ OPRA request. Defendant shall not be subjected to sanctions. Finally, as the records were improperly withheld, plaintiffs are entitled to reasonable attorney fees and costs as they relate to the production of these documents.

TAXATION

35-5-0598 Borough of Paramus v. County of Bergen, Tax Ct. (Nugent, J.T.C.) (27 pp.) Operation of a county-owned hospital by a third-party for-profit manager does not negate the property tax exemption applicable to county-owned property used for a public purpose under N.J.S.A. 54:4-3.3. Left unresolved are two issues, both of which await further fact-finding: (1) whether space leased to third-party providers vitiates the exemption as a private purpose; and (2) whether use of the space could constitute a de minimus use. [Decided July 8, 2013.] [Approved for publication.]

FEDERAL COURT CASES

CIVIL PROCEDURE

07-7-0599 Rappa v. Delos Insurance Company, U.S. Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) Defendant Delos Insurance Company filed a motion for reconsideration of the opinion and order that denied its motion for partial summary judgment. Delos contends that the court erred when it asserted that neither party had submitted the statements of material fact required by L. Civ. R. 56.1. Delos and plaintiff had, in fact, timely filed the Rule 56.1 statements. Delos faults the court for overlooking the statements that neither party’s brief cited. Also, Delos failed to comply with the rule by submitting its statement of facts as part of its opening brief. Delos is correct that the court did not see the Rule 56.1 statements filed by the parties. This is, however, harmless error. In any event, unresolved material factual disputes precluded the entry of judgment as a matter of law. Delos argued, in reply on its original motion and now on reconsideration, that evidence was obtained through discovery that was not before Judge Chrystal. Yet Delos fails to demonstrate, through citation to evidence of record and supporting analysis, how the particular factual disputes found unresolved by Judge Chrystal have now been resolved. The Rule 56.1 statements, now carefully examined, fully support the court’s denial of the motion for partial summary judgment. Defendant’s motion for reconsideration is denied. [Filed June 10, 2013.]

CIVIL RIGHTS – NEGLIGENCE

46-7-0600 Troy D. v. Mickens, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (10 pp.) In this action brought under 42 U.S.C. § 198, N.J.S.A. 10:6-2 and general theories of negligence, plaintiffs seek compensatory and punitive damages and declaratory and injunctive relief for injuries they suffered when held for significant periods of time in isolation while in the custody of the New Jersey Juvenile Justice Commission. Pending is a motion to dismiss with prejudice and without costs plaintiffs' negligence claims against defendants Ellen Zupkus, Ph.D., Jason Fleming, Psy.D., Tara Lally, Ph.D., Angela Clack, Psy.D., Keli Drew-Lockhart, Psy.D., and Susanna Carew, Psy.D., because of the failure to file affidavits of merit as required by N.J.S.A. 2A:63A-26 to -29. The court denies the mental health defendants' motion, finding that the Affidavit of Merit statute does not apply because psychologists are not included in the list of licensed persons under N.J.S.A. 2A:53A-26. Therefore, no affidavit of merit is required. [Filed June 20, 2013.]

CONSUMER PROTECTION

09-7-0601 Hoffman v. Nutraceutical Corp., U.S. Dist. Ct. (Salas, U.S.D.J.) (8 pp.) Plaintiff, individually and on behalf of those similarly situated, filed a complaint against defendant Nutraceutical Corp., alleging that defendant advertised its product as “pure, unadulterated and of the highest quality” yet defendant’s product was contaminated by lead. Plaintiff claims that he and other members of the putative class relied on the express representations with respect to purity of the product and made the purchase of the product in reliance thereof. Defendant moves to dismiss. Plaintiff’s CFA claims are dismissed because plaintiff fails to show damages in connection thereto. Plaintiff similarly failed to identify the resulting damages to properly plead common-law fraud. Plaintiff does not even allege that the product that he personally purchased, and used, contained lead. Plaintiff’s allegations also fail to support the claim of unjust enrichment. Plaintiff fails to make the necessary showing of damages required for both claims of a breach of express warranty and an implied warranty of merchantability. The court grants defendant’s motion to dismiss without prejudice. [Filed June 10, 2103.]

CONSUMER PROTECTION

09-7-0602 Crisdon v. Bank of America, U.S. Dist. Ct. (Hillman, U.S.D.J.) (7 pp.) The court grants plaintiff’s in forma pauperis application and proceeds to review plaintiff’s complaint. In his complaint, plaintiff claims that defendant, Bank of America, breached its fiduciary duty to plaintiff and committed fraud on plaintiff by failing to pay him $2.8 million in trust fund monies due to him. Plaintiff claims that Bank of America abused its position when it informed plaintiff that the trust fund approval order documents were fake, and it did not allow the transfer of funds into his bank account. As a threshold matter, plaintiff’s complaint must be dismissed for lack of subject-matter jurisdiction. As to diversity of citizenship, plaintiff has failed to properly plead the citizenship of himself and Bank of America. Next, with regard to jurisdiction based on a federal question, plaintiff cites to a provision of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA only applies to employee benefit plans and it is not applicable to the alleged trust described by plaintiff. Even if plaintiff were to properly establish subject-matter jurisdiction, with regard to plaintiff’s claims of fraud, he has failed to plead fraud with the required particularity. In addition, plaintiff has not demonstrated that he is entitled to any relief. Plaintiff’s complaint is dismissed without prejudice. [Filed June 10, 2013.]

CONTRACTS

11-7-0603 Pro v. Hertz Equipment Rental Corp., U.S. Dist. Ct. (Cavannaugh, U.S.D.J.) (13 pp.) This matter is before the court on application for final approval of the class action settlement in this suit alleging that HERC’s loss and damage waiver was unconscionable in that it provided illusory coverage for a premium price and that the environmental recovery fee HERC charged did not reflect any actual additional fees or expenses related to protection of the environment. The settlement provides customers who are members of the class with the option of either obtaining a cash refund of a portion of the premiums they paid HERC or credits on future rentals of HERC equipment. Finding that the settlement satisfies Rule 23(e) because the relief it provides the class is fair, adequate and reasonable, the court grants the application for final approval, including attorney fees of $11.5 million. [Filed June 20, 2013.]

CREDITORS' AND DEBTORS' RIGHTS

15-7-0604 Venneman v. BMW Financial Services NA, U.S. Dist. Ct. (Mannion, U.S.M.J.) (10 pp.) This action concerns capitalized cost-reduction payments in the context of automobile leases and whether such payments constitute rent paid in advance for the purposes of the Service Members Civil Relief Act. Plaintiffs, military service members who were mobilized for deployment, contend that the capitalized cost-reduction payments are rent paid in advance under the act and are subject to pro-rata reimbursement under the terms of the act. At issue is a dispute concerning discovery of the respective income and allowances plaintiffs received before, during and after mobilization. The parties submitted a stipulation addressing the scope of the issue discovery, which was endorsed and filed by Judge Dickson. Thereafter, Judge Waldor issued a verbal order expanding the scope of discovery during an unrecorded telephone conference. Plaintiffs seek a protective order. The court denies the motion because the underlying verbal order is arguably unenforceable because it was not reduced to writing. [Filed June 21, 2013.]