01-2-0955 Bravo v Board of Review, App. Div. (per curiam) (6 pp.) Appellant appeals from the final decision of the Board of Review which affirmed the decision of the Appeal Tribunal that she must refund $20,160 in unemployment benefits, is disqualified from receiving benefits for one year for making false or fraudulent representations, and must pay a fine. The panel affirms, finding that the record supports the Appeal Tribunal's determination that while collecting unemployment benefits after termination of her full-time employment, appellant earned wages from her part-time employment that she knowingly failed to disclose, there is no evidence that she received incorrect advice about her obligation to report her part-time earnings and the internet, which she used to make her weekly claims, provided instructions for the reporting of wages from such employment, and that she was repeatedly asked if she had worked during the weeks in question and she answered no each time even though she was working part-time.
35-2-0956 Winberry Realty Partnership v. Borough Of Rutherford, App. Div. (per curiam) (12 pp.) Plaintiffs filed a complaint against defendant Borough of Rutherford, its tax collector, and the assistant chief of the State's Office of Foreclosure. Plaintiffs alleged that defendants had unlawfully obstructed their efforts to redeem a tax certificate the Borough filed after plaintiffs stopped paying taxes on property they owned; that a final judgment of foreclosure was entered, but subsequently vacated, at considerable cost to plaintiffs; and that they suffered severe emotional distress. The first three counts of the complaint alleged that defendants violated plaintiffs' civil rights under the United States and New Jersey Constitutions. The fourth count alleged that the Borough negligently trained its tax collectors, the fifth count that the Borough breached a duty to exercise reasonable care and good faith in the administration of its duties, and the sixth count alleged a cause of action for intentional infliction of emotional distress. Plaintiffs appeal from the order that dismissed their complaint with prejudice pursuant to Rule 4:23-5(a)(2) for failure to make discovery. Because the court took no steps to enforce the notice provisions of Rule 4:23-5, the appellate panel reverses and remands. The court apparently did not realize, because the attorneys did not make it clear, that the deposition of plaintiff John Winberry was the only outstanding discovery item that was the subject of the court's previous order. Had plaintiffs' counsel complied with the notice provisions of Rule 4:23-5, Winberry may well have understood that completion of his deposition had to take place if he wanted his case to proceed.
11-2-0957 Aspen Landscaping Contracting Inc. v. A. Juliano & Sons Contractors Inc., App. Div. (per curiam) (17 pp.) Defendant was the successful bidder on a public contract for excavation, demolition and construction work needed to establish a public park in Clark. In the context of consolidated lawsuits filed by Juliano's subcontractors seeking payment from Juliano and the County, Juliano filed a cross-claim against the county for payment on six change orders. The trial court granted the County summary judgment on Juliano's claim for $631,895.27 allegedly due on the sixth change order for the cost of borrow excavation material, and denied Juliano's timely motion for reconsideration. On Juliano's appeal, the panel affirms, finding that the trial court correctly concluded there was a patent ambiguity in the bid documents regarding the borrow excavation materials that Juliano did not bring to the attention of the county as required by the specifications, and because its change order for borrow excavation material was based on its unilateral resolution of that patent ambiguity, the relief it sought is barred by the patent ambiguity doctrine.
11-2-0958 Harbor Creek Associates G.P. v. Atlanticare Health Services Inc., App. Div. (per curiam) (15 pp.) They parties entered into two leases pursuant to which plaintiff leased commercial properties with three buildings to defendant. The leases contained an option to buy and identical provisions establishing a procedure for fixing the purchase price of the properties should defendant decide to exercise its option. However, the parties differed in their interpretations of the appraisal process to which they agreed, with plaintiff contending it should receive more than defendant believed it should pay. The judge accepted defendant's interpretation and plaintiff appeals. Finding that the judge's interpretation is consistent with the plain meaning of the agreement and effectuates the parties' intention, the panel affirms.
11-2-0959 Occhifinto v. Olivo Construction Co. LLC, App. Div. (per curiam) (19 pp.) Robert Occhifinto and NVE, Inc. filed suit against defendants claiming improper design and negligent construction of an addition to a warehouse. Mercer Mutual Insurance Company of New Jersey, the insurer of the masonry contractor, defendant Keppler, provided Keppler with a defense pursuant to a reservation of rights. Mercer filed a declaratory judgment (DJ) action, asking the court to declare it had no duty to defend and indemnify Keppler. Plaintiff filed an answer and counter-claim seeking a declaration that Mercer was obligated to provide a defense and indemnification to Keppler. On cross-motions for summary judgment, the judge ordered that Mercer had "a duty to indemnify [Keppler] . . . to the extent that it is found liable for damages . . . caused . . . to the property of others." Ultimately he jury found, inter alia, that Keppler was negligent, but its negligence was not a proximate cause of plaintiff's damages. Judgment in favor of Keppler was entered. Plaintiff moved for counsel fees against Mercer in the DJ action, which the judge denied. The appellate panel affirms. Mercer was defending Keppler under a reservation of rights; the existence of the policy was not in dispute, and plaintiff was not a "successful claimant" in securing a defense for Keppler. The judge did not abuse his discretion in refusing to award plaintiff counsel fees.
20-2-0960 Gilford v. Gray-Gilford, App. Div. (per curiam) (22 pp.) The final judgment of divorce (JOD) entered after trial in this matter included three provisions challenged on appeal by plaintiff. Although real estate previously owned by plaintiff alone was the source of the down payment on the home, defendant's efforts at both properties were significant, and the homes were the result of the parties' joint enterprise. It was not a mistaken exercise of the judge's discretion to award defendant fifty percent of the proceeds from the sale of the home. Given the judge's conclusion that plaintiff planned the diminution in his income, it was not a mistaken exercise of discretion for the judge to choose an amount of imputed income other than the arithmetic mean of the last five years. As to attorney fees, the judge found that plaintiff's positions with respect to alimony, equitable distribution, imputation of income, and defendant's continued residence with her disabled family members, while caring for the parties' two special needs children, were "absolute[ly] unreasonable" and demonstrated "plaintiff's position . . . that defendant deserves no quality of life whatsoever." Based upon these findings, it was not an abuse of the judge’s discretion to award defendant counsel fees.
04-2-0961 Beatty v. Haney, App. Div. (per curiam) (5 pp.) Plaintiff appeals from dismissal of his complaint for failure to state a claim upon which relief can be granted. Plaintiff is an attorney. In 2008, his license to practice law in New Jersey was suspended by the Supreme Court for three months based on plaintiff's plea of guilty to a fourth-degree charge of stalking. Plaintiff filed a handwritten complaint in the Law Division against defendants Gail Grunditz Haney, Deputy Clerk of the Supreme Court; Louis Pashman, Chairman of the Supreme Court's Disciplinary Review Board; Julianne DeCore, Chief Counsel of the DRB; Richard Englehardt, former Counsel to the Director of the Office of Attorney Ethics; and Michael Sweeney, First Assistant Ethics Counsel of the OAE. The Law Division cited Rule 1:20-1 and article 6, section 2, paragraph 3 of the New Jersey Constitution as establishing that "any matter regarding discipline of persons admitted to the practice of law is within the sole jurisdiction of the Supreme Court," and therefore, plaintiff's complaint fails to state a claim. The appellate panel affirms where the New Jersey Constitution gives exclusive jurisdiction and authority to the Supreme Court over the admission and discipline of attorneys in this state. Plaintiff has no cause of action in the Superior Court for damages arising out of the alleged unauthorized actions of defendants.
35-2-0962 Shree Ram Investments, Inc. v. Director, Division Of Taxation, App. Div. (per curiam) (19 pp.) Shree Ram Investments, Inc. (SRI) appeals from an order of the Tax Court denying its motion for summary judgment and granting summary judgment to the Director, Division of Taxation. The appellate panel affirms for different reasons. The judgment was entered on SRI's complaint challenging the Director's denial of its claim for a refund of corporate business tax paid in response to the Division's notice of deficiency and demand. The deficiency assessment was based on the Division's determination that SRI paid taxes at the rate appropriate for an S corporation, without filing the requisite election to be taxed as an S corporation. Since there was no regulation at that time directly authorizing the retroactive S corporation election, the Director's denial of the refund was appropriate. SRI's arguments on appeal are based on N.J.A.C. 18:7-20.3, a regulation providing for retroactive S corporation election that was adopted while this case was pending. The Tax Court addressed SRI's claimed entitlement to relief under the newly promulgated regulation. Where the court decided it lacked jurisdiction to resolve SRI's other objections to the denial of its request to make a retroactive S corporation election, the court's discussion of the applicability of N.J.A.C. 18:7-20.3 was dicta. The court lacked the authority to determine, in the first instance, whether SRI was entitled to a benefit available pursuant to a newly-adopted regulation before SRI sought that benefit in the Division.
36-2-0963 Christen v. Wyka, App. Div. (per curiam) (10 pp.) Plaintiff, who claims to have been startled when defendants' dogs ran to the front of the property, barking, and stood up against the fence to peer over it, and that she consequently stepped to the right into a depression in the grass next to the sidewalk and fell, injuring herself, appeals the trial court's grant of defendants' motion for summary judgment dismissing the complaint. Noting that plaintiff was never on defendants' property, that defendants are residential landowners, that there is no evidence that the dogs had any vicious propensities, that defendants had posted a beware of dogs sign on the fence, and that the dogs never left the fenced yard, the panel declines to find that defendants' owed plaintiff a duty of care and affirms the dismissal.
14-2-0964 State v. Dow, App. Div. (per curiam) (28 pp.) Defendant appeals her conviction for murder and possessing a firearm with purpose to use it unlawfully against the person or property of another. The panel reverses because of (1) errors in the prosecutor's opening and closing statements, including mischaracterization of the DNA evidence, which did not show that defendant's DNA was mixed with the blood at the scene but that she could not be excluded as a contributor of the DNA stain based on her DNA profile and the implication that he had special knowledge about the science and about what the experts did and did not say; and (2) admission of defendant's suicide note without adequate evaluation of the evidence suggesting reasons for attempted suicide other than consciousness of guilt or an effort to avoid prosecution and the failure to give jurors instructions on consideration of the attempted suicide as mandated by Mann.
01-7-0965 Andino v. Commissioner of the Social Security Administration, Dist. Ct. (Simandle, U.S.D.J.) (22 pp.) The Court reviews the final decision of the Commissioner of the Social Security Administration denying Plaintiff’s application for disability insurance benefits under Title II of the Social Security Act. Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred in determining that the work she performed under “special conditions” constituted “substantial gainful employment.” The Court finds that the ALJ’s decision should not be given deference, as the ALJ failed to support his findings with substantial evidence. The Court agrees with Plaintiff that the ALJ’s analysis is incomplete because he did not evaluate whether Plaintiff performed work under special conditions. Further, the ALJ assumed facts which were not in the record, namely whether Plaintiff was provided with unique accommodations in her place of employment and whether Plaintiff received such accommodations at her other place of employment. Lastly, the ALJ failed to account for the fact that Plaintiff left work early on some days yet still received pay, thereby potentially contributing to an inflated income level. The Court vacates the decision and remands. [Filed July 3, 2013]
59-7-0966 In re Insurance Brokerage Antitrust Litigation, Dist. Ct. (Cecchi, U.S.D.J.) (38 pp.) Before the Court is Plaintiffs’ motion for final approval of the proposed Settlement Agreement and Class Counsel’s motion for attorney fees, reimbursement of expenses, and service award payments to the named Plaintiffs. This matter involves several class actions filed against insurers and insurance brokers alleging industry-wide conspiracies, in violation of federal antitrust laws, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state statutory and common law. Plaintiffs are purchasers of insurance, and defendants are insurers and insurance brokers. Because the named Plaintiffs have satisfied all of the requirements of Fed. R. Civ. P. 23, the Court certifies the proposed class for purposes of this Settlement and approves the Settlement Agreement. The Court also grants the applications of Class Counsel for attorney fees, reimbursement of expenses and incentive award payments. [Filed August 1, 2013]
07-7-0967 Speth v. Goode, Dist. Ct. (Simandle, U.S.D.J.) (18 pp.) The instant action arises out of Plaintiff's tenure as a county medical examiner and his suspension. Plaintiff then began working in the private sector and served as an expert witness for defendants in criminal trials. Consequently, Plaintiff still examined bodies at the State Medical Examiner's office. In 1993, a morgue attendant allegedly observed Plaintiff tampering with evidence. This led to a criminal investigation culminating in an indictment. Plaintiff filed the instant action against Defendants, alleging violations of his constitutional rights, tortious interference and abuse of office for personal benefit. Plaintiff sought discovery of several documents from two previous criminal cases, arguing these documents were relevant to establishing his claims. Plaintiff asserts that he was wrongfully convicted of witness tampering and wrongfully indicted for evidence tampering. Plaintiff's accusations, however, lack a sufficient factual basis to permit a fishing expedition into privileged attorney-client communications in search of evidence that another person committed the crime of which he was accused. The Court affirms the denial of Plaintiff's motion for an in camera review of several documents Defendants refused to produce. Magistrate Judge Donio appropriately concluded that these documents were protected by the attorney-client privilege and Plaintiff had not met his burden to pierce the protection of that privilege. [Filed July 3, 2013]
25-7-0968 Muhammad v. Sills Cummis & Gross, U. S. Dist. Ct. (Hammer, U.S.M.J.) (4 pp.) Plaintiff has filed an application for pro bono counsel in this action against his former employer alleging age discrimination. Applying the Tabron test, the court finds that plaintiff has not shown that he will be unable to present his case, his cogent submissions indicate that he can request relief and he provides no explanation as to why he would be unable to present his case, his claims do not involve complex legal issues, there is no indication that he lacks the ability to conduct a factual investigation without the assistance of counsel, it is premature to conclude that the case will turn on credibility determinations, there is no indication that the case will require expert testimony, and plaintiff has not described his attempts to obtain counsel or whether he can obtain and afford an attorney. The court therefore denies the request for appointment of pro bono counsel. [Filed July 15, 2013]
32-7-0969 Schraeder v. Demilec (USA) LLC, U. S. Dist. Ct. (Hochberg, U.S.D.J.) (12 pp.) In this putative class action alleging that due to the defective nature of defendant's design and manufacture of spray polyurethane foam insulation, the nature of its training of distributers/installers, and the defective nature of its warnings, labeling and training material, plaintiffs and their properties have been exposed to the harmful effects of the gases that the SPF emits after installation, the court denies defendant's motion to dismiss pursuant to Rule 12(b)(1) and grants plaintiffs' cross-motion to amend the complaint to plead the citizenship of defendant's members. The court grants defendant's motion to dismiss pursuant to Rule 12(b)(6) as to plaintiff's New Jersey Consumer Fraud Act and unjust enrichment claims since they are subsumed within the New Jersey Product Liability Act claim, and as to the claim for injunctive relief and medical monitoring because remedies are not causes of actions by themselves but accompany causes of action. It denies the motion as to the claim for breach of express warranty because the complaint provides the specific language and source of the alleged warranty. [Filed July 12, 2013]
36-7-0970 Baker v. United States of America, U. S. Dist. Ct. (Simandle, U.S.D.J.) (20 pp.) In this action asserting claims under the Federal Tort Claims Act, negligence, and conspiracy, arising out of the actions of United States Marshalls during a fugitive search, the United States moves to dismiss the second amended complaint for lack of jurisdiction pursuant to Rules 12(b)(1) and 12(h)(3). The court holds that it lacks jurisdiction over the FTCA claims here, where plaintiffs failed to present an administrative tort claim for money damages in a sum certain, the federal agency notified plaintiffs’ counsel of the defect, counsel took no corrective action, the agency denied the claim, and counsel initiated this suit, all before sending “amended” administrative claims with a sum certain to the agency. Plaintiff Tattyana Baker's tort claims are dismissed as barred by the six month provision in 28 U.S.C. § 2401(b).[Filed July 15, 2013]
14-7-0971 United States of America v. Durante, U. S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) After a jury held that only $54,837 of the $291,690 seized from defendant's residence was forfeitable under 21 U.S.C. § 853 after his conviction for oxycodone distribution, the United States moves for an order of forfeiture pursuant to Federal Rule of Criminal Procedure 32.2 consisting of a personal money judgment against defendant for $658,821.00, representing the proceeds allegedly traceable to the conspiracy offense and seeks to restrain the portion of the seized currency which the jury did not find forfeitable, i.e., $236,853, on the grounds that the property constitutes a forfeitable substitute asset under 21 U.S.C. § 853(p). Finding that the government fails to indicate any authority in the governing statute which would allow the court to continue to restrain the funds in contemplation of a potential judgment against defendant, and that the All Writs Act does not function to expand the authority expressly and narrowly conferred by § 853, the court denies the government's motion for continued restraint of the seized funds and orders them returned. [Filed July 15, 2013]