Aug. 22 to 28, 2013
STATE COURT CASES
ADMINISTRATIVE LAW
01-2-1073 In the Matter of the Institute For Health Research and Abunda Life Center, App. Div. (per curiam) (24 pp.) Each of the appellants applied for permits to operate alternative treatment centers (ATCs) to cultivate and distribute medical marijuana pursuant to the New Jersey Compassionate Use Medical Marijuana Act. They appeal from the final decisions of the Department of Health and Senior Services and present challenges to the authority of the department to act before the formal adoption of regulations to govern the selection process, the selection process itself, and the constitutionality of the act. The appellate panel affirms, concluding that the department’s decisions were not arbitrary, capricious, or unreasonable and that they had adequate evidential support. [Digested Aug. 22, 2013.]
ADMINISTRATIVE LAW — CIVIL SERVICE COMMISSION
01-2-1074 I/M/O Rivera, App. Div. (per curiam) (10 pp.) Rivera, a former sergeant with the Camden Police Department, appeals from a final decision of the Civil Service Commission terminating his employment after he tested positive for amphetamine, a controlled dangerous substance, in a random drug test. Rivera admitted taking diet pills from Brazil which contained Fenproporex, which metabolizes in the body into amphetamine. The panel affirms, concluding that there is sufficient credible evidence to support the ALJ’s findings and conclusions — including that there was no stipulation of fact that the positive test was caused by the diet capsule, resulting in an unsubstantiated hypothetical that something other than illegal drug use could possibly be the cause of the positive drug test, which is insufficient to overcome the result of the test — which were accepted by the commission, and the penalty is appropriate in light of Rivera’s misconduct. [Digested Aug. 22, 2013.]
ADMINISTRATIVE LAW — ECONOMIC DEVELOPMENT AUTHORITY
01-2-1075 I/M/O Prudential Financial Inc.’s Urban Transit Hub Tax Credit Application, App. Div. (per curiam) (26 pp.) This is an appeal by the owners of the space that Prudential currently occupies in Newark from the decision of the New Jersey Economic Development Authority to grant an urban transit hub tax credit of $210,828,357 to Prudential with respect to its construction of an office building in Newark. The panel affirms, concluding that, inter alia: (1) in determining whether the Prudential project meets statutory requirements, the Urban Transit Hub Tax Credit Act does not mandate that the authority consider the project’s impact on local real estate values and it was not unreasonable for the authority to determine that tax revenue generated, and not the impact on the commercial real estate market, would be used in the computation of the net benefits test; (2) the authority fairly applied the factors developed in the economic impact model and reasonably determined that the project would result in increased tax revenue, thereby conferring a benefit to the state and Newark and thus the decision to grant Prudential a hub tax credit was a reasonable exercise of agency discretion; (3) notwithstanding that some of the new jobs will result from anticipated business growth, all 400 new full-time positions that Prudential will create meet the statutory requirement and were properly included in the calculation; and (4) there is no indication in the record that the authority’s net benefit analysis was tainted by its relationship with JLL, which it had employed to develop the model two years before Prudential’s application and JLL performed no work for Prudential on its application. [Digested Aug. 22, 2013.]
CIVIL PROCEDURE
07-2-1121 Grunfeld v. Seltzer, App. Div. (per curiam) (12 pp.) Plaintiffs Joseph Grunfeld and Majestic Company, a business entity located in Jersey City that was formed by Grunfeld’s ex-wife and son-in-law, filed a complaint alleging legal malpractice claims against defendant. Plaintiffs appeal from an order denying reconsideration of an earlier order dismissing their complaint with prejudice for failure to provide discovery and denying their cross-motion to reinstate their complaint. The appellate panel finds that the judge did not abuse his discretion by denying plaintiffs’ motion for reconsideration. The record clearly supports the finding that plaintiffs had not complied with prior discovery orders and that plaintiffs’ arguments for reconsideration amounted to a rehash of previous arguments already considered and rejected by the judge. More than six months had passed since entry of the order of dismissal without prejudice; documents and evidence pertinent to damages and the status of Majestic were not provided simply because plaintiffs’ attorney and Grunfeld failed to produce them; no expert report was provided; and no “exceptional” circumstance was shown. [Digested Aug. 27, 2013.]
CONSUMER PROTECTION — NEGLIGENCE
09-2-1141 Taste Matters LLC v. McManus & Co. P.C., App. Div. (per curiam) (9 pp.) In this action asserting claims for consumer fraud and negligence arising out of plaintiff’s purchase of a restaurant, plaintiffs appeal the grant of summary judgment in favor of Weichert Realtors, the realtor to whom they expressed an interest in purchasing the property in 2004, Jim Gallo, the agent who listed the property in 2004, and McManus Company PC, the accounting firm that provided information about the employees working at the restaurant in 2006 when plaintiff purchased the property. The panel affirms because (1) the sole allegation supporting the consumer fraud violation and negligence claims against Weichert and Gallo stem from representations made in 2004, there is no evidence that plaintiffs had any discussions with Weichert and Gallo in 2006, and thus there is no causal connection between Weichert and Gallo and plaintiffs’ real estate transaction in 2006 and those defendants breached no duty of care owned to plaintiffs; and (2) the sole allegation against McManus is that it authored a letter stating there were active employees of for the fourth quarter of 2006, which statement is accurate, although the employees were paid in cash. [Decided Aug. 28, 20131.]
CONTRACTS
11-2-1076 Re/Max of Cherry Hill Inc. v. Malts, App. Div. (per curiam) (8 pp.) In this breach-of-contract action to collect on commissions allegedly due, defendants appeal the grant of summary judgment to plaintiff. The panel affirms, concluding that, where defendant had listed her property with plaintiff, plaintiff could not locate a buyer but had secured a tenant, the original lease acknowledged Lilien as an occupant of the property, Lilien acted as a tenant and defendants accepted her as such, and the lease, which Roman Malts signed, recognized plaintiff’s right to a commission both for any extension of the lease and in the event a sale was made to the tenant, since both events occurred, plaintiff was entitled to a commission for the additional month-to-month lease extension and upon the sale of the property to Lilien. The panel also concludes that it was appropriate to enter judgment against Roman as well as his wife, the property’s owner, as he had signed the lease and that equitable remedies of quantum meruit and unjust enrichment fail because there is a binding contract. [Digested Aug. 22, 2013.]
11-2-1077 Walters Development Co. LLC v. Barnegat Twp., App. Div. (per curiam) (26 pp.) This dispute arises out of three agreements entered into by the parties: a 1998 Water Facilities Agreement (Agreement) between Menk Corporation and Barnegat which called for Menk to finance and construct water facilities necessary to enable Barnegat to provide sufficient water service to Menk’s and other projects and provided for Menk’s reimbursement; a 2004 Addendum to the Agreement (Addendum) modifying the term regarding Menk’s payments; and a 2006 agreement between Mark Madison, LLC and Barnegat (Walters Agreement) pursuant to which Walters agreed to build an additional water supply well and associated improvements and to secure additional permitted water allocation from the DEP and which provided for reimbursement to Walters after Menk was fully reimbursed under the Menk Agreement. Walters contends that Menk has been fully reimbursed pursuant to the agreement and addendum, and therefore payments are due it under the Walters Agreement. Menk appeals and Barnegat and Walters cross-appeal from the motion judge’s final judgment as supplemented. The panel concludes that that Walters’ challenge to the agreement and addendum and the respective authorizing ordinances are barred by the period of limitations contained in Rule 4:69-6 but agrees with Walters’ contention that Menk has been overpaid. The panel concludes that the agreement and the addendum read together are clear and unambiguous: Menk is entitled to 54 percent of the costs of the rehabilitation of well 5 and construction of the water storage tank, plus 100 percent of the cost for well 6, and the 1,380 aggregate connection fees should be counted towards the reimbursement of Menk’s installation costs. The panel remands to the motion judge for the computation of the amount that Menk has been reimbursed and the amount owed to it and for entry of an order implementing that result. It remands to the motion judge for his exercise of discretion whether to award attorneys’ fees to Barnegat. If the judge determines that Menk has been over-reimbursed, then he shall exercise discretion whether Barnegat, as a prevailing party, is entitled to attorneys’ fees and litigation expenses. [Digested Aug. 22, 2013.]
11-2-1122 Observer Plaza Condominium Association Inc. v. Observer Highway Plaza LLC, App. Div. (per curiam) (12 pp.) The parties agreed to binding arbitration in this action in which plaintiff alleges that the developer and the individual defendants breached contracts and warranties by negligently constructing the condominium building and failing to provide adequate financial reserves for repairs, and that the real estate companies and the developer had failed to pay maintenance fees or emergency assessments on their condominiums, and defendants contended that plaintiff violated its bylaws by improperly charging emergency assessments and late fees. The arbitrator issued a two-part award in favor of plaintiff, one for construction defects in which she detailed how she arrived at the awards for each defect, and one for maintenance fees for which she gave the dollar amount only, withholding her explanation because defendants had not paid her fee. Plaintiff moved to confirm. Defendants appeal from the order confirming the award and from the order denying their application to vacate the award. The panel consolidates the appeals and affirms, finding that the trial judge was correct in finding no basis to overturn the arbitration award, the award was untainted by any fraud, corruption or wrongdoing that would support its vacation under the Uniform Arbitration Act, the arbitrator properly corrected her clerical error, had not exceeded her power by considering the roof deck issue, and had made an adequate record of her determination, including her award for maintenance fees, as the award needed only to be in writing and signed, which it was. [Digested Aug. 27, 2013.]
11-2-1123 Park East Terrace Cooperative Apartments Inc. v. LAN Associates, App. Div. (per curiam) (16 pp.) Plaintiff, which filed a complaint alleging breach of contract and negligence based on LAN’s failure to discover the existence of an underground storage tank in 1994 and “abandonment” of the project, appeals the grant of summary judgment to LAN on statute of limitations grounds. The panel affirms, finding that plaintiff has not met its burden of proving that the discovery rule is applicable here since, on the facts, plaintiff had sufficient knowledge that the remediation services performed by LAN in 1993-94 did not satisfy DEP requirements no later than January 1995 when the DEP sent it a letter advising of the on-site contamination and its options for remediation and there is no evidence that LAN took any action to conceal information from plaintiff that would have impaired its ability to learn the facts underlying its claims on a timely basis with the exercise of reasonable diligence. [Digested Aug. 27, 2013.]
11-2-1124 UCB Manufacturing, Inc. v. Tris Pharma, Inc., App. Div. (per curiam) (27 pp.) Plaintiff UCB Manufacturing, Inc., appeals from summary judgment dismissing its claims for breach of contract and unfair competition. Plaintiff alleges that defendant Yu-Hsing Tu, its former employee, breached his employment agreement by disclosing plaintiff’s confidential information to his current employer, defendant Tris Pharma, Inc. Plaintiff alleges the confidential information was used to develop a generic cough medicine that is the bio-equivalent of plaintiff’s formerly-patented product. The Chancery Division concluded that the confidential information alleged to have been divulged was in the public domain and not entitled to protection under Tu’s confidentiality agreement. Applying New York law, the court concluded that Tu’s agreement was unenforceable with respect to the alleged confidential information. Plaintiff contends that the court made erroneous factual findings regarding the confidential information, prematurely granted summary judgment, and improperly relied on its own credibility findings from an evidentiary hearing. The appellate panel affirms summary judgment. Even if plaintiff is correct that disputed issues of fact existed regarding the availability of some of the alleged confidential information in the public domain, and even if the Chancery judge erred procedurally in relying on his own earlier credibility findings, the pertinent New York law supports the judge’s ultimate conclusion that Tu’s agreement is unenforceable as plaintiff now seeks to enforce it. [Digested Aug. 27, 2013.]
11-4-1142 New Meadowlands Stadium Co. LLC v. Triple Five Group Ltd., Chan. Div. (Bergen County) (Doyne, A.J.S.C.) (53 pp.) Plaintiffs previously brought a breach-of-contract action claiming that the developers’ proposed modification to Xanadu — a large retail and entertainment facility adjacent to plaintiffs’ stadium — which modification had been preliminarily approved by the NJSEA, violated an agreement signed by the Teams, Xanadu, and the NJSEA, part of which stated that any modifications to Xanadu that would have an “adverse effect” on the Teams’ “development, use or operation of the Stadium Project Development Rights” required prior written consent from the Teams. The complaint was dismissed as premature on the ground that the NJSEA administrative approval process had to be concluded before any consideration of a breach. Following the NJSEA’s final approval of the proposed modification, and its purported factual finding that the modification will not have an adverse effect on the Teams’ SPDR, plaintiffs again brought a breach-of-contract action claiming the approval violated their rights under their 2006 agreement with the NJSEA. Defendants move to dismiss the complaint. Defendants’ motions to dismiss plaintiffs’ claim for breach of contract pursuant to R. 4:6-2(a) are denied, as this court retains exclusive jurisdiction concerning a determination whether the NJSEA approval of the proposed modification breaches its contract with plaintiffs by causing an adverse effect on plaintiffs’ SPDR. Defendants’ motions to dismiss plaintiffs’ demand for injunctive relief pursuant to R. 4:6-2(e) are granted as it relates to construction, but denied as it relates to operation. The developers’ motion to dismiss plaintiffs’ claim for tortious interference pursuant to R. 4:6-2(e) is denied as plaintiffs have met the pleading standard. The NJSEA’s request for a more definite statement pursuant to R. 4:6-4(a) is denied as plaintiffs have, with sufficient specificity, notified defendants as to the alleged violations, allowing for further targeted exploration during discovery. The developers’ demand for summary judgment is denied as the NJSEA’s findings are neither dispositive, nor, even if instructive, sufficient to determine whether a breach occurred or whether the developers tortiously interfered with plaintiffs’ contract. [Decided Aug. 28, 20131.]
11-2-1143 Wiley v. Cameron-Walton, App. Div. (per curiam) (6 pp.) Plaintiff, who had known defendant for many years and who had had some business dealings with her, appeals the Special Civil Part judgment ordering him to pay $15,000 to defendant and from the denial of his motion for reconsideration. Deferring to the trial court’s finding that defendant’s testimony that plaintiff agreed to repay her for satisfaction of his liens is credible, and noting that a gratuitous loan, when made, is consideration for the other party’s promise to repay, the panel affirms, holding that defendant was entitled to payment of the amount she paid to discharge plaintiff’s liens, offset by the amount of a loan plaintiff made to her which she had not repaid. [Decided Aug. 28, 20131.]
CONTRACTS — RESIDENTIAL AND COMMERCIAL REAL ESTATE
11-2-1087 J. Ricciardella & Sons Quality Homes, Inc. v. Mamary, App. Div. (per curiam) (11 pp.) Plaintiff J. Ricciardella & Sons Quality Homes, Inc. and defendants Bassam and Georgina Mamary entered into a contract for the construction of a new home. Plaintiff declared breach when defendants refused to pay the sixth of 12 payments due as benchmarks in the project were met. Plaintiff also alleged that defendants had not paid for work done out of order. Defendants claim that plaintiff terminated the contract without cause, failed to properly perform the work and violated the Consumer Fraud Act. At the close of plaintiff’s case, the trial court denied defendants’ motion for judgment. The jury resolved defendants’ claims against them, concluding that plaintiff did not breach the contract or violate the Consumer Fraud Act. The court denied defendants’ motion for judgment notwithstanding the verdict and entered judgment in favor of plaintiff. The appellate panel reverses and remands, finding that judgment should have been entered in favor of defendants on the question of whether the sixth payment was due under the terms of the contract. Further, defendants were entitled to judgment notwithstanding the verdict. Defendants correctly claimed that the payment was not due because the required work was not completed. A new trial is required on the claim for the value of work done ahead of the payment schedule, the claim that plaintiff’s termination was wrongful, and the claim based upon poor workmanship. A new trial is not warranted on defendants’ consumer fraud claim. [Decided Aug. 23, 2013.]
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-1104 Midland Funding, L.L.C. v. Alprin, App. Div. (per curiam) (6 pp.) Plaintiff Midland Funding LLC appeals from the decision of the Special Civil Part denying its motion to have a default judgment entered against defendant and the order denying its motion for reconsideration. Plaintiff is the owner by assignment and purchase of defendant’s defaulted credit card account. After the parties reached a settlement and defendant failed to make the required payments, plaintiff filed a motion “to enter judgment” against defendant for the amount still due. The judge denied the motion, finding it was tantamount to a request for the entry of a default judgment and, therefore, plaintiff was required to submit certain documentation in support of its application. Rather than supplying this requested documentation, plaintiff filed a motion for reconsideration, which the judge denied. The appellate panel finds the judge’s orders were not “final” within the intendment of Rule 2:2-3(a)(1). The orders did not foreclose plaintiff from resubmitting its motion for a default judgment with the requested documentation. Under these circumstances, the orders are plainly interlocutory and the panel dismisses the appeal. [Digested Aug. 26, 2013.]
CRIMINAL LAW
14-2-1082 In the Matter of the Expungement Petition of J.S., App. Div. (per curiam) (6 pp.) The state appeals the trial court order granting defendant J.S.’s motion to expunge two convictions for drug-related offenses. The facts underlying the two convictions occurred five days apart and arose out of an undercover operation. The trial court, although recognizing the holding in In re Ross, interpreting N.J.S.A. 2C:52-2(a) as precluding expungement where there has been a conviction for a prior or subsequent crime, treated the two offenses as a “one-night spree,” thereby concluding it was in the public interest to grant the expungement under the “early pathway” amendment to the expungement statute. On appeal, the state urges that the order granting the expungement was premised upon the trial court’s misinterpretation of the expungement statute and case law. The appellate panel agrees and reverses. To petitioner, the undercover officer was a drug customer, with whom any drug dealer would want to engage in future transactions, as occurred here five days after the first transaction, thereby negating the notion that petitioner’s conduct represented a single crime spree. [Digested Aug. 22, 2013.]
14-2-1093 State v. Tucker, App. Div. (per curiam) (11 pp.) Defendant appeals from his conviction for third-degree possession, distribution, manufacturing, and/or dispensing of a controlled dangerous substance following entry of his guilty plea pursuant to a negotiated plea agreement. The panel reverses and remands because it cannot assess the application of the Slater factors to defendant’s motion to withdraw his guilty plea since the trial judge did not address the substance of defendant’s motion but simply denied it without comment. [Decided Aug. 23, 2013.]
14-2-1110 Reese v. State of New Jersey, App. Div. (per curiam) (4 pp.) Plaintiff appeals the Law Division’s order denying his motion to reconsider the decision denying his motion to amend a judgment. The basis for plaintiff’s complaint was that the state wrongfully incarcerated him beyond his maximum release date. Plaintiff moved to amend the judgment dismissing his complaint to provide that the state’s motion for summary judgment was denied. Plaintiff’s argument that he was never served with the summary judgment motion was refuted by certifications of service indicating that he had been served. The appellate panel affirms the Law Division’s order. [Digested Aug. 26, 2013.]
14-2-1112 State v. Romeo, App. Div. (per curiam) (54 pp.) Defendant, a former sergeant with the Wildwood Police Department, appeals his conviction of official misconduct for kicking two suspects in the head while they lay handcuffed on the ground. In a cross-appeal, the state challenges the trial court’s decision to waive the mandatory term for official misconduct, arguing the trial court applied the wrong standard. The court affirms the conviction but remands for resentencing in light of the guidance in State v. Rice, decided after the state filed its brief in this case, regarding application of N.J.S.A. 2C:43-6.5(c)(2). The panel directs that on remand, the sentencing court must determine if there is clear and convincing evidence that extraordinary circumstances exist based on the individual defendant before it; and that imposition of the statutory minimum term would be a serious injustice which overrides the need to deter such conduct in others. Further, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply. [Digested Aug. 26, 2013.]
14-2-1133 State v. Lawrence, App. Div. (per curiam) (6 pp.) Defendant appeals from the Law Division order denying his application to withdraw his guilty plea to driving while intoxicated and sentencing him as a second offender. The panel affirms except insofar as defendant should not have been sentenced as a second offender pursuant to N.J.S.A. 39:4-50(a)(3). The matter is remanded for resentencing as a first offender. [Digested Aug. 27, 2013.]
14-2-1150 State v. Enders, App. Div. (per curiam) (9 pp.) Defendant, who pleaded guilty after the court denied his motion to dismiss the bias intimidation count of the indictment, appeals from his conviction for third-degree bias intimidation. The charge arose out of an incident of cross-burning in a field in view of motorists passing on Route 9. The panel reverses and remands for entry of an order vacating defendant’s judgment of conviction because the bias count of the indictment was materially deficient in its failure to charge that defendant committed the underlying crime with a biased intent and against an identifiable victim under circumstances that would cause the victim to reasonably believe that he or she (or his or her property) was targeted because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin or ethnicity. [Decided Aug. 28, 20131.]
14-2-1151 State v. Gilliam, App. Div. (per curiam) (12 pp.) Defendant Lexington National Insurance Company appeals from an order that denied its motion to vacate a default judgment and bail forfeiture. The trial court agreed that because Gilliam’s bail was reinstated without Lexington’s consent, the reinstatement was a nullity. Nonetheless, the court stated this defect in the underlying basis for the judgment was vitiated by Lexington’s failure to file an objection in a timely manner. The court stated that the failure to file a timely objection precluded Lexington from recovering 100 percent of the bail. It therefore concluded that Lexington’s argument that the forfeiture judgment should be vacated as based upon a nullified surety lacked any merit. However, the failure to timely file an objection does not preclude recovery by the surety. The trial court erred in assuming that the motion to vacate judgment was untimely because it was filed more than 75 days after the default judgment and in concluding that this purported untimeliness precluded consideration of the motion on its merits. The appellate panel reverses the order denying Lexington’s motion to vacate the default judgment and remands. [Decided Aug. 28, 20131.]
14-2-1152 State v. Reece, App. Div. (per curiam) (60 pp.) Defendant appeals his conviction for obstructing the administration of law and resisting arrest. The panel vacates the obstructing conviction, finding that the information available to the police — an unexplained dropped 9-1-1 call and defendant’s lack of cooperation — was not enough to trigger the emergency aid doctrine, which would have made the police entry lawful, and thus, defendant’s refusal to allow police to enter his home was not an act of obstructing. The panel affirms the conviction for resisting arrest, finding that defendant was not entitled to resist arrest, even if it was unjustified as the arrest was made under color of official authority and was announced. The concurring judge writes separately to concur in the reversal of the obstruction conviction on the grounds that, although the police officers had lawful reason to enter defendant’s residence without a warrant or his consent, his refusal of their request that he consent to a warrantless search was not a violation of N.J.S.A. 2C:29-1(a). The dissenting judge disagrees with the affirmance of the conviction for resisting arrest, opining that (a) the majority’s view overlooks an individual’s right to defend against a physically excessive arrest; (b) the majority’s judgment disregards that the unlawful arrest in question occurred after an equally unlawful entry into defendant’s home; and (c) he is not willing to defer to the fact-finder regarding the circumstances surrounding the arrest because he is “thoroughly satisfied” that the credibility findings are “clearly mistaken” and “so plainly unwarranted that the interests of justice demand intervention and correction.” [Decided Aug. 28, 20131.]
EDUCATION
16-2-1144 I/M/O Tenure Hearing of Parezo, App. Div. (per curiam) (26 pp.) Appellant, employed for more than 20 years as a health and physical education teacher in the Lakehurst School District, appeals from the Acting Commissioner of Education’s final decision upholding charges against her of unbecoming conduct arising out of her humiliating and embarrassing a student and then making a false statement to the superintendent denying the incident, and dismissing her from her tenured teaching position. The panel affirms, finding that there is sufficient credible evidence to support the ALJ’s findings of fact and credibility determinations that appellant’s behavior was sufficiently flagrant to constitute unbecoming conduct; that although the ALJ’s in camera examination of two students was wrong, the panel will not consider the issue since there is an inadequate record and it does not appear that appellant raised the issue before the ALJ; and that the Acting Commissioner did not fail to address the doctrine of progressive discipline or take into account appellant’s unblemished service and, considering the nature of appellant’s conduct along with her continue recalcitrance, and deferring to the Acting Commissioner, the sanction was not shocking to a sense of fairness. [Decided Aug. 28, 20131.]
FAMILY LAW
20-2-1078 Turner v. Turner, App. Div. (per curiam) (9 pp.) Defendant appeals and plaintiff cross-appeals from postjudgment Family Part orders regarding proposed changes in the parties’ Property Settlement Agreement (PSA). In light of his upcoming retirement, defendant filed an application in the Family Part for modification of spousal support, alleging changed circumstances. Defendant requested that the court terminate his alimony and life insurance obligation, or alternatively, that the court hold a plenary hearing on the matter and suspend his alimony obligation until rendering a decision. On the other hand, plaintiff contended that defendant had not shown a permanent and substantial change in circumstances. She argued that he did not make sufficient efforts to find new employment, although he was fit to work. The trial judge denied defendant’s request to terminate alimony, reduced the amount of alimony, declined to change the life insurance obligation and awarded plaintiff counsel fees. Because the trial judge did not make sufficient findings of fact and conclusions of law to enable the appellate panel to ascertain whether he appropriately exercised his discretion, the panel reverses and remands. [Digested Aug. 22, 2013.]
20-2-1089 Lucarella v. Lucarella, App. Div. (per curiam) (13 pp.) Plaintiff mother appeals from a Family Part order which granted defendant father unsupervised parenting time, denied her request for the release of certain confidential records, and ordered her attorney removed from representing her in this postjudgment proceeding. The panel affirms, finding, inter alia, that (1) the judge’s review of the record, the reports from the agency that had supervised visits between the father and two sons, and the judge’s discussion with the agency supervisor provided a sufficient basis to support the finding that unsupervised parenting time would not place the boys at risk of harm and, together with the fact that the boys are now 15 and 1/2 years old and the father has been acquitted of charges of attempting to murder his former matrimonial attorney, were sufficient to establish changed circumstances and a change to unsupervised parenting time; (2) the judge did not err in not holding a plenary hearing as there was no factual dispute for which a plenary hearing would be helpful in reaching resolution; and (3) the record supports the judge’s reasonable exercise of discretion in removing mother’s attorney, who is also her paramour, given his review of the attorney’s involvement throughout the parties’ extensive history of litigation. [Decided Aug. 23, 2013.]
20-2-1090 Sevintuna v. Tosin, App. Div. (per curiam) (11 pp.) Defendant appeals from a Family Part order denying her request for additional discovery into plaintiff’s assets, and plaintiff cross-appeals from the judge’s denial of his request for counsel fees. The question is whether heretofore undisclosed financial transactions or assets, if known at the time of the Marital Settlement Agreement (MSA), would have significantly altered plaintiff’s financial position for the purpose of determining equitable distribution. Sometime in 2005, plaintiff’s business, Future Technology Associates (FTA), was awarded a contract with the New York City Department of Education to service computer-based financial and accounting systems. In 2009, the New York City School District Special Commissioner of Investigation (SCI) began to investigate FTA’s performance of the contract. Meanwhile, the divorce trial started in September 2009. Given the SCI’s allegations that since 2006 plaintiff committed massive fraud involving millions of dollars, a deeper examination of those transactions is required before the motion to reopen equitable distribution is decided on the merits. The appellate panel thus reverses and remands for the purposes of further discovery. The order denying counsel fees is also reversed. [Decided Aug. 23, 2013.]
20-2-1105 Schwartz v. Sussman, App. Div. (per curiam) (7 pp.) Defendant Alan Sussman appeals from the order directing that he pay various expenses of the parties’ child and setting a new child support obligation. On appeal, defendant claims the motion judge demonstrated racial bias in issuing this order as well as in prior orders; demonstrated an “indifference to due process”; and failed to consider defendant’s financial hardship. The transcript of what should have been a routine enforcement motion comprised 68 pages. Rarely was the judge able to speak more than a few sentences without being rudely interrupted by one of the parties. Repeated warnings by the judge not to interrupt were ignored by both parties. The appellate panel finds nothing racially insensitive or biased in the judge’s comments comparing these litigants to some of the less experienced and uneducated parties that appear before him, and remarking that he expected more from them. The behavior of both parties here was discourteous and disrespectful, not only to the judge but to the office he holds. [Digested Aug. 26, 2013.]
20-2-1125 E.B. v. M.N., App. Div. (per curiam) (15 pp.) Defendant M.N. appeals the Family Part’s final domestic violence restraining order (FRO) in favor of his wife, plaintiff E.B. E.B. sought and received a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act of 1991. She alleged that M.N. had made terroristic threats against her in a text message. Her complaint referred to a prior incident of domestic violence in 2011, which involved allegations of threats and physical assault. The 2011 complaint had been withdrawn by E.B. prior to a hearing on the merits. Here, prior to the start of the trial, E.B.’s attorney moved to amend the DV complaint to add a claim that M.N.’s conduct also constituted harassment. There is no doubt that the parties were having marital difficulties, which included disputes over money, and that M.N. desired to control E.B. through her access to money. Both parties apparently used some amount of abusive language, although M.N.’s rose to the level of harassment, as found by the trial judge. What is not clear from the judge’s opinion is (1) whether the problems could have been resolved through an order in the matrimonial action giving E.B. exclusive possession of the marital residence and temporary custody of the parties’ son with a parenting time schedule, as well as provisions for support pendente lite, or (2) whether an FRO was necessary to protect E.B. “from . . . immediate danger or to prevent further abuse.” The appellate panel remands to the trial judge for further consideration of whether an FRO is required and an articulation of his reasons. [Digested Aug. 27, 2013.]
FAMILY LAW
20-2-1145 Fusca v. Fusca, App. Div. (per curiam) (11 pp.) In this postjudgment matrimonial matter, defendant appeals from the Family Part order denying his application for a downward modification of alimony and child support and granting plaintiff ‘s application for counsel fees. The appellate panel finds that the record supports the judge’s holding that defendant did not make a prima facie case of changed circumstances. At the time of the motion, defendant was employed by the same company, in the same position, at a slightly increased base salary, as he had been at trial when the trial judge imputed $150,000 in income to him. Defendant has also failed to show that any reduction in earnings has become permanent, that he has been unable to find employment to match the income imputed to him, or that he has undertaken a well-documented extensive job search to secure higher-paying employment. The timing of defendant’s motion, filed just six months after entry of the final judgment of divorce, supports that conclusion. The appellate panel remands to the trial court solely for the purpose of entering an order correcting the calculation of the counsel fee award. In all other aspects, the panel affirms. [Decided Aug. 28, 20131.]
FAMILY LAW
20-2-1146 State v. P.M., App. Div. (per curiam) (15 pp.) The state appeals from an order entered by the Family Part, denying its motion for reconsideration of the court’s denial of its application to forfeit weapons seized from defendant P.M., a state of New Jersey corrections officer, and to revoke his firearms identification card. The state contends that the trial judge erred in refusing to consider newly discovered evidence in the form of a psychological report the state received five days after the conclusion of the hearing on its forfeiture application. The appellate panel concludes the judge mistakenly exercised his discretion in refusing to open the judgment and consider the report and recommendation, and take additional testimony, if appropriate, so as to insure compliance with the statutory mandate that confiscated weapons not be returned to persons who pose “a threat to the public health, safety, or welfare.” The appellate panel remands for the trial court to reconsider its decision. [Decided Aug. 28, 20131.]
INSURANCE LAW
23-2-1126 Essex Ins. Co. v. New Jersey Pan-African Chamber of Commerce & Industry Inc., App. Div. (per curiam) (20 pp.) In this declaratory judgment action, defendants, the corporate owner of property on which a condominium was being built and one of its managing members who is also president of the general contractor/company hired to construct the condominium, appeal two orders granting summary judgment in favor of plaintiff, finding that it has no duty to defend or indemnify defendants in the two actions filed after the building adjacent to the property collapsed allegedly due to excavation work at the construction site and a worker was injured by falling debris. The panel affirms, finding that the trial court correctly found that the policy contains an endorsement that clearly and unambiguously excludes from coverage any losses “from movement of land or earth” which excludes defendants’ excavation activities complained of in the two suits and that coverage for the personal injuries sustained by the worker was precluded by the subcontractor exclusion in the policy. [Digested Aug. 27, 2013.]
23-2-1127 Willey v. DD Transport, App. Div. (per curiam) (43 pp.) This is an appeal of the grant of summary judgment on insurance coverage in the context of the intermodal transportation industry. The case arises from a motor vehicle accident. Eugene Greene was driving a tractor-trailer northbound on the New Jersey Turnpike. Greene was an employee of New Start Shipping Service, an entity that had leased the tractor. The tractor-trailer was connected to a chassis that was leased and controlled by defendant Hamburg Süd North America (HSNA). Hamburg Süd S.A. owned the intermodal container attached to the chassis. George Willey was also driving a tractortrailer northbound on the Turnpike. Willey was killed when his vehicle crashed into the back of Greene’s tractor-trailer. His wife filed a complaint against New Start, later amending it to assert claims against HSNA, Hamburg and other entities. HSNA and Hamburg filed a third-party complaint against Zurich American Insurance Group, among others, seeking a defense and indemnification. Zurich denied coverage and asserted that its insurance policy had been properly cancelled prior to the accident. The appellate panel affirms summary judgment against Zurich based on lack of notice to HSNA and Hamburg of any cancellation of the insurance policy. The panel further finds the trial the court did not abuse its discretion in its allocation of defense costs among the Hamburg Süd defendants. Finally, defendants’ claims against third-party defendants were necessitated by Zurich’s refusal to provide insurance coverage under the policy and it was within the court’s discretion to award attorney’s fees to HSNA for the cost of pursuing those claims. [Digested Aug. 27, 2013.]
23-2-1147 Jacob v. The Netherlands Insurance Company, App. Div. (per curiam) (21 pp.) These back-to-back appeals are consolidated for the purpose of this opinion. The first issue is what amount, if any, plaintiff, Deborah Jacob, may recover from defendant, Netherlands Insurance Company, the insurer of the vehicle she occupied when injured in a motor vehicle accident. The second issue involves the coverage obligation, if any, of Travelers Insurance Company, which insured plaintiff’s privately owned vehicle. Plaintiff was injured in a motor vehicle accident while a passenger in a vehicle driven by her husband, Frederick Jacob and owned by her husband’s law firm, Jacob & Chiarello, LLC. The vehicle was insured by Netherlands under a policy naming the law firm as the “named insured.” Because they were ‘occupying’ a covered automobile, plaintiff and Frederick’s entitlement to recovery under the Netherlands policy is determined by their status as “insureds.” As “insureds,” their coverage was stepped-down to the UIM coverage they purchased from Travelers. The clear and unambiguous terms of their Travelers policy state that the most Travelers will pay per accident, irrespective of the number of claims or insureds, is $500,000. Netherlands, having paid $485,000 to Frederick, was only required to pay $15,000 to plaintiff. Further, plaintiff was statutorily prevented from ‘stacking’ the UIM limits of the Netherlands and Travelers policies. [Decided Aug. 28, 20131.]
INSURANCE — EVIDENCE
23-2-1106 V.K. v. New Jersey Manufacturers Ins. Co., App. Div. (per curiam) (26 pp.) These appeals arise out of a motor vehicle accident in which the car driven by Jennifer Roden, in which her three children were passengers, was struck head-on by a car driven by Corey Clifford, who was insured by NJM. Roden and her children filed separate personal injury actions in which they rejected NJM’s offer to settle for the policy limit and accepted an assignment of Clifford’s rights to pursue a bad-faith claim against NJM in return for releasing him from any judgment exceeding his policy limit. The jury awarded plaintiffs substantial damages after which the children and Rodin filed bad-faith actions against NJM. Plaintiffs appeal an order directing Roden to answer questions during depositions regarding her knowledge and understanding of the various settlement demands and offers during the personal injury actions and the nature and content of any communications during meetings concerning settlement and precluding her from asserting the attorney-client privilege. The panel finds that leave to appeal was improvidently granted to the children and dismisses their appeal because they were not aggrieved by the order, which pertained only to Roden’s deposition. It affirms the part of the order providing for Roden’s continued deposition regarding background information that did not seek disclosure of privileged communications. The panel concludes that when, as here, an insured pursues a bad-faith claim, the likelihood that she would have settled the case for the policy limits is “in issue” and, therefore, Roden has implicitly waived the privilege as to communications regarding her knowledge of the settlements offers and demands and whether she would have accepted a settlement for the full policy limits, but that the record does not support the conclusion that NJM has established that questioning her about actual communications with counsel is the least intrusive method to obtain the information. The panel therefore reverses the order to the extent it permits specific questioning of Roden regarding actual conversations with her attorney, although if NJM concludes direct questions regarding privileged communications must be posed, it may again seek an order. [Digested Aug. 26, 2013.]
LABOR AND EMPLOYMENT
25-2-1107 Carey v. NMC Global Corp., App. Div. (per curiam) (24 pp.) Plaintiff appeals the grant of summary judgment dismissing his disability discrimination complaint against his former employer. The motion was predicated on a release containing waiver and release of claims plaintiff signed on the day he was terminated, which was the first day back at work after a two-month long medical leave. The Law Division held that plaintiff had signed the release knowingly and voluntarily. The panel reverses, finding that there were genuine issues of material fact as to whether, under the totality of the circumstances, there was a voluntary and knowing waiver by plaintiff of his discrimination claims that should not have been resolved on summary judgment. [Digested Aug. 26, 2013.]
25-2-1108 Jasiak v. Board of Review, App. Div. (per curiam) (5 pp.) Appellant appeals from the decision of the Board of Review, affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to the work. Appellant was employed by Bayshore Fitness and Wellness Center, L.L.C., as a certified personal trainer from July 2005 until July 13, 2011. As a condition of his employment, appellant was required to hold a personal training certification issued by the International Fitness Association. Appellant obtained the required certification when he began his employment and he had renewed it on two prior occasions. However, he then let the certification expire. Upon discovering that appellant was not certified, Bayshore terminated his employment. The appellate panel affirms the Board’s determination that by failing to maintain the required certification, appellant was disqualified for benefits because he left work voluntarily without good cause attributable to the work. [Digested Aug. 26, 2013.]
25-2-1128 Borough of Rurtherfod v. Rutherford PBA Local 300, App. Div. (per curiam) (12 pp.) Rutherford PBA Local 300 appeals from a final order of the Chancery Division confirming, in part, and vacating, in part, an arbitration award entered in a grievance arbitration before the Public Employment Relations Commission (PERC). The Borough of Rutherford cross-appealed. This appeal arises from the borough’s implementation of a police department sick-leave policy for a specific weekend when the officer in charge of the borough’s police department posted an order that required anyone calling in sick to bring a doctor’s note upon returning to work. The PBA filed its grievance, and pursued it through its petition to PERC, limited to the borough’s implementation of the sick leave policy as applied to Robert Buell. Although the PBA did not seek to amend its grievance petition to include the issue of payment for the doctor’s visit necessary for Buell to secure the doctor’s note, the PBA sought to include this issue in the PERC arbitration hearing. The arbitrator acknowledged that payment of the invoice was not a part of the PBA’s grievance. In considering it, the arbitrator exceeded the scope of her powers. The only issue properly before the arbitrator was the issue the PBA grieved, implementation of the sick-leave policy. The appellate panel affirms the Chancery Division’s order. [Digested Aug. 27, 2013.]
25-2-1148 In The Matter of Mendoza, App. Div. (per curiam) (15 pp.) Appellant Mendoza is a corrections officer employed by the Hudson County Department of Corrections (HCDOC). She appeals from the final administrative agency decision of the Civil Service Commission imposing a six-month suspension without pay for neglect of duty and insubordination due to her failure to provide HCDOC with a timely written report of her arrest and supporting documentation regarding the disposition of the criminal charges against her. The appellate panel reverses, agreeing with Mendoza that the regulation at issue did not clearly state that she was required to submit a written report. Mendoza orally notified her supervisor and IA of her arrest within 24 hours. Having reported her arrest within the meaning of the word “report” in the employee manual, the charge of failing to timely report her arrest cannot be sustained as a matter of law. The commission’s decision to suspend Mendoza based upon her failure to report in writing that the incident occurred within 24 hours of her arrest must be set aside. Also, where Mendoza was never given notice that, in addition to failing to report her arrest, the disciplinary charges were based upon her failure to submit supporting documentation, the agency decision may not be sustained based upon her violation of this additional regulatory requirement. [Decided Aug. 28, 20131.]
LANDLORD/TENANT LAW
27-2-1091 Bradshaw v. Gluck, App. Div. (per curiam) (7 pp.) Defendant is a realtor who represented a landlord in the lease of the landlord’s home. The lease contained a clause prohibiting pets. Plaintiff claimed that at the time he signed the lease, defendant verbally agreed that plaintiff could have a cat and the “no pets” clause would be amended. Plaintiff also claimed he did not receive a copy of the lease signed by the landlord until after he moved into the home when he discovered that the “no pets” clause had not been updated. After the landlord discovered that plaintiff had a cat, plaintiff vacated the home. Plaintiff filed a pro se complaint against defendant. Defendant filed a summary judgment motion. In opposition, plaintiff argued for the first time that defendant’s nondisclosure of information about the landlord’s criminal background constituted a violation of the Consumer Fraud Act (CFA). The trial judge granted defendant’s motion, concluding that any claim plaintiff may had that defendant agreed to remove the “no pets” clause from the lease was barred by plaintiff’s failure to raise the issue during the three-day review period after his receipt of the lease. The judge found that defendant’s knowledge of the landlord as a “white collar” criminal was not sufficient under the CFA to constitute a material fact mandating disclosure. Because plaintiff’s alleged damages flowed solely from his breach of the lease by violating the “no pets” clause, the trial judge properly granted summary judgment. [Decided Aug. 23, 2013.]
27-2-1129 Lankford v. Ameri, App. Div. (per curiam) (7 pp.) Where plaintiff leased an apartment from defendant, PSE&G refused to connect the electricity because of an outstanding balance due from the prior tenant that it claimed was defendant’s responsibility, plaintiff paid the balance and then sued defendant to recover that amount, the trial judge denied defendant’s request for a brief adjournment so that he could retain an attorney and then entered judgment in favor of plaintiff, the panel holds that the judge mistakenly exercised his discretion in denying defendant’s motion to vacate the judgment. The motion was timely and was accompanied by a memorandum of law which brought to the court’s attention relevant regulatory provisions that were not presented or addressed at trial that would have been presented but for the denial of an adjournment to secure counsel and which rendered the judge’s decision that defendant was responsible to pay for plaintiff’s utilities to be initiated erroneous. [Digested Aug. 27, 2013.]
LAND USE AND PLANNING
26-4-1080 Care One at Teaneck, LLC v. Zoning Board of Adjustment for the Borough of Teaneck, Chancery. Div.-Bergen Cy. (Contillo, P.J. Ch.) (24 pp.) The fundamental question presented in this case is the continuing viability of a deed restriction against further development imposed by the Teaneck Zoning Board of Adjustment as a condition of approval with respect to Care One’s 2003 land use application. Care One applied to the board in September of 2008 to construct a parking lot on-site. That proposal runs afoul of a no-build restriction which was a condition of the initial 2003 approval. The board denied the application by resolution adopted August 2, 2012. In this appeal, Care One challenges that denial, and challenges the continuing lawfulness of the no-build deed restriction. In the absence of any evidence that the buffer had become unnecessary, or even less necessary, the board’s conclusion that Care One had failed to make the case for elimination of the no-build condition, or for expansion of its nonconforming use, will not be disturbed nor be the subject of a remand. Because the plaintiff failed to prove that changed circumstances make it impossible as a practical matter to accomplish the purpose for which the 2003 deed restriction was imposed, and in the absence of countervailing equities weighing in its favor, the complaint is dismissed with prejudice. [Digested Aug. 22, 2013.]
26-2-1109 Township of Franklin v. New Jersey Chinese Community Center, App. Div. (per curiam) (8 pp.) Defendant appeals from a final order of the Law Division that, following trial de novo on defendant’s appeal from the Franklin Township Municipal Court, found defendant guilty of violating Section 11-234(c) of the township’s municipal code by permitting its property to be used by a fraternity for an outdoor barbeque. The panel affirms for the reasons expressed below: the zoning resolution specifically states that it was approved on the basis of, and subject to, the representations made by defendant during the application process — including that special events would be conducted in the cafeteria, no alcoholic beverages would be served, and that the space would not be rented out — and reading the provisions of the resolution as a whole, although defendant was permitted two “special events” per month, the events were limited to inside the cafeteria and all outdoor activities were prohibited. [Digested Aug. 26, 2013.]
LAND USE AND PLANNING — VARIANCES
26-3-1149 Levitt v. Hackney, Law Div.-Atlantic Cy. (Mendez, A.J.S.C.) (37 pp.) Plaintiffs filed a motion for summary judgment which challenges the resolution of approval issued by defendant Planning Board of the Township of Egg Harbor by which defendant Jersey Outdoor Media, LLC (“JOM”), obtained minor site plan approval to install a billboard located on the Margate Causeway in Egg Harbor Township’s Marine Commercial Zoning District (“MC Zone”). Plaintiffs are residents of Northfield and live in view of the electronic billboard, which emitted light into plaintiffs’ home at night. The court concludes that the billboard is not a permitted use in the MC Zone and therefore defendants would have had to apply for and receive a “d” use variance from the Zoning Board. Instead, JOM applied to the Planning Board. The Planning Board’s lack of jurisdiction to hear the application renders its approval invalid because a “d” use variance was required. The court grants plaintiffs’ motion for summary judgment. [Decided Aug. 28, 20131.]
LEGAL PROFESSION
04-2-1130 Wilentz, Goldman & Spitzer v. Grant, App. Div. (per curiam) (21 pp.) In this fee dispute arising out of plaintiff’s representation of defendant in connection with a will contest following the death of his father, defendant appeals from an amended judgment in favor of plaintiff for $60,974. Plaintiff cross-appeals the part of the amended judgment that denied its application for fees, costs, and interest based on its offer to settle the case for $50,000, which was rejected. The panel affirms the judgment in favor of plaintiff since defendant and his attorney were allowed to fully participate in the trial, the trial court carefully reviewed all of the evidence, and there is substantial credible evidence to support the trial court’s factual findings and legal conclusions. The panel reverses and remands the part of the judgment denying its request for fees, costs and interest under the offer of judgment rule for further analysis, finding that the amount of the judgment exceeded 120 percent of the offer of judgment, there were no findings by the trial court regarding the sum that plaintiff may be entitled to recover or defendant’s net worth, and the trial court’s conclusory statements regarding an undue hardship do not suffice. [Digested Aug. 27, 2013.]
PUBLIC RECORDS
52-2-1131 Paff v. Atlantic City Alliance, Inc., App. Div. (per curiam) (10 pp.) Plaintiff John Paff appeals from a decision of the Law Division that dismissed his claim that defendant Atlantic City Alliance, Inc. (ACA), is a “public agency” subject to the provisions of the Open Public Records Act. In 2011, the Legislature enacted N.J.S.A. 5:12-218 to -233. The purpose of the legislation was to revive and enhance Atlantic City’s tourism and gaming industries through the creation of the Atlantic City Tourism District. The district would be managed by the Casino Reinvestment Development Authority (CRDA). Of particular significance here, the statute states that after the creation of the tourism district, CRDA “shall enter into an agreement establishing a public-private partnership with a not-for-profit corporation comprising a majority of the casino licensees of this State whose investors have invested a minimum of $1 billion in Atlantic City.” After the legislation was enacted, five casinos formed ACA as a private, not-for-profit corporation. The appellate panel finds the Law Division appropriately dismissed plaintiff’s complaint seeking to require ACA to respond to its request for documents. The court correctly found that ACA is not a public agency subject to OPRA and that the common-law right of access does not extend to records maintained by ACA. [Digested Aug. 27, 2013.]
TORTS
36-2-1092 Walker v. Torres, App. Div. (per curiam) (14 pp.) After a jury verdict of a no cause of action in this auto negligence case in which plaintiff settled with the tortfeasor and then proceeded against her underinsured motorist carrier, plaintiff appeals from two evidentiary rulings made by the trial judge, contending the judge erred by barring her expert, a dentist, from testifying as to his interpretation of her MRIs and from using certain Internet videos as a demonstrative aid during his testimony. The panel affirms, concluding that there was no abuse of discretion in the judge’s determination that the dentist was unqualified to read and interpret MRIs since he had neither the experience nor the training to do so, and that the judge did not abuse his discretion in excluding the Internet videos because they could not be authenticated and would be prejudicial. Moreover, because plaintiff has failed to articulate any convincing reason why the result of the trial would have been different if the judge had permitted the use of the videos, even if it was error to refuse to admit them, the error was harmless. [Decided Aug. 23, 2013.]
TORTS — PERSONAL INJURY
36-2-1081 Zurich American Insurance Company v. Abbud, App. Div. (per curiam) (13 pp.) Plaintiff Zurich American Insurance Company, a workers’ compensation insurer, as a subrogee of Daniel Bill, appeals from the grant of defendants’ summary judgment motion which dismissed plaintiff’s medical malpractice complaint because it was filed beyond the applicable statute of limitations. Plaintiff contends that the “discovery rule,” should apply to toll the limitations period. Alternatively, plaintiff argues that it properly employed the fictitious party rule, and its second and third amended complaints naming certain defendants for the first time related back to the timely-filed original complaint, thus avoiding application of the limitations period. The appellate panel affirms, finding the discovery rule inapplicable. It is clear that on August 19, 2005, the facts known to plaintiff were sufficient to start the statute of limitations running. Because plaintiff knew that Bill had been injured, and knew the identity of the responsible party, the trial judge correctly held that the discovery rule did not excuse violation of the two-year statute of limitations. [Digested Aug. 22, 2013.]
FEDERAL COURT CASES
ADMINISTRATIVE LAW
01-7-1094 Landy v. Velez, Dist. Ct. (McNulty, U.S.D.J.) (25 pp.) Plaintiffs John Landy and Margaret Sauchelli bring this action against Jennifer Velez, Commissioner of the New Jersey Department of Human Services (“DHS”), and Valerie Harr, Director of the DHS Division of Medical Assistance and Health Services. DHS administers Medicaid, which is a means-tested program. Plaintiffs transferred certain assets to others as gifts, exposing themselves to a penalty period of ineligibility. Then, shortly before they applied for Medicaid, plaintiffs rid themselves of cash by lending it out and taking back promissory notes. Plaintiffs allege that DHS erred in ruling that the promissory notes rendered them currently ineligible for Medicaid. Applying certain regulatory criteria, plaintiffs insist that these are bona fide promissory notes; they further contend that this categorization in effect is a safe harbor, one that prevents DHS from treating the notes as available assets. Plaintiffs have not satisfied their burden of showing that they are likely to succeed in demonstrating that DHS could not consider the notes to be trust-like devices. The court holds that DHS was entitled to treat these promissory notes as available, countable assets for purposes of determining Medicaid eligibility. Plaintiffs’ motion for a preliminary injunction is denied and DHS’s motion for summary Judgment is granted. [Filed July 17, 2013.]
01-7-1095 Vargas v. Astrue, Dist. Ct. (Wigenton, U.S.D.J.) (17 pp.) Plaintiff appeals the final administrative decision of the Commissioner of Social Security, with respect to the denial of plaintiff’s claim for Supplemental Security Income (“SSI”). Plaintiff argues that the ALJ inadequately conveyed credibly established limitations to the vocational expert through his “vague,” “uncertain,” and “low stress” hypothetical and the ALJ erred in concluding that plaintiff was “not disabled.” Plaintiff argues that the ALJ’s construction limiting plaintiff to “simple routine,” “one-two-step tasks” or “low contact work,” is vague and does not adequately convey other “difficulties,” including mental limitations and pace issues. As the ALJ does not provide an adequate explanation to the meaning of the term “low stress,” the court cannot determine what the ALJ meant by “low stress.” The court remands this matter for clarification. [Filed July 17, 2013.]
ADMINISTRATIVE LAW — HEALTH LAW
01-7-1096 Flamini v. Velez, Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) Plaintiff Elizabeth Flamini, who was found not eligible for Medicaid based on her available resources level, seeks to enjoin the Commissioner of the New Jersey Department of Human Services and the Director of Medical Assistance and Health Services from treating an annuity purchased by her husband Angelo Flamini as a disposal of assets for less than fair market value and from counting the annuity as an available asset in determining her eligibility for Medicaid. The court finds that both fitness for judicial review and hardship weigh strongly in favor of deferring consideration of whether the annuity is a disposal of assets for less than fair market value due to lack of ripeness and it denies plaintiff’s motion to enjoin in this regard. Because the court finds that plaintiff has shown a likelihood of success on her claim that the annuity is not an available resource, she will suffer irreparable harm since the Eleventh Amendment provides state immunity from awards of retroactive benefits except for the three months immediately preceding an outcome in plaintiff’s favor, that harm outweighs the harm to the state of out-of-pocket expenses, and the public has an interest in ensuring the Medicaid statutes are enforced correctly and equitably, the court grants her motion for a preliminary injunction on her second claim. [Filed July 19, 2013.]
ADMINISTRATIVE LAW — SOCIAL SECURITY BENEFITS
01-8-1134 Capato v. Commissioner of Social Security, Third Cir. (Chargares, C.J.) (9 pp.) Petitioner appeals the District Court’s denial of Social Security benefits to her twin children following the death of her husband. The court affirms, finding that the husband was domiciled in Florida at the time of his death, and that under Florida law, a child conceived from the sperm of a person who dies before the transfer of their sperm to a woman’s body is not eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will, and, therefore, the twins, who were conceived after their father’s passing, are not entitled to Social Security survivor’s benefits. [Filed July 24, 2013.]
BANKRUPTCY
42-6-1083 In re: 710 Long Ridge Road Operating Company, II, LLC, Bankruptcy Ct. (Steckroth, U.S.B.J.) (12 pp.) The debtors filed a motion seeking an order extending the order that authorized the debtors to continue to implement interim modifications to their collective bargaining agreements with the New England Health Care Employees Union, District 1199, SEIU (the “Union”). The motion seeks to extend the interim modifications to enable the debtors to negotiate with the union pursuant to Section 1113 of the Bankruptcy Code, propose a plan of reorganization, maintain their DIP Facility, and avoid immediate closure of their facilities. The union filed an objection arguing the wage and benefit cuts requested are unnecessary due to the debtors’ improved postpetition operating results. The National Labor Relations Board also filed an objection. The Official Committee of Creditors supports the debtors’ motion as revised. The court finds that the debtors cannot operate without continued interim relief, as modified, accept the risk of eliminating the revised changes which could be injurious to the fragile nursing home population, and operate without the DIP Facility and the DIP lender has not given consent to changes beyond proposed in the Revised Interim Modifications. These findings mandate the determination that the Revised Interim Modifications are essential to the continuation of the debtors’ business and necessary to avoid irreparable damage to the estate. The debtors’ motion, as revised after compromise with the Creditors’ Committee, is granted. [Filed July 15, 2013.]
42-7-1097 In re One 2 One Communications LLC, Dist. Ct. (Linares, U.S.D.J.) (18 pp.) Quad/Graphics Inc., which holds the largest claim against the debtor — over $9 million stemming from a judgment entered in its favor in the Eastern District of Wisconsin which is currently on appeal — appeals from the Bankruptcy Court’s order confirming the debtor’s fourth amended Chapter 11 plan of reorganization. The court declines to find the doctrine of equitable mootness unconstitutional; applies the doctrine here; and concludes that the prudential factors set forth by the Third Circuit — including substantial consummation, the effect relief would have on third parties not before the court, and the effect that the relief requested would have on the success of the plan — weigh in favor of equitable mootness in this case. Accordingly, the court grants the debtor’s motion to dismiss this appeal. [Filed July 24, 2013.]
42-6-1098 In re Radbill, Bankruptcy Ct. (Burns, U.S.B.J.) (12 pp.) Defendant Michael Radbill seeks summary judgment dismissing the complaint of the Chapter 7 trustee in the bankruptcy case of Erik and Mary Radbill (the “Debtors”). Defendant is the father of debtor Erik Radbill. The complaint seeks to void postpetition transfers of property of the estate pursuant to 11 U.S.C. §549, and to sell real property free and clear of the interest of defendant Marilyn Radbill pursuant to 11 U.S.C. §363(h). Defendant’s motion for summary judgment asserts that debtor Eric Radbill had no ownership interest in the property as of the petition date and therefore, no postpetition transfer occurred. The trustee filed a cross-motion for summary judgment. The court finds that the debtor never had the legal power or authority to transfer the property, which was property of the debtor’s estate. Therefore, no effective transfer of estate property occurred. Even if the such a transfer had been effectuated postpetition by the debtor, the court finds that the trustee may avoid the transfer from the debtor to Marilyn Radbill pursuant to §549(a). The count of the trustee’s complaint relating to a sale of the property pursuant to 11 U.S.C. §363(h) remains outstanding, and is not a subject of this summary judgment motion. [Filed July 16, 2013.]
42-7-1135 Advanced Telecommuniations Network, Inc. v. Allen, Dist. Ct. (Bumb, U.S.D.J.) (14 pp.) In 1999, Advanced Telecommunications Network, Inc.’s (“ATN”) transferred $6 million to Daniel Allen to settle a lawsuit between the parties. In 2003, ATN filed for bankruptcy and sought, pursuant to 11 U.S.C. § 544, to recover the $6 million as a fraudulent transfer. In 2009, the Bankruptcy Court for the Middle District of Florida ruled in favor of ATN, finding that the transfer was constructively fraudulent. In 2011, the Florida court issued a recovery order pursuant to 11 U.S.C. § 550(a) allowing ATN “to collect upon its judgment pursuant to proceedings supplementary allowed by Bankruptcy Rule 7069(a)(1).” Before ATN could collect the money judgment, and on the eve of facing a contempt proceeding, Allen filed for bankruptcy in the District of New Jersey. Here, the court affirms the Bankruptcy Court’s order denying ATN’s motion for relief from an automatic stay of proceedings against Allen. [Filed July 19, 2013.]
42-6-1154 In re Dwek, U. S. Bankruptcy Ct. (Ferguson, U.S.B.J.) (4 pp.) Debtor in this Chapter 13 proceeding has filed a motion for stay relief so that she can pursue resolution of the claim asserted against the IRS and to continue to draw down $12,000 per month to cover her living expense while that claim proceeds. Noting that the IRS objects to debtor’s motion, the Tax Court has the clearest jurisdiction to resolve the claim, resolution of the tax issue — including the extent to which the debtor may use the innocent spouse doctrine — may take many months or years, the debtor’s proposed plan must be completed in 13 months, debtor has accomplished much in the bankruptcy proceeding and there is no allegation of bad faith, the court concludes that it cannot grant the debtor’s request to maintain the distributions over the IRS’ objection and therefore grants the debtor’s alternative request that her case be dismissed so that she can resolve the tax claim outside the Bankruptcy Court’s protection, noting that she will be eligible to file for bankruptcy relief under Chapter 13 or 11 after the tax court makes its decision. [Filed July 29, 2013.]
CIVIL PROCEDURE
07-8-1113 Izquierdo v. State of New Jersey, Third Cir. (per curiam) (3 pp.) Plaintiff filed a pro se complaint in the District Court asserting constitutional violations during proceedings regarding his son and other minors. The District Court denied his application to proceed in forma pauperis on the ground that the court must abstain because the claims are the subject of litigation in the state courts, and denied his motion for reconsideration. The Third Circuit vacates the order denying leave to proceed IFP and denying reconsideration because the District Court denied the application on non-financial grounds. It directs that on remand, the court should decide the application on financial grounds alone and then conduct such further proceedings as may be necessary, consistent with this opinion. [Filed July 25, 2013.]
07-7-1114 Johnson v. City of Paterson, U. S. Dist. Ct. (McNulty, U.S.D.J.) (2 pp.) Where, in response to the city’s motion to dismiss for failure to state a claim upon which relief may be granted as to the city, plaintiff filed an amended complaint devoid of any reference to the city and removing the city from the listed defendants in the caption, the court finds that plaintiff has effectively conceded that the city is not a proper defendant and has failed to allege facts showing a basis for liability against the city. It therefore grants the city’s motion to dismiss with prejudice. [Filed July 25, 2013.]
07-7-1115 West Coast Productions, Inc. v. Does 1-169, Dist. Ct. (Mannion, U.S.M.J.) (10 pp.) Plaintiff West Coast Productions, Inc., filed a motion for leave to take expedited discovery prior to the Rule 26(f) conference. This action involves the alleged illegal distribution of plaintiff’s copyrighted work on the Internet. Plaintiff filed a complaint against “John Doe” defendants, identified only by IP address, asserting claims for direct and contributory copyright infringement. Plaintiff argues that it can only identify defendants by their IP addresses and cannot establish defendants’ true identities without obtaining information from their respective Internet service providers (“ISPs”). Two issues preclude plaintiff from obtaining the full extent of the expedited discovery that it seeks. The first issue concerns joinder, where joinder of numerous ‘John Doe’ defendants is inappropriate. The second issue concerns whether plaintiff should be permitted to serve expedited discovery in the form of Rule 45 subpoenas on various ISPs in order to obtain information that will allegedly reveal the true identity of John Doe 1 by cross-referencing the IP address. The burdens associated with the potentially expansive and intrusive discovery plaintiff may need to obtain the John Doe defendants’ identities would likely outweigh plaintiff’s need for expedited discovery. The court grants plaintiff’s request for leave to take expedited discovery with the following limitations: plaintiff may serve a subpoena on the ISP that provided Internet service to the defendant designated (by IP address) as John Doe 1. The subpoena may seek only the name and mailing address of the account holder of such IP address. [Filed July 19, 2013.]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-1084 Volvo Financial Services, LLC v. Financiera TFC S.A., Dist. Ct. (Walls, U.S.D.J.) (5 pp.) Plaintiff Volvo Financial Services (“VFS”) is a New Jersey limited liability company, with its principal place of business in Greensboro, North Carolina. Defendant Financiera TFS, S.A. (“TFC”) is organized under the laws of Peru, with its principal place of business in Lima, Peru. Defendant LFLP Holdings, LLC (“LFLP”) is a limited liability company organized under the laws of Florida and owns 93 percent of the capital stock in TFC. Defendant Manuel Ignacio Vivanco Velando is a citizen of Peru and owns 7 percent of the capital stock of TFC. VFS seeks a declaration that it has no duty to indemnify, defend, or reimburse TFC, LFLP or Vivanco with respect to a lawsuit pending in the judicial court in Lima, Peru. Plaintiffs filed a motion for default judgment. Defendants filed a motion to set aside default and dismiss the complaint alleging improper service, lack of personal jurisdiction, and, in the alternative requesting the court set aside default because of meritorious defenses. Defendants acknowledge the presence of a forum selection clause in the Comfort Letter provided by VFS to TFC, but argue it does not establish personal jurisdiction over them in federal court. The forum selection clause establishes suit “shall be submitted to the jurisdiction of the judges and courts of the State of New Jersey.” It follows that defendants only agree to submit to the jurisdiction of New Jersey state courts and not federal courts. The court does not have personal jurisdiction. Plaintiff’s motion for default judgment is denied. Defendants’ motion to dismiss is granted. [Filed July 16, 2013.]
CIVIL PROCEDURE — LEGAL REPRESENTATION
07-7-1155 United States of America v. The Cooper Health System, Dist. Ct. (Irenas, S.U.S.D.J.) (11 pp.) Dr. Nicholas DePace, the successful relator in this qui tam action, was represented by the law firm of Pietragallo, Gordon, Alfano, Bosick & Raspanti pursuant to a contingency fee agreement. As part of the settlement, the firm received $430,000 from defendant in statutory attorney fees under the Federal False Claims Act. After DePace refused to pay it fees pursuant to the contingency agreement because it had already received fees as part of the settlement, the firm filed a petition in the Philadelphia Court of Common Pleas to compel arbitration of the fee dispute. DePace then filed an application for emergent relief asking the District Court to stay the state court proceeding, which was denied. DePace filed an appeal of the denial. The state court then ordered mediation and, if necessary, arbitration. DePace then filed a motion for reconsideration and/or stay of the order compelling mediation/arbitration. The court denies the motion, finding that it lacks jurisdiction to grant the motion, noting that were it to grant the stay, it could end up in the unenviable position of having stayed a state court proceeding or private arbitration in order to protect a potential future judgment which is never rendered and that preventing this sort of confusion is the purpose of the rule divesting a district court of jurisdiction once a notice of appeal has been filed. The court also says that even if it had jurisdiction, it would not order the stay because, to the extent that DePace asks for a stay of the state court proceeding, the court has already ordered mediation/arbitration and there is nothing left before the court that can be enjoined, and, insofar as DePace asks to stay the mediation/arbitration, he has not shown a likelihood of success on the merits. [Filed July 29, 2013]
CIVIL RIGHTS
46-7-1116 Melendez v. Shack, U. S. Dist. Ct. (Linares, U.S.D.J.) (21 pp.) In this pro se 42 U.S.C. section 1983 action asserting constitutional violations and state law claims arising out of plaintiff-child’s removal from plaintiff-mother’s custody by the New Jersey Division of Youth and Family Services and DYFS’s alleged failure to provide for and lying about the child’s safety and well-being while in its custody before being returned to her mother, the court grants in part defendants’ motion to dismiss. Plaintiffs’ section 1983 claims are dismissed insofar as they are asserted against DYFS and the individual caseworker-defendants in their official capacity as they are barred by the Eleventh Amendment. The court denies dismissal on the basis of qualified immunity because it cannot agree that the complaint does not contain allegations of constitution violations of clearly established statutory or constitutional rights as defendants do not address or acknowledge the majority of the allegations in the complaint which form the substance of the claims. The motion to dismiss is denied with regard to plaintiffs’ state law claims since defendants do not specify which state law claims are allegedly barred by sovereign immunity and it is far from apparent that sovereign immunity warrants dismissal of all claims. The court denies dismissal on the basis of Rooker-Feldman because the procedural posture, history and exact nature of the state court proceedings are unclear on the limited record before it. The court finds that defendants have not satisfied their burden of showing that res judicata precludes plaintiffs’ claims. [Filed July 24, 2013.]
46-7-1156 Stetser v. Jinks, Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Plaintiff David Stetser was married to Jacqueline Stetser from 1994 until their divorce in 2007. A Final Restraining Order (“FRO”) was entered pursuant to which David was barred from having any contact with Jacqueline. Subsequently, Jacqueline lodged a complaint against David with the Gloucester Township Police Department, claiming he violated the FRO by texting a lewd picture to her cellphone. The number from which Jacqueline received the picture at one point belonged to David. Based on Jacqueline’s certification and defendant’s independent personal knowledge of David and Jacqueline’s history, defendant filed a criminal complaint against David, and he was arrested. The charge was dismissed. According to David, the dismissal was predicated on his presenting evidence that he had changed his number following the divorce and the picture could not have been sent by him. David brought this action against a number of defendants. The only remaining claim is a claim for malicious prosecution pursuant to 42 U.S.C. § 1983. Because defendant had probable cause to initiate the criminal proceeding, David’s malicious prosecution claim fails. Defendant’s motion for summary judgment is granted. [Filed July 19, 2013.]
CONSTITUTIONAL LAW
10-7-1117 P.R.B.A. Corporation v. HMS Host Tolls Roads, Inc., Dist. Ct. (Bumb, U.S.D.J.) (17 pp.) Plaintiff P.R.B.A. Corporation t/a Bare Exposure operates a nude dance club in Atlantic City. It has contracted with CTM Media Group (“CTM”), an advertising agency, to display brochures advertising the club on display racks owned by CTM in New Jersey area rest stops. The stops are property of defendants New Jersey Turnpike Authority (“NJTA”) and South Jersey Transportation Authority (“SJTA”), governmental entities created under New Jersey law. The rest stops are operated by defendant HMS Host Toll Roads, Inc. (Host), which leases the spaces from NJTA and SJTA. While Host leases the spaces, it is an independent Delaware corporation, and state employees are not involved in its management and routine operations. Host employee Greg Dion learned of the brochure’s placement, and removed the brochures from the display racks. Plaintiff filed an amended complaint alleging four counts — a First Amendment violation; a First Amendment facial challenge to NJAC Provisions; Fourteenth Amendment due process and equal protection violations; and speech, association, due process, and equal protection violations of article 1 of the New Jersey Constitution. Plaintiff moved for a preliminary injunction seeking to enjoin defendants from removing the brochures. Defendants moved for summary judgment. Because plaintiff is unlikely to establish state action or any exception to the state action requirement, plaintiff is unlikely to succeed on the merits and plaintiff’s motion for a preliminary injunction is denied without prejudice. Defendants’ motion for summary judgment is denied without prejudice because it is premature. [Filed July 19, 2013.]
CONSUMER PROTECTION
09-7-1136 Donachy v. Playground Destination Properties, Inc., Dist. Ct. (Bumb, U.S.D.J.) (17 pp.) Plaintiffs purchased condominium units in a luxury resort from Cherokee Ltd. Defendant Playground Destination Properties, Inc. marketed the units on behalf of Cherokee on a commission basis. Cherokee exhausted the deposits and filed for bankruptcy without completing the project. Plaintiffs filed suit, alleging claims of negligent misrepresentation and violation of the New Jersey Consumer Fraud Act (“NJCFA”). Defendant moved to dismiss. Plaintiffs’ negligent misrepresentation claim is dismissed. Any claim related to alleged omissions by defendant is dismissed. Because the question of whether a statement is misleading is generally a question of fact, and because plaintiffs have plausibly alleged that the brochures were misleading, it would be improper to dismiss the brochure-based claims at this time. Plaintiffs’ claims alleging affirmative misrepresentations prior to the deposits survive dismissal. With respect to plaintiffs’ allegations that assurances were repeated after the deposits were made, plaintiffs have failed to show the requisite casual connection. Thus, defendant’s motion for dismissal of the postdeposit-based claims is granted. The court finds only one of the alleged misrepresentations amounts to puffery; plaintiffs’ NJCFA claim is dismissed to the extent it is premised on allegations that plaintiffs were told the transaction was “secure” or a “no-brainer.” [Filed July 19, 2013.]
CONTRACTS
11-7-1099 Financial Casualty Security Co. Inc. v. Mascola, Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) In this action, plaintiff, a Texas corporation, seeks to impose liability on Jeanne Rondeau individually for breach of a Sub-Producer Bail Bond agreement. Rondeau, who argues that she is not personally liable under the contact because she only signed it in her corporate capacity as a member of A1 Bail 4U LLC, moves for summary judgment. The court finds that there is a genuine conflict between New Jersey and Texas law regarding the imposition of liability on corporate members and that enforcement of the agreement’s choice of law provision (designating Texas law) would violate a fundamental policy of New Jersey, and, therefore, New Jersey law should govern. Under New Jersey law, Rondeau did not explicitly and clearly express an intention to make herself personally liable in the contract. Therefore, her one signature as a member of A1 Bail cannot be construed to bind both A1 Bail and herself personally and her motion for summary judgment is granted. [Filed July 19, 2013.]
CONTRACTS — FRANCHISES
11-7-1137 Ocean City Express Co. Inc. v. Atlas Van Lines Inc., Dist. Ct. (Simandle, U.S.D.J.) (14 pp.) In this action asserting violation of the New Jersey Franchise Practices Act and violation of the implied covenant of good faith and fair dealing, arising out of defendant-Indiana corporation’s termination of its agency agreement with plaintiff, a New Jersey corporation, defendant moves to dismiss for improper venue pursuant to R. 12(b)(3) and for failure to state a claim pursuant to R. 12(b)(6). The court finds that plaintiff failed to state a valid NJFPA claim and grants defendant’s 12(b)(6) motion without prejudice and with leave to file a motion for amended pleading because the complaint does not contain any allegations regarding the amount of gross sales stemming from the relationship between the parties and makes no allegations regarding the percentage of plaintiff’s sales that come from the parties’ agreement and therefore fails to plead facts sufficient to show that plaintiff qualifies as a franchise under the NJFPA. The court dismisses plaintiff’s good-faith and fair-dealing claim because the parties’ agreement specifies that Indiana law applies and Indiana common law does not allow good-faith and fair-dealing claims. The dismissal is without prejudice because Indiana law has exceptions for contracts involving a fiduciary duty or ambiguity and plaintiff may be able to show, in an amended pleading, a plausible basis to claim that the duty of good faith and fair dealing does apply under an exception. [Filed July 25, 2013.]
CRIMINAL LAW — CORRECTIONS
14-7-1103 Shuster v. Cabanas, Dist. Ct. (Bumb, U.S.D.J.) (14 pp.) In this action alleging that the individual defendants violated plaintiff’s Eighth Amendment rights by exercising deliberate indifference to his serious medical needs while he was incarcerated in the federal facility at Fort Dix and are liable under Bivens, and that the United States is liable for medical malpractice under the Federal Tort Claims Act, the court dismisses the Bivens claims based on plaintiff’s failure to exhaust his administrative remedies. The motion to dismiss the medical malpractice claim is denied because, while plaintiff failed to detail all aspects of his claim, he put defendants on notice of his claim sufficient to enable agency investigation of it and plaintiff has met his burden of showing by affidavit that he requires discovery in order to support his malpractice claim using documents that are in defendants’ possession and to oppose defendants’ motion. [Fled July 19, 2013.]
CRIMINAL LAW — IMMIGRATION LAW
14-8-1159 United States of America v. Butler, Third Circuit (Sloviter, U.S.C.J.) (9 pp.) Butler appeals the sentence imposed by the District Court following his guilty plea to illegal re-entry in violation of 8 U.S.C. § 1326. Butler is a native and citizen of Jamaica who was deported in 2006 after serving a 14-year sentence for drug trafficking. Shortly thereafter, he returned to this country. In 2010, Butler was pulled over for a traffic violation in New Jersey. Butler was charged with exhibiting false documents as proof of identification, to which he pleaded guilty. The federal government then indicted Butler for illegal re-entry. Butler pleaded guilty to that offense as well, and was sentenced to 46 months’ imprisonment and a three-year term of supervised release. The circuit panel finds the District Court erred in imposing a term of supervised release pursuant to the 2010 Sentencing Guidelines, when the 2011 Guidelines were applicable. In Butler’s case, supervised release was not required by statute, and Butler faced deportation after imprisonment. While the District Court could have imposed a term of supervised release pursuant to the 2011 Guidelines upon a finding that Butler’s case justified “an added measure of deterrence and protection,” it made no such finding. The District Court also erred by including Butler’s false-identification conviction in his criminal history calculation, rather than considering it as conduct “relevant” to his re-entry offense. The circuit panel vacates the sentence and remands to the District Court for resentencing. [Filed July 19, 2013.]
FAMILY LAW
20-7-1138 Robinson v. State of New Jersey, Mercer County Vicinage, Family Division, Dist. Ct. (Thompson, U.S.D.J.) (10 pp.) This action concerns a final restraining order against plaintiff which he claims was forged. The Third Circuit reversed in part the District Court’s dismissal of the complaint, concluding that the claims were not barred by the Rooker-Feldman doctrine. Since the remand, plaintiff has filed a number of motions, including a motion to amend to add claims under the Family Educational Rights & Privacy Act, the Computer Fraud & Abuse Act, and the Fourteenth Amendment. The court denies the motion to amend because: there is no private right of action under FERPA so that amendment would be futile; amendment to assert a CFAA claim would be futile because district courts in this circuit have held that in the employer-employee context, an employee who may access a computer by the terms of his employment is “authorized” to use that computer for purposes of CFAA even if his purpose in doing so is to misuse or misappropriate the employer’s information; and amendment to assert a Fourteenth Amendment claim would be futile because, inter alia, abstention under Younger would be appropriate. Plaintiff’s request to amend the complaint to add additional parties is denied as he offers no factual allegations sufficient to support his claim that the proposed defendants conspired with defendants in any way. [Filed July 26, 2013.]
INSURANCE LAW
23-7-1100 Reina v. Union Twp., Dist. Ct. (Chesler, U.S.D.J.) (7 pp.) Plaintiff alleges that defendant William Sheridan injured her during a visit to her home made in his role as a township housing inspector. Sheridan, who pleaded guilty to a charge of criminal sexual contact in the fourth degree relating to Reina’s claims before she filed this suit, filed a third-party complaint seeking indemnification against Liberty Mutual Insurance Company, his homeowers insurer, and Garden State Mutual Joint Insurance Fund, which insurers township employees. Liberty filed a motion to dismiss the TPC; GSM has filed a motion for summary judgment. The claim against Liberty is dismissed without prejudice because Sheridan fails to plead facts which make it plausible that Liberty has an obligation under the policy to cover him. GSM’s motion is also granted because its policy contains an exclusion for “sexual abuse” which, as interpreted here by the court, excludes coverage for Sheridan. [Filed July 24, 2013.]
23-2-1139 Mirza v. Insurance Administrator of America, Inc., Dist. Ct. (Bumb, U.S.D.J.) (15 pp.) Plaintiff asserts claims based on a denial of benefits under the Employee Retirement Income Security Act of 1974 (“ERISA”) against defendants Insurance Administrator of America, Inc., and The Challenge Printing Company of the Carolinas, Inc. Defendants have moved for summary judgment. The contractual statute of limitations began to run when the final appeal decision was rendered but this action was not initiated until over one year later. Thus, plaintiff’s claim is time-barred absent equitable relief. Plaintiff first argues that defendants are equitably stopped from relying on the plan’s statute of limitations provisions. In ERISA actions, a party may be equitably stopped from asserting the statute of limitations as a defense where they show: (1) a material representation; (2) reasonable and detrimental reliance upon the representation; and (3) extraordinary circumstances. Plaintiff failed to show any of the required elements; therefore, equitable estoppel is unwarranted. Plaintiff also argues that he is entitled to equitable tolling of the plan’s time limitation because defendants were required, and failed, to abide by notice requirements in 29 C.F.R. § 2560.503-1(g)(iv). However, because plaintiff, through his counsel, was on notice of the time limit in advance of the statute of limitations end date, no equitable tolling is warranted. The court grants defendant’s motion for summary judgment. [Filed July 19, 2013.]
LABOR AND EMPLOYMENT
25-7-1101 Hopkins v. JG Associates Inc., U. S. Dist. Ct. (Bumb, U.S.D.J.) (6 pp.) Defendant, which operates a freight-handling business, moves to dismiss this action alleging that defendant failed to keep accurate time records for plaintiffs and others hired to perform manual labor and failed to pay overtime for hours worked in excess of 40 per week, in violation of the Fair Labor Standards Act and the New Jersey Wage and Hour Law. The court grants the motion because plaintiffs have failed to plead the third element of an FLSA/WHL claim where they have not offered the specific time periods in which they worked overtime and an approximate amount of overtime they worked during that period but rather rely on broad allegations that they were employed “during the statutory period covered by this Complaint,” were “frequently required to work hours in excess of 40 per workweek,” and “worked approximately 45-50 hours a week.” [Filed July 19, 2013.]
25-7-1118 Burns v. City of Bayonne, Dist. Ct. (Linares, U.S.D.J.) (13 pp.) As per plaintiff’s complaint, this action arises out of the alleged “illegal discharge” of plaintiff from his position as a sergeant with the Bayonne Police Department. From the face of the complaint, it appears that a number of plaintiff’s claims are time barred. The instant action was filed on September 27, 2012. Plaintiff concedes that the complaint “contains a history dating back to 1995.” The court dismisses all claims which accrued before September 27, 2012. The court does so, however, without prejudice insofar as plaintiff can articulate a proper basis for tolling the statute of limitations. Further, as currently drafted, plaintiff’s complaint fails to meet the requirements of a properly pleaded complaint. The court grants defendants’ motions and dismisses plaintiff’s complaint without prejudice. [Filed July 19, 2013.]
25-7-1119 NJ Building Laborers Statewide Benefit Funds v. Chanree Construction Co., Inc., U. S. Dist. Ct. (Wolfson, U.S.D.J.) (20 pp.) Petitioner-funds received an arbitration award requiring Chanree, a general contractor for Palmer Construction, to assume certain liability, pending an audit, for delinquent contributions owed to petitioner by a subcontractor Chanree employed. The court confirmed the award and ordered the funds to audit Chanree’s records to determine the amount of the liability, if any. Petitioner now seeks to confirm the results of a second arbitration, held after an audit, which determined Chanree’s liability to be $196,229. Chanree moves to vacate the award. The court finds, inter alia, that the second arbitration is a continuation of the first such that there is no preclusive effect of the earlier proceeding against the subsequent one; the arbitrator did not fail to consider material and relevant evidence; the arbitrator was impartial; and the second arbitration should not be reduced, and it grants petitioner’s motion to confirm. The court denies petitioner’s motion for turnover of the funds because the writ of execution on which it is based is vacated since it was prematurely served. [Filed July 25, 2013.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-8-1157 Tubbs v. North American Title Agency, Inc., Third Circuit (McKee, U.S.C.J.) (15 pp.) Arthur and Jane Tubbs appeal an order granting final judgment to North American Title Agency, Inc. The Tubbs refinanced two mortgages held by Wachovia. The settlement agent for the refinancing was the title agency. Based on purported disbursements and fees, the Tubbs filed a putative class action against the title agency under the Real Estate Settlement Procedure Act (“RESPA”). In addition, the Tubbs brought claims under the New Jersey Consumer Fraud Act (“CFA”) and for breach of contract, breach of a covenant of good faith and fair dealing, and unjust enrichment. The circuit panel affirms the grant of summary judgment to the title agency on the Tubbs’ RESPA claim. The panel reverses the grant of summary judgment on the Tubbs’ CFA claim. The District Court erred in assuming that the CFA claim was tied to the success of the RESPA claim. By charging the Tubbs $150 that was not paid to the government for recording the mortgages, the title agency may have made an unlawful misrepresentation. Moreover, a finder of fact could conclude that the title agency’s $325 “Settlement or Closing Fee” covered the cost of all services the title agency performed, and that the $150 charge for “Release Recording Fees” was an overcharge. Such overcharge could constitute an ascertainable loss because the fees were paid from the refinancing loan. The panel also reverses the grant of summary judgment on the contract and quasi-contract claims. [Filed July 19, 2013.]
SECURITIES
50-7-1120 Falato v. Fotografixusa LLC, U. S. Dist. Ct. (Shipp, U.S.D.J.) (3 pp.) In this action asserting claims for securities fraud, breach of contract and fraud, in which default was entered against defendant Fotografixusa after its attorney withdrew and its CEO attempted to represent it, plaintiffs’ motion for default judgment against Fotografixusa is granted since it has no licensed counsel. Plaintiffs are entitled to a return of their initial investment funds but not attorney fees as they do not cite any statute or provide any other legal basis that would show their entitlement to such fees. [Filed July 25, 2013.]
50-7-1158 In re Par Pharmaceutical Securities Litigation, Dist. Ct. (Salas, U.S.D.J.) (19 pp.) In this class action involving allegations of securities fraud brought on behalf of investors in Par, a Delaware corporation headquartered in New Jersey, the court approved the Settlement and Plan of Allocation, finding that the balance of the Gish factors weighs in favor of approval, and grants lead counsel’s motion for award of attorney fees, reimbursement of litigation expenses, and compensatory award to plaintiff Louisiana Municipal Employees Retirement System. [Filed July 29, 2013.]
TORTS
36-7-1102 Johnson v. Draeger Safety Diagnostics Inc., Dist. Ct. (Linares, U.S.D.J.) (16 pp.) Plaintiffs, both of whom pleaded guilty to drunk driving after blowing into the Alcotest 7110, which registered a blood alcohol concentration of above the legal limit, filed this action alleging that the device, which is manufactured by defendant, contains latent design defects and that defendant’s failure to properly test the device before marketing it or remedy the defects deliberately deprived plaintiffs and others in their situation of their rights and interests. Defendant moves to dismiss the second amended complaint which alleges claims for negligence, strict tort liability and common-law fraud. The court grants the motion to dismiss the negligence count with prejudice because the harm plaintiffs complain of was allegedly caused by a product and thus is subsumed by the Products Liability Act. The court grants, without prejudice, the motion to dismiss the strict product liability claim because plaintiffs have failed to state a claim that is plausible on its face since, although they assert their intention to pursue this claim under the PLA, the complaint makes no reference to the act, they have failed to allege sufficient facts to sustain a design defect claim under the PLA, and they fail to allege that they suffered “harm” within the meaning of the PLA. The motion is granted without prejudice regarding three (fraud) because, inter alia, plaintiffs fail to allege any facts to support the allegation that Draeger’s vice president, acting on behalf of Draeger, knew that the statements he made were false. [Filed July 19, 2013.]
TORTS — PERSONAL INJURY
36-7-1085 Basara v. CBRL Group, Inc., Dist. Ct. (Rodriguez, U.S.D.J.) (11 pp.) Plaintiff tripped and fell on uneven pavement at a Cracker Barrel store in Mount Laurel, New Jersey. Cracker Barrel filed a third-party complaint against Schoor Depalma, Inc., alleging that Schoor provided engineering and/or surveying services for the Mount Laurel Cracker Barrel Store, failed to provide proper engineering and/or surveying services and failed and refused to correct its deficient work. Cracker Barrel incurred engineering costs for the redesign of the ramps at the premises and for construction costs to remediate the ramps designed by Schoor. Cracker Barrel asserts that its rights against Schoor arise from a breach of contract and under the New Jersey Tortfeasors Contribution Act. The court finds that the entry of a judgment of default is merited. Cracker Barrel has demonstrated that Schoor was properly served, has not responded to Cracker Barrel’s third-party complaint, and that the clerk entered default. Schoor has not asserted any meritorious defense, nor have they offered any excusable reason for default. Moreover, given that Schoor appears to have been acquired by Birdsall Services Group, a judgment may be the only way for Cracker Barrel to seek relief. Cracker Barrel makes out a claim of indemnification and or breach of contract against Schoor. Default judgment on liability is appropriate. The court reserves decision on damages, attorney fees and costs. [Filed July 11, 2013.]