STATE COURT CASES
CONSUMER PROTECTION
09-1-1514 D’Agostino v. Maldonado, Sup. Ct. (Patterson, J.) (61 pp., including partial dissent by Hoens, J.) Maldonado’s execution of the transaction at issue gave rise to an unconscionable commercial practice under N.J.S.A. 56:8-2. Notwithstanding the trial court’s restoration of plaintiffs’ equity in their home, the transfer of that equity to Maldonado constituted an ascertainable loss within the meaning of N.J.S.A. 56:8-19, and the trial court’s determination of damages was within its discretion.
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-1515 New Century Financial Services Inc. v. Chandross, App. Div. (per curiam) (15 pp.) Defendant appeals from a Law Division judgment awarding plaintiff-debt collection agency $24,210.43, the outstanding balance on a credit card account that defendant allegedly had with HSBC/Orchard Bank. Defendant also challenges the trial court’s decision to suppress his answer, strike his counterclaim for failure to comply with discovery orders. The panel reverses and remands for further proceedings, finding that the trial court mistakenly exercised its discretion in suppressing defendant’s answer and striking his counterclaim where, inter alia, the court did not make a finding that defendant’s failure to provide his bank records was contumacious or that the discovery orders went to the foundation of plaintiff’s cause of action; plaintiff’s counsel failed to request a ruling on defendant’s privilege claim prior to trial; the court did not deny the privilege claim until the day of trial; although defendant was advised that his failure to attend depositions could lead to sanctions he was never told that if he raised a privilege against disclosure that was rejected after oral argument, his pleadings would be immediately suppressed and the matter would proceed as a default; the court had viable alternatives to address the matter short of suppressing defendant’s answer and striking his counterclaim which were not considered; and the court did not explain how plaintiff was specifically prejudiced by defendant’s inability to provide his bank records.
FAMILY LAW
20-2-1516 Gartenberg v. Gartenberg, App. Div. (per curiam) (7 pp.) Defendant appeals from an order denying his application to reduce child support based on his youngest child residing away from plaintiff’s home at college. Defendant argues that the motion judge erred in reading the PSA to preclude a reduction in child support due only to the change in circumstances of his youngest child. Absent the parties’ agreement to the contrary, attendance at college away from home is considered a change of circumstances calling for the recalculation of child support. However, here the parties clearly agreed on what would constitute a change of circumstances. The parents decided that child support would continue until their last unemancipated child graduated from college or was otherwise emancipated, as long as defendant did not lose his job. The appellate panel affirms, agreeing with Judge Tassini’s conclusion that the PSA removes this case from the general provisions controlling modification of child support.
LANDLORD/TENANT LAW
27-2-1517 Bank Of New York For The Benefit Of The Certificate Holders Asset-Backed Certificates, Series 2007-3 v. Conde, App. Div. (per curiam) (10 pp.) Defendant, Valeria Conde, appeals from the Landlord Tenant Part order denying her motion to reopen the consent judgment she entered with plaintiff (the Bank). The Bank became the owner of property following an action in mortgage foreclosure against the former owner. The Bank sent a notice to Conde’s residence informing her that the Bank was now the owner of the property and providing her with the address to remit the rent. Conde acknowledged that she did not pay any rent since the September 2011 notice. Under the consent judgment, Conde agreed to vacate the premises within forty-five days and to waive the return of her security deposit. In exchange, the Bank waived the right to the unpaid back rent and future rent until Conde left the premises within the time frame. In her motion to vacate, Conde argued that the consent judgment was based on fraud and that the Bank lacked standing in the tenancy court because it did not own the property. Conde claimed that she uncovered evidence that the deed to the property was transferred to Leonel Lopes. The appellate panel finds the trial court did not abuse its discretion in denying Conde’s motion. Conde did not provide any affidavit from Lopes claiming that he owned the property or that he was collecting rent. Also, Conde failed to show that the evidence regarding Lopes would change the result given the nature of the consent order, nor has she shown the information was unobtainable prior to the settlement of the case.
TORTS — PROFESSIONAL MALPRACTICE
36-2-1518 Aztar Corp. v. Marsh & McLennan Companies Inc., App. Div. (per curiam) (2 pp.) In this action alleging professional malpractice against defendant-insurance broker based on its failure to obtain excess coverage for lost business income and business interruption expenses, the panel affirms the trial court’s conclusion that Arizona law controlled and barred the complaint as untimely filed, and the trial court’s denial of plaintiff’s motion for reconsideration, substantially for the reasons express below.
TRUSTS AND ESTATES
38-2-1519 Estate of Cohen v. Cohen, App. Div. (per curiam) (56 pp.) In these back-to-back cases, plaintiffs, the Estate of Claudia Cohen, her former husband Ronald Perelman as executor, and their daughter Samantha Perelman, appeal from the entry of judgment in rejecting their claim that Claudia’s father, defendant Robert Cohen, promised Claudia that she would share equally in his estate. They also appeal from the trial court’s determination in Robert’s counterclaim that a transfer of $10 million from Robert to Claudia was a loan and not a gift. Robert and James Cohen, Robert’s son, cross-appeal from the court’s denial of their request to recover frivolous litigation sanctions against Perelman and to recover certain costs related to electronic (e-) discovery. Robert also appeals from the trial court order fixing the hourly rate for his New York attorneys to that of the so-called “forum rate” of similarly situated New Jersey attorneys. In addition, plaintiffs’ attorneys, Lowenstein Sandler, in A-0864-10, and Paul, Weiss, Rifkind, Wharton & Garrison, in A-0941-10, appeal from a nearly $2 million counsel fee awarded to defendants pursuant to the frivolous litigation rule. With the exception of the award of counsel fees pursuant to the rule, the appellate panel affirms the orders entered in all respects. The panel vacates the counsel fees and costs awarded pursuant to the rule and remands.
FEDERAL COURT CASES
CIVIL RIGHTS
46-7-1520 Martin v. Unknown U.S. Marshals, Dist. Ct. (Sheridan, U.S.D.J.) (71 pp.) Before the Court are motions for summary judgment brought by four groups of defendants referred to in this opinion as the Federal Defendants, the Camden City Defendants, the Camden County Defendants, and the Camden County Prosecutor’s Office Defendants. This suit arises out of events that occurred on the morning of January 8, 2008, when deputized members of the United States Marshals Service visited the home of Linda Martin in Camden, New Jersey in search of her son, Phillip Martin, who died within minutes of the Marshals’ arrival from a gunshot wound to his head. The relevant authorities, including the Defendants, maintain that Phillip died from a self-inflicted gunshot wound, while Plaintiffs claim that one of the United States Marshals shot Phillip and that the rest of the Defendants participated in a conspiracy to cover up the shooting, thereby violating several rights secured by the United States and New Jersey Constitutions, and subjecting plaintiffs to common law torts. Defendants’ motions for summary judgment are granted in part and denied in part. Only Plaintiffs’ narrow claims regarding the unlawful detention of Linda and Dwayne Martin by certain Defendants after Phillip’s death survive the motions. [Filed August 15, 2013]
CONSTITUTIONAL LAW
10-8-1521 National Collegiate Athletic Association v. Governor of New Jersey, Third Cir. (Fuentes, C.J.; dissent by Vanaskie, C.J.) (128 pp.) In this challenge to the validity of New Jersey’s Sports Wagering Law as violative of the Professional and Amateur Sports Protection Act of 1992, 29 U.S.C. § 3701 et seq., which makes it unlawful for states or persons to sponsor, operate, advertise or promote gambling based directly or indirectly on professional or amateur sports, the Third Circuit concludes that the PASPA is aimed at an activity that is quintessentially economic and that has substantial effects on interstate commerce and thus it does not exceed Congress’ enumerated powers under the Commerce Clause, and that it does not violate the anti-commandeering doctrine or the equal sovereignty of the states, and that it specifically prohibits New Jersey’s Sports Wagering Law which would have permitted state authorities to license sports gambling in casinos and racetracks and casinos to operate sports pools. It also finds that plaintiff-sports leagues have standing to bring this action. It therefore affirms the District Court’s decision granting summary judgment to plaintiffs and enjoining the SWL. [Filed September 17, 2013] [Precedential]
LABOR AND EMPLOYMENT
25-7-1522 Cooper v. Alliance Oral Surgery, LLC, Dist. Ct. (Thompson, U.S.D.J.) (6 pp.) The allegations in Plaintiff’s complaint are that Defendants violated the Employment Retirement Income Security Act (“ERISA”) and state laws when they failed to enroll Plaintiff in a 401(k) employee benefits plan (“the Plan”), as specified in his employment agreement. Plaintiff, a resident and oral surgeon licensed to practice in New Jersey, entered into the Employment Agreement with defendant Alliance Oral Surgery, LLC. Defendants have moved to dismiss the complaint. Defendants attach several exhibits to their motion. Given the preference of the Third Circuit to permit Plaintiff an opportunity to respond to unanticipated evidence, and as these letters concern important evidence with regard to remedy exhaustion and standing (including the status of Plaintiff as either a Plan participant or beneficiary), the Court finds it appropriate to convert this 12(b)(6) motion to dismiss (and the contingent 12(b)(1) motion) into a motion for summary judgment. The Court denies Defendant’s motion to dismiss without prejudice. The Court will permit Plaintiff to submit a motion to amend in response to Defendants’ assertion that Plaintiff failed to join an indispensable party. The Court will permit Defendants to resubmit their motion to dismiss as a motion for summary judgment. [Filed August 16, 2013]