01-2-1537 New Jersey Real Estate Commission v. Beritelli, App. Div. (per curiam) (6 pp.) Beritelli appeals from the final order of the New Jersey Real Estate Commission revoking his broker license for four years. Appellant entered a guilty plea to an indictment charging him with third-degree endangering the welfare of a child. Appellant admitted to possessing child pornographic images. The court sentenced appellant to a suspended three-year prison term, parole supervision for life, and ordered him to register as a Megan’s Law offender. On receiving a copy of appellant’s judgment of conviction, the commission filed an order to show cause charging appellant with violating N.J.S.A. 45:15-17e (“[a]ny conduct which demonstrates unworthiness, incompetency, bad faith, or dishonesty”). Appellant denied that his conviction demonstrated conduct proscribed under the statute. Pursuant to the Rehabilitated Convicted Offenders Act, the commission weighed appellant’s rehabilitative progress and previous unblemished history against the seriousness of his criminal conduct, the risk that such conduct would pose to clients, the fact the criminal offense was recently committed, appellant’s age when he committed the crime (56), and the lack of social factors contributing to the conduct. Balancing these factors, the commission determined a four-year revocation was appropriate. The appellate panel finds no abuse of discretion in the four-year license revocation decision. [Decided Oct. 7, 2013.]
09-2-1538 Miranda v. MarineMax Inc., App. Div. (Nugent, J.A.D.) (19 pp.) Plaintiff appeals from the order that dismissed his consumer fraud and rescission claims against defendant MarineMax Inc., who sold him a used 1995 boat; and from the order denying his motions for reconsideration and to amend his complaint. The appellate panel finds the trial court correctly determined that the parol evidence rule precluded plaintiff from introducing extrinsic evidence to contradict the express “as is” language of both the second purchase agreement and “Acceptance of Vessel” document, even to show that MarineMax fraudulently induced plaintiff to enter into the purchase agreement. The fact allegedly misrepresented — that MarineMax would repair the problem causing the “check engine” light to activate — was addressed in the second purchase agreement. Plaintiff did not raise his argument about MarineMax’s postsale conduct until he filed his motion for reconsideration. Moreover, MarineMax never acknowledged in postsale communications that it had previously agreed to repair or replace the boat’s engines. Absent introduction of the presale parol evidence, no fact finder could have reasonably inferred that MarineMax’s post-trial conduct and communications contradicted its “as is” sale of the boat. Because plaintiff is unable to prove his claims of fraudulent inducement and consumer fraud, the remedy of rescission is unavailable to him. [Decided Oct. 7, 2013.]
11-2-1539 Calligaro v. Ramapo Valley Pool Service of Oakland, N.J., App. Div. (per curiam) (12 pp.) This appeal and cross-appeal stem from a failed home-improvement contract that was supposed to guide the renovation of plaintiffs’ back yard and outdoor swimming pool. After a two-day bench trial, a modest monetary award was entered in favor of plaintiff-homeowners. Plaintiffs primarily appeal from that award, citing its meagerness, and further challenge other aspects of the proceedings. Defendant appeals from the entry of the judgment in toto. Plaintiffs failed to shoulder their burden of proof beyond the components of damage found in their favor by the trial judge. The appellate panel affirms in part and remands only two aspects of the trial judge’s calculation of damages. The trial judge failed to address — as possible elements of damage — plaintiffs’ coping and replacement water claims. These two claims are remanded to the Law Division for reconsideration as to whether they must or must not be added to plaintiffs’ compensable damages. [Decided Oct. 7, 2013.]
11-2-1540 Passaic Valley Water Commission v. Prismatic Development Corp. Inc., App. Div. (per curiam) (18 pp.) In this action asserting claims for, inter alia, breach of contract, unjust enrichment, fraud and breach of warranties against Prismatic Development Corporation and Leopold Inc., who had been hired to renovate plaintiff’s Little Falls water treatment plant, the panel affirms the trial court’s grant of defendants’ motion to dismiss with prejudice the commission’s complaint on statute-of-limitations grounds, finding that (1) the court correctly determined that the limitations period pursuant to N.J.S.A. 2A:14-1 began no later than August 2005, when Filter B-1 failed and the commission became aware of deficiencies and failures in the filter underdrain system since plaintiff knew that Prismatic was the party responsible for renovating the filter underdrain system and that Leopold supplied the filters, and (2) there was no basis to equitably toll the statute of limitations because plaintiff had ample time and opportunity to investigate and assert claims arising out of the failure for Filter B-1 in August 2005 and the subsequent discovery of systemwide failure by October 2005 and failed to present facts that would evidence any misrepresentation and/or concealment of material facts by defendants in connection with their efforts to help plaintiff in the repair of the failed filter underdrain system. [Decided Oct. 7, 2013.]
11-2-1541 TD Banknorth N.A. v. Lion Gate at Sparta L.P., App. Div. (per curiam) (13 pp.) In this action arising from a construction mortgage loan made by Interchange Bank to defendant, which loan was acquired by plaintiff TD Banknorth after its merger with Interchange, and which loan was guaranteed by defendants, the estate of Frank Leo and Gregory Leo, defendants appeal from a summary judgment order in favor of TD Banknorth for the balance due on the promissory note and guaranty agreements. Finding that the terms of the original and subsequent loan documents are clear and unambiguous, the panel affirms. [Decided Oct. 7, 2013.]
11-2-1569 VNB New York Corp. v. Star Holdings, App. Div. (per curiam) (11 pp.) In this appeal arising out of a commercial transaction involving eight integral documents signed at the same time, the panel finds that all of the documents were specifically referenced in the note and mortgage as “lien instruments” given as additional security for payment of the loan and that the assignments assigned the note and mortgage and “obligations described in said mortgage,” meaning the lien instruments. Therefore, the assignments were assignable and were properly assigned to plaintiff and the trial judge erred in holding that the personal guarantees were not assignable and that the individual guarantors were not liable after Star Holdings defaulted on the mortgage and note on the basis that the mortgage did not specifically reference them or the guarantors. The panel also holds that plaintiff had standing to enforce the mortgage since it had possession of the note and an assignment of the mortgage prior to filing the complaint. [Decided Oct. 9, 2013.]
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 and 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. [Decided Oct. 3, 2013.]
14-2-1527 State v. Dacchille, App. Div. (per curiam) (9 pp.) Defendant appeals from his conviction for burglary and theft of movable property based on his removal and sale of copper piping from an abandoned building. The panel affirms the conviction and sentence but remands to correct the judgment of conviction to accurately reflect the theft conviction as a fourth-degree, not a third-degree, offense, concluding that there was sufficient evidence to establish that the value of the copper piping was between $200 and $500, as required for a fourth-degree theft offense under N.J.S.A. 2C:20-2(b)(3). [Decided Oct. 4, 2013.]
14-2-1544 State v. Goldsmith, App. Div. (per curiam) (30 pp.) Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance, and third-degree possession with intent to distribute. The appellate panel reverses and remands, finding the opinion testimony of two police “experts” that the transactions they witnessed were drug purchases was clearly capable of producing an unjust result, such that there is a reasonable doubt as to whether the jury would have reached the same result without the improper opinion testimony. The disclosure of the full nature of defendant’s prior conviction, and the significant likelihood of prejudice resulting from the testimony that defendant’s prior conviction was for distribution, is a second basis for reversal. [Decided Oct. 7, 2013.]
14-2-1579 State v. Rosario, App. Div. (per curiam) (10 pp.) By leave granted, the state appeals from the Law Division order that granted defendant’s motion to suppress evidence seized without a warrant. The panel reverses, finding that here, where Kmart’s loss prevention officer identified himself to the police dispatcher and provided information based on his personal knowledge and observations that led him to report that defendant was about to engage in criminal activity, the dispatcher had specific and articulable facts supporting a reasonable suspicion to stop and detain defendant, which were imputable to the officer on the scene, and this information gave the officer a reasonable and articulable suspicion to conduct an investigative detention of defendant. [Decided Oct. 9, 2013.]
14-2-1580 State v. Rouse, App. Div. (per curiam) (16 pp.) The panel affirms defendant’s conviction for numerous drug offenses and the extended sentence imposed but remands for resentencing so that the period of parole eligibility can be determined because the judge failed to separately explain why he imposed the maximum amount of parole ineligibility. [Decided Oct. 9, 2013.]
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. [Decided Oct. 3, 2013.]
20-2-1523 Tobasco v. Tobasco, App. Div. (per curiam) (4 pp.) The parties were married in 1985, had two children (in 1991 and in 1995), and were divorced in 2006 by way of a judgment that incorporated their property-settlement agreement (PSA). Pursuant to the PSA, plaintiff agreed to make weekly payments of $193 in child support and $154 in alimony to defendant. These financial obligations were based on the parties’ stipulated assumption that plaintiff was capable of earning at least $52,000 per year even though he was not realizing that income at the time of the divorce. At issue in this appeal is the propriety of a trial court order that, among other things, denied without prejudice plaintiff’s motion for an order deeming the oldest child emancipated; denied without prejudice a termination of plaintiff’s alimony obligation; denied relief regarding defendant’s declaration of the youngest child as a dependent on her income tax return; and awarded defendant $1,000 in counsel fees and costs. The appellate panel affirms the order, finding the judge appropriately recognized that plaintiff had again failed to demonstrate an inability to earn income to the PSA’s stipulated level and again failed to demonstrate the parties’ oldest child should be declared emancipated notwithstanding her enrollment in college. The judge’s disposition of these and the other issues in question fell well within his discretion. [Decided Oct. 4, 2013.]
20-2-1570 Neiss v. Neiss, App. Div. (per curiam) (11 pp.) In this postjudgment matrimonial matter, defendant appeals from the order of the Family Part granting plaintiff’s motion to emancipate the parties’ son and the order denying defendant’s motion for reconsideration and awarding plaintiff $2,457.75 in counsel fees. Because the trial court did not conduct a plenary hearing as required due to the sharply conflicting certifications of the parties on material factual issues, and failed to make any meaningful findings of fact, the orders are reversed and the matter is remanded for a plenary hearing. There was no evidence presented that the son had attained an independent status of his own or that he had moved beyond the sphere of influence of his parents. In this regard, the parties substantially disagreed as to the extent of their son’s disabilities, the effect of those disabilities on his capacity to succeed at taking a minimum of 12 credits per semester, and whether, because of his disabilities, the son was able to support himself on his own. [Decided Oct. 9, 2013.]
20-2-1571 New Jersey Division of Youth and Family Services v. B.D., App. Div. (per curiam) (19 pp.) Defendant B.D. (Barbara) appeals from the order of the Family Part entered after a fact-finding hearing, which determined she abused or neglected her grandnephew, R.N. (Rodney). The Family Part judge found that Barbara neglected Rodney by delaying medical treatment for three days after he had been accidentally burned. The judge also found that Barbara failed to exercise a minimum degree of care by recklessly creating a risk to the child’s health and safety in the home. The division concedes that it did not allege environmental neglect in its complaint as to Barbara and does not seek affirmance on that finding. Because the record lacks substantial credible evidence that Barbara’s conduct constituted gross negligence or recklessness, the appellate panel reverses the finding of medical neglect. [Decided Oct. 9, 2013.]
20-2-1572 New Jersey Division of Youth and Family Services v. C.T., App. Div. (per curiam) (4 pp.) C.T. appeals from an order, entered on remand, terminating her parental rights to T.T., her 12-year-old autistic adopted son. The panel previously found that DYFS had met by clear and convincing evidence, prongs one, two and the reasonable-efforts requirement of prong three contained in the best interests of the child standard in N.J.S.A. 30:4-15.1(a) and remanded for a determination whether adoption of T.T. is feasible and, if so, to complete the best-interests analysis by determining whether termination of parental rights would do more harm than good. Because on remand, the court merely found that a family had been identified as a feasible placement, and did not make findings concerning whether termination of parental rights would do more harm than good, the panel again remands. [Decided Oct. 9, 2013.]
25-2-1524 Holden v. Board of Review, App. Div. (per curiam) (11 pp.) Holden appeals from the final decision of the Board of Review, affirming the decision of the Appeals Tribunal that ordered repayment of unemployment benefits, which Holden received for the weeks ending Dec. 11, 2004, through Jan. 22, 2005. At all relevant times, Holden was an employee of Jersey Central Power Light (JCP&L). Holden stopped working, along with her co-workers, when the International Brotherhood of Electrical Workers union (IBEW) went on strike. The board denied unemployment compensation benefits to the claimants finding they were disqualified under the labor dispute section of the law. On appeal by the union, the tribunal held that there was no work stoppage and that the claimants were eligible for benefits, leading to the payment of benefits to the claimants, including Holden. Ultimately, the board concluded the union claimants were disqualified for benefits, a decision that was not appealed by the IBEW. Meanwhile, Holden had written to the board seeking an independent review of her particular case. The tribunal denied Holden’s appeal. The appellate panel affirms, rejecting Holden’s arguments that because she did not participate in, was not interested in, and did not finance the strike, she should not be required to repay benefits she received. The panel also rejects Holden’s contention that, because she never paid into a designated strike fund and otherwise disclaimed interest in the strike, she did not “finance” the strike through her dues. [Decided Oct. 4, 2013.]
26-2-1557 520 Victor Street Condominium Assn. v. Plaza, App. Div. (per curiam) (29 pp.) Plaintiffs, an adjacent multifamily residential development and its condominium association, appeal from the Law Division’s affirmance of the zoning board of adjustment’s resolution approving defendant’s application for a use variance and other variances to construct three multistory residential buildings, largely restricted to persons at least 55 years old, in the township’s industrial zoning district, which did not permit multifamily residential housing. Plaintiffs raise numerous challenges to the board’s resolution, including its requirement of a $400,000 contribution by defendant to pay for sanitary sewer stormwater and drainage improvements off-tract. The panel concludes that the board did not comply with N.J.S.A. 40:55D-42 or the pertinent township ordinance when it required the contribution because the board did not calculate that figure after determining the improvements necessitated by the proposed development, estimating the costs of the improvements, and applying the required formulas to ascertain the pro-rate share of plaintiff and others and instead the figure arose through offer, counteroffer and negotiation. Accordingly, it reverses the Law Division’s judgment in part, vacates the board’s approval of defendant’s application, and remands to the board for reconsideration. [Decided Oct. 8, 2013.]
26-2-1558 Oaks Development Corporation v. The Planning Board of the Township of Old Bridge, App. Div. (per curiam) (34 pp.) Plaintiffs Oaks Development Corporation, John Brunetti and Midtown Water Company appeal from orders that resulted in the dismissal with prejudice of their claims against defendant Old Bridge Municipal Utilities Authority. The authority cross-appeals from the dismissal of its counterclaim. Plaintiffs commenced this action to secure orders requiring Old Bridge and its planning board to approve a development that they proposed to construct on land in Midtown’s franchise area. Plaintiffs alleged that the authority improperly interfered with water and sewer service in the Midtown franchise area. Plaintiffs also alleged that the authority refused to honor its contractual obligation to provide an adequate supply of water to the development, and instead sought to “coerce” plaintiffs into constructing improvements for the benefit of the entire system. Plaintiffs also alleged that the authority and its employees impeded the construction of sewer improvements. In its counterclaim, the authority alleged that Brunetti breached his obligation under a sewer agreement by failing to construct sewer lines in the time required. The trial court’s orders challenged in this appeal are affirmed in part and reversed in part. The order in the cross-appeal is affirmed. The appellate panel remands the matter to the trial court for a trial on the counts in the complaint alleging breach of the covenant of good faith and fair dealing and the return of certain illegal exactions. [Decided Oct. 8, 2013.]
26-2-1574 230-232 Fort Dix Street Wrightstown New Jersey v. Borough of Wrightstown, App. Div. (per curiam) (13 pp.) Defendant, the owner of Wright Cleaners located in an area just outside the main gate of Fort Dix that was the subject of a redevelopment plan adopted by the borough, contends on appeal that the Law Division erred in declining to declare the redevelopment plan invalid and transferring the case to the Office of Administrative Law, and that the administrative law judge erred in finding that he was not entitled to relocation benefits. The panel affirms, finding that (1) the contention that the ordinance is invalid because it failed to provide for the temporary or permanent relocation of Wright Cleaners is plainly without merit since Wrightstown’s plan provided the required “outline” to indicate how the borough intended to address the temporary and permanent relocation of residents and nothing more was required; (2) the Law Division correctly held that the amount of any relocation benefits due Rosen should have been heard in an administrative proceeding by the Department of Community Affairs, the agency charged with administering the Relocation Act, and appropriately transferred the matter; and (3) the ALJ’s findings that Rosen was not entitled to relocation benefits because he never relocated his business and that he could not demonstrate hardship so as to entitle him to any advanced payments were reasonably reached on the uncontested facts and thus are entitled to deference. [Decided Oct. 9, 2013.]
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 into 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 45 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 that 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. [Decided Oct. 3, 2013.]
27-2-1556 Adams v. Rubano, App. Div. (per curiam) (6 pp.) A judgment of $6,700 was entered in favor of plaintiff and against defendant following a bench trial in the Special Civil Part. Defendant appeals from the judgment. Plaintiff rented an apartment from defendant in May 2011. On Dec. 14, 2011, defendant locked plaintiff out of the apartment. Plaintiff filed a complaint alleging defendant wrongfully locked him out of his apartment and kept his personal property. Plaintiff sought $6,700, the claimed value of the items removed from the premises. The appellate panel affirms the judgment, finding there was sufficient evidence to support the findings of the trial court on both the issue of liability and damages. The evidence was largely testimonial and involved questions of credibility. Plaintiff was found to be credible, and his testimony established that not only did defendant wrongfully lock plaintiff out of his apartment, but also defendant removed and kept his property. Once liability was found, plaintiff was entitled to recover the damages allowed under N.J.S.A. 2A:39-8. There was sufficient proof in the record to substantiate that plaintiff’s damages were at least $6,700. [Decided Oct. 8, 2013.]
04-2-1542 Kirsch v. Horizon Blue Cross Blue Shield of New Jersey, App. Div. (per curiam) (6 pp.) In this appeal of the settlement entered in this class action challenging defendant’s system for processing dentists’ claims for reimbursement for services, which ended in a settlement over the objections of two members of the class, the panel affirms the Law Division’s approval of the settlement, finding no abuse of discretion. Stating that the real issue in this appeal is a private dispute between two former law partners, now rivals, over the fees awarded, the panel holds that the Law Division erred in applying a multiplier to the lodestar given class counsel’s failure to identify a statutory fee-shifting provision that would serve as the basis for the award of a contingency enhancement. Further, although the panel does not approve the failure to provide hourly rates for each lawyer during each year time was billed, and endorses the use of an alternative method of calculating the fee award as a sensible cross-check of the court’s initial fee calculation, it holds that the fee awarded, minus the contingency enhancement, was within the trial court’s discretion. [Decided Oct. 7, 2013.]
34-2-1525 Capital One N.A. v. Provost, App. Div. (per curiam) (5 pp.) In this mortgage foreclosure case, defendant appeals from the denial of her motion to vacate default judgment, reinstate her answer and counterclaims and set a discovery schedule and trial date. The panel affirms substantially for the reasons expressed below. The panel notes that the judge found that it was undisputed that defendant defaulted on the underlying loan, the originating lender of the loan was acquired by plaintiff, and that plaintiff had standing to foreclose the mortgage by virtue of an assignment that predated the foreclosure complaint. [Decided Oct. 4, 2013.]
35-5-1526 Zecca v. Montclair, Tax Ct. (Nugent, J.T.C.) (14 pp.) Plaintiff seeks relief pursuant to N.J.S.A. 54:51A-7 for the 2007 tax year to correct an alleged error in the assessment of his income-producing property. The property had been reassessed in 2006 as part of a citywide property revaluation that went into effect in 2007. Unable to gain access to the interior, the firm conducting the revaluation relied on an exterior inspection. After being advised by his mortgage company of an escrow shortage in connection with the 2008 tax assessment, plaintiff requested that the tax assessor inspect the interior and, based on the condition and rehabilitation of the interior, she filed a tax appeal to reduce the assessment, which was granted by the county tax board. The reason for the reduction was noted on the judgment as “to correct error in the 2008 tax list.” On that basis, plaintiff seeks a reduction of the 2007 assessment. The court grants defendant’s motion to dismiss, finding that plaintiff has failed to identify an error correctable under 54:51A-7 as there is no evidence to support the proposition that an error in setting the 2007 assessment occurred and the facts establish that the 2008 assessment was adjusted based on the assessor’s judgment as to the condition and rehabilitation of the property. Further, the court finds that defendant complied with the regulatory notice procedure in connection with the revaluation. [Filed Aug. 26, 2013.]
36-2-1543 Neumann v. Brick Township Board of Education, App. Div. (per curiam) (25 pp.) Plaintiff filed a complaint against public defendants Brick Township Board of Education and the Township of Brick, charitable defendant Brick Township Soccer Association (BTSA) and private defendant B&B Construction, claiming that she suffered severe injuries when she twisted her ankle during soccer practice due to defendants’ failure to maintain the field in a safe condition. Plaintiff, an assistant coach, fell in the evening when she was scrimmaging on a poorly lit field adjacent to a football field, where artificial turf was being installed by B&B. Plaintiff appeals from the orders granting summary judgment to all defendants. The appellate panel affirms, finding the motion judge appropriately granted summary judgment in favor of the BTSA under the Charitable Immunity Act because plaintiff is a beneficiary of BTSA, which is therefore immune from liability. Further, plaintiff’s theory that there was a hole caused by the pooling of water from a malfunctioning sprinkler head does not support liability for B&B. [Decided Oct. 7, 2013.]
36-2-1575 Cokerline v. Clark, App. Div. (Simonelli, J.A.D.) (28 pp.) This wrongful-death matter returns after the reversal of a jury verdict in favor of plaintiff and remand for further proceedings. In this appeal, plaintiff challenges the order that dismissed the complaint with prejudice prior to the new trial, as well as several adverse pretrial motion rulings. Defendants Kevin Clark and United Parcel Service Inc. (UPS) cross-appeal from the order denying their motion for summary judgment. Plaintiff’s theory of causation on remand is that defendant’s UPS truck pushed a car into decedent in a manner that caused him to fall from an overpass. The trial judge barred plaintiff’s expert’s supplemental report as an inadmissible net opinion, finding there was no evidence that decedent was in front of the car when the UPS truck allegedly struck it, and the testimony by a witness did not place him there. The judge directed a verdict in defendants’ favor prior to the new trial and dismissed the complaint. These rulings constitute reversible error. The appellate panel reverses the judge’s grant of involuntary dismissal and bar of the expert’s supplemental report. The order denying summary judgment to defendants is affirmed. [Decided Oct. 9, 2013.]
36-2-1576 Lareau v. Somerset County Park Commission, App. Div. (per curiam) (13 pp.) Plaintiff filed a complaint naming the Somerset County Park Commission and Green Knoll Golf Course as defendants. Plaintiff alleged that while crossing a footbridge on the course, he slipped and fell on a “wet carpet” and suffered injuries to his knee. Plaintiff claimed that defendants failed to provide a “safe walking path for pedestrians” on the course, and defendants’ actions were a direct and proximate cause of his injuries. Defendants argued that plaintiff was a trespasser on the golf course and, therefore, they did not owe him any duty of care. Defendants also argued that, even if plaintiff were considered to be a licensee, his claim failed because they did not breach any duty owed to him. Defendants further argued that they were immune from liability under the Landowner’s Liability Act (LLA). Plaintiff appeals from an order granting summary judgment in favor of defendants. The appellate panel finds the motion judge correctly determined that defendants are immune from liability under the LLA. The course consists of a large tract of open land. The fact that the land has been improved is irrelevant under the statute. Extending immunity to defendants under the LLA would encourage defendants to allow the general public to continue to have limited access to the course for recreational use. The motion judge correctly found that the LLA relieves defendants of liability for plaintiff’s claims. It follows that defendants are also immune from claims under the Tort Claims Act. [Decided Oct. 9, 2013.]
36-2-1577 Maida v. Kuskin, App. Div. (per curiam) (6 pp.) The trial court determined that defendant’s guilty plea in municipal court — to the offense of failing to report an accident — would be admissible at the trial of this personal-injury action. The trial judge held that defendant failed to properly seek what is referred to as a civil reservation, i.e., a condition that the guilty plea not be evidential in any civil proceeding, and thus concluded that the guilty plea was admissible. The appellate panel granted defendant’s motion for leave to appeal. In this case, the one-page municipal transcript reveals that the guilty plea was entered through the brief statements of the prosecutor and defense counsel; if defendant was present, he never spoke. It is true that defendant did not request a civil reservation in this proceeding in open court, but in a letter sent by defense counsel to the court that same day, defendant requested that a civil reservation be imposed. The municipal judgment, in fact, states “civil reservation granted.” Nonetheless, the judge determined that defendant was required to make the request “in open court on the record contemporaneously with the plea of guilty.” Finding the judge misconstrued the liberal approach toward granting civil reservations, the appellate panel reverses. [Decided Oct. 9, 2013.]
36-2-1578 Montalbano v. Coan, App. Div. (per curiam) (7 pp.) In this slip-and-fall case, plaintiff appeals from the jury’s verdict granting her net damages of $13,000 and from the trial court’s denial of her motion for a new trial on damages or an additur. Plaintiff was injured on Christmas Day 2008 while at a family gathering at the home of defendants, her sister and brother-in-law. She fell on an outdoor deck and suffered a laceration to her head and injury to her knee. The trial judge concluded that plaintiff had not presented substantial evidence of continuing effects of her injuries, and that the jury’s verdict was not a miscarriage of justice. The appellate panel finds no reason on this record to disagree with the jury’s determination of the quantum of money damages that will fairly compensate plaintiff, or the trial judge’s conclusion that an additur or a new trial is not warranted. [Decided Oct. 9, 2013.]
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. [Decided Oct. 3, 2013.]
36-2-1559 Chalmers v. Swartz, App. Div. (per curiam) (17 pp.) In this personal-injury negligence action filed after plaintiff, who had been hired to clean the building where defendant-doctors, father and son, practiced medicine, tripped over a discarded piece of pipe and fell and ultimately contracted a serious infection, plaintiff appeals from the order granting summary judgment and dismissing her complaint against the son. The panel affirms the grant of summary judgment and remands for the limited purpose of transferring the case to the Division of Workers’ Compensation, rejecting plaintiff’s position that she worked for the father and was suing the son as the owner of the building, and finding that, although the father directed plaintiff’s work and his name was on her W-2 form, plaintiff was the employee of both for purposes of the Workers’ Compensation Act and she therefore is barred from suing the son in negligence as she was paid out of their joint checking account, the liability and workers’ compensation insurance policies that covered her were in both their names, and her worked served the purposes of both doctors because she cleaned the entire building in which the practice was located. [Decided Oct. 8, 2013.]
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. [Decided Oct. 3, 2013.]
38-2-1560 Jablonski v. Franchini, App. Div. (per curiam) (8 pp.) Plaintiff, the executor of the estate of Anthony Carreira, filed an action seeking to equitably divide the two car dealerships and two real estate holding companies that Carreira had owned jointly with defendant, which resulted in a settlement that provided, inter alia, that the estate would receive a guaranteed $300,000 net, after payment of legal fees and costs and defendant would receive the remainder and be solely responsible for the fees and costs from that point, from settlement or litigation of a then-pending condemnation action regarding property owned by one of the real estate companies. Defendant appeals from the court’s order requiring him to pay the estate $300,000 and the denial of his cross-motion claiming that the estate was responsible for $44,126.07 in legal fees and costs incurred in connection with the action and therefore was entitled to only a distribution of $255,873.93. The panel affirms, finding that, based on the language of the parties’ settlement, the trial court correctly concluded that the estate is entitled to $300,000. [Decided Oct. 8, 2013.]
01-7-1562 DeGarmo v. Colvin, U.S. Dist. Ct. (Bumb, U.S.D.J.) (16 pp.) Plaintiff seeks judicial review of the final decision of the acting commissioner of the Social Security Administration denying his application for disability insurance benefits and child disability benefits. Plaintiff argues that the commissioner committed harmful error at Step 1 of the evaluation by failing to follow Social Security Ruling 83-33 and therefore his determination that plaintiff engaged in substantial gainful activity (SGA) is not supported by substantial evidence. The court finds that, based on the evidence in the record, the administrative law judge could not have made an appropriate determination of whether or not plaintiff’s earnings were subsidized by his employer on account of his disability. Because the record is devoid of evidence on this issue, the court vacates the decision and remands. [Filed Aug. 21, 2013.]
01-7-1563 Santos v. Commissioner of Social Security, U.S. Dist. Ct. (Linares, U.S.D.J.) (18 pp.) Plaintiff’s appeal seeks review of a final determination denying his application for a period of disability and disability insurance benefits. Plaintiff’s longtime career ended when the plant where he worked closed. This date also marks the alleged onset of plaintiff’s disability. Plaintiff has not worked since then. Plaintiff alleges that he has a disability under the Social Security Act because he is afflicted with diabetes mellitus, shoulder and lumbosacral strains, and depression. The court vacates the administrative law judge’s findings concerning the nonexertional restrictions resulting from plaintiff’s depression because those findings are not based on substantial evidence. The court remands for further administrative proceedings. [Filed Aug. 22, 2013.]
03-8-1528 CD&L Realty v. Owens Illinois Inc., Third Cir. (Rendell, U.S.C.J.) (7 pp.) Appellant CD&L Realty appeals from the district court’s order confirming an arbitration award dismissing its claims against appellee Owens-Brockway Glass Container Inc. arising out of a purchase sale agreement (PSA) to purchase a former glass manufacturing property in New Jersey. The PSA contained an arbitration clause. CD&L raises three issues on appeal. First, it argues that the PSA was void because Owens-Brockway did not have the approval of the New Jersey Department of Environmental Protection (DEP) to sell the property, and because this implicated the existence of the contract, the district court, not the arbitrator, had the authority to rule on the issue. Second, CD&L argues that because the parties elected to arbitrate in New Jersey, they intended the exclusive enforcement mechanisms of the New Jersey Arbitration Act to apply. Finally, it maintains that the arbitrator’s decision ignored the remediation requirements for the property, and should have been vacated on the grounds that it was in manifest disregard of New Jersey environmental laws and contrary to public policy. The circuit panel finds none of these arguments have merit. The panel agrees with the district court that the arbitrator’s award did not disregard the law or violate public policy because it resolved only the parties’ private rights under the contract. The arbitration award does not excuse defendants from complying with environmental laws, and the DEP has the power to pursue remedies against either party. The circuit panel affirms the order confirming the arbitration award. [Filed Aug. 20, 2013.]
07-8-1529 In re Opara, Third Cir. (per curiam) (3 pp.) Pro se litigant Samuel Opara petitions for a writ of mandamus directing the U.S. District Court for the District of New Jersey to reopen D.C. Civil No. 1:13-cv-00748 so that the district court may enter a final and appealable order in that case. The court dismisses the mandamus petition as moot, finding that Opara had filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the district court and a motion pursuant to 28 U.S.C. § 2247 to unseal the record and transcripts from his criminal trial, which had been held in another federal district court, and that the district court’s order dismissing the habeas petition for lack of jurisdiction because it was an unauthorized second or successive 28 U.S.C. § 2255 motion and the denial of the § 2247 was a final and appealable order. [Filed Aug. 30, 2013.]
07-8-1530 Patel v. Meridian Health System Inc., U.S. Dist. Ct. (Greenaway, U.S.C.J.) (6 pp.) In this action asserting violations of the Sherman Antitrust Act, the Racketeer Influenced and Corrupt Organizations Act and the Americans With Disabilities Act arising out of appellees’ suspension of appellant-physician from Bayshore Community Hospital, the court vacates the district court’s order denying appellant’s motion for a preliminary injunction and remands for further proceedings because, where the court simply denied the motion as moot, the order is devoid of the necessary factual findings and legal conclusions required by Fed. R. Civ. P. 52(a)(2). [Filed Sept. 4, 2013.]
07-7-1581 Wheaton Industries Inc. v. Aalto Scientific, U.S. Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) This action arises out of a longstanding business relationship between defendant Aalto Scientific and plaintiff Wheaton Industries Inc. Aalto filed a motion to dismiss the complaint, arguing that, pursuant to the first-to-file rule or 28 U.S.C. §§ 1404 and 1406, the court should dismiss, abstain from, or transfer this action to the Southern District of California, where a prior related action involving the same parties is pending. Wheaton suggests that the first-to-file rule does not apply here because Wheaton served the complaint on Aalto before Aalto served it with the complaint in the California action. The court disagrees. The filing of the complaint, and not service, is the operative trigger for the first-to-file rule. Moreover, none of the circumstances that permit a court to depart from the first-to-file rule exist here, such as bad faith on the part of the party who filed first, forum-shopping, inequitable conduct, and where the second-filed action has progressed more quickly than the first. Having determined that the first-to-file rule applies, the court finds the relevant factors support transfer and transfers the action to the Southern District of California. [Filed Aug. 21, 2013.]
07-7-1531 Rhodes v. Marix Servicing, U.S. Dist. Ct. (Arpert, U.S.M.J.) (7 pp.) Plaintiffs filed a motion to compel certain discovery from defendant Zucker, Goldberg & Ackerman (Zucker). Plaintiffs allege that defendant EMC Mortgage Corp. (EMC), plaintiffs’ residential mortgage lender, breached the terms of their loan agreement and mortgage. Plaintiffs further allege that EMC allowed Marix Servicing (EMC’s mortgage servicer) and Zucker (Marix’s legal counsel) to violate the Real Estate Settlement Procedures Act, Fair Debt Collection Practices Act, Truth in Lending Act, and applicable federal bankruptcy code sections. Plaintiffs informed Zucker that certain interrogatory answers were deficient and requested full and complete responses. Zucker submitted supplemental information. However, plaintiffs claim Zucker’s responses continue to be deficient, and filed this motion. The court concludes that the attorney-client privilege between Zucker and Marix, to the extent it existed, must be pierced. First, there is a legitimate need for the communications between Zucker and Marix, as they form the basis for each defendants’ “bona fide error” defense. Second, the communications are relevant and material to the issue before the court as Zucker and Marix each claim that they relied on the representations of the other to justify their own actions. Finally, plaintiffs would be unable to acquire this information from any less intrusive source because Zucker and Marix are the only parties that possess it. Zucker’s claims regarding privilege are overruled. Zucker is directed to supplement its discovery responses. [Filed Aug. 19, 2013.]
46-7-1520 Martin v. Unknown U.S. Marshals, U.S. 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 Jan. 8, 2008, when deputized members of the U.S. Marshals Service visited the home of Linda Martin in Camden 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 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 U.S. and N.J. 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 Aug. 15, 2013.]
09-7-1565 Lynch v. Tropicana Products Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Defendant moves for clarification of the court’s opinion granting in part and denying in part its motion to dismiss the consolidated amended complaint in this action asserting that defendant has been falsely claiming that its modified not-from-concentrate orange juice is 100 percent pure and natural. The court finds that although framed as a motion for clarification, defendant’s motion is in essence requesting modification of the earlier order to have the court declare that certain of plaintiffs’ allegations are pre-empted and that it must be considered under the standard for a motion for reconsideration, and since defendant has not pointed to any manifest error, extraordinary circumstances, new discoveries of facts, or changes in the law, it denies the motion. [Filed Sept. 9, 2013.]
11-7-1532 Sync Labs v. Fusion Manufacturing, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (20 pp.) Defendant Michael Ferchak worked as an hourly employee for Sync Labs in exchange for Class B Units of Profit Interest (BUPIs) pursuant to a work made for hire representation/warranty agreement. He also invested money in it in exchange for Class A UPIs pursuant to an investment transaction receipt. When the business relationship between Ferchak and defendant Radulescu, the founder and managing partner of Sync Labs soured, Ferchak resigned, withdrew his $250,000 pledge of support and demanded the return of his $20,000 investment. Plaintiff’s breach-of-contract claim and Ferchak’s counterclaims for breach of contract and violation of New Jersey’s Wage Payment Law involve the BUPIs. Ferchak’s counterclaim for violation of New Jersey’s Uniform Securities Law concern the AUPIs. The court grants plaintiff’s motion for summary judgment on the breach of contract and WHL counts of defendant’s counterclaim since plaintiff has shown that defendant was credited with the BUPIs to which he was entitled and defendant does nothing to show that a genuine issue exists. Plaintiff’s motion for summary judgment on his breach-of-contract claim is granted since he has shown an employment agreement, that defendant unilaterally terminated the agreement prior to its expiration, that he incurred costs in replacing defendant, and that he has satisfied his contractual obligations by crediting Ferchak with the BUPIs. Plaintiff’s motion for summary judgment on the USL count of defendant’s counterclaim is denied since Ferchak’s claim does not violate the statute of limitations; it is adequately pleaded for purposes of Federal Rules of Civil Procedure 8(a)(2) and 9(b); and it adequately pleads the elements of a prima facie securities fraud. [Filed Sept. 4, 2013.]
11-7-1545 DeLuxe Building Systems Inc. v. Constructamax Inc., U.S. Dist. Ct. (McNulty, U.S.D.J.) (17 pp.) This action arises out of the construction by Constructamax (Cmax) of a rental housing development owned by Whitlock Mills. Cmax obtained a performance bond from its surety Arch on which Whitlock and the New Hersey Housing and Mortgage Financing Agency, which was financing the project, were obligees. Cmax subcontracted with DeLuxe Building Systems for modular housing units and later defaulted on that contract and abandoned the project. Arch and Whitlock entered into a takeover agreement to complete the work on which it later defaulted and then announced that it was terminating. Arch not moves for partial summary judgment finding that its exposure to damages is limited to the unexpended portion of the penal sum of its bond and that Whitlock and the HMFA are precluded from recovering any liquidated damages for delay. The court denies the motion. Reading the Arch bond, the construction contract, and the takeover agreement, the court finds that Arch had two roles, surety for Cmax and liable on its bond for Cmax’s failure and contractor under the takeover agreement. Its liability as surety is limited by the amount of the bond but its breaches of the takeover agreement are not limited and its argument that the takeover agreement limits it are not subject to summary judgment. Also, the court finds that the construction contract and takeover agreement obligate Cmax and Arch to pay liquidated damages if they fail to complete the project on time and, contractual breach having been found by Judge Brown previously, there is no basis to deny recovery of liquidated damages as inequitable. [Filed Sept. 5, 2013.]
11-7-1546 DeLuxe Building Systems Inc. v. Constructamax Inc., U.S. Dist. Ct. (McNulty, U.S.D.J.) (13 pp.) In this action arising out of a commercial construction contract between plaintiff and defendant under which plaintiff agreed to manufacture prefabricated modular buildings for a construction project and provided a performance bond through its surety, Travelers Casualty and Surety Company of America, the court grants Travelers’ motion for summary judgment against Cmax on its third-party complaint, finding that under the terms of the bond, Travelers’ obligations would arise only if there were no default by the owner and that the court has already held that Cmax defaulted on its obligations to pay DeLuxe and that DeLuxe was entitled to terminate its performance, that payments by Cmax’s successor on the project did not “cure” the default and Cmax’s breach necessarily implies that Travelers’ obligations as surety do not arise, and, further, that Travelers did not waive the issue of owner default by failing to explicitly plead that owner default constituted the failure of a condition precedent to its obligations under the bond. [Filed Sept. 5, 2013.]
11-7-1547 Impact Environmental Consulting Inc. v. North Bergen Recycling Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) North Bergen Recycling Inc. and Impact Environmental Consulting Inc. entered into an operating agreement by which Impact would make improvements to an approved site (the facility) and would pay North Bergen $6 for every ton of soil it deposited at the facility. The agreement is silent on the duration and manner in which either party could properly terminate the contract. The court finds that N.J.S.A. 12A:2-309 governs whether North Bergen’s termination of the agreement was proper. Thus, North Bergen was required to provide Impact with “reasonable” notice of the termination. The court finds that making a determination as to the reasonableness of North Bergen’s termination on summary judgment is inappropriate. Because it usually takes six months — and may take up to one year — to secure an approved site, and Impact was only afforded five months to do so, a trier of fact could find that the manner of notice of termination was unreasonable. Therefore, that portion of North Bergen’s summary judgment motion that seeks a determination that it provided Impact with reasonable notice of termination and did not breach the agreement is denied. Nonetheless, the court is also unable to find that, as a matter of law, North Bergen’s notice of termination was per se unreasonable. To the extent Impact has cross-moved for a summary determination that North Bergen’s manner of termination was unreasonable and that North Bergen breached the agreement, that informal motion is also denied. The court grants judgment against Impact for unpaid soil deposits made at the facility but declines to offset that amount by damages that Impact incurred as a result of the termination. [Filed Aug. 20, 2013.]
11-8-1582 Bayshore Ford Truck Sales Inc. v. Ford Motor Company, Third Cir. (Roth, U.S.C.J.) (9 pp.) This appeal arises from Ford’s alleged breach of its sales and service agreement with its heavy-truck dealer network when it discontinued production of all heavy trucks. The district court granted summary judgment to the dealers, holding that Ford breached the agreement. A jury awarded the dealers approximately $29 million in damages. The circuit panel finds that the district court’s interpretation of the contract was incorrect because it misconstrued the meaning of “COMPANY PRODUCTS,” which, in fact, includes not only heavy trucks, but also Ford parts and accessories. Applying the proper definition of “COMPANY PRODUCTS” to the undisputed facts of the case, Ford did not breach the sales and service agreement because Ford continued to manufacture and distribute parts and accessories to the dealers. Thus, the district court’s conclusion that Ford ceased production of all “COMPANY PRODUCTS” was incorrect. Ford satisfied its end of the bargain by continuing to provide parts and accessories to the dealers. Ford’s decision to discontinue production of all heavy trucks was permissible under the agreement because Ford was permitted to discontinue some “COMPANY PRODUCTS” without liability. The panel reverses the district court’s grant of summary judgment to the dealers, vacates the jury’s verdict, and remands the case for the district court to enter judgment in Ford’s favor. [Filed Aug. 26, 2013.]
11-8-1583 Bayshore Ford Truck Sales Inc. v. Ford Motor Company, Third Cir. (Roth, U.S.C.J.) (8 pp.) Five of Ford’s heavy-truck dealers filed suit against Ford alleging a violation of the Federal Automobile Dealers Day in Court Act, and asserting several Michigan common-law claims. The claims arose out of Ford’s decision to stop manufacturing heavy trucks. The district court granted the dealers’ motion for class certification to bring their claims on behalf of all Ford heavy-truck dealers. The district court granted summary judgment to the class on its claim that Ford breached the sales and service agreement. Ford moved for summary judgment as to the appellants, arguing their claims were barred by the release provision in the sales and service agreement between Ford and appellants. The district court agreed and held that appellants would be excluded from the class. The circuit panel affirms the judgment of the district court, finding the district court correctly held that, on resigning their dealerships, demanding termination benefits, and electing to accept those benefits, the appellants who resigned their dealerships released any and all claims against Ford under the sales and service agreement. Appellants further allege that Ford undermined the integrity of the class action process by obtaining releases from putative class members in violation of Rule 23. This argument is without merit. Ford’s solicitation of written releases was plainly contemplated by the parties because it was expressly stated in the sales and service agreement. [Filed Aug. 26, 2013.]
11-7-1584 Trilogy Health Care v. Medco Health Solutions Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (9 pp.) In this breach-of-contract action filed after defendant, a pharmacy benefits manager, terminated plaintiff’s membership in Medco’s pharmacy network, alleging contractual violations and asserting a termination for cause, plaintiff moves for a preliminary injunction requiring Medco to reinstate it to the network. The court denies the motion, finding that Trilogy has asked for a retroactive reinstatement for a period that exceeds the maximum remedy to which it might be entitled under the contract (since Medco can terminate without cause after 60 days’ notice), Trilogy has not persuaded the court that it is likely to succeed on the merits, Trilogy has failed to persuade the court that “Any Willing Provider” laws impact the case, and Trilogy has failed to show that it is likely to suffer irreparable harm in the absence of preliminary relief since its brief fails to clearly show that the limited injunctive remedy to which it could be entitled will protect it from irreparable harm that has not already occurred and confuses injuries already suffered with future injuries to be avoided. [Filed Sept. 10, 2013.]
14-7-1536 United States v. Roque, U.S. Dist. Ct. (McNulty, U.S.D.J.) (2 pp.) In response to a request from the government for a ruling that certain FBI reports relating to a named government witness need not be produced in discovery, the court directs that the government shall disclose specified information and shall formally disclose the dates during which the witness was a confidential source of information and that during that time he provided information not related to this case; the court will retain the reports not disclosed and will review them later in the case, when the context is clearer, since it cannot at this time definitively state that the withheld information, even if unrelated to this case, could not be used to impeach the witness’s credibility. [Filed Sept. 4, 2013.]
14-7-1587 United States v. Nowak, U.S. Dist. Ct. (Chesler, U.S.D.J.) (15 pp.) The government has moved for an order compelling pro se defendant to comply with the court’s order issued from the bench and later incorporated into a written order directing her to provide the government with handwriting exemplars. The orders reaffirmed an earlier order granting the government’s motion to compel her to comply with a subpoena for her handwriting exemplars. Finding that defendant’s belief that her attempted interlocutory appeal of the orders divests the district court of jurisdiction lacks any legal grounds, the court directs the defendant to provide the government with dates on which she is available to provide the exemplars. [Filed Sept. 10, 2013.]
56-7-1566 Board of Trustees of the National Elevator Industry Health Benefit Plan v. McLaughlin, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (11 pp.) In this action seeking to recover money that plaintiff, the administrator of a self-funded ERISA welfare benefit plan, paid to defendant, a participant in the plan, for medical expenses he incurred as the result of injuries he sustained in an ATV rollover accident out of the proceeds of a settlement that defendant reached with the manufacturer of the ATV, the court grants defendant’s motion for leave to file a counterclaim seeking an order compelling plaintiff to pay medical expenses incurred by defendant or his family and for an order preventing plaintiff from withholding payment of benefits for future medical expenses. The court finds that although defendant did not exhaust his administrative remedies and any party seeking to bring a claim pursuant to ERISA must exhaust administrative remedies, given the posture of this case — in which plaintiff asserts that it is entitled to reimbursement and until such monies are paid by defendant, it has the right to withhold future medical benefits — requiring defendant to exhaust his administrative remedies would not further any of the policy concerns addressed by the exhaustion requirement and, moreover, would be futile. [Filed Sept. 6, 2013.]
53-7-1548 Telebrands Corp. v. martFIVE, L.L.C., U.S. Dist. Ct. (Linares, U.S.D.J.) (18 pp.) Plaintiff, a direct marketing company that is currently test marketing a plush toy under the trademark POCKET PALS and a collapsible cane under the trademark TRUSTY CANE, seeks declaratory judgments of invalidity or noninfringement relating to defendant’s patent trademarks, copyrights and trade dress pertaining to a plush toy sold under the trademark “Stuffies” and a collapsible cane sold under the trademark HURRY CANE. The court grants defendants motion to transfer the proceedings to the District of Minnesota, finding that venue would be proper in the proposed transferee district since martFIVE is headquartered in Minnesota and defendant Hengel is a resident of Minnesota, and that a balance of the Jumara factors indicates that transfer is appropriate. [Filed Aug. 30, 2013.]
53-7-1585 Fresh Prepared Foods Inc. v. Farm Ridge Foods, U.S. Dist. Ct. (Cooper, U.S.D.J.) (33 pp.) In this trademark infringement action, plaintiff Fresh Prepared Foods, d/b/a Blue Ridge Farms, moves for summary judgment as to liability on counts one through six (concerning trademark infringement, false designation of origin, unfair competition, and dilution of trademarks under the Lanham Act, unfair competition under New Jersey law, and common-law trademark infringement and unfair competition), the defendants’ counterclaims, attorney fees and costs, and an injunction prohibiting defendants from use of the specified logo, name and references on their website. The court finds that the bankruptcy court conclusively determined ownership of the trademark property such that preclusive effect prevents defendants from arguing that FPR does not own the registered trade name or registered logo and it grants summary judgment in favor of FPF on the issue of ownership of the registered trade name and logo. The court finds that while FPF has established that the registered trade name and logo are its property and they have been legally registered and that defendants have referenced the registered trade name on their website, FPF has not established that the trade name and logo have achieved incontestability, defendants have established a dispute regarding the protectability of the registered logo, but defendants have not met their burden of showing that there are no material facts in dispute regarding the issue of noninfringement on which they seek summary judgment. Thus, the court grants plaintiff’s motion for summary judgment in part and denies defendant’s cross-motion for summary judgment. [Filed Sept. 9, 2013.]
25-7-1522 Cooper v. Alliance Oral Surgery, U.S. 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, 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. 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 Aug. 16, 2013.]
25-7-1533 Stanker & Galetto Inc. v. The New Jersey Regional Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, U.S. Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) Plaintiff, a corporation engaged in the building and construction industry, seeks a declaratory judgment establishing that it validly terminated the prehire agreement with defendant that had been negotiated on its behalf by the Building Contractors Association of New Jersey, after laying off all of its employees who were covered by the agreement due to a change in its operations from a direct employer to a construction manager firm, and that it is under no obligation to participate in any grievance and/or arbitration proceeding with defendants. Plaintiff argues that it was privileged to unilaterally withdraw from the agreement under the one-man unit rule. The court grants summary judgment to plaintiff, finding that (1) the court, not the National Labor Relations Board, has jurisdiction over the matter; (2) the proper bargaining unit for purposes of the one-man unit rule in the § 8(f) context is the repudiating employer’s employees even if, as here, the employer is a member of a multiemployer association that entered into a prehire agreement on the employer’s behalf; and (3) the one-man rule applies since plaintiff permanently laid off its nine covered workers with formal written notice and has not self-performed work falling within the jurisdiction of defendants and has not employed any employees for those purposes. [Filed Aug. 28, 2013.]
25-7-1549 Callahan v. U.S. Postal Service, U.S. Dist. Ct. (Chesler, U.S.D.J.) (2 pp.) In this action asserting claims of employment discrimination in violation of New Jersey’s Law Against Discrimination, originally filed in state court and then removed, the court grants defendant’s motion to dismiss because Title VII of the Civil Rights Act of 1964 is the exclusive remedy for federal employees who allege discrimination in the workplace and it pre-empts workplace discrimination claims based on the NJLAD. Plaintiff is granted leave to amend his complaint to assert any claims under Title VII at which time defendant may move to dismiss on the ground of failure to exhaust. [Filed Sept. 4, 2013.]
25-8-1550 Lampon-Paz v. Department of Homeland Security, Third Cir. (per curiam) (5 pp.) Pro se plaintiff, formerly an employee of the Federal Air Marshal Service within the Transportation Security Administration in the Department of Homeland Security, appeals from the district court’s dismissal of his action alleging, inter alia, that he and his family were being harassed because he was a whistle-blower, and indicating that he was appealing a decision of the Merit Systems Protection Board dismissing his claim that he was retaliated against for being a whistle-blower. He also alleged that the SSA gave him full benefits, thereby cementing his retirement. The court affirms the dismissal because the district court correctly found that it lacked subject-matter jurisdiction over the case to the extent that plaintiff was appealing the MSPB decision and that the only allegation pertaining to the federal defendants was that the SSA gave plaintiff his full benefits, which cannot give rise to liability. [Filed Sept. 5, 2013.]
25-7-1551 Webster v. Dolgencorp, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (18 pp.) Plaintiff initiated this action against defendant Dolgencorp and several of its employees alleging employment discrimination. Defendant owns retail stores in New Jersey and operates them as Dollar General Inc. Plaintiff, a practicing Seventh Day Adventist, was formerly employed by Dollar General. Plaintiff accepted an offer from Dollar General’s district manager to become a store manager. The parties agreed that plaintiff would not be required to work on Saturday. Previously, plaintiff stated in his job application that he “would never be available to work from sunset on Fridays to sunset on Saturdays” because his religion required him to observe the Sabbath and abstain from working on Saturdays. Although Dollar General initially accommodated plaintiff, plaintiff was eventually required to work on a Saturday. Thereafter, plaintiff objected. The district manager informed him that he would have to either work on Saturdays or accept a demotion with a reduction in hours. When plaintiff refused to accept either option, his employment was terminated. Dolgencorp filed a motion to dismiss plaintiff’s claims except for plaintiff’s religious discrimination and failure to accommodate claims under Title VII. The motion is denied as to the claims for breach of contract and implied covenant of good faith and fair dealing, and is denied as moot as to all claims against the individually named defendants. The motion is granted as to the Title VII hostile work environment claim, the NJLAD claims, and the claim for intentional infliction of emotional distress. [Filed Aug. 22, 2013.]
25-7-1534 Largie v. TCBA Watson Rice, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (6 pp.) TCBA Watson Rice is a certified public accounting and consulting firm. Bennie Hadnott is the managing partner. In December 1997, Watson Rice hired plaintiff as a tax specialist. Plaintiff was subsequently promoted and charged with running the firm’s tax practice. In April 2001, plaintiff was elected to a partnership position in Watson Rice. Plaintiff began to actively participate and vote at monthly and annual partnership meetings. As a partner, plaintiff began to consult and advise the partnership on how partners should be compensated. Furthermore, plaintiff oversaw the entire tax operation of the firm, including supervising and managing tax accountants and staff. On Oct. 8, 2010, Hadnott sent plaintiff a letter terminating him for cause on the basis that plaintiff was attributing money from the firm’s clients to another firm. Plaintiff argues that he was fired for failing to participate in fraudulent accounting activities at the request of other partners. Plaintiff is attempting to bring his claim under the Conscientious Employee Protection Act (CEPA). The court agrees with defendant that CEPA does not afford plaintiff any protection. Plaintiff possessed the ability to influence the dealings and activities of Watson Rice. Plaintiff was not an employee for the purposes of the CEPA. Therefore, defendant’s motion to dismiss the CEPA count is granted. [Filed Aug. 20, 2013.]
26-7-1567 Texas Eastern Transmission v. 9.41845 Acres of Land, U.S. Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) These cases arise from condemnation actions between condemnee property owners and condemnor plaintiff Texas Eastern Transmission, which sought and obtained easements by condemnation for construction of a pipeline beneath properties owned by defendants. The key remaining issue is the amount of just compensation to which defendants are entitled. Defendants Jersey City and View LSP have moved to have this issue determined by a jury trial. Rule 71.1(h)(2)(A) gives the court the discretion, for just reasons, to instead appoint a three-person commission to determine compensation. Given the large numbers of parcels, a commission provides greater efficiency, judicial economy, and consistency than multiple trials. The complexity of the issues is another reason supporting the appointment of a commission of experts. The court exercises its discretion and denies defendants’ motions to determine just compensation by jury trial. Pursuant to Rule 71.1, the court will appoint a three-person commission to determine compensation. [Filed Aug. 22, 2013.]
32-7-1552 New Jersey Manufacturers Insurance Group v. Electrolux Home Products Inc., U.S. Dist. Ct. (Thompson, U.S.D.J.) (14 pp.) This case involves a fire at the home of Kecia Ellis that began at the base of her clothes dryer and spread to and damaged the property of Kathleen Brand. Plaintiff New Jersey Manufacturers Insurance Group paid an insurance claim to Ellis and Brand. Plaintiff, as subrogee, initiated this lawsuit against defendant Electrolux Home Products Inc. At trial, plaintiff argued that defendant was liable because the dryer was defective in design, and in failing to contain adequate warnings. The jury returned a verdict for defendant. On the verdict sheet, the jury indicated that plaintiff had not shown that the dryer was defective either in design or for failure to provide adequate warnings. The jury, therefore, did not reach the questions that dealt with misuse and proximate cause. Plaintiff now moves for a new trial. Plaintiff has not shown that the court’s rulings on testimony concerning the issue of proximate cause were error as that issue was not reached by the jury during its deliberations. The jury, in returning a verdict for defendant, appears to have rejected plaintiff’s theory of defect, and the court cannot say that the jury’s verdict is contrary to the great weight of the evidence. Plaintiff’s motion for new trial is denied. [Filed Aug. 20, 2013.]
50-7-1553 Holland v. New Jersey Resources Corp., U.S. Dist. Ct. (Thompson, U.S.D.J.) (9 pp.) Plaintiff-shareholder alleged in this putative class action that defendants breached their fiduciary duty by including in the NJR 2013 proxy statement to be presented at the 2013 annual meeting of NJR shareholders materially false and misleading statements regarding § 162(m) of the Internal Revenue Code and the tax deductibility of executive compensation in excess of $1 million, in violation of the Securities Exchange Act of 1934. In response, the board prepared a supplement to the proxy statement and shareholders later approved the 2007 compensation package curing the alleged defect in the proxy statement. Plaintiff then filed a demand letter demanding that the board investigate and remedy breaches of fiduciary duty in connection with the facts and circumstances originally alleged and adopt corporate governance reforms to prevent the reoccurrence of the alleged misconduct. The court finds that the current controversy is moot and should be dismissed, finding that since defendants made the necessary changes to the proxy statement and took appropriate action at the shareholders meeting, the controversy at the center of this case has been removed and the only residual matters concern class certification and fees. With respect to class certification, such demand does not preclude dismissal of the action on grounds of mootness, and with respect to the award of attorney fees, the court retains ancillary jurisdiction separate from the dismissal of this action. The court therefore grants defendants’ motion to dismiss. It denies plaintiff’s motion to stay the litigation so that he can amend the complaint to add derivative claims on behalf of NJR, finding that a stay will not simplify the issues or promote judicial economy and plaintiff has not shown a clear case of hardship or inequity. [Filed Sept. 5, 2013.]
36-7-1554 Geiss v. Target Corporation, U.S. Dist. Ct. (Kugler, U.S.D.J.)(16 pp.) After tripping over an uneven rug while entering a Target store and landing on her knees, one of which had had a prosthetic knee implanted, plaintiff filed suit against Target asserting claims for negligence and loss of consortium. Target impleaded Virtua Memorial Hospital, where plaintiff was treated a short time after the fall, as a third-party defendant, arguing that plaintiff’s knee subluxation, which allegedly occurred while she was hospitalized, constitutes a superseding intervening cause and that any injuries resulting therefrom are due solely to Virtua’s negligence. Target seeks contribution and indemnification from Virtua. The court denies Target’s motion for summary judgment. It denies Target’s request to bar plaintiff’s expert, finding that it has not raised a proper Daubert challenge since it does not challenge his expertise, the reliability of his methodology, or the relevance of his opinions to the case and has not raised any justification for barring his opinions. It finds that plaintiff has identified a triable issue of fact as to causation where she has offered ample evidence that her visit to the emergency room was spurred by severe back and knee pain and has produced adequate evidence for a jury to find that Target’s initial negligence was a proximate cause of her knee subluxation and an actual cause of the subluxation. The court grants Virtua’s motion to dismiss, finding that Target has not provided any competent evidence of Virtua’s negligence and it has not established that Virtua breached some duty owed to it to preserve plaintiff’s medical records; and Target’s fraudulent-concealment claim fails because it has not established that the missing records may have been material to the litigation or that Virtua intentionally withheld the missing entries. [File Aug. 30, 2013.]
36-7-1568 Shahbazian v. U.S. Postal Service, U.S. Dist. Ct. (McNulty, U.S.D.J.) (9 pp.) In this action asserting a cause of action in tort to recover the value of a package that plaintiff alleges was lost in the mail as a result of defendant’s negligence, the court grants defendant’s motion to dismiss pursuant to Rule 12(b)(1), finding that, under the Federal Tort Claims Act, the only proper defendant is the United States and that the USPS should be dismissed as a defendant on this ground, and that even if plaintiff had properly named the United States as defendant, the complaint must be dismissed because plaintiff has not filed an administrative claim with the postal service and thus has failed to exhaust his administrative remedies and because plaintiff’s claim falls within the postal matter exception from the FTCA’s general waiver of sovereign immunity. [Filed Sept. 6, 2013.]
36-7-1586 Ghee v. Marten Transport, Ltd., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (19 pp.) This matter arose from an accident between two tractor-trailers. After a jury trial on damages only, in which plaintiff was awarded $875,896.21, defendants renew their motion for a judgment as a matter of law and also seek a new trial. Defendants also ask for remittitur of the portion of the jury’s award for past lost wages between July 2011 and December 2011, and for future lost wages. Defendants’ motions are denied. The evidence presented to the jury was sufficient to support its award. The verdict was not against the weight of the evidence or constitutionally excessive. [Filed Aug. 21, 2013.]
39-7-1535 Gerasimov v. Caravan Ingredients Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) Plaintiff filed this action against defendant Caravan Ingredients Inc. in New Jersey state court asserting seven causes of action, including a wrongful discharge claim, an employment discrimination claim, and a workers’ compensation retaliation claim. Plaintiff alleges that he was injured while working in defendant’s food-processing plant, and that he was terminated in retaliation for taking workers’ compensation. Defendant removed the action to this court, and filed a motion to dismiss. The court dismissed the first six counts of the complaint without prejudice, and dismissed plaintiff’s workers’ compensation retaliation claim with prejudice. The court found that plaintiff was barred from pursuing his workers’ compensation retaliation claim in court because he had opted to pursue the claim before the Office of Administrative Law (OAL). Plaintiff moves for reconsideration of the dismissal of his workers’ compensation retaliation claim. He argues the claim should be reinstated because he voluntarily withdrew his OAL claim in order to pursue his workers’ compensation retaliation claim in court. The court finds that the withdrawal of plaintiff’s OAL claim is not new evidence. Plaintiff withdrew his OAL claim before filing his opposition to the motion to dismiss. Thus, this evidence was available and plaintiff failed to present it to the court. The court did not commit a clear error, as the withdrawal of plaintiff’s OAL claim was never brought to the court’s attention. Finally, the fact that plaintiff withdrew his OAL claim does not yield a different result. Once plaintiff chose to pursue his workers’ compensation retaliation claim administratively, he waived his right to seek relief in court. Plaintiff’s motion for reconsideration is denied. [Filed Aug. 20, 2013.]