STATE COURT CASES
Ford v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (6 pp.) Appellant appeals from the final decision of the MVC suspending her driving privileges for 3650 days because she was convicted in New York State for driving while her ability was impaired by alcohol, her third driving while intoxicated- type offense. The panel affirms. Citing
State v. Zeikel, it rejects appellant’s contention that her DWAI conviction was not an offense “substantially similar” to DWI under N.J.S.A. 39:4-50. It also finds that here, where appellant contests only whether the New York DWAI statute is substantially similar to New Jersey’s DWI law, not adjudicatory facts, the MVC properly denied her request for a hearing regarding her suspension.
Fortney v. Board of Education of Newark A/A State Operated School District of Newark, App. Div. (per curiam) (4 pp.) Plaintiff appeals the order denying his second motion for reconsideration of an order dismissing his complaint alleging that he was subjected to racially discriminatory education practices in 1953 when he was 11 years old and a student in Newark. The panel affirms substantially for the reasons expressed below: plaintiff never filed a notice of claim; because plaintiff did not file his complaint for over 50 years after he was subject to the discrimination, the complaint must be dismissed; and the discovery rule is not applicable -despite plaintiff’s claim that he had repressed his memories and did not know until 2011 that he could filed a claim – as defendant would be substantially prejudiced in defending against plaintiff’s claims. [Filed February 13, 2014]
Gourdine v. Cummings, Ch. Div., Family Pt., Ocean Co. (Jones, J.S.C.) (10 pp.) What happens when a county probation department successfully collects a lump sum of money via tax refund intercept from a child support obligor, who owes child support arrears to multiple claimants under different accounts, including custodial parents and a county welfare agency? To whom does probation pay the money? This case presents this question, in the context of the respective claims and rights of two different custodial parents as well as a county welfare agency to reimbursement of child support arrears from the same delinquent defendant. Pursuant to Rule 1:36-2(d)(2) and (6), the opinion addresses important questions of law which are of continuing public interest and importance in family law jurisprudence. [Decided Oct. 16, 2013] [Approved for publication.]
Wexler v. Wexler, App. Div. (per curiam) (13 pp.) In this post-judgment matrimonial matter, plaintiff appeals from the Family Part order denying his motion for a reduction of his alimony and child support obligations, based on an alleged reduction of his income. He also asserts that the trial judge erred in determining the amount of a credit due to him for overpayment of defendant’s medical insurance premiums. In December 2011, plaintiff filed for Chapter 7 bankruptcy. The bankruptcy court granted plaintiff a discharge of his indebtedness. However, plaintiff’s business debts, as well as the loans LaFe Foods made to plaintiff, were not discharged. The judge found that plaintiff’s financial situation at the time he filed his motion for a support modification was substantially similar to what existed at the time of the DJOD. Plaintiff worked at the same job, performed the same duties, and received the same income. The only thing that changed was that plaintiff alleged that LaFe was insisting that the loans be repaid at a higher rate. However, there was ample evidence to support the judge’s determination that plaintiff took these loans to fund his personal lifestyle, not to meet his support obligations. The record also supports the judge’s finding that plaintiff’s cash flow actually improved since the DJOD. His personal debts were discharged in bankruptcy and, because he is no longer paying the mortgages on condominiums he owns, plaintiff lives rent free, while still collecting rent. The appellate panel finds no basis to disturb the decision to deny plaintiff’s motion for a downward modification of his support obligations. The panel remands solely for the purpose of correcting a mathematical error in the calculation of the credit for the medical insurance premium payments.
LAND USE AND PLANNING
City Of Long Branch v. West Of Pier Associates, LLC, App. Div. (per curiam) (14 pp.) In 2001, plaintiff City of Long Branch instituted a condemnation action seeking to acquire property located at 74 Ocean Avenue. The City filed a declaration of taking and deposited $1,184,000 into court. The parties thereafter agreed to submit the issue of compensation for the property to binding arbitration. The arbitrators set the fair market value of the property at $3,940,000. The City’s designated developer paid defendants the difference between the amount of the award and the City’s initial deposit. Defendants filed a motion seeking to confirm the arbitration award and to schedule a hearing to determine the amount of interest the City owed on the award. The court denied defendants’ request for an evidentiary hearing, and determined that interest was to be calculated in accordance with Rule 4:42-11. The Appellate Division remanded for the trial court to conduct an evidentiary hearing. On remand, the trial court awarded defendants interest at the interest rate established under Rule 4:42-11. Here, the appellate panel affirms, rejecting defendants’ argument that the judge erred in finding that interest should be determined pursuant to Rule 4:42-11 rather than by the method advocated by their experts. The panel further finds the City’s experts were qualified to provide expert testimony on the appropriate rate of interest.
LAND USE AND PLANNING
English v. The County of Essex, App. Div. (per curiam) (9 pp.) On January 30, 2012, English filed a pro se complaint in the Law Division against the County of Essex, the County Executive and the County’s Board of Freeholders, seeking an order enjoining the 2012 deer hunt. Her amended complaint added two plaintiffs. Here, plaintiffs appeal from an order dismissing their complaint for failure to state a claim upon which relief can be granted. Plaintiffs also appeal from an order denying their motion for reconsideration. The court found that the plaintiffs’ claims were moot because the hunt had been completed. The court also found that the complaint had not been timely filed. In addition, the court determined that the County’s decision to conduct the hunt represented “a policy decision,” and the court should not substitute its judgment for the judgment of the policymakers. The appellate panel affirms, finding that plaintiffs’ complaint was not timely filed and the issues raised are moot because the deer hunt has already taken place.
LAND USE AND PLANNING
In The Matter Of The Revocation Of The Access Of Block #613, Lots #4 & 5, Township Of Toms River, Ocean County (Arielle Realty, LLC), App. Div. (per curiam) (16 pp.) Arielle Realty, LLC appeals from a final determination of the Commissioner of Transportation, who found that a plan by the New Jersey Department of Transportation (NJDOT) for certain proposed road improvements did not deny Arielle reasonable access to its property. Arielle’s property has two points of access to Route 166. One is a direct opening perpendicular to Route 166 that allows access to eight parking stalls, which are partly located on the NJDOT’s right of way. A motorist travelling north or south on Route 166 who wanted to park in one of these stalls could turn off the highway and pull into one of these spaces. The motorist could exit Arielle’s property by backing out from the stalls onto Route 166. The other access point to Arielle’s property is on West Gateway, where there are eleven parking stalls. A motorist exiting one of these parking stalls must back out onto West Gateway. The NJDOT informed Arielle that the access point to its property on Route 166 would be eliminated, because an additional northbound travel lane and median were going to be constructed. Access to Arielle’s property would be limited to West Gateway. The ALJ concluded that the NJDOT’s plan satisfied all of the applicable legal requirements for revocation of Arielle’s access to Route 166. The ALJ noted that the plan eliminated the parking situation on Route 166, which violated the State’s access code. The ALJ found that the NJDOT’s plan provided Arielle with reasonable access to its property. The Commissioner adopted the ALJ’s findings. The appellate panel affirms the Commissioner’s decision determining that the plan provided Arielle with reasonable access.
Rosenberg v. Smith, App. Div. (per curiam) (10 pp.) Plaintiff, an attorney, loaned $50,000 to defendant, an attorney, so that the latter could purchase stock in TenX BioPharma. When investors sought to terminate defendant as CEO of TexX, plaintiff represented him. Two months later, defendant retained plaintiff’s firm, Sills Cummis, to represent TenX in connection with the sale of the company’s assets. The retainer agreement disclosed the firm’s prior representation of defendant and specifically terminated that representation. Later, Sills Cummis was approved as TenX’s special transactional counsel by the Bankruptcy Court in connection with sale of the company assets. Plaintiff submitted an affidavit disclosing his loan to defendant. Plaintiff filed this action after defendant refused his demand for payment of the loan. Defendant filed a counterclaim, alleging that plaintiff was his personal attorney, and plaintiff breached his fiduciary duty by asking defendant not to memorialize the loan terms in writing, and using the loan to coerce defendant to retain Sills Cummis to represent TenX and generate additional legal fees. Defendant also asserted a malpractice claim, alleging that plaintiff took action adverse to him in the bankruptcy matter. Defendant appeals the Law Division order granting plaintiff’s motion for summary judgment. The panel affirms, finding that the evidence confirms that the $50,000 was a loan payable on demand and that defendant failed to pay; there was no attorney-client relationship between plaintiff and defendant at the time of the loan transaction or at the commencement of the bankruptcy matter or thereafter and thus plaintiff breached no duty to defendant and plaintiff did not commit malpractice in connection with the loan or the bankruptcy matter, and even if an attorney-client relationship existed, because defendant’s malpractice claim was not based on common knowledge, he was required to file an affidavit of merit which he failed to do. [Filed February 13, 2014]
State v. Downs, App. Div. (per curiam) (7 pp.) Defendant appeals the Law Division order affirming the municipal court’s denial of his motion to dismiss outstanding charges on speedy trial grounds. Defendant entered a conditional plea to driving while intoxicated (DWI), reserving his right to pursue this appeal. Defendant actively attempted to bring this matter to an end. He requested discovery around the time the indictable charge against him was dismissed, to no avail. Despite his best efforts to obtain discovery, he was put off and shuttled between the Hamilton Township Police Department (HTPD) and the Mercer County Prosecutor’s Office. Because the file could not be located, however, discovery was not provided until some sixteen months later. The Supreme Court decided
State v. Cahill after the Law Division’s decision in this case. In Cahill, the Supreme Court noted that “[o]nce a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay. Misplacing a DWI file is not an adequate reason for a sixteen-month delay. The appellate panel reverses the finding of the Law Division judge and dismisses the matter.
State v. Graham, App. Div. (per curiam) (15 pp.) The panel affirms defendant’s convictions for criminal trespass, criminal mischief with property damage in excess of $500, and simple assault, a disorderly persons offense originally charged in a municipal complaint, and the sentence imposed, but remands to correct the jail credits, the term of probation, and to correct the inaccurate statement that the simple assault charge was presented to the jury as a lesser-included offense of sexual assault. [Filed February 13, 2014]
State v. Ruffin, App. Div. (per curiam) (3 pp.) While driving in Edison, defendant, who was employed by the Division of Youth & Family Services, became involved in an incident with the driver of another vehicle during which she displayed a knife and threatened the driver. She was convicted of harassment, unlawful possession of a weapon, and unlawful possession of a weapon for an unlawful purpose. She appeals that part of the judgment that sentenced her to a permanent forfeiture of her public office, position or employment. The panel reverses and remands for entry of an amended JOC removing this part of her sentence because permanent forfeiture is improper since her offense did not involve or touch her public office, position or employment.
State v. Roosevelt, App. Div. (per curiam) (5 pp.) Defendant, who pled guilty to eluding, driving under the influence, and driving while on a revoked license anticipating that he would be sentenced to drug court and receive an aggregate one-year suspension of his driver’s license pursuant to a plea agreement, appeals his convictions, because, after a limited discussion and without the filing of legal briefs, the judge determined to run the license suspensions consecutively pursuant to her interpretation of N.J.S.A. 39:5-30d. Defendant contends that the aggregate suspension of two years and seven months is excessive. The panel remands because defense counsel argues that defendant felt pressured to proceed to sentencing because he wanted to be admitted to the drug court program and because the parties never fully briefed and argued the issue of consecutive or concurrent sentences.
FEDERAL COURT CASES
Estate of Lakatos v. Monmouth County Department of Corrections, Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) This action, which asserts claims under 42 U.S.C. sections 1983 and 1985 and state claim, arises out of medical care rendered to plaintiff while he was an inmate at the Monmouth County Correctional Institution. All defendants but Shah signed and filed a notice of removal which said that Co-defendants have consented to removal of this action.” Defendants claims that he consented to removal because they sent him a letter that said, “unless advised to the contrary, we will assume that you have consented to removal of this action,” to which he did not respond. The court grants plaintiff’s motion to remand on the ground that defendants failed to obtain the consent of all parties since Shah’s non-response was insufficient to constitute consent to removal. [Filed January 24, 2014]
CIVIL PROCEDURE – JURSIDICTION AND SERVICE OF PROCESS
Mallory v. Verizon, Dist. Ct. (McNulty, U.S.D.J.) (6 pp.) Plaintiff Cornell Mallory brings this suit for employment discrimination pursuant to Title VII of the Civil Rights Act. Plaintiff alleges discrimination on the basis of race by a Verizon supervisor who suspended and then dismissed him. Plaintiff moves for a default judgment against Defendants. Defendants oppose the motion, and cross-move to set aside default. Defendants failed to timely respond to the complaint but they contend that they were not properly served. The United States Marshals delivered a copy of the summons and complaint to “Mr. Cyril Bernard” at Verizon’s Newark facility. Defendants assert that Bernard is a “plant cleaner” and not an officer, managing agent, general agent, director, or trustee of Verizon, or “in charge” of the Newark facility. They argue that Bernard was not appointed as an agent authorized to receive service for Defendants, and his status as a mail clerk does not establish that he is authorized to accept service on their behalf. They also assert that Plaintiff did not attempt to serve the individual defendants personally or by leaving copies of the summons and complaint at their “dwellings or places of abode.” Plaintiff has not submitted any separate opposition to Defendants’ cross-motion and has not offered proof that Bernard was an authorized agent or that service was proper. Because the burden of showing that service is proper is on the party asserting it, Defendants were not in default. In any event, the Court finds that default judgment is inappropriate in this case on the merits. Plaintiff’s motion is denied and Defendants’ cross-motion is granted. [Filed December 23, 2013]
CIVIL PROCEDURE – TORTS
Lampon-Paz v. Department of Homeland Security, Dist. Ct. (Martini, U.S.D.J.) (12 pp.) In this, the second lawsuit filed by plaintiff asserting hazy allegations of a shadowy government conspiracy to injure him and his son with clandestine mind-control technologies, the court grants defendants’ motion to dismiss, finding that: the claims against the State of New Jersey are barred by the Eleventh Amendment; all of the claims are barred by the doctrine of res judicata in light of the dismissal of the earlier action which asserted essentially the same claims against the same defendants or their privies; and even if not barred on procedural grounds, the action would have to be dismissed because the facts do not state a plausible claim against any of the defendants. [Filed January 23, 2014]
Cottrell v. Nicholson Properties, LLC, Dist. Ct. (Hillman, U.S.D.J.) (27 pp.) Plaintiff Maryann Cottrell is the mother of a severely disabled daughter, and Plaintiff Richard Holland serves as a secondary caregiver for Cottrell’s daughter. Defendant Nicholson Properties, LLC is a limited liability company that operates a retail strip mall in Glassboro, New Jersey. Defendants George Nicholson, Sr. and George Nicholson, Jr. are alleged to be the principals, partners, officers, agents or employees of Defendant Nicholson Properties, LLC. According to the First Amended Complaint, although they themselves are not disabled, both Cottrell and Holland are lawfully permitted to park their vehicles in handicap accessible parking spaces reserved for disabled individuals when transporting Cottrell’s daughter. Beginning in June of 2009 and continuing through February of 2012, Cottrell and Holland began documenting a variety of purported violations they observed on Defendants’ property and started filing citizen’s complaints against Nicholson Properties based on these violations. Here, Plaintiffs assert claims for retaliation under the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”) based on defendants’ “ban letter” which purportedly revoked their business invitee status. The Court grants Defendants’ motion and dismisses the complaint without prejudice for lack of standing because Plaintiffs fails to allege facts sufficient to demonstrate that there is a real and immediate threat of future injury as a result of the revocation of their business invitee status. [Filed December 23, 2013]
Marquez v. City of Perth Amboy, Dist. Ct. (Debevoise, U.S.D.J.) (18 pp.) The instant motion arises out of an Amended Complaint filed by Plaintiffs alleging excessive use of force and related civil rights violations stemming from their arrests. The Defendant Officers, the Perth Amboy Police Department (“PAPD”), the City of Perth Amboy and Adel Tawfik, the owner of the property on which the underlying incident occurred, filed a partial motion for summary judgment to dismiss two claims in this action: 1) an excessive use of force claim against the Defendant Officers pursuant to state law and federal law, and 2) a negligence claim against the City and Police Department under the theory of
respondeat superior and/or vicarious liability for the state claims. The negligence claims against the City of Perth Amboy and the Perth Amboy Police Department based on excessive use of force are dismissed. With respect to the outstanding excessive use of force claims against individual Defendant Officers, Defendants’ partial motion for summary judgment is granted in part and denied in part. [Filed December 20, 2013]
Hanover Architecture Service P.A. v. Christian Testimony-Morris N.P., Dist. Ct. (Debevoise, S.U.S.D.J.) (20 pp.) Plaintiff, hired by defendant to provide architectural design services for construction of a church, filed this action asserting claims for, inter alia, copyright infringement, negligent misrepresentation, and unfair competition. Defendants filed counterclaims for, inter alia, breach of contract based on plaintiff’s alleged refusal to change the design plans, which plaintiff had copyrighted, to stay within budget. Plaintiff moves for summary judgment on the breach of contract counterclaim, citing defendants’ failure to provide an affidavit of merit. The court grants in part and denies in part plaintiff’s motion. As to each of defendants’ claims, it addresses whether the action is for damages for personal injuries, wrongful death or property damage, whether is it for malpractice or negligence, and whether the care, skill or knowledge exercised in the work that is the subject of the complaint falls outside acceptable professional standards. It grants plaintiff’s motion on the counterclaim as it relates to defendants’ allegations that plaintiff provided designs that required several revisions before meeting the township’s requirements and misclassified the building to house the project and refused to reclassify it, and dismisses those claims. In all other respects, the motion is denied. [Filed January 24, 2014]
EVIDENCE – SPOLIATION
McCann v. Kennedy University Hospital Inc., Dist. Ct. (Schneider, U.S.M.J.) (21 pp.) Plaintiff moves for sanctions against defendant for spoliation of evidence, alleging that defendant “intentionally or inadvertently” destroyed videotapes that recorded defendant’s emergency room lobby on the night plaintiff alleges to have been mistreated by defendant’s staff. He claims that the tapes would have shown hospital staff walking past him as he lay unconscious on the lobby floor and argues that the footage was relevant to show that he was subjected to discrimination and “inhumane” treatment while in defendant’s care. The court finds that, while defendant was aware that plaintiff intended to sue, it was not unreasonable for defendant to believe that plaintiff intended to sue based on his complaints about the clinical care provided in his treatment room, which was allegedly motivated by the fact that he did not have insurance – not his alleged fall in the lobby – and the videotape is not relevant to this complaint, and that prior to the tape-over of the ER tapes, it was not reasonably foreseeable that the tapes would be requested in connection with those claims. Thus, defendant’s duty to preserve the tape did not arise before they had already been taped over as a matter of routine. The court also finds that there is no evidence suggesting that the tape-over was done in bad faith or with the intent to destroy relevant evidence. It therefore denies the motion for sanctions. [Filed January 24, 2014]
LABOR AND EMPLOYMENT – EMPLOYEE BENEFITS
Palma v. Harleysville Life Insurance Company, Dist. Ct. (Hillman, U.S.D.J.) (28 pp.) Plaintiff brings this action against Defendant Harleysville Life Insurance Company claiming entitlement to benefits under a group long term disability plan and asserting violations of the Employee Retirement and Income Security Act (“ERISA”). Harleysville moves for summary judgment. Harleysville paid disability benefits to Plaintiff for thirteen months because the original diagnosis and restrictions made clear that Plaintiff could not perform any duties of her occupation and thus she was totally disabled within the meaning of the Policy. Plaintiff’s medical information was reviewed on a regular basis for ongoing support of her disability in accordance with the Policy terms. Harleysville eventually determined that video surveillance of Plaintiff was necessary to assess her condition. The evidence presented in the Administrative Record clearly supports the discontinuation of Plaintiff’s benefits and the denial of her appeal. Plaintiff failed to submit objectively satisfactory proof of her continuing disability, and the video surveillance directly contradicts not only her subjective reports of her symptoms, but also those of her own treating physicians. This video surveillance was sufficient to convince Plaintiff’s own physician that her reported symptoms were not actually consistent with her level of functional activity. Her physician’s conclusions were verified by an independent review of Plaintiff’s claim. The Court finds Harleysville appropriately decided to discontinue Plaintiff’s benefits. Its decisions were consistent with the terms of the Policy, the medical evidence, and the video surveillance. Harleysville’s motion for summary judgment is granted. [Filed December 23, 2013]
LABOR AND EMPLOYMENT – WAGES AND HOURS
Asirifi v. West Hudson Sub-Acute Care Center LLC, Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Plaintiffs, employed as registered nurses at West Hudson Sub-Acute Care Center, claim that they are owed minimum wages and overtime under the Fair Labor Standards Act and the New Jersey Wage and Hour Law because defendant allegedly regularly deducted 30 minutes of paid time from their shifts for an unpaid meal break, regardless of whether such breaks were taken, and that they worked in excess of their regularly scheduled shifts and were not paid for this time. The court denies without prejudice their motion for conditional class certification, finding that they have not shown that potential class members are similarly situation since, while they have submitted time cards to evidence the hours they worked, they merely allege application of a uniform policy as to other potential class members. Alleged application of a uniform policy, without more, does not show that potential class members are similarly situated. [Filed January 24, 2014]
TORTS – TORTIOUS INTERFERENCE WITH CONTRACT
Vroom v. Ameriquest Transportation Services, Dist. Ct. (Irenas, S.U.S.D.J.) (12 pp.) The court grants defendants’ motion for summary judgment in this tortious interference with contractual relations action, filed after Vroom, formerly the president and chief executive officer of the Truck Renting and Leasing Association, a non-profit trade association providing legislative advocacy to the truck renting and leasing industry, was terminated. Vroom alleges that defendants’ executives conspired to, and succeeded in wrongfully bringing about his dismissal. The court finds that plaintiff failed to produce any evidence probative of malicious interference where defendants, who were members of TRALA, voiced their displeasure with Vroom, sought his dismissal, and left TRALA when his dismissal was not forthcoming, which is conduct the law clearly allows. [Filed January 23, 2014]