STATE COURT CASES
CONSUMER PROTECTION
09-4-3734 Monument Builders of NJ v. Roman Catholic Archdiocese of Newark, Chancery Div. (Middlesex County) (Ciuffani, P.J.Ch.) (8 pp.) The issue in this action is whether defendant’s Private Mausoleums Program and Inscription Rights Program – under which defendant would purchase private mausoleums and sell burial rights in them and would purchase and own monuments and be responsible for setting and inscribing the stones – are statutorily authorized. The court finds that because defendant’s cemeteries are restricted to members of the Catholic Church and their immediate families, its cemeteries are not subject to the New Jersey Cemetery Act of 2003, and are exempt from N.J.S.A. 45:27-16c which prohibits a cemetery company from selling monuments or private mausoleums. They are subject to N.J.S.A. 16:1-4 and 16:15-1 et seq., under which the acquisition, installation and ownership of the private mausoleums and monuments in defendant’s cemeteries for the sale of inscription rights is not ultra vires but squarely within the powers granted to defendant under 16:15-11. Thus, the court finds that the purchase of monuments and private mausoleums with the sale of inscription rights thereon, lie within defendant’s statutory powers. [Filed April 29, 2014]
LABOR AND EMPLOYMENT
25-2-3735 In the Matter of Knowlden, App. Div. (per curiam) (13 pp.) Appellant Department of Human Services appeals from the decision of the Civil Service Commission reducing the DHS’s penalty of termination to a six-month suspension for Knowlden, a Human Services Assistant at Trenton Psychiatric Hospital. Appellant was removed from his position after he punched a psychiatric patient after being attacked by the patient. The panel finds that where the commission gave careful consideration to the severity of Knowlden’s conduct in light of his and the DHS’s duty to protect the rights and safety of psychiatric patients and considered his employment history and found that his only two minor and remote attendance-related disciplines mitigated against removal, its decision was premised on a through consideration of all relevant factors. The panel also finds that there was sufficient evidence supporting the finding that Knowlden’s single punch was reflexive with no intent to cause harm or retaliate and his conduct during the incident was otherwise in accordance with procedure, and that the commission could reasonably determine that the misconduct warranted a penalty less than termination. The panel therefore concludes that the decision was not arbitrary, capricious or unreasonable and is supported by sufficient credible evidence and it affirms.
PUBLIC RECORDS | TAXATION
52-2-3736 Garcia v. Dover Town, App. Div. (per curiam) (9 pp.) Plaintiff appeals from the order denying his motion to compel the town of Dover to produce documents responsive to his request under the Open Public Records Act for documents relating to Dover’s tax assessments on his home and two neighboring properties and to remand to Dover to provide any documents not already provided in response to his request, excepting those protected by the deliberative process privilege. The panel affirms essentially for the reasons expressed below, finding that plaintiff’s arguments on appeal are without sufficient merit to warrant discussion in a written opinion as they are premised on the contention that he was denied access to records, which contention is belied by the facts found by the trial judge, which are amply supported by the record.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-3737 HSBC Bank USA v. Nini, App. Div. (per curiam) (15 pp.) Plaintiff HSBC Bank USA, N.A., the putative mortgagee in this contested foreclosure action, appeals from an order granting attorney fees to defendants Anthony and Gina Nini, the mortgagors. Unable to comply with a motion compelling the deposition of its responsible officer, Scott Anderson, HSBC moved to voluntarily dismiss its complaint without prejudice. The trial judge granted HSBC’s motion, and entertained defendants’ application for attorney fees and costs. The judge awarded defendants $54,068.46. On appeal, HSBC argues the trial judge abused her discretion in awarding attorney fees, and alternatively, erred as a matter of law, by not offsetting the fee award against the mortgage debt owed by defendants. The appellate panel rejects these arguments and affirms. The trial judge’s imposition of a counsel fee award does not constitute an abuse of discretion. It remains undetermined whether HSBC obtained a valid assignment of the mortgage, conferring standing to foreclose the mortgage and force the sale of the realty. The dismissal of this action before adjudication of the question precludes a final determination of the amount due and owing to HSBC. Here, not only had HSBC filed for foreclosure before it received an assignment of the mortgage, but it also failed to produce Anderson for deposition, denying defendants the opportunity to discern his legal authority to execute the document and prove valid ownership of the mortgage. The challenge to HSBC’s ownership remains subject to judicial review and precludes offset.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-3738 Mark Properties LLC v. Wilschanski, App. Div. (per curiam) (19 pp.) Plaintiff held tax sale certificates on a property owned by defendant individually and on a property he owned through a partnership. Defendant defaulted on plaintiff’s foreclosure complaint. Defendant then determined to redeem one property and permit the foreclosure to proceed against the other, but the opposite occurred. He appeals the denial of his motion to vacate the final judgment of foreclosure. The panel finds that, inter alia, the trial court erred in concluding that defendant filed his motion beyond the one-year limitation period. However, the panel affirms, finding that regardless of the timeliness of defendant’s application, he failed to satisfy the requirements of Rule 4:50-1 where he apparently intentionally declined to answer the foreclosure complaint and failed to redeem by the court imposed deadline, plaintiff would suffer prejudice if defendant’s motion were granted, and the failure of defendant, who was not unsophisticated, to recognize that he had redeemed the wrong property was a consequence of his failure to read the multiple documents that were apparently served upon him.
TAXATION
35-5-3739 McCarter & English v. Director, Division of Taxation, Tax Ct. (Brennan, J.T.C.) (7 pp.) The issues in this case are whether the one year statute of limitations under the Urban Enterprise Zone (UEZ) tax emption applies and, if so, whether a Consent Fixing Period of Assessment of New Jersey Taxes (“Consent”) retroactively applies to already expired periods. The Director, Division of Taxation denied Plaintiff’s refund claim, in part due to untimely filing and found that the Consent did not revive Plaintiff’s untimely refund claims. The court concludes that Plaintiff is not entitled to any further refund of Sales tax. Further, the Consent did not extend the statute of limitation on periods that had expired prior to the executed Consent. The court denies Plaintiff’s motion for summary judgment and grants the Director’s cross-motion for summary judgment. Judgment will be entered denying Plaintiff’s UEZ refund claim to recover sales and use taxes paid beyond the one year statute of limitations period and dismissing Plaintiff’s complaint.
TAXATION
35-5-3740 Smart Publications, LLC v. Director, Division of Taxation, Tax Ct. (Bianco, J.T.C.) (5 pp.) The Director, Division of Taxation issued a Final Determination with respect to Smart Publications, LLC Sales and Use Tax Liability from October 20090 through June 2012, finding the amount due of $144,000. The Director mailed the Final Determination to the taxpayer. On May 8, 2013, the certified mail was accepted by Lombardo’s mother at his residence, which is also the registered address of Smart Publications. On May 10, 2013, the taxpayer’s attorney received a copy via regular mail. On August 6, 2014, the taxpayer’s attorney mailed the complaint at issue to the Tax Court of New Jersey via certified mail. It was received on August 9, 2013. The court granted the Director’s motion to dismiss for lack of jurisdiction. Moving for reconsideration, the taxpayer argued for the first time that there is a “timely mailed, timely filed” rule for the Tax Court. The court granted the motion for reconsideration but affirmed the motion to dismiss. Because there is no “timely mailed, timely filed” rule in New Jersey, the complaint was filed when received and stamped by the Tax Court on August 9, 2013. Because the taxpayer’s complaint was filed out of time, the court lacks jurisdiction to hear the case and it is dismissed.
TRUSTS AND ESTATES
38-2-3741 In The Matter Of The Estate Of Dorothy M. Olsen, Deceased. , App. Div. (per curiam) (26 pp.) In this probate matter, plaintiff George A. Olsen Jr., one of three beneficiaries under various wills executed by decedent Dorothy M. Olsen, and his wife Joan T. Olsen appeal from a final order of the Probate Part following a bench trial, invalidating decedent’s 1999 and 2005 Wills, a 2004 codicil, and various inter vivos transfers to them from 1995 to 2005 totaling approximately $3,000,000 and admitting her 1984 Will to probate. The other two beneficiaries, plaintiff’s brother Kenneth Olsen, individually and as executor of decedent’s estate, and his sister, Dorothy Olsen Ludwig, cross-appeal, contending that the amount of repayment due from plaintiff and his wife set by the trial judge was incorrect. The appellate panel affirms on the appeal. The panel remands on the cross-appeal. First, although the court correctly determined that the entries on the spreadsheets were substantively accurate in terms of recording those transactions in which decedent expended money for the benefit of the plaintiff and his family, the spreadsheets nevertheless contain a moderate number of entries in which the dollar amount of the check had been incorrectly entered. These mistakes range from minimal (i.e. check #162 should be listed as $2173.72 not $2173.00) to more significant (i.e. check #457 should be listed as $3000 not $1505.96). Second, as defendants complain, the judge simply took the total from only one of four spreadsheets. Additional analysis and factfinding therefore is indicated to determine which checks should be included in the Judgment and to correct mathematical errors.
WORKERS’ COMPENSATION
39-2-3742 Hernandez v. Port Logistics, App. Div. (per curiam) (11 pp.) Plaintiff suffered injury to his left eye while “engaged in the course of his work or employment” at a freight warehouse and distribution center operated by defendant Port Logistics. Plaintiff was employed by Staff Management Group and made a claim for workers’ compensation benefits against Staff. Plaintiff appeals from an order granting summary judgment to defendant and dismissing plaintiff’s complaint because it was barred by the exclusivity provisions of the Workers’ Compensation Act. Staff had entered into a “Service Agreement” with Distribution Solutions, Inc. Plaintiff relies upon the language of the Service Agreement that explicitly said he was an employee of Staff, however, that alone does not determine whether he was a special employee of defendant. Defendant controlled the details of plaintiff’s work, including his specific assignments, lunch breaks and overall hours of work. Defendant paid plaintiff’s wages through the contract it had with Staff. Lastly, defendant sent plaintiff home whenever it did not have enough work. Thus, defendant was a special employer of plaintiff, despite any contract language to the contrary. As a result, plaintiff’s tort claim against defendant was barred by N.J.S.A. 34:15-8, which provides that the employer is not liable to his worker “for any act or omission” during his employment “except for intentional wrong.” Defendant’s alleged refusal to supply plaintiff with goggles does not constitute an intentional wrong where Defendant did not intentionally remove safety devices or deceive government inspectors about the safety of its warehouse.
FEDERAL COURT CASES
BUSINESS ENTITIES | FRANCHISES
12-7-3743 Jackson Hewitt Inc. v. Financial Tax Centres Inc., U. S. Dist. Ct. (Cecchi, U.S.D.J.) (4 pp.) Plaintiff entered into franchise agreements with defendant granting it the right to operate income tax preparation businesses in Iowa under the Jackson Hewitt name in exchange for payment of certain fees. When defendant failed to make the required payments, plaintiff terminated the agreements. It contends that defendant owes it $366,600 and seeks a final judgment in that amount. Defendant has not answered or otherwise responded and a default has been entered. The court grants plaintiff’s motion for default judgment, finding that plaintiff is entitled to default as the uncontested facts show defendant is in breach for nonpayment of fees, plaintiff is harmed by not receiving payment, and absent default it will have no other means of vindicating its claims. The court concludes that plaintiff should be awarded the amount requested and attorney fees and costs of $6,789. [Filed April 29, 2014]
BUSINESS ENTITIES | FRANCHISES
12-8-3744 Red Roof Franchising LLC v. Patel, Third Cir. (Vanaskie, C.J.) (13 pp.) These consolidated breach-of-contract actions arise out of franchise agreements to operate a Red Roof Inn in New Jersey and one in Minnesota, entered into by appellants, their closely held companies, and franchisor Red Roof Inns and its corporate successor appellee Red Roof Franchising LLC. In both actions, plaintiff claims that appellants breach the franchise agreement by failing to remit royalties and appellants argue that RRF breach the franchise agreement first, excusing or mitigating their own nonperformance. Appellants appeal the District Court orders granting summary judgment in favor or RRF on all claims. The Third Circuit affirms with respect to the New Jersey appellants because, assuming without deciding that a material breach by RRF, if proved, could give rise to an affirmative defense against its breach of contract claims, the record is devoid of evidence that the New Jersey appellants suffered damages as a result of RRF’s alleged breaches and appellants have not provided evidence upon which a reasonable juror could finds that RRF breached its obligations under the New Jersey franchise agreement. The court also finds that appellees did not violate the New Jersey Franchise Practices Act since its initial letter to appellants constituted notice of termination and its inclusion of a final opportunity to cure did not invalidate such notice for purposes of the NJFPA. The court also affirms as to the Minnesota franchise because appellants’ have failed to adequately plead their claims where their statement of facts makes no reference to RRF’s purported material breaches and appellants do not discuss or even cite to the Minnesota franchise agreement. [Filed April 29, 2014]
CIVIL PROCEDURE
07-7-3745 Mercer County Childrens Medical Daycare, LLC v. O’Dowd, Dist. Ct. (judge or per curiam.) (4 pp.) Previously, the Court entered an Opinion and Order denying in part and granting in part the motion to dismiss brought by State Defendants and Officials. The Opinion and Order also granted in part and denied in part the motion to dismiss brought by Defendant Carlisle. The Court, inter alia, dismissed Plaintiffs’ claims under Medicaid, Medicaid preemption (in part), the Equal Protection Clause, the Due Process Clause, the Takings Clause, and common law fraud (in part). The Court also dismissed claims against State Defendants, pursuant to the Sovereign Immunity doctrine, dismissed 42 U.S.C. §1983 claims for money damages against State Officials acting in their official capacity, and dismissed most claims against State Officials acting in their individual capacity. This matter comes before the Court upon the motions for reconsideration filed by each party. Plaintiffs also move in the alternative for certification for appeal. The Court denies all motions for reconsideration and the motion for certification for appeal. [Filed April 7, 2014]
CIVIL PROCEDURE
07-7-3746 Tangible Value, LLC v. Town Sports Int’l Holdings, Inc., Dist. Ct. (Shipp, U.S.D.J.) (2 pp.) Defendants Town Sports International, LLC and Town Sports International Holdings, Inc. filed a motion for contempt and sanctions based on Plaintiff’s alleged failure to comply with Court orders. Magistrate Judge Bongiovanni entered a written Report and Recommendation (“R&R”). Plaintiff and Defendants were electronically served with the R&R, and no objections were filed within the 14 days provided by the rules. The Court has reviewed Judge Bongiovanni’s R&R to determine the appropriateness of sanctions using the Poulis factors. First, Judge Bongiovanni found Plaintiff solely responsible for its failure to comply with the Court’s orders. Second, Judge Bongiovanni found that Plaintiffs failure to respond to discovery requests and comply with court orders prejudiced Defendants. As to the third Poulis factor, Judge Bongiovanni found that Plaintiff has had a history of dilatoriness. Fourth, Judge Bongiovanni did not find that Plaintiff acted in bad faith or willfully ignored or failed to comply with discovery requests or court orders. Judge Bongiovanni found that alternative sanctions were unnecessary under the fifth factor. As to the sixth factor, Judge Bongiovanni was unable to determine the meritoriousness of Plaintiff’s claim. Judge Bongiovanni concluded that Plaintiff’s actions did not rise to the level necessary for dismissal. Judge Bongiovanni found an award of attorney fees appropriate. The Court agrees with Judge Bongiovanni’s reasoning and conclusion. Therefore, Judge Bongiovanni’s R&R is adopted. As such, Defendants’ motion for the sanction of dismissal is denied. Defendants’ request for attorney fees is granted. [Filed April 3, 2014]
CIVIL RIGHTS
46-7-3747 Hargis v. Atlantic County Justice Facility, U. S. Dist. Ct. (Simandle, U.S.D.J.) (25 pp.) Plaintiff, a pretrial detainee who was admitted to defendant-facility with a gunshot wound, alleges he was denied his constitutional rights under the Fourteenth Amendment as the result of being forced to live in overcrowded and unsanitary conditions at ACJF. Defendants Atlantic County Executive and Atlantic County Board of Chosen Freeholders move for summary judgment. Defendants’ motion for summary judgment is granted in part and deferred in part. It is granted to the extent plaintiff asserts claims against the Board of Chosen Freeholders because plaintiff has presented no evidence that the board was responsible for establishing policies with respect to the conditions at ACJF or any evidence connecting the board to the alleged constitutional violations at ACJF. The motion is denied as it pertains to the county executive in his official capacity as claims against the county. The motion is deferred as it pertains to plaintiff’s claim that the conditions of confinement at ACJF constituted punishment under the Fourteenth Amendment. Plaintiff is granted 45 days, pursuant to Fed. R. Civ. P. 56(e)(1), in which to furnish the court and opposing counsel with an expert report expressing an opinion regarding the cause of plaintiff’s MRSA infection and the likelihood of contracting MRSA in light of the alleged conditions at ACJF. Defendants will then have 45 days to furnish a rebuttal expert’s report. [Filed April 28, 2014]
CIVIL RIGHTS
46-8-3748 Pratt v. The Port Authority of New York and New Jersey, Third Circuit (per curiam.) (7 pp.) Pro se appellant Charles Pratt appeals the District Court’s order granting summary judgment to defendants. This case arises out of an encounter between Pratt and Officer Nicholas Pimienta of the Port Authority Police Department at a PATH station in Jersey City. Pratt had traveled to the station with his wife, Carla, with the intention of helping her resolve a problem she was having at work. However, Carla asked Officer Pimienta to tell Pratt that he could not accompany her to her workplace. Officer Pimienta requested identification and Carla was permitted to leave. At this point, Officer Pimienta’s and Pratt’s accounts of what occurred diverge but ultimately Pratt was handcuffed and taken to the hospital. Pratt filed a complaint against Officer Pimienta, Port Authority of New York and New Jersey, and John Doe defendants, raising claims of excessive force, false arrest, Monell municipal liability, and state law claims. Defendants filed a motion for summary judgment, which the District Court granted. The District Court granted judgment to Officer Pimienta on the ground that “[t]he uncontroverted evidence indicates that Plaintiff simply tripped over Defendant while Defendant was handcuffing him and that neither Defendant, nor anyone else on the scene, ever struck, punched or hit Plaintiff in anyway.” However, the District Court impermissibly adopted Officer Pimienta’s version of the facts while rejecting Pratt’s. Viewing the facts in the light most favorable to Pratt, Pratt did not resist Officer Pimienta, was unarmed, and had committed, if anything, a minor offense, yet Officer Pimienta tackled him, face-first, onto the ground, twisting his neck, and causing him serious and permanent spinal injuries. A jury could reasonably find that the force Officer Pimienta used against Pratt was unreasonable. The District Court’s order is reversed to the extent that it granted judgment to Officer Pimienta on the excessive-force claim and declined to exercise supplemental jurisdiction over Pratt’s state law claims. In all other respects, the order is affirmed. [Filed April 8, 2014]
CIVIL RIGHTS | CIVIL PROCEDURE
46-7-3749 Casrell v. Reese, Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) Plaintiffs, twelve pre-trial detainees confined at Monmouth County Correctional Facility, seek to bring this civil action in forma pauperis, without prepayment of fees or security, asserting claims pursuant to 42 U.S.C. § 1983. Under the Prison Litigation Reform Act of 1995 Act, a prisoner bringing a civil action in forma pauperis must submit an affidavit, including a statement of all assets, which states that the prisoner is unable to pay the fee. The prisoner also must submit a certified copy of his inmate trust fund account statement for the six-month period preceding the filing of his complaint. The complaint was signed by Plaintiff William Dayson Casrell, with an attachment containing the names of eleven additional Plaintiffs: Lashain Fitch, Edward O’Neal, Bernard Valentin, Unigue Randolph, Bryan Burford, Jahmir Bowie, Najee Standard, Leroy Taylor, Jarrone Perry, Lachatavon Nance, and Dashaun Clayton. Casrell submitted an application to proceed in forma pauperis on his own behalf, however that application is deficient because Plaintiff’s account statement did not provide account information for the appropriate time frame and was not certified. The remaining eleven Plaintiffs did not provide any account information or applications. To the extent that Plaintiffs are attempting to establish class certification, that application is dismissed. Since no Plaintiffs have paid the filing fee or submitted a properly completed application to proceed in forma pauperis, the Court has no certainty that all named Plaintiffs intend to incur the financial responsibility and legal consequences associated with initiation of this action. Moreover, given the lack of factual allegations in the complaint, the Court cannot establish whether the facts will be applicable to all Plaintiffs. Plaintiffs’ applications to proceed in forma pauperis are denied; and the complaint is dismissed without prejudice to Plaintiffs’ filing of individual amended complaints which conform to the Federal Rules of Civil Procedure. [Filed April 4, 2014]
CONTRACTS | BREACH
11-7-3750 McGowan Builders, Inc. v. A. Zahner Company, Dist. Ct. (Hochberg, U.S.D.J.) (8 pp.) This dispute arises out of the purchase and installation of allegedly faulty metal panels in connection with the construction of a hotel in New York City. Plaintiff McGowan Builders, Inc. signed a purchase order contract with Defendant A. Zahner Company for metal panels to be used in the construction. The contract price for the panels was $4,400,000.00. McGowan retained Custom Metal Crafters, Inc. (“CMC”) to serve as the contactor responsible for installing the panels. Zahner manufactured the panels and shipped them to New York for installation by CMC. But the panels did not perform as intended, and McGowan obtained alternative mechanical fasteners to affix the panels to the building. In the process, many panels were damaged during installation. These problems added cost and delay to the project. As a result, McGowan withheld payment from Zahner in the amount of $318,445.50. CMC was paid in full for the installation. McGowan alleges that the increased costs were either due to improper installation by CMC or defective manufacture by Zahner. Zahner filed an action in Missouri state court against McGowan seeking the payment McGowan withheld. In this action, McGowan alleges: (i) breach of contract; (ii) unjust enrichment; (iii) negligence; and (iv) violation of the New Jersey Consumer Fraud Act. Zahner filed a motion to dismiss. Zahner argues that under the first-filed rule, the Court should dismiss or stay McGowan’s suit in light of Zahner’s prior suit filed in Missouri state court. Applying the Colorado River doctrine to the facts of this case, the Court will stay this matter pending the outcome of the Missouri matter. [Filed April 4, 2014]
CREDITORS’ AND DEBTORS’ RIGHTS
15-7-3751 Kuchinsky v. Pressler & Pressler LLP, U. S. Dist. Ct. (Cecchi, U.S.D.J.) (7 pp.) In this action initially filed in state court alleging that defendant violated the Fair Debt Collection Practices Act by contacting plaintiff twice after being advised that he was represented by counsel, plaintiff appeals the Magistrate Judge’s denial of his motion for leave to file a second amended complaint, to add a claim for intentional infliction of emotional distress claim, made seven months after the scheduling order deadline to amend. The court affirms, finding, inter alia, that the Magistrate Judge’s finding that plaintiff could have moved to add the claim prior to the deadline is not clearly erroneous since the claim is based on events that transpired over five months before the deadline and plaintiff has not justified the delay by pointing to any information pertinent to the claim for which discovery was necessary, and further, the judge’s finding that plaintiff made no effort to demonstrate good cause was neither clearly erroneous nor contrary to law where plaintiff did not argue or brief the Rule 16(b) good cause standard until after leave to amend was denied. [Filed April 28, 2014]
TAXATION
35-8-3752 Galluzzo v. Commissioner of Internal Revenue, Third Cir. (Barry, C.J.) (8 pp.) Taxpayers filed a petition in the Tax Court seeking a redetermination of income tax deficiencies assessed by the Commissioner of Internal Revenue. The Tax Court dismissed the action for lack of subject matter jurisdiction, finding that the Commissioner had failed to mail a notice of deficiency as required by the Internal Revenue Code. The Commissioner appeals only the dismissal of Mr. Galluzzo’s redetermination claim. The Third Circuit affirms, finding that in order for the Tax Court to exercise subject matter jurisdiction over a redetermination action, the Commissioner must have mailed notice of deficiency in accordance with I.R.C. § 6212; the Commissioner had the burden to establish that deficiency notices were prepared and mailed to the Galluzzos; that he failed to satisfy that burden; and that Galluzzo’s failure to advance an invalid notice argument in the Bankruptcy Court during proceedings on his Chapter 11 bankruptcy petition (which resulted in a confirmation order approving his plan of reorganization which included the IRS’s secured claim) could not preclude the Tax Court from reviewing whether such notice was properly issued and mailed, as that question is vital to its own jurisdiction. [Filed April 24, 2014]