STATE COURT CASES
01-2-5571 In the Matter of the Denial for Change of Address on a New Jersey Firearms Purchaser Identification Card, App. Div. (per curiam) (2 pp.) The state having conceded that the denial of appellant’s application for change of address on his New Jersey Firearms Purchaser Identification Card was improperly premised on hearsay evidence in contravention of Weston v. State, the panel reversed the order and remanded for further proceedings.
ADMINISTRATIVE LAW | HEALTH LAW
01-2-5572 In the Matter of D.S., App. Div. (per curiam) (3 pp.) D.S., whose criminal charges were dismissed after he was found unfit to proceed to trial due to mental illness and who was civilly committed to Trenton Psychiatric Hospital, appealed the administrative decision to administer psychotropic medication to him without his consent. The panel affirmed, finding that TPH’s decision to involuntarily medicate D.S. was not arbitrary, capricious or unreasonable where TPH followed the involuntary medication policy and procedures promulgated by the Division of Mental Health and Addiction Services and its decision was based on the judgment of independent clinicians following a hearing and after an administrative appeal.
07-2-5573 Mitchell v. Provenzano, App. Div. (per curiam) (11 pp.) On August 5, 2006, plaintiff Gena Mitchell was struck by a vehicle owned by defendant Dianne Provenzano and operated by defendant Stephen Provenzano. Plaintiff filed a complaint seeking damages from the Provenzanos for personal injuries sustained in the accident. The complaint also asserted medical malpractice claims against defendants David Gentile, M.D., Professional Orthopaedic Associates, Karl Blum, M.D., and Ocean Orthopedic Associates, who treated plaintiff for her injuries. The claims against the Provenzanos were settled, leaving only the medical malpractice claims for trial. On March 20, 2012, plaintiff was declared incapacitated in a separate guardianship proceeding. Here, plaintiff, by her guardian, appealed from an order which denied her motion to dismiss the remaining counts of her complaint without prejudice and an order which denied her motion for reconsideration. The parties executed a stipulation on November 19, 2012 to afford plaintiff’s counsel sufficient time to determine plaintiff’s ability to testify at trial without prejudicing defendants by prolonging the case indefinitely. If plaintiff’s counsel determined it was appropriate to proceed to trial, he would move to reinstate the complaint within the allotted time period. If, however, the complaint was not timely reinstated, “the Stipulation shall automatically convert to a dismissal with prejudice.” Per the express terms of the stipulation, which survived a subsequent extension order, the dismissal automatically converted to a dismissal with prejudice. The appellate panel affirmed, finding the trial judge properly dismissed the matter with prejudice in accordance with the parties’ stipulation.
09-2-5606 Baker v. Thrift Investment Corp., App. Div. (per curiam) (3 pp.) After plaintiff defaulted on an auto loan obtained from defendant, it repossessed the car and after giving proper notice, sold it. It gave plaintiff an accounting of the amount it received, its repossession costs, the amount due on the loan and its determination that it was owed $678, an amount it regarded as too minimal to pursue a deficiency judgment. Plaintiff filed an action seeking damages based on Article Nine of the Uniform Commercial Code and the Consumer Fraud Act. She appealed the court’s grant of defendant’s motion for summary judgment. The panel affirmed, finding her contentions to be without merit. It added that: contrary to her assertion, the loan documents contained an acceleration clause; the notice of resale given to plaintiff was clearly reasonable; plaintiff was given proper notice of defendant’s calculation of the balance due and the fact that no deficiency judgment was sought renders it irrelevant; and there was no evidence that the resale was not conducted in a commercially reasonable manner.
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-5607 Amboy Bank v. Hannout, App. Div. (per curiam) (17 pp.) Plaintiff entered into a commercial note with defendant Abbas Osman Family Trust. The loan was to finance the construction of a retail building on property owned by the trust. Defendants Olga C. Hannout, Reda Hannout, and Samia Said executed the agreement as guarantors of the repayment of the loan and completion of the construction project by the trust. When the trust defaulted, Amboy filed a foreclosure action in the Chancery Division and a Law Division complaint for all unpaid principal, interest and late fees on the loan. In this consolidated appeal, defendants challenged the Chancery Division’s orders granting summary judgment striking the trust’s answer, except for claims and defenses related to the amount due on the loan and final judgment of foreclosure and the Law Division’s judgment entered after the parties agreed to be bound by the findings reached at the plenary hearing in the foreclosure action. The panel affirmed, finding, inter alia, that: the judge did not err in striking defendants’ answer and defenses in the foreclosure action since defendants’ claims that as a result of the actions and inactions of Amboy and the individual it insisted defendants use to complete construction, completion of the project was unreasonably delayed and its cost was substantially higher than was necessary or appropriate, arose after defendants had default and pertained to the amount due Amboy, rather than the bank’s right to foreclose and in any event, defendants were unable to prove their claims as they produced no banking or construction expert; the court did not err in granting summary judgment on foreclosure prior to completion of discovery as defendants did not show that additional discovery would have changed the relevant facts pertaining to the execution, recording, or non-payment of the mortgage; and the court did not err in precluding Olga from offering opinion evidence regarding her contentions that the bank-recommended contractor improperly delayed completion of the construction and that the related charges were excessive.
14-2-5580 State v. Mercado, App. Div. (per curiam) (20 pp.) Defendant appealed from his convictions for three counts of first-degree aggravated sexual assault, three counts of second-degree sexual assault, one count of third-degree endangering the welfare of a child and one count of third-degree aggravated criminal sexual contact. The appellate panel affirmed the convictions, but remanded and directed the judge to determine the applicable parole ineligibility period pertaining to one count of the indictment and to amend the judgment of conviction if warranted.
16-2-5608 In The Matter Of The Proposed Quest Academy Charter School Of Montclair Founders Group, App. Div. (Maven, J.A.D.) (12 pp.) This appeal involved the fifth application by Quest Academy Charter School of Montclair Founders Group for approval of a proposed charter high school in the Township of Montclair under the Charter School Program Act of 1995. Petitioner Tracey Williams, one of Quest’s founders, on behalf of Quest, appealed from the final determination of Acting Commissioner of Education which denied Quest’s application for approval. The appellate panel concluded that the Commissioner’s amplified decision reflected a comprehensive review of the submitted materials. There was no support for Quest’s suggestion the Commissioner failed to consider all of the evidence in the record. Rather, the Commissioner’s amplified decision detailed his review of Quest’s application in applying the Act, a statute of which he is presumed to have extensive knowledge. The panel declined to second guess the Commissioner’s analysis and educational judgment. The Commissioner did not act arbitrarily or capriciously in assessing Quest’s submissions. The panel concluded the Commissioner’s rejection of this application is sustainable on the record.
ENVIRONMENTAL LAW | TOXIC TORTS
17-2-5610 Olson v. Sunoco, Inc., App. Div. (per curiam) (6 pp.) Plaintiffs filed a complaint which alleged they experienced personal injury and diminution of their property value due to groundwater and soil contamination from the Eagle Point Refinery owned by defendant Sunoco, Inc. The trial court granted Sunoco’s motion for summary judgment as plaintiffs had failed to provide any expert evidence identifying contaminants on their property or any link between contaminants and their injuries. The court explained that plaintiffs needed expert testimony to identify the contaminants causing personal injury and expert testimony to support their claim that the contaminants reduced their property value. Pro se plaintiff Anna Olson appealed, arguing that N.J.R.E. 301 required the motion judge to presume that there were contaminants on her property; the motion judge was required to take judicial notice of the diminution of property value caused by the contaminants; and the motion judge erred by ruling that plaintiffs’ claim was barred by the statute of limitations. In toxic-tort actions, a plaintiff must prove product-defect causation and medical causation. Generally, expert testimony is also necessary to determine the market value of real property. Plaintiffs failed to provide any expert evidence to support their claims. There was no evidence identifying the existence of contaminants on their property. Further, there was no evidence establishing a causal link between any contaminants and diminution of their property value. A doctor’s letter provided by Olson was not sufficient to overcome summary judgment. The appellate panel affirmed the trial court’s grant of summary judgment.
EVIDENCE | ADMISSIBILITY
19-2-5575 CRA Site Lawn & Land Development, Inc. v. Cedar Greens, App. Div. (per curiam) (6 pp.) Defendants, Cedar Greens and Richard Schofel, a condominium association and its manager respectively, appealed from a judgment entered against them for non-payment of landscaping services provided by plaintiff, CRA Site Lawn & Land Development, Inc. Defendants argued the small claims court wrongfully excluded two letters sent by the Department of Environmental Protection (DEP) in response to defendant’s request for information about plaintiff’s status with the DEP. Specifically, defendants contended the letters, which state that plaintiff was not licensed to apply certain chemicals at the time they contracted for landscaping services, should have been admitted into evidence. The appellate panel found that the trial judge failed to apply the relaxed standard for admission of hearsay evidence in small claims cases and therefore remanded for a new trial.
20-2-5611 Morales v. Morales, App. Div. (per curiam) (10 pp.) Defendant appealed from the denial of her motion to modify the default judgment of divorce entered seven years earlier. The panel affirmed, finding that where, despite having notice of plaintiff’s complaint for divorce, defendant failed to answer, and despite having notice of the scheduled default divorce hearing and of plaintiff’s decision not to seek equitable distribution, defendant failed to appear and the court entered a final JOD, and defendant took no action during the intervening seven years to assert her right to equitable distribution, defendant’s motion was time-barred and the court did not err in not deciding her motion under Rule 4:50-3 as defendant failed to establish that plaintiff committed a fraud on the court by failing to disclose his pension since plaintiff was not required to list the martial assets as he was not seeking equitable distribution. The panel also found that defendant’s claim was barred by the doctrines of equitable estoppel and laches.
20-2-5612 New Jersey Division of Child Protection and Permanency v. S.F., App. Div. (per curiam) (23 pp.) Defendant S.F. appeals from an order determining that she abused or neglected her daughter by being intoxicated while the child was in her care on several occasions and by driving while drinking alcohol with the child in the car, which actions the court found placed the child at risk of harm. The panel vacated the Title 9 finding of abuse or neglect and remand for reconsideration in light of New Jersey Division of Child Protection and Permanency v. M.C., 435 N.J. Super. 405 (App. Div. 2014), certif. granted, ___ N.J. ___ (2014). The panel found that defendant’s actions put the child at risk during the time she had relapsed into drinking, even though the child was not actually harmed, and the division’s intervention was warranted but that in response to the division’s intervention, defendant acknowledged that she had a drinking problem, consented to supervised visitation, sought professional help in addressing her alcoholism and had successfully completed a substance abuse program and was doing well in maintaining her sobriety, and that neither the division nor the attorneys involved in the proceeding had considered whether the child was currently at risk, or the purpose, if any, to be served by placing or maintaining this parent’s name on the Central Registry of child abusers. The panel concluded that the Title 9 finding could not stand without considering those issues.
20-2-5631 Clemas v. Clemas, App. Div. (per curiam) (6 pp.) In this post-judgment matrimonial action, defendant appealed from the denial of his cross-motion in plaintiff’s action to convert their dual judgment of divorce from bed and board into a final judgment of divorce seeking to restrain plaintiff from relocating the parties’ children from Bridgewater to Egg Harbor. The divorce from bed and board incorporated the parties’ marital settlement agreement which provided for joint legal custody, designated plaintiff as the parent of primary residence, designated Bridgewater as their desired school district “so long as one party is domiciled in the district” and provided that when either party moved to convert the divorce from bed and board into a final judgment of divorce, that geographical limitation would be void. The panel affirmed, finding that the motion judge correctly determined that the parties’ agreement did not prohibit plaintiff from relocating with the children and that she was not required to apply to the court to do so and that defendant did not demonstrate that relocation constituted a substantial change in circumstances. The court noted that defendant was not precluded from seeking modification of parenting-time to address issues of distance and convenience under the joint custody agreement.
20-2-5632 Richardson v. Richardson, App. Div. (per curiam) (10 pp.) Plaintiff appealed from an order that granted in part and denied in part relief she sought and modified the parties marital settlement agreement. The panel affirmed in part, reversed in part, and remanded for further proceedings finding that because the parties executed a comprehensive agreement that included a provision to use the services of a mediator prior to litigation to address disagreements regarding time-sharing and any other issues regarding their children, the court erred in ruling on defendant’s application to cap his childcare expenses and in addressing plaintiff’s application for reimbursement of the costs of a birthday party since these issues and all other issues related to the children should have been referred to mediation, and that the court exercised appropriate discretion under the rules to deny plaintiff’s motion for reconsideration because it was filed out of time.
FAMILY LAW | CHILD SUPPORT AND CUSTODY
20-2-5591 Weiss v. Weiss, App. Div. (per curiam) (5 pp.) Defendant Eric Weiss appealed from aspects of two post-judgment orders entered by the Family Part in favor of his ex-wife, plaintiff Deborah Ann Weiss. Specifically, defendant appealed from the provisions of those orders denying his motions to require their son to attend tutoring at Sylvan Learning Center and ordering instead that: plaintiff as parent of primary residence shall make any and all final decisions as to the boy’s tutoring; have the boy attend summer school; set aside the parties’ property settlement agreement; and have the court recuse itself. He also appealed from an award to plaintiff of $4,500 in counsel fees. In the five years following their divorce, the trial court heard over fifty-two motions and orders to show cause. Here, the court affirmed the orders under review.
FAMILY LAW | CUSTODY AND CHILD SUPPORT
20-2-5613 S.W. v. W.B., App. Div. (per curiam) (13 pp.) Defendant W.B. appealed from an order of the Family Part which denied his motion for reconsideration of previous orders pertaining to the parties’ reimbursement obligations for extra-curricular activity expenses for their children. Among other relief, the order required that defendant reimburse plaintiff $1,245 for his share of past expenses for the children’s extra-curricular activities. Defendant claimed he was surprised by the inclusion of this provision because plaintiff never served him with a motion seeking that amount. Defendant filed a motion to vacate the December 21, 2012 order on the ground that he had not been served with the motion that resulted in the $1,245 reimbursement directive. The appellate panel affirmed the orders, except it reversed and remanded to the Family Part to determine whether defendant should be required to reimburse plaintiff $1,245 as directed by the court’s order of December 21, 2012.
INSURANCE LAW | MOTOR VEHICLES
23-2-5592 Citizens United Reciprocal Exchange v. Espinoza, App. Div. (per curiam) (15 pp.) Defendant Jaishanka Arnala appealed from the order which declared that plaintiff Citizens United Reciprocal Exchange owed no liability coverage to defendant under the terms of an auto insurance policy and which dismissed defendant’s counterclaim which alleged bad faith, breach of duty of good faith and fair dealing, and other claims. According to plaintiff’s declaratory judgment complaint, defendant rented a vehicle from a U-Haul facility to transport goods he intended to purchase. Before leaving the facility, defendant gave the keys to Jose Espinoza, who drove the vehicle while plaintiff followed in his car. Espinoza was involved in an accident with Joseph Weber, who allegedly sustained injuries. The judge treated the matter as a summary judgment proceeding and rendered an oral decision granting plaintiff’s request for a declaratory judgment that it did not have to provide coverage to defendant. The judge found the policy was not ambiguous and defendant was not an “insured” under the policy. Rejecting defendant’s contention that he was “using” the U-Haul vehicle at the time of the accident because Espinoza was driving it to assist defendant in a home improvement project, the judge stated the argument was “absurd” because defendant was driving his “covered vehicle” at the time of the accident. The judge also stated that the term “use” in the policy was not ambiguous and “does not include rented vehicles that are simultaneously used with your own vehicle.” On appeal, defendant argued the judge erred by failing to conduct a bench trial and denying his request to present testimony concerning the circumstances of the accident and plaintiff’s handling of his claim. The appellate panel agreed and reversed and remanded, finding this matter should have proceeded as a bench trial, with defendant having the opportunity to present relevant testimony and documents in support of his claim for coverage and the claims raised in his counterclaim.
LABOR AND EMPLOYMENT
25-2-5576 Liebeskind v. Rutgers University, App. Div. (per curiam) (26 pp.) Plaintiff, briefly employed by Rutgers as a unit computing specialist in the Facilities Business Administration Department, appealed the summary judgment dismissal of this action alleging, inter alia, violation of the Law Against Discrimination and of due process, invasion of privacy and violation of the New Jersey Wiretapping & Electronic Surveillance Control Act and the Computer Related Offenses Act. The panel affirmed, finding, inter alia, that: as an at-will probationary employee, plaintiff did not have a property interest in his employment which entitled him to due process; defendants’ use of an internet application to obtain the internet browsing history on plaintiff’s work computer was motivated by a legitimate work-related purpose, was not excessive in scope and plaintiff had no reasonable expectation of privacy in the work computer and, therefore, the search was reasonable and defendants did not violate plaintiff’s Fourth Amendment rights; the court did not err in dismissing the LAD age discrimination claim since no rational person could reasonably believe that the casual off-hand age-related remarks plaintiff complained about somehow violated the LAD and thus plaintiff did not show that when complaining about them, he complained about activity prohibited by the LAD; and the LAD disability claim failed because his claimed disability of allergies and asthma was not readily apparent and he failed to provide an expert witness report or identify an expert he intended to call at trial to establish that he had a disability at the time of the alleged discrimination.
LABOR AND EMPLOYMENT
25-2-5633 Bush v. Board Of Education Of The Warren County Technical School District, App. Div. (Fuentes, J.A.D.) (16 pp.) The Board of Education of the Warren County Vocational School District appealed the Final Decision of the Commissioner of Education, awarding back-pay and prejudgment interest to petitioner Virginia Bush and holding that petitioner was not obligated to mitigate her damages claim. Petitioner filed a cross-appeal contesting the amount of prejudgment interest awarded by the Commissioner. Bush was employed as a tenured secretary in the office of the Board’s Business Administrator. The controversy that led to this appeal originated on November 8, 2007, when the Board demanded petitioner sign an employment contract that would have vitiated petitioner’s tenure rights. When petitioner refused to sign this contract, the Board terminated her employment. The appellate panel affirmed the Commissioner’s decision. However, the panel reversed the Commissioner’s determination that petitioner was not obligated to mitigate her claim for back-pay damages, and remanded for the Commissioner to recalculate the award of back-pay. The Commissioner should consider petitioner’s decision to decline the Board’s offer of employment and whether she made reasonable efforts to find other, comparable employment during the relevant time period.
LABOR AND EMPLOYMENT | HIRING/FIRING
25-2-5634 In The Matter Of Rolan Carter, App. Div. (per curiam) (22 pp.) Rolan Carter appealed from a final decision of the Civil Service Commission that upheld the termination of his position with the former City of Camden Police Department. Carter argued that there was insufficient evidence to support the Commission’s findings, the Commission erred in denying his request to withdraw his administrative appeal in order to pursue his civil action in Superior Court and the Commission mistakenly failed to dismiss disciplinary charges that were brought more than forty-five days after the charged occurrences. The appellate panel rejected appellant’s arguments and affirmed. Among other charges, in the main disciplinary charge, Carter was alleged to have engaged in conduct unbecoming, insubordination, and failing to respond to radio calls from a superior officer, with respect to a motor vehicle stop. Judge Scarola determined the charges had been proven by a preponderance of the credible evidence and the appropriate penalty was removal. Judge Scarola’s factual findings, which were adopted by the Commission, are fully supported by the factual record and the credibility findings and thus warrant deference. The motion to withdraw was appropriately denied where, at such a late stage, fundamental fairness required consideration of the adverse party’s interest in obtaining a final resolution. The Commission appropriately found no violation of the forty-five day rule with regard to the charges, including those arising out of the traffic stop, since the Department required sufficient time to investigate the incident and the statute does not preclude that opportunity.
LABOR AND EMPLOYMENT | PENSIONS AND OTHER RETIREMENT BENEFITS
25-2-5593 Richey v. Board of Trustees, Public Employees’ Retirement System, App. Div. (per curiam) (9 pp.) Petitioner, a county corrections officer who fractured her hip when she fell after repeatedly being required to jump over a four-foot fence during a required training course at the Camden County Police Academy and who eventually resigned her position as part of a settlement of disciplinary charges related to her physical inability to perform her job, appealed the board’s decision that the was not entitled to accidental disability retirement benefits because the event that caused her disability was not undesigned and unexpected. The panel affirmed substantially for the reasons expressed by the ALJ which were adopted by the board. It added that the record supported the board’s conclusion that petitioner had been doing her usual work in the usual way when she fell and that while the CCPA training guidelines did not mention jumping over fences, there was no indication that the guidelines were intended to set forth an exhaustive list of the exercises recruits would be required to perform and did not prevent instructors from requiring recruits to perform other physical activities as part of the training program.
52-3-5614 North Jersey Media Group Inc., Law Div. (Bergen County) (Doyne, A.J.S.C.) (7 pp.) Defendants New Jersey State Police and Sergeant Rocheskey filed a motion to stay pending appeal the court’s prior order requiring all of the defendants to turn over all requested documents immediately pursuant to the Open Public Records Act and the common law. The court found that the requirements in Crowe v. DeGioia were not met where defendants’ generic argument that release would be inimical to the public interest as it may alter a witness’ testimony had no support in law and if it did, it would eviscerate OPRA; there was no reasonable likelihood of success where defendants refused to disclose what records existed in conformity with the request and as such, failed to provide a specific basis for purported exemptions; and the balance of harm favors the plaintiff in that this is a matter of public import, particularly today, and the public should have access to the information required to be produced. It granted a temporary stay for seven days to allow for emergent appellate review and provided that absent the appellate division staying this matter, all ordered records were to be disseminated to plaintiff by January 30, 2015. [Filed Jan. 23, 2015]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-5594 ESB-B/W Holdings, LLC v. Tawil, App. Div. (per curiam) (9 pp.) Defendant Charles Tawil appeals from an order which denied his motion to vacate an order which granted plaintiff ESB-B/W Holdings, LLC’s motion for summary judgment. On June 1, 2005, defendants borrowed $910,000 from Emigrant Mortgage Company, Inc. and executed an adjustable-rate note. To secure the note, defendants executed and delivered to Emigrant a mortgage on certain land and premises. On October 30, 2009, Emigrant assigned the note to ESB, which is its affiliate. Emigrant endorsed the note to plaintiff, by attaching an allonge, which made the note payable to ESB. Thereafter, ESB, through its affiliate Emigrant, added a blank endorsement to the allonge, which made the note payable to its bearer. In November 2011, the assignment was recorded. Defendants defaulted on the note. ESB filed a complaint against defendants to foreclose on the mortgage. The trial court entered an order which granted ESB’s motion for summary judgment. Tawil filed a motion to vacate the order and to dismiss the foreclosure complaint. Tawil said he was never served with the summary judgment motion. Tawil also asserted that ESB was not the lawful “owner and holder” of the note when the foreclosure action was commenced. Here, the undisputed facts presented to the motion judge established that ESB was the holder of the instrument, as a result of Emigrant’s successful negotiation of the instrument to ESB. The court affirmed, and rejected Tawil’s contention that ESB failed to present competent evidence to show that it was the holder of the instrument. Further, ESB had an ownership interest in the note and mortgage when the NOI was issued, and the NOI properly notified Tawil of the identity of the lender in as required by the Fair Foreclosure Act.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-5595 Arias and Padilla v. Elite Mortgage Group, App. Div. (Reisner, P.J.A.D.) (12 pp.) This case concerns the legal status of a Trial Period Plan (TPP) Agreement issued to plaintiffs under the federal Home Affordable Mortgage Program (HAMP). The issue is novel in New Jersey. Relying on Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), and the line of cases following Wigod, we concluded that the TPP Agreement was a unilateral offer pursuant to which the bank promised to give plaintiffs a loan modification, provided they complied fully and timely with their obligations under the Agreement. Those obligations included timely submission of the lower payments required of them during the trial period. We found that summary judgment was properly granted, because plaintiffs failed to make timely or complete payments during the trial period. [Approved for publication.]
RESIDENTIAL AND COMMERCIAL REAL ESTATE | ATTORNEY FEES
34-2-5635 Jaye v. Oak Knoll Village Condominium Owners Association, App. Div. (per curiam) (4 pp.) Chris Ann Jaye appealed from orders granting judgment in favor of Oak Knoll Village Condominium Association (OKV) for arrearages associated with common element assessments pursuant to N.J.S.A. 46:8B-17 and from an award of counsel fees to OKV in its collection action. Appellant is, and at all relevant times was, a unit owner at Oak Knoll Village, a condominium community. Appellant failed to pay her common element expenses. OKV instituted legal action seeking a judgment against appellant. Prior to the entry of judgment, a settlement was reached between the parties whereby in exchange for a “zero-out” of the claimed balance owed by appellant to OKV, appellant would commence payment of the common element charges. Notwithstanding the agreement, appellant ceased payments. OKV instituted another action by way of counterclaim seeking judgment for unpaid common element expenses and counsel fees. The appellate panel found the court appropriately granted OKV’s motion for summary judgment. Among the powers assigned by law to a condominium association is the authority to assess and collect funds for the payment of common expenses. Here, the judge’s finding that OKV was entitled to judgment for outstanding common expenses owed by appellant was in accord with the uncontroverted facts and the controlling law. A condominium association is also authorized to charge a nonpaying member with “reasonable” attorney fees. Here the judge acted within his discretion in determining that $8,000 in attorney fees was reasonable.
SOCIAL SERVICES LAW | WORKERS’ COMPENSATION
62-2-5596 Diaz-Paredes v. Whole Foods Market, App. Div. (per curiam) (6 pp.) Petitioner, who was employed by Whole Foods from 2000 until 2008 as a fulltime packer, appealed the Division of Worker’s Compensation’s denial her two claim petitions seeking workers’ compensation benefits based on her allegations that occupational exposure resulted in a disability involving her back and hands and in a lumbar spine injury. The panel affirmed substantially for the reasons stated by the judge of compensation, finding that the judge’s assessment of the medical evidence was something that necessarily involved credibility determinations, particularly with respect to the expert reports and testimony, and the judge’s expertise, and that it would not second guess those determinations.
SOCIAL SERVICES LAW | WORKERS’ COMPENSATION
62-2-5597 Williams v. Ready Pack, App. Div. (per curiam) (7 pp.) Petitioner was injured while employed by Ready Pack in 2006, resulting in the settlement of her initial claim for ten percent of the partial total. In 2010, she filed an application for review or formal modification of the award, alleging that her condition had significantly worsened and required additional treatment. Petitioner was then murdered. No action was taken on her application and Ready Pack eventually filed a motion to dismiss, which was granted in 2012. Six days earlier, Williams’s counsel had filed a motion to restore, supported by a three-paragraph certification stating only that the attorney for Williams’s estate wished to reinstate this matter so that the workers’ compensation award that was previously negotiated could be paid over to the estate. The workers’ compensation judge denied reinstatement with prejudice, finding counsel’s efforts fell woefully short of establishing good cause to reinstate. The panel reversed, finding that the JWC’s concerning regarding counsel’s failure to promptly address Williams’s lack of response and to attempt to keep the court informed was warranted but on balance, the equities tipped toward a finding of good cause by virtue of Williams’ death since the JWC’s ruling obviously prejudiced the rights of Williams’ estate and her beneficiaries.
35-5-5598 612 Paramus LLC v. Borough of Paramus, Tax Ct. (Fiamingo, J.T.C.) (6 pp.) In this challenge to the 2014 tax assessment on the subject property, the court granted the borough’s motion to dismiss the complaint, subject to the taxpayer’s right to request an Ocean Pines reasonableness hearing, due to plaintiff’s predecessor-in-title’s failure to respond to the borough’s Chapter 91 request for income and expense information for the property, finding that the assessor’s demand included a complete copy of the relevant statute, both the statute and the assessor’s letter informed the taxpayer that an appeal would be denied if the taxpayer failed to response within the time provided and that the notice was sent by certified mail to the then owner of the property and that the assessor thus satisfied his statutory obligations and he was not required to inquire as to contractual obligations regarding payment of taxes and rights to contest assessments. Therefore, the taxpayer was barred from contesting the assessment except in a reasonableness hearing.
TAXATION | RESIDENTIAL AND COMMERCIAL REAL ESTATE
35-5-5599 Blum v. Township of Monroe, App. Div. (Sundar, J.T.C.) (6 pp.) Plaintiff filed a motion for reconsideration of the court’s order that affirmed the judgment of the Middlesex County Board of Taxation, which had affirmed the local property tax assessment on plaintiff’s residence. The court found that plaintiff’s proofs were insufficient to overcome the presumptive correctness of the County Board’s judgment. Plaintiff argued that the court’s reasoning was flawed and the court used incorrect and impossible standards with respect to his burden of proving the incorrectness of the assessment. Plaintiff’s evidence included the sales price of five townhomes, each a different model than the subject property, within the subject property’s development, a senior/adult only community. The court found that plaintiff’s choice of comparables was reasonable but also found that the sale prices were not credible indicators of the subject property’s value. The court found plaintiff’s conclusion of the subject property’s value unpersuasive, in part because it was a mathematical average of the sale prices. In his motion for reconsideration, plaintiff agreed that he should not have averaged the comparables’ sale prices but maintains the court erred in concluding the unadjusted sale prices are not reliable indicators of the subject property’s value because all of the homes in the development are very similar. These arguments are the same as those made during trial. The court disagreed with them and concluded that reliance on recollection of the builder’s models being offered for sale years prior to the valuation date was unpersuasive. Plaintiff’s attempt to reargue those issues is not grounds for reconsideration. His disagreement with the court did not establish that the court’s decision was palpably incorrect or irrational. The court denied the motion for reconsideration.
TAXATION | RESIDENTIAL AND COMMERCIAL REAL ESTATE
35-5-5636 Rocky Top, L.L.C. v. City Of South Amboy, App. Div. (Sundar, J.T.C.) (17 pp.) Plaintiff Rocky Top, L.L.C. filed a motion in limine which sought to dismiss defendant City of South Amboy’s counterclaim for tax year 2011 because the City did not except it from the general release provisions of a settlement agreement in a separate land use litigation related to the subject property. The motion also sought to strike portions of the City’s expert’s appraisal report because the expert used information which post-dated the assessment dates. Because the court found the terms “tax appeals” and “effectuate its taxing authority” in the release provisions to be ambiguous, the court allowed the parties to introduce extrinsic evidence. Based on evidence of the circumstances surrounding the settlement of the land use litigation, the court found that the parties intended to terminate only the issues pending in the land use litigation. The court found that neither party intended to include the pending Tax Court matters within the general release or exclude same from the exception to the release. Therefore, Rocky Top’s motion to dismiss the City’s counterclaim is denied. The court also denied Rocky Top’s motion to strike as premature.
TORTS | PERSONAL INJURY
36-3-5615 Flatley v. Mountain Creek Water Park, Law Div.-Bergen Cy. (Doyne, J.S.C.) (9 pp.) Defendant Mountain Creek Resort, Inc. operates a Sussex County water park, “Action Park.” Plaintiffs Liam Flatley and Christine Poggi instituted this action in Bergen County to recover damages for injuries they allegedly sustained while riding Mountain Creek’s “the Gauley” water slide. Defendants filed a motion to change venue to Sussex County, as Action Park’s admission ticket contained a forum selection clause that required all state court actions against Mountain Creek be brought in Sussex County. Plaintiffs reside in Bergen County and sought medical treatment for their injuries in Bergen County. All treating doctors have Bergen County addresses and are potential witnesses. Initially, the court found this application untimely, accordingly, defendants must resort to the fair and impartial trial ground for transfer, which can be made by motion any time prior to trial. Defendants have not produced any competent evidence tending to show a fair trial may not be had in Bergen County. Even if this motion was timely, defendants failed to persuade the court that venue in Sussex is more convenient, or that venue in Bergen is substantially inconvenient, for the parties and witnesses. The court declined to rule on the enforceability of the forum selection clause as it requires a fact sensitive inquiry. Venue shall remain in Bergen. Defendants’ motion to transfer venue to Sussex County was denied without prejudice. Defendants retain the right to renew this motion, after the necessary factual record has been developed, to determine if the forum selection clause is enforceable.
TORTS | PERSONAL INJURY
36-2-5616 Flood v. Toys R Us, Inc., App. Div. (per curiam) (15 pp.) Plaintiff Matthew Flood appealed the order granting summary judgment to defendant Toys “R” Us, Inc. and dismissing his negligence claim against it. On February 24, 2012, Flood went to a Toys “R” Us store to return some prior purchases. According to Flood, he placed the items on the customer service counter and waited for an employee to assist him. As an employee approached, another customer, Christina Velez, pushed her cart up to the customer service counter and told Flood that the line for service started at a waiting area behind them, rather than at the counter. Flood gathered the items and went to the area indicated by Velez. As Flood left the counter, Velez maintained that Flood said: “That was some really ghetto shit you just pulled.” Velez called her fiancée, defendant Pierre A. Bernard, Jr., and asked him to meet her. When Bernard arrived, she told him about her interactions with Flood. Bernard confronted Flood and an altercation ensued. Flood filed a complaint against Toys “R” Us and Bernard, claiming damages for personal injury resulting from the altercation. Flood alleged that Toys “R” Us was negligent in failing to provide a reasonably safe environment for its business invitees. Toys “R” Us answered and cross-claimed against Bernard. Flood obtained a default judgment against Bernard. Flood argued that Toys “R” Us knew or should have known that Bernard was likely to assault him and had a duty under the circumstances to protect him. The appellate panel affirmed the dismissal of Flood’s claims against Toys “R” Us. A reasonable jury could not conclude that any employees of Toys “R” Us had sufficient information to warrant a determination that an assault by Bernard on Flood was foreseeable, giving rise to a duty to take protective action. There is no allegation that Bernard stated that he intended to assault Flood or threatened him in any way, or that any employees knew that Bernard had been violent in the store on prior occasions.
TORTS | PERSONAL INJURY | MOTOR VEHICLES
36-2-5579 Zimmerman v. Kahn, App. Div. (per curiam) (9 pp.) In this personal-injury verbal threshold case, plaintiffs Arnold and Maryann Zimmerman appealed from a judgment of no cause of action entered after a jury trial and from an order denying plaintiffs’ motion for a new trial. Plaintiffs alleged that they sustained injuries as a result of a car accident between their vehicle and the vehicle operated by defendant Arif Khan. The parties stipulated to liability and tried the case over three days on damages. The issue at trial was whether plaintiffs’ alleged injuries were permanent and proximately caused by the accident. The jury returned a verdict of no cause of action concluding that plaintiffs had failed to show that they sustained permanent injuries related to the 2009 accident. Plaintiffs’ counsel filed a motion for a new trial arguing that the verdict was against the weight of the evidence. The judge highlighted the conflicting medical testimony, concluded that it did not clearly and convincingly appear that there was a miscarriage of justice, and denied the motion. On appeal, plaintiffs maintained that the verdict was against the weight of the evidence and that the judge therefore erred by denying their motion for a new trial. The appellate panel affirmed, concluding that the evidence was such that the jury could reasonably have found that plaintiffs failed to show that they were permanently injured as a result of the 2009 accident.
FEDERAL COURT CASES
ALTERNATIVE DISPUTE RESOLUTION | ARBITRATION
03-8-5600 In re: Microbilt Corporation, Third Circuit (Krause, U.S.C.J.) (4 pp.) The Microbilt Corporation filed an adversary complaint in Bankruptcy Court against Chex Systems, Inc., Gunster, Yoakley, & Stewart, P.A., and David Wells, asserting claims for tortious interference and violation of the Florida Uniform Trade Secrets Act. The Bankruptcy Court granted Chex’s motion compelling arbitration on most of the counts and granted Gunster’s motion for summary judgment on the remaining counts. The District Court affirmed. Microbilt raised two issues on appeal. First, Microbilt argued that the District and Bankruptcy Courts erred in holding that Florida’s absolute litigation privilege applies to the disclosure of trade secrets allegedly in violation of FUTSA, or, in the alternative, that the question should be certified to the Florida Supreme Court. Microbilt relied on recent cases carving out exceptions from the privilege for certain acts that occur before, after, or outside of a judicial proceeding. However, these exceptions have no relevance to this case. Here, Gunster attached copies of a Microbilt subsidiary’s invoices to customers as an exhibit to a complaint filed in the Middle District of Florida, allegedly disclosing Microbilt’s trade secrets in violation of FUTSA. Under Florida law, the absolute litigation privilege applies to statements in pleadings filed with the court. The panel rejected the contention that decisions from other states applying foreign law are relevant here and agreed with the District and Bankruptcy Courts that Gunster’s conduct was privileged. The panel also declined to certify a settled question of law to the Florida Supreme Court. Second, Microbilt argued that the District and Bankruptcy Courts erred in dismissing and referring to arbitration its claims for tortious interference with contract and tortious interference with prospective economic advantage. Microbilt’s claims relate to the parties’ obligations under their contract and are arbitrable under the arbitration clause. The circuit panel affirmed the District Court’s decision upholding the decision of the Bankruptcy Court. [Filed December 10, 2014]
59-7-5638 Apple Bail Bonds, Inc. v. City of Patterson, Dist. Ct. (Chesler, U.S.D.J.) (10 pp.) This action involves the purported anti-competitive behavior of a municipal employee. Emilio Lozada books incoming prisoners for the Paterson Police Department. When he registers new inmates, he recommends to them that if they need help making bail, they should use All Out Bail Bonds. All Out is a business run by Mohammad Mahmoud, a former Paterson police officer. Lozada also uses his position to obtain information from inmates which All Out can then use to solicit customers. Plaintiff Apple Bail Bonds, Inc. competes with All Out. Plaintiff asserted that its business has suffered as a result of the recommendations that Lozada makes for All Out. Plaintiff complained about Lozada’s conduct to the Paterson Police Department’s Internal Affairs Division. A detective investigated the complaint, and determined that Lozada had acted improperly and was subject to discipline. Plaintiff complained about Lozada’s conduct on two other dates. Lozada retains his position and continues to recommend All Out to new inmates. Plaintiff then filed this complaint. Defendants the City of Paterson, the City of Paterson Police Department, and Emilio Lozada filed a motion to dismiss. Defendants All Out Bail Bonds and Mahmoud filed a motion for judgment on the pleadings. Apple Bail Bonds opposed the motions. The court granted defendants’ motions to dismiss. The court reviewed plaintiff’s federal claims and found that no restatement of the allegations could successfully plead a federal antitrust or civil rights violation. Because plaintiff cannot cure the deficiencies, the court dismissed the federal claims with prejudice. Plaintiff also asserted claims based on New Jersey law. Plaintiff asserted that defendants violated the New Jersey Antitrust Act and the New Jersey Civil Rights Act, state-law torts and that Lozada has been unjustly enriched. The court also dismissed the state claims, without prejudice. [Filed December 10, 2014]
42-6-5581 In re Crest by the Sea LLC, U. S. Bankruptcy Ct. (Altenburg, U.S.B.J.) (11 pp.) Debtor Crest by the Sea, a limited liability company that built and sold a ten-condominium single story building, together with its members, were defendants in two state court actions. The first, filed by the condo association, related to alleged acts and omissions committed in connection with a condominium construction project. The second was an insurance declaratory judgment action related to potential insurance coverage through one of debtor’s insurers and indemnification by that insurer for the debtor and its members in the first state court action. Debtor moved in this action to enforce the automatic stay as to its individual members. The motion was opposed by the condominium association, which moved to dismiss the case for filing the petition without authority or in bad faith or, alternatively, to grant relief from the automatic stay. The court determined that regardless of whether the Revised Uniform Limited Liability Company Act applied and the debtor required a unanimous vote of the members to file for bankruptcy or section 5.2 of the debtor’s operating agreement controlled and the debtor required a majority of the members to file for bankruptcy, the debtor obtained enough votes to authorize the bankruptcy filing. After reviewing the unusual facts, the court concluded that the debtor had not met its burden of proving that the petition was filed in good faith, noting, inter alia, that debtor was using the bankruptcy filing to delay or otherwise frustrate the state court action, the reckless disregard with which the debtor’s members treated the bankruptcy procedure, the carelessness with which the petition and amendments were prepared and signed and the lack of a valid reorganization purpose. The court also considered the debtor’s brazen attempt to file a bankruptcy case in order to protect of its non-bankrupt members from litigation indicative of bad faith. The court therefore dismissed the bankruptcy petition and held that the association’s request for relief from the stay was moot. [Filed Dec. 23, 2014]
42-7-5623 In re Wen-Kev Management Inc., U. S. Dist. Ct. (Hayden, U.S.D.J.) (7 pp.)
Kevin Rasquinha owned 19 business entities. Ten debtors, of which nine operated franchise restaurants and one managed their operations, filed voluntary petitions for bankruptcy relief under Chapter 11; nine affiliated debtors, two of which were franchise restaurants and seven of which were formed as part of a reorganization plan for the debtors and affiliated debtors that was never completed and hence never became operational, filed voluntary petitions for relief under Chapter 7. The chapter 11 debtors sold their assets and paid their secured creditor and other expenses and the balance was retained by the debtors’ attorneys to pay any remaining creditor claims. The trustee for the chapter 7 affiliated debtors moved to convert the chapter 11 cases to chapter 7 pursuant to Section 1112(b) of the Bankruptcy Code. Debtors appealed the grant of that motion. The court affirmed, agreeing with the bankruptcy court that the ongoing expenses associated with the estate and attempting to negotiate a confirmable plan constituted continuing loss to or diminution of the estate and the debtors were liquidating and therefore had no likelihood of rehabilitation. [Filed Dec. 29, 2014]
07-7-5624 Ford Motor Credit Company LLC v. Friedland, U. S. Dist. Ct. (Cooper, U.S.D.J.) (7 pp.) Ford Motor Credit Company LLC brought this action to recover damages for the breach of certain guaranties against defendants Marc Friedland and Francine Noce, alleging that they were liable for the indebtedness incurred by Epic Auto Leasing, LLC. Plaintiff asserted jurisdiction under 28 U.S.C. §1332(a). The court dismissed the complaint without prejudice because: (1) FMLLC, a limited liability company, failed to trace through however many layers of members there may be to determine its citizenship and merely alleged Friedland’s and Noce’s citizenship “upon information and belief” and thus failed to show that complete diversity existed; and (2) plaintiff failed to disclose that EAL had petitioned for bankruptcy relief, that that matter remained open, and that the claims in this action were hopelessly intertwined with the issues in the bankruptcy case, thereby violating Local Rule 11.2; and (3) the complaint is incomplete as plaintiff referred to several exhibits in the complaint but failed to file the exhibits, thereby violating Local Rule 5.2(8). [Filed Dec. 29, 2014]
CIVIL PROCEDURE | CLASS ACTIONS | JURISDICTION AND SERVICE OF PROCESS
07-7-5582 Kaufman v. Lumber Liquidators Inc., U. S. Dist. Ct. (Thompson, U.S.D.J.) (10 pp.) Plaintiffs, New Jersey residents, filed this putative class action in state court, alleging that defendant, a Delaware corporation headquartered in Virginia, violated New Jersey’s delivery of household furnishing regulations and its Truth in Consumer Contract, Warranty and Notice Act as the invoices they received when they purchased flooring from defendant failed to include language regarding delivery dates and seller’s obligations in the case of delayed delivery as required by the regulations. Defendants removed the case to federal court under the Class Action Fairness Act. Plaintiffs moved to remand. The court found that the most reasonable reading of the complaint as a whole indicated that the inclusion of actual damages in the prayer for relief was a typographical error, that plaintiffs sought only statutory civil penalties, and that, given the $100 per violation statutory penalty under the regulations and defendant’s records on the number of deliveries during the applicable class period, it did not appear that plaintiffs would be able to meet CAFA’s $5 million amount in controversy threshold. Therefore, the court lacked subject matter jurisdiction. Thus, the court granted plaintiffs’ motion to remand to state court. It denied plaintiffs’ motion for attorney fees, finding that there was an objectively reasonable basis for defendants’ removal of the case as plaintiffs did not identify their drafting error until after the case had been removed. [Filed Dec. 22, 2014]
CIVIL PROCEDURE | JURISDICTION AND SERVICE OF PROCESS
07-7-5601 Custom Pak Brokerage, LLC v. Dandrea Produce, Inc., Dist. Ct. (Hillman, U.S.D.J.) (12 pp.) Plaintiff, Custom Pak Brokerage, LLC, a company based in Florida, filed suit against defendants Dandrea Produce Inc., a New Jersey company, and the company’s principals, all New Jersey citizens, to recover unpaid invoices for watermelons Custom Pak sold to Dandrea. Custom Pak then filed an amended complaint to add claims against defendant Jeffrey Geragi, a citizen of Florida and a former employee of Custom Pak, for breach of fiduciary duty and tortious interference with contractual relations when, according to Custom Pak, the Dandrea defendants informed Custom Pak that Geragi, as Custom Pak’s agent, agreed to much lower pricing than what was stated on Custom Pak’s invoices. Custom Pak alleges that Geragi retroactively tried to reduce the agreed upon price between Custom Pak and Dandrea in order to secure employment with Dandrea. Geragi, pro se, filed a motion to dismiss Custom Pak’s claims against him for lack of personal jurisdiction. Regardless of Geragi’s intentions behind his interaction with the Dandrea defendants, Geragi’s numerous and purposeful contacts with New Jersey to broker the sale of produce, where such conduct allegedly breached Geragi’s fiduciary duties to Custom Pak, as well as amounted to tortious interference with the contractual relations between Custom Pak and Dandrea, demonstrated the requisite contacts with New Jersey to cause Geragi to reasonably anticipate being hauled into court in New Jersey. Further, the circumstances of this case cause the court’s exercise of personal jurisdiction over Geragi to comport with “fair play and substantial justice.” Geragi’s motion was denied. [Filed December 4, 2014]
46-7-5617 Dicks-Kee v. The New Jersey Judiciary, Dist. Ct. (Simandle, U.S.D.J.) (39 pp.) Defendant moved for summary judgment in this action alleging that, in violation of Title VII’s anti-retaliation provision, 42 U.S.C. § 2003e-3(a), it took various adverse actions
against plaintiff, a financial specialist employed by the Camden Vicinage, for assisting in another employee’s Title VII discrimination case. The court granted the motion, finding, inter alia, that although a reasonable factfinder would be able to conclude that the plaintiff was subject to materially adverse action, the evidence was insufficient to show that her employer took these actions because of her participation in the other employee’s Title VII case where nothing in the record suggested that her participation brought about a qualitative change in how the she was treated where both parties agree that Cupo, her supervisor, had treated her poorly before her participation and that she had not suffered materially poorer treatment after her participation. Moreover, nothing in the record suggested that he knew of her participation in the litigation. Similarly, while the denial of sick leave injury benefits was materially adverse, the eight month delay between the plaintiff’s deposition in the litigation and the denial did not raise an inference of causation and defendant provided a legitimate explanation for the denial which plaintiff failed to rebut. [Filed Dec. 23, 2014]
46-7-5639 Grandizio v. Smith, U. S. Dist. Ct. (Kugler, U.S.D.J.) (13 pp.) In this action arising out of an altercation between plaintiff and police outside a bar in Stone Harbor which culminated with his being charged with disorderly conduct to which he later pled guilty, the court granted defendants’ motion for summary judgment on plaintiff’s false imprisonment claim because, given his undisputed guilty plea, he did not have a viable claim for false imprisonment as a matter of law. The court granted, without prejudice, the municipality’s motion to dismiss plaintiff’s 42 U.S.C. section 1983 claim against it because he failed to show that it had adopted a policy or custom of depriving its citizens of their constitutional rights or that it failed to provide specific training or had shortcomings in any existing training programs that caused the specific harm to the plaintiff, and he did not adequately allege deliberate indifference. Plaintiff’s vicarious liability claim against the municipality for assault and battery was dismissed with prejudice because its immunity from suit under the New Jersey Tort Claims Act rendered an amendment futile. [Filed Jan. 5, 2015]
CIVIL RIGHTS | LABOR AND EMPLOYMENT
46-8-5583 Kaminski v. Township of Toms River, Third Cir. (Barry, C.J.) (11 pp.) Plaintiffs, officers in the Toms River Police Department who were not promoted to the ranks of sergeant and lieutenant after the 2006 and 2011 “chief’s tests,” appeal the district court’s grant of defendants’ motions for summary judgment in their two complaints alleging that the exams, and particularly their evaluation components, deprived them of a fair transparent promotional process and that they were arbitrarily denied promotions in violation of due process. The Third Circuit affirmed, finding that plaintiffs’ due process claims failed because they failed to prove that they had a protected procedural or substantive right to a fair and transparent promotional process with the specific features they described. The court also found that the only First Amendment claim was made in the first law suit which it found was untimely and that neither the discovery rule nor the doctrine of equitable tolling required any other conclusion. [Filed Dec. 23, 2014]
09-7-5584 Beyerle v. Wright Medical Technology Inc., U. S. Dist. Ct. (Bumb, U.S.D.J.) (11 pp.) In this action filed after the ProFemu hip stem system designed, manufactured and marketed by defendant and implanted into plaintiff fractured, defendant moved to dismiss count IV of the complaint asserting violation of the New Jersey Consumer Fraud Act, contending that it was preempted by the Products Liability Act. Based on the facts as pleaded in the complaint, the court denied the motion, finding that what plaintiff pleaded in count four was a claim for harm to the product itself, i.e., the cost of having to buy a replacement because the product broke, which is not subsumed by the PLA. The court noted that if discovery revealed that the heart of plaintiff’s case was the harm caused by the product, rather than the harm caused to the product itself, and thus that his claim was truly one for product liability, defendant could move for summary judgment on the CFA claim. [Filed Dec. 23, 2014]
09-7-5618 Reed v. The Swatch Group (US) Inc., Dist. Ct. (Salas, U.S.M.J.) (10 pp.) Defendant moved to dismiss this consumer class action filed on behalf of those who, on or after June 3, 2008, made purchases at retail locations operated by defendant and were provided with a printed receipt that displayed the expiration date of the their credit or debit card and asserting violations of the Fair and Accurate Credit Transactions Act amendment to the Fair Credit Reporting Act and N.J.S.A. 56:11-42, a New Jersey statute with provisions similar to FACTA’s. The court dismissed without prejudice the FACTA claim, finding that plaintiffs, who did not allege actual injury, failed to allege sufficient facts to assert a willful violation of the act where they neither asserted nor showed that defendant in particular actually received, reviewed, or was otherwise made familiar with FACTA’s requirements, as opposed to “merchants” in general. The court dismissed without prejudice the claim under N.J.S.A. 56:11-42, finding that no private right of action existed under the statute where the state attorney general had not adopted any regulations to effectuate its purposes. [Filed Dec. 29, 2014]
11-7-5585 Emrit v. Independent Music Awards, Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff Ronald Emrit filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. According to Emrit, defendants Independent Music Awards (“IMA”) and Sonicbirds, Inc. are partner companies in the music industry. Emrit alleged that he paid defendants $160 in exchange for the opportunity to submit seven music videos to an IMA competition. Emrit alleged that he never heard back from IMA or Songbirds after he submitted his videos, which he claimed means that defendants must have never actually viewed his submissions. Emrit asserted claims of negligence, intentional misrepresentation | fraud, tortious interference with contract, breach of contract, intentional infliction of emotional distress and conversion. The court raised sua sponte its concern that it does not possess subject-matter jurisdiction. Even assuming Emrit could meet the amount-in-controversy requirement, the court determined he nonetheless failed to state a claim on which relief may be granted. Emrit’s suspicion that defendants did not view or judge his submissions was unsupported by any specific factual allegations that would allow the court to reasonably infer that the contest was fraudulent. Emrit did not allege a duty on the part of defendants that would support a negligence claim, nor did he allege the existence of any contract or reasonable business expectation needed to support his breach of contract and tortious interference claims. As to his intentional inflection of emotional distress claim, Emrit alleged no facts to allow a reasonable inference that defendants’ conduct was extreme and outrageous. Finally, the conversion claim failed to allege any specific facts that would allow a court to reasonably infer a right of possession belonging to Emrit. Emrit’s application to proceed in forma pauperis was granted and his complaint was dismissed. [Filed December 3, 2014]
11-7-5602 Lee v. A to Z Trading LLC, U. S. Dist. Ct. (Salas, U.S.D.J.) (7 pp.) Plaintiff moved for default judgment in this action alleging that defendant Abderrazak Zakaria had ordered and she had shipped 492 jackets but that Zakaria had not paid for the merchandise. The court granted default judgment on the breach of contract claim, finding that Zakaria had been properly served, plaintiff had stated a sufficient cause of action for her breach of contract claim, and default was warranted since plaintiff would be prejudiced if default judgment were not granted and Zakaria’s delay was due to culpable conduct. The court denied default judgment on the fraud claim, finding that plaintiff had failed to sufficiently state a cause of action for fraud because, although she sufficiently established that Zakaria made a material misrepresentation that he knew was false when made and that she relied on this material misrepresentation, she had not alleged that the reliance was reasonable. [Filed Dec. 23, 2014]
11-7-5625 Rapid Models & Prototypes Inc. v. Innovated Solutions, U. S. Dist. Ct. (Hillman, U.S.D.J.) (41 pp.) Plaintiff entered into a lease, which it contended was in reality a sales agreement, with U.S. Bancorp Manifest Funding Services for a three-dimensional printer manufactured by defendant 3D Systems. The machine was to be supplied by defendant Innovated Solutions, an allegedly authorized reselling agent for 3D Systems. Plaintiff filed this action in state court which was removed on the basis of diversity after the machine allegedly repeatedly malfunctioned and neither Innovated Solutions nor 3D were able to rectify the defects, resulting in lost business and customers. 3D’s motion to dismiss was granted; Innovated Solutions’ separate motion to dismiss was granted in part and denied in part. The court found that the amended complaint failed to meet the pleading requirements under Rule 12(b)(6) and, to the extent plaintiff asserted claims for common law fraud and violations of the New Jersey Consumer Fraud Act, Rule 9(b). Accordingly, the claims in counts II through VIII, IX and XI, including claims for breach of express and implied warranties, fraud and negligent misrepresentation, were dismissed without prejudice to plaintiffs’ right to file an amended pleading as to these claims. The claim in count X for negligent misrepresentation was dismissed with prejudice pursuant to the economic loss doctrine. The claim for breach of contract in count I was not dismissed but the court specified that Innovated Solutions could raise its arguments in connection with this claim in any amended complaint that plaintiffs might file. [Filed Dec. 29, 2014]
11-7-5640 Bright Lights USA Inc. v. Elecsys Inc., U. S. Dist. Ct. (Hillman, U.S.D.J.) 31 pp.) In this breach of contract action, the court found that: the parties entered into a valid contract for the sale of goods that was missing an essential term, i.e., the mode and timing of payment; the gap-filling provisions of New Jersey’s version of the UCC therefore became part of the agreement and bound the parties as a matter of law; neither party acted in conformity with those provisions and both acted in a commercially unreasonable way; and, therefore, they were left in their original places, each absorbing their respective losses since no benefit was conferred on either side. The court therefore dismissed plaintiff’s breach of contract claim. The court dismissed plaintiff’s claim for equitable estoppel because it could not conclude that plaintiff had reasonably relied on some misrepresentation by defendant or that defendant failed to disclose some material fact which if known to plaintiff would have allowed it to change its position or mitigate its damages and plaintiff’s unilateral actions amounted to an assumption of the risk that the parties would not reach an agreement on payment terms and when those negotiations failed it insisted on commercially unreasonable payment terms inconsistent with the UCC. [Filed Dec. 30, 2014]
CONTRACTS | CIVIL PROCEDURE
11-8-5641 Cooper v. Alliance Oral Surgery, LLC, Third Circuit (Smith, U.S.C.J.) (4 pp.) In this breach of contract case, plaintiff alleged that pursuant to an employment agreement, defendants were to enroll him in a retirement plan and failed to properly enroll him. The circuit panel affirmed the District Court’s grant of summary judgment for defendants on all claims. The District Court properly held that plaintiff’s state-law claims based on failure to enroll a beneficiary are preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”) because they “relate to” an employee benefit plan. In addition to his preempted state-law claims, plaintiff also alleged that defendants’ conduct violated ERISA. Without reaching the merits, the District Court appropriately granted summary judgment to defendants on the grounds that plaintiff failed to exhaust his administrative appeals and that such failure was not excused on account of futility. Plaintiff cannot circumvent the exhaustion requirement by alleging a breach of fiduciary duty. Plaintiff argued that the District Court should not have granted summary judgment on the futility issue without allowing him an opportunity to take discovery. But plaintiff did not follow the requirements of Federal Rule of Civil Procedure 56(d)3 in form, substance or spirit and no discovery was outstanding at the time of the District Court’s grant of summary judgment. [Filed December 9, 2014]
LABOR AND EMPLOYMENT
25-7-5603 IBEW Local 400 Welfare, Pension, Annuity, Supplemental and Joint Apprenticeship Training Funds v. Alltek Security Systems Group Inc., U. S. Dist. Ct.(Salas, U.S.D.J.) (9 pp.) Plaintiffs, trust funds established and maintained pursuant to the Labor Management
Relations Act and the Employee Retirement Income Security Act, moved for default judgment in this action alleging that defendant, an employer, failed to remit contributions to the funds and refused to comply with plaintiffs’ audit requests. The court found that where the funds alleged that they brought the action on behalf of their trustees, committee members, participants and beneficiaries but did not allege that they were a participant, beneficiary or fiduciary, it did not have jurisdiction over their ERISA claims and it gave the funds 30 days to establish that they had standing under ERISA. It found that the funds had standing to bring a civil action under the LMRA as they had a contractual dispute with defendant, and thus it could exercise jurisdiction over their LMRA claims. As to default judgment n the LMRA claims, the court found that there was sufficient proof of service; the unchallenged allegations in the complaint stated a sufficient cause of action under the LMRA as they constituted a suit for violation of contracts between an employer and a labor organization; meritorious defenses did not appear to be available; plaintiff would suffer prejudice if default judgment was not granted; and defendant was culpable as it was served notice of the action but failed to properly participate. [Filed Dec. 23, 2014]
LABOR AND EMPLOYMENT
25-7-5626 Spence v. Foxx, U. S. Dist. Ct. (Simandle, U.S.D.J.) (40 pp.) Plaintiff, who is African American and Muslim, filed this action alleging discrimination on the basis of religion, race and national origin after she was terminated from her position as an analyst at the Federal Aviation Administration Tech Center in Atlantic City. She also alleged that the FAA retaliated against her for filing a discrimination complaint with the FAA’s Equal Employment Opportunity Office after she was terminated and placed in a temporary position. The court granted the motion to dismiss of the Secretary of Transportation, the sole remaining defendant, finding that: (1) plaintiff failed to establish a prima facie case of discrimination on the basis of national origin where the court could not find any assertion of her national origin in the complaint and the record contained no reference to her national origin did not suggest that there was discrimination against her because of her national origin; (2) plaintiff failed to establish a prima facie case of discrimination on the basis of race or religion since the evidence did not support her claim that she was entitled to the veteran’s preference and thus was as qualified as the other candidates for the position and there was no evidence suggesting that other individuals not in a protected class were allowed to stay on despite a later finding that they did not meet the qualifications and thus no evidence of disparate treatment, and even if plaintiff had established a prima facie case, defendant had a legitimate nondiscriminatory reason for terminating her, i.e., because an internal audit showed that she had not produced the documentation necessary to support her qualification for the veteran’s preference that had resulted in her being placed on a short list of external candidates for the position, and plaintiff failed to produce evidence to refute that reason; and (3) the retaliation claim failed because plaintiff did not show a causal link between the protected activity and the alleged retaliatory acts. [Filed Dec. 30, 2014]
LABOR AND EMPLOYMENT
25-7-5643 International Union of Painters and Allied Trades District Council 711 Health & Welfare and Vacation Funds v. Cobra Construction, U. S. Dist. Ct. (Bumb, U.S.D.J.) (10 pp.) Plaintiffs moved for default judgment in this action alleging that pursuant to the collective bargaining agreement to which defendant was a party and/or agreed to abide by, defendant was obligated to make certain contributions to plaintiffs and that a payroll compliance audit revealed that defendant has failed to remit the full amount of the required contributions for the period Jan. 1, 2010 through Dec. 31, 2012, and that it refused to submit the payments despite having notice of the delinquencies. The court granted the motion, finding that service was made on defendant, defendant failed to answer or otherwise respond to the complaint or the motion, defendant was obligated to make contributions under the CBA for the period at issue, plaintiffs’ allegations sufficiently state a cause of action under ERISA, plaintiffs will be prejudiced if default judgment is not entered in their favor, and the court could not determine if defendant had a culpable defense because of its failure to file a responsive pleading. The court entered judgment for $4,582.88, representing $2,993.56 in unpaid benefit contributions, $1,120.00 in attorneys’ fees, and $469.32 in costs. [Filed Jan. 5, 2015]
LABOR AND EMPLOYMENT | DISABILITY DISCRIMINATION
25-7-5619 Scheidt v. Donahue, Dist. Ct. (Pisano, U.S.D.J.) (9 pp.) Plaintiff’s complaint alleged a violation of the Americans with Disabilities Act (“ADA”), failure to accommodate, wrongful termination, and a violation of the Family Medical Leave Act (“FMLA”) related to his employment with the United States Postal Service. Plaintiff allegedly suffered from back pain and alleged the Postal Service refused to provide him with the time off needed as a result of his disability. Plaintiff was involved in a car accident that exacerbated his symptoms. He completed forms to seek medical leave under the FMLA. Plaintiff was advised that he was eligible for FMLA leave. However, plaintiff later received notice that he was not eligible for FMLA leave because he had not met the hours worked requirement. Plaintiff asserted that, by his calculations, he had satisfied the requirement. Plaintiff further claimed that, despite defendant’s familiarity with his condition, defendant failed to engage him in an interactive process, and in failing to approve him for time off as a result of his automobile accident, refused to accommodate him. Plaintiff’s cause of action under the ADA asserted defendant’s alleged failure to accommodate plaintiff’s disability. As defendant pointed out, the ADA is not applicable to the federal government. Next, plaintiff alleged that his wrongful termination and failure to accommodate claims must be construed under the Rehabilitation Act. Defendant claimed that plaintiff failed to exhaust his administrative remedies and filed this complaint prematurely. Plaintiff began the process of appealing to the EEOC, but then changed his mind and filed this suit. He did not properly exhaust his administrative remedies. Plaintiff could not abandon the administrative process by filing suit in federal court before the expiration of the 180-day period. Plaintiff’s last claim was for a violation of the FMLA. Even assuming the last discriminatory event occurred on the date of plaintiff’s termination, his complaint was filed beyond the two year statute of limitations. The court granted defendant’s motion to dismiss. [Filed December 10, 2014]
LABOR AND EMPLOYMENT | DISCRIMINATION
25-8-5586 Yu v. McGrath, Third Cir. (per curiam) (11 pp.) Plaintiff, a Chinese woman who had served as a marketing research consultant for Bristol-Myers Squibb pursuant to a contract between BMS and GfK Healthcare, LP and who was told that it would not make sense for her to apply for a full-time marketing research position because the interview panel was made up of the same people who had voiced dissatisfaction with her performance as a consultant, appealed the district court’s grant of defendant’s motion for summary judgment in this action alleging violations of the Fair Labor Standards Act and the Civil Rights Act of 1964. The Third Circuit affirmed, finding that: (1) the FLSA claim failed as no reasonable jury could conclude that plaintiff was an employee of BMS where, inter alia, BMS did not set her compensation, benefits, or rate and method of payment, did not have the authority to hire or fire her, and had no control over payroll, insurance, or tax records for her; and (2) the Title VII claim failed to the extent plaintiff claimed discrimination while she worked at BMS because if BMS was not her employer under the FLSA’s more expansive definition, it was not her employer under the narrower common law definition used for Title VII cases and to the extent plaintiff claimed discrimination against BMS as a potential employer, because, even assuming that she had made out a prima facie case of discrimination, she did not offer evidence to show that BMS’s reason for not hiring her | her poor performance | was a pretext for discrimination. [Filed Dec. 30, 2014]
LABOR AND EMPLOYMENT | DISCRIMINATION
25-7-5627 Murray-Sims v. New Jersey Transit Corporation, Dist. Ct. (Dickson, U.S.M.J.) (47 pp.) Plaintiff Shawn Murray-Sims, an African-American female, began working for defendant New Jersey Transit Corporation, on October 2, 2002. NJ Transit terminated plaintiff’s employment on January 5, 2011. Plaintiff filed a complaint against defendants, alleging violations of the New Jersey Law Against Discrimination, claiming that defendants conspired to effectuate the wrongful termination of her employment and contending that, because NJ Transit (among others) failed to comply with certain procedural requirements when conducting a Special Board of Adjustment hearing mandated by the Railway Labor Act, the Board’s decision, which upheld NJ Transit’s decision to terminate her employment, must be vacated. Plaintiff contended that the Special Board violated the RLA by failing to give her “due notice” of the hearing in her case. The court granted summary judgment in favor of plaintiff with respect that issue, vacated the award and remanded consideration of plaintiff’s termination to the Special Board for a hearing on due notice to plaintiff. The court granted summary judgment in favor of NJ Transit.
LABOR AND EMPLOYMENT | DISCRIMINATION | CIVIL PROCEDURE
25-7-5644 Tighe v. Mercer County Sheriff’s Department, U. S. Dist. Ct. (Cooper, U.S.D.J.) (2 pp.) Finding that, despite plaintiff’s counsel’s assertions that plaintiff would withdraw his pursuit of remedies concerning his claims under the New Jersey Law Against Discrimination before the state Division on Civil Rights, those proceedings remained pending, and that plaintiff’s status as a public employee was the subject of disciplinary proceedings and that the proper forum for review of those proceedings was the state courts, the federal court administratively terminated this action pending the final resolution of: the NJLAD remedies, either on the merits or upon plaintiff’s withdrawal and the disciplinary proceedings, including any appeal or further state review. [Filed Jan. 5, 2015]
LABOR AND EMPLOYMENT | EMPLOYEE BENEFITS
25-7-5604 Ruiz v. Campbell Soup Company, Dist. Ct. (Hillman, U.S.D.J.) (19 pp.) Defendants filed a motion for summary judgment on plaintiff’s ERISA violation claims for failure to exhaust administrative remedies. According to his complaint, plaintiff began working for defendant Campbell Soup Company in October 1984. Plaintiff became eligible for severance benefits under the Campbell Soup Company Severance Pay Plan for Salaried Employees. On March 22, 2011, plaintiff was terminated. Plaintiff claimed that although he was eligible for benefits, he was denied severance benefits. Plaintiff claimed that defendants violated ERISA by wrongfully excluding him from the Plan, violating their fiduciary duties and unlawfully interfering with his ability to receive ERISA benefits. Defendants argued that because plaintiff failed to appeal the denial of his benefits in the time provided under the Plan, his claims are barred for his failure to exhaust his administrative remedies. Ten days after the 60-day appeal period expired, plaintiff’s counsel contacted defendants to seek the status of the appeal of the denial of plaintiff’s claim for severance benefits under the Plan. Even though he did not technically comply with the Plan-mandated deadline, the Plan nonetheless deemed plaintiff’s counsel’s letters to constitute an appeal, considered plaintiff’s previous submissions to the Plan in support of his claim and determined that he did not meet the requirements to obtain severance benefits under the Plan. Plaintiff was also instructed that he had “completed the administrative appeal process authorized by the Plan,” and that if he disagreed with the Plan Administrator’s determination of his appeal, plaintiff had the right to file an action in the District Court. Under these circumstances, the dismissal of plaintiff’s ERISA claims based on his untimely appeal would not satisfy the purposes of the exhaustion doctrine. Further, the dismissal of plaintiff’s ERISA claims would not be fair, especially considering that the exhaustion requirement is a judicially crafted doctrine and the Plan itself considered the administrative procedures completed and directed plaintiff to the federal court. Defendant’s motion for summary judgment was denied. [Filed December 4, 2014]
LABOR AND EMPLOYMENT | EMPLOYEE BENEFITS | ARBITRATION
25-7-5645 Association of New Jersey Chiropractors v. Aetna Inc., U. S. Dist. Ct. (Shipp, U.S.D.J.) (12 pp.) In this putative class action brought by healthcare providers and chiropractic
professional associations against Aetna, Inc., an insurance company, and its affiliates, claiming violations of the Employee Retirement Income Security Act of 1974, plaintiffs alleged that defendants engaged in retroactive benefit determinations that did not comply with ERISA. The court granted Aetna’s motion to compel arbitration of claims brought by Drs. Peter Manz, D.C. and Leon Egozi, M.D., pursuant to provider agreements negotiated between them and Aetna. Since that decision, the Third Circuit decided CardioNet, Inc. v. CignaHealth Corp.. Manz argued that CardioNet was an intervening change in the law warranting reconsideration of the court’s prior opinion. The court granted Manz’s motion for reconsideration, finding that CardioNet stood for the proposition that the right to litigate ERISA claims in federal court travels with a claim, i.e., an assignee of an ERISA claim, e.g., a healthcare provider, may bring those claims in federal court regardless of any agreement between the provider and the insurer to arbitrate claims between them if the assignor of the claim, e.g., a participant in an ERISA plan, was not obligated to arbitrate those same claims, and that holding was an intervening change in the law that mandated reconsideration and vacatur of the court’s order compelling arbitration. [Filed Dec. 31, 2014]
LABOR AND EMPLOYMENT | RACE DISCRIMINATION
25-7-5620 Scrutchkins v. State of New Jersey, Dist. Ct. (Chesler, U.S.D.J.) (17 pp.) Defendant State of New Jersey, Department of Children and Family Services, Division of Child Protection and Permanency (“DCF”) filed a motion for summary judgment in this employment discrimination and civil rights action. Plaintiff Louise Scrutchins is an African American female, currently employed by DCF. Plaintiff alleged that DCF has failed to promote her on numerous occasions due to her race and also in retaliation for bringing lawsuits against DCF and for filing complaints with the Equal Employment Opportunity Commission. She asserted a retaliatory failure to promote claim in violation of Title VII and also asserts Title VII and § 1983 claims based on the allegation that defendant’s actions have been motivated by racial discrimination. Plaintiff failed to point to evidence that DCF’s decisions not to promote her to certain positions were motivated by intentional, race-based discrimination. Accordingly, summary judgment on plaintiff’s Title VII claim for discriminatory failure to promote as well as on her § 1983 equal protection claim was granted. Scrutchins presented no evidence of a close temporal connection between the allegedly retaliatory non-promotions and her prior lawsuits and complaints. Nor did she present evidence of intervening antagonism, retaliatory animus or other circumstances which would allow a reasonable factfinder to conclude that Scrutchins has established a prima facie case of retaliation in violation of Title VII. Thus, summary judgment on the Title VII retaliation claim was also granted. [Filed December 10, 2014]
PRODUCTS LIABILITY | DESIGN DEFECT
32-8-5628 Johnson v. Draeger Safety Diagnostics, Inc., Third Circuit (Barry, U.S.C.J.) (13 pp.) Plaintiffs Bobby Johnson and Edwin Aguaiza appealed from the order of the District Court dismissing their complaint against Draeger Safety Diagnostics, Inc. based on the Rooker-Feldman doctrine. The circuit panel affirmed for reasons that differ in part from those of the District Court. Plaintiffs, New Jersey residents, were arrested for suspected drunk driving, Johnson in 2010 and Aguaiza in 2011. Both submitted to breath tests administered using Draeger’s Alcotest 7110 MKIII-C device, which reported, for each, a blood alcohol concentration, or BAC, above 0.08%. Johnson and Aguaiza each pleaded guilty to DWI. In 2013, plaintiffs filed the complaint in this case. Their third amended complaint asserted, on behalf of themselves and a putative class, two claims against Draeger: a design defect claim under the New Jersey Products Liability Act and a common law fraud claim. The circuit panel agreed with the District Court that Rooker-Feldman precludes the exercise of jurisdiction over plaintiffs’ design defect claim but concluded that plaintiffs’ fraud claim does not fall within its scope. Plaintiffs alleged in their fraud claim that Hansueli Ryser, Draeger’s vice president, testified falsely in the State v. Chun factfinding hearing before the Special Master. The circuit panel concluded that plaintiffs came close to adequately alleging the falsity of the scientific-reliability statements when they aver that it is “impossible” to conclude that the Alcotest is scientifically reliable because that would require it to yield the same results upon multiple tests and no tests are available for the “volume, blowing time, and flow rate.” But even taking as true that Ryser is a “highly trained scientist” who grasps the concept of scientific reliability, plaintiffs’ allegations are not enough to permit an inference that his statement that he believed the overall instrument to be scientifically reliable was false because certain sub-parameters could not be routinely tested or to infer that he believed his statements to be false. [Filed December 9, 2014]
PRODUCTS LIABILITY | DESIGN DEFECT
32-7-5646 Medina v. Daimler Trucks North America, U. S. Dist. Ct. (Linares, U.S.D.J.) (17 pp.) In this action filed after Edvin Medina was killed when the tractor trailer he was driving into the bridge guardrails and plummeted off the overpass through a high-voltage power line, caught fire after he took evasive action to avoid another vehicle disabled on an overpass, crashed plaintiff alleged that a design defect in the tractor-trailer caused his death. Specifically, she presented an expert report that mounting the batteries on the outboard side of the frame rail and in close proximity to the fuel tank was a design defect and the fire was started by a shower of sparks from the battery box that ignited fuel leaking from the tank that was pierced during the accident. The court denied defendant’s motion to exclude the testimony of plaintiff’s experts, finding, inter alia, that the fact that one expert did not conduct his own accident reconstruction would go to the weight of his testimony but did not automatically disqualify him from testifying as an expert, and his knowledge of accident reconstruction and his review of the information provided by the police officers and the interviews he conducted made his expert testimony regarding the nature of the accident sufficiently reliable to survive a Daubert challenge at that stage of the litigation; and based on the other expert’s logical analysis coupled with his extensive professional experience as a fire investigator, his conclusion passed the threshold of admissibility mandated under Daubert and Rule 702. The court denied defendant’s motion for summary judgment on the design defect claim, finding that plaintiff created a sufficient question of material fact as to whether Mr. Medina would have suffered the same burn injuries had the battery been located under the rails of the truck, the proposed alternate design. Because defendant’s motion for summary judgment on design defect was denied, it was also denied on the wrongful death and survivorship claims. [Filed Dec. 30, 2014]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-7-5587 Guaba v. World Savings Bank, FSB, Dist. Ct. (Shipp, U.S.D.J.) (4 pp.) On May 22, 2007, Plaintiffs Tommy and Myra Guaba obtained a mortgage and note with World Savings Bank secured by their property in Long Branch, New Jersey. While World Savings Bank originated the loan, defendant Wells Fargo is the holder and owner of the loan. On December 14, 2012, a final foreclosure judgment was entered against plaintiffs. On July 15, 2013, plaintiffs’ property was sold at a sheriff’s sale to defendant Roger Mizrahi. Plaintiffs did not appear in or defend the foreclosure action. On December 27, 2013, Plaintiffs filed this action in the Superior Court of New Jersey, and it was removed to this court. Plaintiffs’ complaint asserts that the sheriff sale should be set aside and cancelled and the court should quiet title to the property in plaintiffs’ name. Plaintiffs brought several claims including lack of standing to foreclose, fraud in the concealment, fraud in the inducement, quiet title and declaratory relief. In New Jersey, the entire controversy doctrine is limited, in the foreclosure context, to those counterclaims deemed “germane” under New Jersey Court Rule 4:64-5.” Claims are considered to be germane to a foreclosure action if they arise out of the mortgage that is the basis of the foreclosure action, including those challenging the circumstances surrounding origination of the loan, challenging the validity of the loan itself, and arising out of the mortgage transaction. Here, plaintiffs’ claims were barred by the entire controversy doctrine. The claims asserted in plaintiff’s complaint are germane and could have been raised in the foreclosure proceeding. Plaintiffs’ complaint was dismissed with prejudice. [Filed December 3, 2014]
SOCIAL SERVICES LAW | SOCIAL SECURITY COMPENSATION
62-7-5629 Garcia v. Colvin, Dist. Ct. (Cecchi, U.S.D.J.) (15 pp.) Luz Garcia appealed the final determination of the Commissioner of the Social Security Administration which denied plaintiff disability benefits under the Social Security Act. Plaintiff claimed that a severe psychiatric condition limited her ability to work. The decision of the Administrative Law Judge was affirmed in part, vacated in part and remanded. The court found the ALJ’s Step Three determination must be remanded for a discussion of the evidence and an explanation supporting a determination that plaintiff’s impairment does not meet or is not equivalent to a listed impairment. Further, the hypothetical question posed to the vocational expert contained no limitations with respect to concentration, persistence or pace, other than a restriction to one- or two-step duties. Because the ALJ failed to include all of her factual findings in the hypothetical, the Step Five determination is not supported by substantial evidence. [Filed December 10, 2014]
TORTS | FRAUD | JURISDICTION AND SERVICE OF PROCESS
36-7-5630 Vision Holdings LLC v. Zappala, U. S. Dist. Ct. (McNulty, U.S.D.J.) (10 pp.) Plaintiff Vision Holdings, a Pennsylvania corporation, and defendant Powell, a managing member and a Florida resident, appealed the magistrate judge’s grant of defendant -New Jersey resident Zappala’s motion to transfer venue to the Middle District of Pennsylvania in this action asserting claims for common law fraud and aiding and abetting fraud in connection with Zappala’s allege failure to comply with an agreement between Powell and Zappala in which Zappala promised to sell their juvenile detention center business or, if unable to sell it, to pay Powell his share of its appraised value. The court affirmed, finding that the action could have been brought in the Middle District of Pennsylvania because a substantial part of the events giving rise to the action occurred there; the magistrate judge properly reasoned that the balance of public and private factors favored the transfer, including that the agreement was negotiated in Pennsylvania, the juvenile detention business was a Pennsylvania business, and both plaintiff and defendant companies had their principal place of business in Pennsylvania, and the only witness residing in New Jersey was Zappala, who made the motion to transfer. [Filed Dec. 29, 2014]
TORTS | JURISDICTION AND SERVICE OF PROCESS
36-7-5605 Escurra v. Transportation Security Administration, U. S. Dist. Ct. (Hochberg, U.S.D.J.) (3 pp.) Defendant TSA moved to dismiss this action filed after it allegedly failed to return plaintiff’s laptop after a routine search of his belongings at Newark Liberty International Airport. The court dismissed the action without prejudice, finding that since plaintiff’s exclusive right of action for such a property loss was under the Federal Tort Claims Act, the he filed an administrative claim, that no decision had been rendered on that claim and that plaintiff filed suit fewer than six months after he submitted his claim, the court did not have jurisdiction over the matter. [Filed Dec. 24, 2014]
TORTS | PERSONAL INJURY
36-7-5588 Kotovets v. Kotovets, Dist. Ct. (Hochberg, U.S.D.J.) (3 pp.) Defendants Gary and Alina Kotovet filed a motion for summary judgment in this negligence matter. Because questions of material fact exist with respect to the claims against defendants, including whether their garage door malfunctioned, whether defendants knew that it created a dangerous condition, and whether plaintiff’s own negligence contributed to his injury, the court found this matter is unsuitable for summary judgment. Defendants’ motion was denied. [Filed December 3, 2014]