01-2-2742 In the Matter of Basem Zaghloul, N.J. Super. App. Div. (per curiam) (9 pp.) Zaghloul, a Newark police officer, was subject to a ten-day suspension following charges of conduct unbecoming a public employee, insubordination, and violations of Newark Police Department Rules and Regulations. The charges arose when Zaghloul became angry after over-hearing two detectives discuss errors he had made on forms and subsequently inappropriately referred to the detectives as “baby” and “sunshine.” At the administrative appeal hearing, counsel moved to dismiss claiming the city hadn’t completed its case and, as a result, Zaghloul should not be forced to testify. The ALJ decided there was a preponderance of the evidence to support a ten-day suspension which was accepted by the Commission. On appeal, the court affirmed holding uncontroverted credible evidence proved the charges against Zaghloul and the Commission’s acceptance of the ALJ’s decision was not arbitrary, capricious, or unreasonable. Further, the court noted that there was no evidence to establish Zaghloul’s reassignment was the result of the violations or in retaliation of same. As such, the court found no fault with the Commission’s decision to impose a ten-day suspension and affirmed.

07-2-2754 Wiss & Bouregy, P.C. v. Bisceglie, N.J. Super. App. Div. (per curiam) (14 pp.) In pursuit of collections against a client, respondent obtained a default judgment against appellant. Respondent sought an order vacating the default judgment, contending he had just learned of the judgment and neither the pre-action notice nor the summons and complaint were properly served. In its opposition, appellant alleged the court properly served the summons and complaint and submitted evidence of said service. The trial court denied the motion relying on respondent’s certification and found that respondent satisfied the pre-action notice requirements by sending the letter to appellant by regular mail to his proper address. The court also concluded the summons and complaint were properly served. As such, the trial court held appellant’s motion was untimely, failed to present a meritorious defense, and failed to present a sufficient showing to justify exceptional relief. On appeal, the court reversed holding there was no competent evidence of mailing either the pre-action notice or the summons and complaint. The court noted respondent did not present a copy of the certified mail receipt nor certification that it mailed the pre-action notice in accordance with a business custom or practice of mailing. Further, there was no return receipt presented and the court’s printout, which lacked details of the address where service was made, was not conclusive evidence of proper mailing. Based on the disputed issues of service, the trial court prematurely denied appellant’s motion to vacate default judgment.

11-2-2755 Columbus Circle NJ, LLC v. Island Constr. Co., LLC, N.J. Super. App. Div. (per curiam) (18 pp.) The parties entered into a contract for respondent to construct a $1.96 million, 10,000-square foot home on bayfront property owned by appellant. During construction, disagreements arose between the parties regarding the cost of the project; appellant, by letter, demanded mediation of the dispute in accordance with the terms of the agreement and respondent filed a demand for arbitration. Subsequently, appellant filed a complaint and respondent moved to dismiss. The trial court granted dismissal concluding, based on the contract provisions, appellant understood the method chosen to be arbitration as opposed to litigation and agreed to same by executing the agreement. On appeal, the court affirmed holding the parties’ agreement expressly instructed parties to choose whether their “method of binding resolution” would be arbitration or litigation and if the parties failed to select or agree on a “binding dispute resolution method other than litigation, claims will be resolved by litigation.” Therefore, when appellant chose arbitration, it did so with full knowledge “that arbitration [was] a substitute for the right to have [its] claim adjudicated in a court.” Moreover, the court noted the agreement was negotiated between sophisticated business entitled and appellant made the choice of arbitration. Accordingly, the court affirmed dismissal pursuant to the arbitration provision in the parties’ negotiated agreement.

15-2-2743 DLJ Mortg. Capital, Inc. v. Lucca, N.J. Super. App. Div. (per curiam) (5 pp.) Defendant appealed the final judgment of foreclosure and an order denying her motion to vacate that judgment. In response to plaintiff’s foreclosure complaint, defendant filed a timely answer and counterclaim, and moved to dismiss based on her assertion that plaintiff was not in possession of the original note and her claim that her signature on the note was forged. After plaintiff’s counsel presented the original note in court, the trial court denied defendant’s motion, and after a trial, struck defendant’s answer and counterclaim and returned the matter to the Office of Foreclosure for entry of final judgment of foreclosure. Defendant moved to reconsider, reiterating her allegation that her purported signature on the note was a forgery. The trial court denied the motion, noting that defendant had previously presented her argument in her motion to dismiss and at trial, and further noting that defendant did not deny entering the loan agreement or being in default. On appeal, defendant contended that her appeal was timely based on her allegation that final judgment was not served upon her, and again reiterated her fraud allegations. Although the court acknowledged that defendant’s allegation of lack of service of the final judgment might have had merit, the court ruled that defendant’s further appellate issues lacked any merit, affirming the trial court’s orders and supporting findings of fact and law.

15-2-2772 Alliance Laundry Sys., L.L.C. v. 1576 Maple Ave. Assoc., L.L.C., N.J. Super. App. Div. (per curiam) (8 pp.) Appellants executed a promissory note borrowing $335,000 from respondent for the purchase of equipment for appellants’ laundromat. A security interest in the equipment was given to respondent, and was properly perfected pursuant to the UCC filing. In addition, each individual appellant executed a personal guaranty of the note. Following default on payments, respondent filed a complaint and a default was subsequently entered. Appellants moved to vacate the default judgment contending it had requested an adjournment of the hearing via facsimile as well as lack of jurisdiction pursuant to a forum selection clause within the loan documents. The trial court denied the motion finding appellants failed to demonstrate excusable neglect or a meritorious defense, including appellants’ failure to provide verification the facsimile was received or an explanation as to the other appellants’ failure to appear or respond. On appeal, the court affirmed the denial of appellants’ re-filed motion to reconsider concluding that, although the judge should not have determined that the re-filed reconsideration motion was untimely given respondent’s indicated they would not claim such motion was untimely, said error was harmless as the judge properly addressed the merits of appellants’ motion to vacate and reconsider.

15-2-2773 Wells Fargo Bank, N.A. v. Albanes, N.J. Super. App. Div. (per curiam) (17 pp.) Defendants appealed a mortgage foreclosure action final judgment in which the trial court applied collateral estoppel to prevent defendants from relitigating plaintiff’s standing to pursue the foreclosure. Plaintiffs defaulted on their mortgage in 2009, plaintiff filed a foreclosure complaint and defendants challenged plaintiff’s standing to prosecute the foreclosure. The trial judge granted summary judgment to plaintiffs, noting that plaintiff had the note and the assignments of the note were recorded in the county clerk’s office. That complaint was later dismissed for failure to serve an NOI. Plaintiffs served an NOI and filed a new foreclosure complaint in 2014. Defendants again argued lack of standing. The trial judge applied collateral estoppel as to plaintiff’s standing but denied summary judgment because of the inadequate certification to support service of the NOI. Plaintiff renewed its motion for summary judgment on the issue of service of the NOI, the trial judge granted the motion and struck defendant’s contesting answer. The Office of Foreclosure entered final judgment. The court found that the trial judges did not err in applying collateral estoppel to the standing issue on which plaintiff was granted summary judgment in the first action before that action was dismissed without prejudice on an unrelated issue.

15-3-2726 Travelers Cas. and Sur. Co., Inc. v. Skrabonja, N.J. Super. App. Div. (Wilson, J.S.C.) (7 pp.) Following a car accident which left him paralyzed and requiring 24-hour care, defendant, via his conservator, entered into a settlement agreement with funds being held in trust in New York. Defendants subsequently moved to New Jersey and sought the closure of the New York case. After a final accounting and order discharging was entered, plaintiff sought collection of unpaid premiums and legal fees related to its surety bond. Defendants moved to dismiss or, in the alternative, for summary judgment; plaintiff cross-moved for summary judgment in response. The court granted dismissal concluding principles of comity and the doctrine of forum non conveniens favor a resolution by the New York court as the suretyship that arose from the conservatorship was established in that state. The court noted that the matter involved the same parties, the conservatorship arose in New York, and the New York court has handled the matter for over 20 years. As there were no “special equities” argued that would give cause to keep the matter in New Jersey, the court granted dismissal of the complaint.

03-3-2727 Cabrera v. Hernandez, N.J. Super. App. Div. (Wilson, J.S.C.) (10 pp.) This matter arose out of a dispute between two former business partners. The case was initially filed as a suit for specific performance of an agreement whereby defendant alleged that he and plaintiff agreed to be equal partners in a real estate venture. The matter was submitted to mediation finding plaintiff solely owned the business, defendant was responsible for fees and breached fiduciary duties owed to plaintiff. Defendant moved to vacate the arbitration award arguing Minkowitz v. Israeli, 422 N.J. Super. 111 (App. Div. 2013) dictated that if the parties intended to use an individual (Judge Oliveri in this case) as a mediator and arbitrator, they were required to agree to do so in advance of any of their dealings with that individual. The court confirmed the arbitration award holding Judge Oliveri did not exceed his powers under N.J.S.A. 2A:23B-23(a)(4) by agreeing to serve as an arbitrator after previously servicing as a mediator because both parties clearly consented to that arrangement. The court noted that, unlike Minkowitz, the parties agreed to submit all issues to Judge Oliveri for binding arbitration after failed mediation attempts, and accordingly signed a consent order reflecting the agreement. As such, the court confirmed the arbitration award.

25-2-2744 In the Matter of Duran Gilyard, N.J. Super. App. Div. (per curiam) (17 pp.) Durand Gilyard appealed from the decision of the Civil Service Commission upholding his termination from employment as a corrections officer for conduct unbecoming of a public employee and for commission of other prohibited acts. Gilyard worked a unit housing inmates needing treatment for drug and alcohol addiction. One evening, Gilyard commenced a cell search for contraband, focusing on inmates possessing electronics they did not own. Because multiple inmates could not produce documents verifying ownership of electronics in their cells, Gilyard confiscated all the televisions and radios in the unit. Gilyard failed to complete paperwork required for seizure of contraband, and failed to report the incident to his supervisor or officers on the next duty shift. Gilyard’s supervisors testified that his actions constituted an unusual event requiring supervisor approval. The inmates’ counselor, Ira Crespi testified that, at the counseling session the following morning, the inmates had become agitated, requiring the presence of corrections officers to calm the inmates down and ensure the counselors’ safety. On appeal, Gilyard argued that CSC’s determination was arbitrary, contending that his actions fell within assigned duties and that any procedural lapses in performance did not warrant termination. Gilyard further challenged Crespi’s comments as an overreaction. However, the court held that the record supported CSC’s finding that Gilyard failed to comply with designated processes, rejecting his argument that seizure of the televisions and radios constituted a “valid exercise of discretion”. The court noted that Gilyard’s failure to complete required paperwork or inform his supervisors left them unprepared for the unrest the following morning. The court held that Gilyard’s actions that impacted the morale and security of the correctional unit had the “tendency to destroy public respect…and confidence in the operation of” the facility. Finally, the court held that termination was warranted, noting CSC’s finding that Gilyard’s action was sufficiently egregious.

31-2-2731 In the Matter of Cnty. Corr. Captain (PC1189P) & Cnty. Corr. Lieutenant (PC1202P), Hudson Cnty., N.J. Super. App. Div. (per curiam) (18 pp.) Appellants challenged a final administrative action of the Civil Service Commission, claiming the Commission retroactively amended announcements for examinations. Further, that retroactive amendment allowed individuals to be promoted to the titles of Lieutenant and Captain in the correction system of the County of Hudson even though they lacked “one year of continuous permanent service” in their prior titles as required by N.J.A.C. 4A:4-2.6(a)(1). The county provided the applicants with retroactive appointment dates although, pursuant to N.J.A.C. 4A:4-1.10(c), only the Commission may order a retroactive appointment date. Thus, the appointment dates were not appropriate and the Commission ordered the records corrected to indicate regular appointments. Nonetheless, on equitable grounds, the Commission reduced the one-year service requirement for the examinations to the completion of a working test period. The Commission ordered the announcements for the examinations be retroactively amended to make applicants eligible after the completion of the working test period. The appellate panel reversed the Commission’s order and granted appellants’ request for removal of the applicants from the promotional lists. Without valid reason, the Commission unreasonably disregarded and failed to recognize both legislative policies and regulatory mandates. The appointing authority could have requested that the year in grade requirement be reduced to the working test period, pursuant to N.J.A.C. 4A:4-2.6(g)3, at the time of the subject announcement. However, the County did not make such a request and the Commission did not grant a reduction prior to the examinations. Absent such a reduction, the applicants were ineligible under the time-in-title requirement. Moreover, there was no evidence to support the Commission’s presumption the applicants successfully completed working test periods. In any event, retroactively changing the announcement after holding the examinations was contrary to the regulations adopted by the Commission.

39-2-2729 Monmouth Cnty. v. Bd. of Review, N.J. Super. App. Div. (per curiam) (10 pp.) Respondent worked as a certified nurse’s aide in a County-operated nursing home. Approximately one month after she began work, respondent claimed she injured her knees on the job and filed a worker’s compensation claim. Following her failure to provide proper documentation or return to work, respondent was terminated for abandoning her job. Respondent filed a claim for unemployment compensation benefits. Benefits were initially denied as it was determined respondent left work voluntarily without good cause attributable to the work. On appeal, the hearing examiner was mistakenly informed that the county’s witnesses were unavailable. The examiner issued a decision reversing the denial of benefits which was subsequently affirmed by the respondent board. On appeal, appellant asserted that the Appeal Tribunal erred by failing to adjourn the hearing and that it should have reopened the hearing as requested. The court reversed holding the procedures used by the agency to arrive at its final decision was not fair to both parties. The court noted that appellant was participating in the hearing and had witnesses available for the telephone conference; the hearing examiner asked them to hang up and wait for a call-back. When the examiner was unable to reach the witnesses, the court held the hearing should have been adjourned. Under the facts of this matter, the court held appellant established good cause to warrant a reopening of the Appeal Tribunal hearing.

20-2-2745 Rucker v. Rucker, N.J. Super. App. Div. (per curiam) (13 pp.) Following the parties’ divorce, the court issued three additional orders, including a modification of child support, consideration of a life insurance, and final resolution of financial matters excepting college costs for the children. In the third matter, the judge entered an order compelling respondent-husband to pay his percentage of unreimbursed medical costs and to provide proof of life insurance; appellant-wife was ordered to provide an explanation of benefits and proof of payment for such expenses. However, the judge determined that appellant did not present sufficient factual or legal basis to consider whether the expenses for which she sought reimbursement qualified as college expenses and granted respondent’s cross-motion to limit his obligation for college expenses and child support. The parties eventually settled, however, appellant refused to accept the settlement check due to a notation; the judge ordered the check constituted a settlement and declared the matter settled. On appeal, the court affirmed holding respondent did not breach the settlement agreement by providing a notated check, and such argument was patently frivolous. The court noted there was no evidence that respondent agreed to provide an unnotated check nor that such notation indicating the purpose of the funds was inaccurate. Finally, the court affirmed denial of appellant’s request for reconsideration as there was no palpable error or irrational basis for the court’s orders.

20-2-2756 In the Interest of G.M., N.J. Super. App. Div. (per curiam) (10 pp.) Juvenile appealed his adjudication of delinquency for conduct which, if committed by an adult, would constitute the crime of third-degree aggravated assault against a teacher and assault. Juvenile started a fist fight with the juvenile victim and shoved teacher, who tried to break up the fight, while attempting to continue the fight. Juvenile argued self-defense and mutual fight at his bench trial. The judge found juvenile guilty of simple assault for the fight with the other student and guilty of third-degree assault against the teacher. Juvenile argued that there was no credible evidence in the record to support the decision and that there was only a mutual fight and a petty disorderly persons offense. The court found that the record showed that juvenile was attempting to get away for the teacher to re-engage in the fight, that the struggle could have led to bodily injury of the teacher and she did have a scratch on her arm after the incident. Additionally, the evidence clearly showed that juvenile was the aggressor in the fight with the other student. However, the trial judge failed to reference the appropriate factors in determining disposition and the case had to remanded.

20-2-2732 Smith v. Alverio, N.J. Super. App. Div. (per curiam) (4 pp.) Defendant appealed from the order denying reconsideration of an order granting plaintiff shared residential custody of their then 11-month-old daughter. On May 27, 2014, the parties appeared before the Family Part to address plaintiff’s application for parenting time and shared custody. Initially, the court was unsuccessful in settling the dispute through a counsel-only conference. After unsworn comments from the parties and argument from counsel, the court issued a tentative order but allowed the parties to submit objections. The court issued an order setting child support, and allowing joint legal custody and shared residential custody. Defendant filed a motion for reconsideration, contending that the court failed to make findings of fact and conclusions of law. Before deciding the reconsideration motion, the court issued a written memorandum of decision explaining its earlier order. The reconsideration motion was eventually heard. Defendant argued that the court failed to adhere to Rule 5:8-1 by referring the dispute to mediation before deciding custody, and that the court should have required an investigation to determine what was in the child’s best interest. Plaintiff maiantianed that the parties were given the opportunity to settle parenting time and custody but were unsuccessful, and that a costly investigation is unnecessary given that neither parent is unfit and the court’s decision was well-reasoned. The court found that there was no good reason to reconsider its decision because defendant did not allege that the court had based its decision on plainly incorrect reasoning, nor that the court failed to consider probative competent evidence. The appellate panel agreed with defendant that the court’s non-compliance with the rules of court requires vacating the custody order.

23-2-2746 Ferguson v. Travelers Indem. Co., N.J. Super. App. Div. (per curiam) (23 pp.) Following the sale of appellants’ business, a portion of the sale proceeds remained in escrow to reinsurance problems. When the new owners became defunct, appellants obtained a judgment in the Bermuda courts for damages as a result of reinsurance losses; however, the judgment was uncollectible as the business no longer existed and had no known assets. The New Jersey court than required the general agent to obtain an “errors and omissions” liability insurance policy, now held by respondent-successor. At this same time, respondent filed for declaratory judgment in Bermuda to determine its policy was obtained by fraud and thus void. The underlying lawsuit than commenced whereby appellants alleged breach of contract and for declaratory relief claiming the New Jersey insurance regulation compelled respondents to maintain errors and omissions liability insurance. On remand, the judge dismissed the complaint as it was previously litigated in Bermuda and forum non conveniens. On appeal, the court reversed holding appellants were not made a party to the Bermuda action and misrepresentations made to appellants created a dissimilar and reviewable matter. Further, the issue to be decided in this matter was different and therefore not subject to res judicata. Finally, as the public interest factors weigh in favor of maintaining the matter in New Jersey, the court reversed and remanded dismissal of the complaint.

25-2-2747 Persi v. Woska, N.J. Super. App. Div. (per curiam) (24 pp.) Daniel Woska appealed the decision of the commissioner of education, which affirmed the School Ethics Commission’s determination that Woska violated the School Ethics Act. Melino Persi served as interim superintendent for the Brick Township School District, under an employment contract that gave either party the right to terminate on 30 days’ notice. Woska was a member of the township’s board of education when Persi’s contract was negotiated. The board scheduled a reorganization meeting, and Woska, dissatisfied with Persi’s performance, directed the board secretary to send a Rice notice to consider Persi’s employment at the meeting. However, Woska did not inform the board of his action, and the board did not vote to issue the notice. At the meeting, the board voted to terminate Persi’s employment and appoint Mary Ann Ceres, with whom Woska had privately discussed employment. Persi filed two actions, alleging breach of contract and violation of the Act by Woska’s private negotiations. Persi obtained a judgment on the breach action, and the commission ruled that Woska violated the act by issuing a Rice notice without board vote and taking private action to have Ceres appointed. On appeal, Woska contended that he took no “direct” private action with respect to the Rice notice, and noted that the board ratified its issuance. However, the court held that the record did not support Woska’s characterization of his actions, finding that Woska “directed” the notice’s issuance. The court further held that the board’s ratification did not negate Woska’s violation of the Act. The court also rejected Woska’s argument that the commission’s decision constituted a retroactive application of a new administrative rule, holding that the commissions determination was not based on an interpretation non-inferable from existing statutory and case law. Finally, the court held there was sufficient credible evidence to support the commission’s decision to reprimand Woska.

25-2-2748 In the Matter of Somerset Cnty. Sheriff’s Office v. Policemen’s Benevolent Ass’n Local 177, N.J. Super. App. Div. (per curiam) (7 pp.) The parties executed a collective negotiations agreement which contained a grievance procedure that culminated in binding arbitration and vacancies in positions. When appellee sought to post a vacant position, appellant filed two grievances contending the CNA governed the position; appellee denied stating the selection process referenced in the posting was a management prerogative. Appellee filed a petition with PERC for a scope of negotiations determination seeking to restrain binding arbitration of the grievances. In its written decision, PERC explained that appellee’s decision to transfer or reassign the selected sergeant to the supervisor position was a “governmental policy determination and was neither mandatorily nor permissibly negotiable.” On appeal, appellant argued the PERC erred and the grievances should proceed to arbitration. The court affirmed holding PERC’s decision to restrain binding arbitration was supported by sufficient credible evidence in the record, was not arbitrary, capricious, or unreasonable, and fell within its area of expertise. The court noted the CNA did not state that an assignment will be based on seniority of all candidates who were equally qualified, nor did the record support the assumption that appellee did not consider equal qualifications, and consideration of seniority was a substantive determination of who was the best candidate for the job. Accordingly, the decision of PERC was affirmed.

25-2-2775 Mitchell v. Borough of Roseland Police Dep’t, N.J. Super. App. Div. (per curiam) (16 pp.) Appellant charged respondent, a police officer within its department, with insubordination, specifically failing and refusing to comply with a captain’s order to sign a performance notice regarding his use of sick leave. Respondent pled not guilty to the charge and a disciplinary hearing was conducted on the matter. The hearing officer found respondent guilty and recommended an eight-day suspension without pay. Following a remand to issue a more detailed decision and oral argument, the judge set aside the suspension for failure to provide adequate notice of the reprimand and violation of respondent’s Weingarten rights for no union representation. On appeal, the court reversed holding the trial court erred by finding that appellant violated respondent’s right to union representation. The court noted the meeting which led to respondent’s reprimand was not investigatory, but rather was to have respondent sign the written form acknowledging that respondent had received the written reprimand. Thus, the meeting was not an investigation for Weingarten purpose. Further, the court held that the trial court erred by finding respondent was not insubordinate as his declination to sign was not a valid reason for refusing to comply with an order. Accordingly, the court reversed the orders of the trial court.

27-2-2757 Rodriguez v. Ameri , N.J. Super. App. Div. (per curiam) (4 pp.) Respondent-tenant filed a small-claims complaint seeking $2,700 in damages alleging that appellant-landlord failed to return her residential security deposit. Appellant filed a counterclaim seeking reimbursement for alleged unpaid rent, an outstanding water bill, and damages to the residence. The judge tried the case over two days, entered judgment for respondent, and dismissed the counterclaim in its entirety. On appeal, appellant contended that he was entitled to unpaid rent, respondent damaged the premises and the court deprived him of a fair trial. The court affirmed concluding appellant’s contentions reiterated the proofs offered at trial and did not warrant further discussion in a written opinion. However, the court added the trial judge heard testimony from the parties, reviewed various documents, and rendered a thorough oral opinion making numerous findings of fact and conclusions of law. Although the court deducted the unpaid rent and small damages from the security deposit in its order, the court properly rejected appellant’s counterclaim for failure of proof and any remaining damages were nothing more than ordinary wear and tear. As such, the court concluded that there existed substantial credible evidence in the record to support the judge’s findings and such judgment was affirmed.

26-2-2749 Roe v. Planning Bd. of the Borough of Montvale, N.J. Super. App. Div. (per curiam) (29 pp.) Plaintiffs appealed from the judgment that dismissed their challenges to defendant borough’s adoption of an amendment to its master plan. Defendant Montvale Development Associates cross-appealed from the order denying its motion to dismiss plaintiffs’ challenge. Plaintiffs also appealed from the judgment that affirmed the borough’s approval of MDA’s application for site approval, a bulk variance, and planned unit development approval. The action stemmed from the development of properties, specifically lands identified as Block 2802 and Block 1002. Pursuant to Mount Laurel litigation, the borough rezoned Block 2802 for potential affordable housing development. MDA was formed by the owners of Block 2802 to pursue retail development, and approached the borough for rezoning, proposing to construct the affordable housing units on Block 1002. The borough approved MDA’s proposal via adoption of rezoning ordinance and amendment of the borough’s master plan. Plaintiffs filed an action to challenge the master plan amendment and zoning ordinance, and MDA intervened to dismiss plaintiffs’ as untimely. The trial court granted MDA’s motion to dismiss, finding that plaintiffs’ action was not filed within the time required by the Open Public Meetings Act. The trial court later dismissed plaintiffs’ subsequent action to challenge the approval of MDA’s site plan, finding the borough’s approval not arbitrary, capricious, or unreasonable. On plaintiffs’ appeal, the court affirmed the trial court’s decision. As to the zoning ordinance and master plan amendment, the court held that there was sufficient evidence to support the trial court’s finding that the borough’s actions were not a quid pro quo agreement for MDA’s roadway improvements, and were a valid exercise of the borough’s zoning power and not arbitrary or unreasonable. As to the approval of MDA’s site plan, the court held that MDA complied with notice requirements and that the borough did not act arbitrarily or unreasonably in granting variances.

31-2-2730 Resua v. Hachikian, N.J. Super. App. Div. (per curiam) (10 pp.) In this motor vehicle personal injury negligence case, plaintiffs appealed from interlocutory orders denying discovery end date extensions to allow late service of expert reports. They also appealed the subsequent summary judgment dismissal of their complaint. Defendant was driving under the influence of intoxicating liquors when she rear-ended the vehicle plaintiffs occupied. The issue was plaintiffs’ damages, particularly whether plaintiffs could vault the limitation-on-lawsuit threshold. The judge held that plaintiffs’ medical records alone did not suffice to establish permanency; the prior discovery extension denial barred the expert reports; and, without the expert’s opinion, plaintiffs could not vault the limitation-on-lawsuit threshold. Plaintiffs contended the court erred in denying the discovery extensions. They also argued that notwithstanding the discovery extension denial, the judge should have imposed a discovery sanction short of excluding the expert reports. Finally, they argued that, even without the reports, plaintiffs’ medical records created a genuine issue of fact that precluded summary judgment. The appellate panel disagreed and affirmed. The panel found that plaintiffs failed to provide grounds for disturbing the trial court’s denial of discovery extensions. Although relying on counsel’s health to excuse the late filings, neither counsel nor his physician described his health status during the relevant time period when he was obliged to serve expert reports or seek another extension of discovery. Further, to vault the limitation-on-lawsuit threshold, plaintiffs were obliged to prove that the collision caused permanent injury. The medical records alone did not suffice. Plaintiffs needed an expert’s certification. Under the rule governing amendments to interrogatories, plaintiffs’ late-served expert reports were disregarded. Thus, it was unnecessary for the court to expressly bar the admissibility of the opinions set forth in the late-served expert reports when it denied the extension. Due to the absence of any expert certification that plaintiffs were permanently injured from the collision, summary judgment was properly granted.

31-2-2776 Catanho v. Delta Ranch, LLC, N.J. Super. App. Div. (per curiam) (5 pp.) Plaintiffs appealed the order granting unopposed summary judgment to defendants in action arising from injuries from fireworks. Plaintiff was injured by fireworks his brother set off at a family birthday party. Defendants filed for summary judgment and provided evidence that the brother intended the fireworks as a surprise, did not tell anyone about the fireworks and did not have permission from the property owner to use them. Plaintiff’s counsel served defendant’s counsel with a hand-printed sworn statement from plaintiff’s sister stating that she attended the property and knew that property owner gave permission to set off the fireworks. Plaintiff’s counsel served notice to depose the sister but did not file a motion to extend the discovery end date and did not file opposition to the summary judgment motion. Plaintiff’s counsel asked that the summary judgment motion be adjourned. The trial judge denied the request and granted the summary judgment motion as unopposed and supported by legally competent evidence. Plaintiffs argued the order had to be reversed in the “interest of justice.” The court found that the trial judge did not abuse his discretion and that his decision was legally unassailable.

52-4-2759 Twp. of Teaneck v. Jones, N.J. Super. Ch. Div. (Contillo, P. J.) (14 pp.) Plaintiffs sought to enjoin and restrain defendant from making any further Open Public Records Act requests and relief from having to respond to defendant’s requests. Defendant counterclaimed seeking to compel plaintiffs to provide copies of all documents responsive to 31 of the 380 separate OPRA requests he had filed between Nov. 16, 2016, and Jan. 17, 2017. Township rejected defendant’s $10,000 settlement demand in defendant’s action against township police officer on Nov. 14, 2016 and on Nov. 16, 2016, defendant began deluging township with OPRA requests, filing 95 separate requests in the four business days between Nov. 16 and Nov. 21, 2016, and submitting 181 additional requests between Nov. 21 and Dec. 13, 2016. Township staff estimated it would take at least 1,250 hours to review and reproduce the requested documents. The court found that the current law gave no right to declaratory relief to a custodian of records. The township could simply deny what it believed were abusive requests. The court also noted that OPRA requests caused no immediate and irreparable harm and that there was no legal right to totally ban OPRA filings.

52-2-2758 Paff v. Bergen Cnty., N.J. Super. App. Div. (per curiam) (24 pp.) Respondent requested a log of complaints against corrections officers who worked in the county jail since January 1, 2012. Appellants responded, providing the log, which was redacted to remove personal identifiers, specifically, the names of complainants and the officers against whom the complaint was made. Respondent subsequently filed the underlying action asserting appellants’ response violated OPRA. The trial judge rejected appellants’ arguments that the redactions were made pursuant to Attorney General guidelines for internal affairs investigations and concluded assertions of confidentiality did not fall within a statutory exemption listed under OPRA so that the documents were improperly redacted. On appeal, the court reversed holding respondent, in accordance with the guidelines, followed the confidentiality provisions by redacting the complainant and the target of an internal affairs investigation. The court concluded appellants met their burden of proving that the denial of access was authorized by law which required internal affairs investigation reports to remain confidential as to the complainant and the officer against whom the complaint was directed. Therefore, public access was not denied; rather it was limited as required by statute and to protect safety and security. Accordingly, the decision of the trial court was reversed.

34-4-2762 Hoboken Assoc., L.P. v. Kenny, N.J. Super. Ch. Div. (Bariso, J.) (22 pp.) (March 13, 2017) Plaintiff filed a quiet title action against defendant, as executrix of the estate of Helen Kenny, concerning ownership of a rooftop easement on a parking garage, which connected the garage to an adjacent office building. The garage and office building were conveyed to Bekay, a partnership owned by Helen Kenny and Bernard Kenny. Bekay Urban, which then owned the properties, through its agent, Bekay, later entered an agreement with the parking authority of Hoboken, in which the garage was conveyed to the authority, which granted tenants of the office building a renewable license to park in the garage and granted Bekay Urban an easement for constructing and using rooftop improvements on the garage. Bekay was to indemnify the authority from all liability resulting from the easement, on pain of the authority’s right to terminate the easement. Bekay then executed a note, encumbering the garage and office building, upon which it later defaulted, with the mortgagee, Travelers, acquiring the office building in foreclosure. The office building was ultimately conveyed to plaintiff. In its complaint, plaintiff alleged that the transfer of the office building extended to the easement. The parties ultimately filed cross-motions for summary judgment. Plaintiff contended that the easement was appurtenant to the office building because it was bundled as part of the original agreement with the authority. Plaintiff also sought a determination of the extent of the rights under the easement. In contrast, defendant argued that the easement was clearly in gross, nor encumbered by mortgage. The court ruled that ownership of the easement was clearly vested in Bekay Urban, not Bekay and therefore Helen Kenny’s estate. The court further ruled that the original agreement clearly intended to create an easement appurtenant to the office building, which was therefore encumbered by the mortgage. Accordingly, the court granted judgment in favor of plaintiff.

34-2-2733 Stockton Univ. v. KK Ventures–Atlantic City, LLC, N.J. Super. App. Div. (per curiam) (23 pp.) Purchaser appealed the order finding the parties’ contract for the sale of property terminated and enjoining purchaser from interfering with the sale of the property. Seller bought a former casino intending to use the property for educational purposes but a 1988 restriction prohibited the property from being used as anything other than a casino. Seller had been told that the restriction could be discharged but that proved to be false. Seller agreed to sell the property to purchaser. The contract recognized and referred to the restrictions on the property set a closing date and gave seller the right to cancel the agreement if seller was unable to resolve the title issues. Purchaser then told seller it would not close unless seller obtained discharges of the deed restrictions. Seller could not comply, purchaser refused to close and seller declared the contract terminated. Trial court ruled for seller. The court agreed that seller never agreed to remove the deed restrictions and the contract imposed no duty on seller to take legal actions to remove the restrictions. No implied covenant imposed greater obligations than those set out in the contract. Additionally, trial judge did not err in denying purchaser’s claim for energy under the contract and in awarding attorney fees to seller.

35-5-2760 Reznick v. Twp. of Marlboro, Tax Ct. (Sundar, J.) (6 pp.) (March 10, 2017) Plaintiffs appealed the assessment of their residential property, after the Monmouth County Board of Taxation reduced defendant township’s initial local property tax assessment. Plaintiffs sought a further reduction of the assessment, and at trial presented 5 sales they claimed were comparable to their property. The data sources for the sale details were the board’s website and the MLS printouts. At the close of plaintiffs’ case, defendant moved to dismiss, contending that plaintiffs’ sole data source was MLS, which it argued was primarily advertisement, and further contended that plaintiffs had no personal knowledge of the details of the comparable sales. The court granted the motion, noting that plaintiffs had not personally inspected the interiors of any comparable, nor had they made market-based adjustments for differences in locale, amenities, size, or age. The court rejected plaintiffs’ contention that use of MLS had been sanctioned by the court’s small claims case handbook, and further noted that reliance on MLS was questionable, as MLS’s listing noted themselves to be “reliable” but not “guaranteed” since information in listings were based upon realtors’ rendition of data or provided by unsophisticated third parties, and thus could be erroneous or speculative. Although the court held that information from MLS could be credible where independently verified with personal knowledge from an inspection of the exterior and interior, the court noted that plaintiffs failed to do so. Thus, the court ruled that it had no credible evidence from which to independently conclude the value of plaintiffs’ property, and as such held that plaintiffs had failed to overcome the presumptive validity of the judgment of the board.

35-5-2734 White Oaks Country Club, Inc. v. Twp. of Franklin, Tax Ct. (DeAlmeida, J.) (18 pp.) (March 7, 2017) The parties cross-moved for summary judgment in the declaratory judgment action filed by plaintiffs, seeking a ruling as to whether real property owned by the department of environmental protection, on which a for-profit entity operated a golf course, was exempt from local property taxes. Plaintiff DEP had purchased the subject property from plaintiff White Oaks Country Club, Inc. as part of DEP’s program for the acquisition of parcels for recreation and conservation purposes, to ensure that the undeveloped portion of the property, which abutted DEP’s wildlife management area, was not developed. White Oaks won a bidding process to enter an operating agreement with DEP to continue operating the property as a public golf course, with DEP having authority to approve all public admission fees or other charges associated with use of the property, and with revenue generated from the operating agreement allocated to the operations of the division of fish and wildlife under DEP. Defendant township considered the property to be nonexempt and placed an assessment. Plaintiffs filed a complaint challenging the assessment, arguing that, as state-owned property, the parcel was exempt from local property taxes, and that the operation of the golf course did not negate that exemption since its use of the property furthered DEP’s statutory mission to provide public recreation facilities. The court granted plaintiffs’ motion for summary judgment and denied defendant’s cross-motion, finding that plaintiffs had satisfied their burden to show that the property had been put to public use. The court rejected defendant’s contention that White Oaks’ operation of the golf course negated the tax exemption for state-owned property, noting that White Oaks ran the golf course pursuant to an operating agreement rather than a lease. In any event, the court agreed with plaintiffs that operating a public golf course furthered DEP’s mission to provide public recreational facilities.

14-2-2735 State v. Muhammad, N.J. Super. App. Div. (per curiam) (14 pp.) Defendant appealed the denial of his PCR petition. Defendant was convicted of first-degree murder, witness tampering and weapons offenses and sentenced to prison. His PCR petition alleged ineffective assistance of trial counsel by not filing a severance motion, by not advising him of the consequences of not testifying and by failing to present an alibi defense. Defendant contended he gave his trial counsel the names of his witnesses and that trial counsel failed to contact them and that trial counsel coerced him into telling the judge he did not wish to testify. The PCR court denied the petition without a hearing finding that the severance issue had been rejected on direct appeal, the decision not to call defendant to testify was a tactical strategy and questioned the memory of the alibi witnesses. The court disagreed with the PCR court and found that an evidentiary hearing was required regarding the alibi witnesses. The testimony of an alibi witness should not be dismissed as not credible without an evidentiary hearing. Additionally, the PCR court should have held an evidentiary hearing on defendant’s contention that his trial counsel did not properly advise him concerning his decision not to testify.

14-2-2736 State v. Schwartz, N.J. Super. App. Div. (per curiam) (12 pp.) Defendant challenged an order denying his motion to withdraw his guilty plea and an order denying his motion to dismiss the indictment. Defendant was charged with one count of second-degree theft by deception. The indictment alleged that between March 2007, and April 2009, defendant obtained in excess of $75,000 belonging to Frank Giosa by creating or reinforcing the false impression that defendant would use the money to pay off Giosa’s mortgage, and failing to do so. Defendant pleaded guilty to an amended charge of third-degree theft by deception pursuant to a plea agreement. The state agreed to recommend non-custodial probation with the requirement that he pay $138,352 in restitution. The appellate panel reversed the order denying defendant’s motion to withdraw his plea, finding the factual basis for defendant’s guilty plea was inadequate to support his conviction for theft by deception. Defendant’s testimony failed to establish that he obtained the victim’s money “by purposely creating a false impression.” Defendant admitted he obtained Giosa’s money with the idea he would make payments to pay off Giosa’s mortgage, but did not expressly state he was purposely creating a false impression. He did not admit that at the time he received Giosa’s money, he did not intend to pay off the mortgage, or intended to keep the money for himself. Defendant admitted that he started making the mortgage payments but then stopped and kept the remaining money for himself. Because defendant failed to admit, and the admitted facts failed to show, that he deceived or created a false impression at the time he obtained Giosa’s money, he did not give an adequate factual basis for theft by deception. The panel affirmed the order denying defendant’s motion to dismiss the indictment on statute of limitation grounds.

14-2-2751 State v. McMillian, N.J. Super. App. Div. (per curiam) (7 pp.) Defendant appealed his amended judgement of conviction. Defendant was convicted of murder and other charges and sentenced in June1994. In December 1994, the trial judge amended the JOC to correct the sentence. In 1995, the appellate court upheld defendant’s conviction but modified his sentence and remanded for the trial judge to modify the JOC. The trial judge mistakenly ordered count four to run concurrent to the murder charge rather than count two and defendant received a mandatory minimum term of 32-½ years. In 2011, defendant filed a petition to set aside the payment to the Victims of Crime Compensation Board which the trial court dismissed. Defendant appealed and the appellate court affirmed but recognized that the trial court had mistakenly modified defendant’s sentence on the weapons charge rather than on the aggravated assault charge. Defendant filed a motion for correction of sentence and for a resentencing hearing. The motion judge issued an amended JOC that increased defendant’s mandatory minimum term. Defendant argued that the belated correction of his conviction violated his double-jeopardy rights. The court found that by the time the motion court heard the motion, defendant had completed service of his entire five-year concurrent sentence for possession of a weapon and he could not be required to serve that sentence again.

14-2-2761 State v. Morgan, N.J. Super. App. Div. (per curiam) (11 pp.) State appealed the denial of its motion for reconsideration of the order admitting defendant into the Pre-Trial Intervention program over the state’s objection. The state alleged that defendant public school officer approved payments for a child to which the child was not entitled. Defendant was charged with official misconduct and applied for admission to the PTI program. The PTI director denied the application based on the negative impact admitting her would have on the prosecution of her codefendants and the fact that the offense involved an alleged breach of public trust. The trial judge reversed the rejection of defendant’s application and admitted her into PTI. The judge focused on defendant’s age, educational accomplishments, employment history, child care responsibilities and lack of criminal history and also noted that defendant was only charged with one count of a nineteen count indictment and that the loss from the alleged conduct was $141.

36-7-2763 Interlink Prods. Int’l, Inc. v. Cathy Trading, LLC, D.N.J. (Arleo, U.S.D.J.) (13 pp.) Plaintiff moved to dismiss defendant’s counterclaims for failure to state a claim upon which relief could be had. The parties manufactured showerheads regulated by the Energy Policy Act, which required manufacturers to limit the maximum water use of their showerheads to 2.5 gallons per minute at a water pressure of 80 psi. Plaintiff filed suit against defendant, alleging that defendant claimed that its showerheads had flow rates of 2.5 gpm when their flow rates were much higher. Thus, plaintiff claimed that defendant tricked consumers into buying defendant’s showerheads instead of plaintiff’s EPA-compliant ones, in violation of the Lanham Act and state law unfair competition. Defendant filed a counterclaim asserting similar claims as plaintiff in addition to a New Jersey Consumer Fraud Act, alleging that plaintiff’s showerhead had a removable flow regulator and that plaintiff provided consumers instructions to remove it and that the showerhead’s LED lights did not last as long as advertised. In support of its motion, plaintiff first argued that defendant could not assert a NJCFA claim because it was not a “consumer” within the meaning of the statute. The court agreed, ruling that commercial competitors did not have standing under NJCFA because they were not consumers in the popular sense of the word, as the harm alleged by defendant flowed from its competitive relationship with plaintiff. As to defendant’s false advertising claim, the court ruled that defendant had pled sufficient falsity with respect to plaintiff’s claims about the LED lights in its showerhead but not about the flow rate, holding that defendant failed to specify which of plaintiff’s showerheads were EPA-noncompliant or how consumers’ ability to remove flow regulators rendered plaintiff’s claims false. The court arrived at the same conclusion on defendant’s unfair competition claim. [Filed March 9, 2017]

07-7-2752 Waterfall Victoria Mortg. Trust 2010-SBCI REO LLC v. Albanes, D.N.J. (Vazquez, U.S.D.J.) (7 pp.) Plaintiff sought the dismissal of pro se defendants’ notice of removal. Defendants defaulted on their mortgage, plaintiff obtained title to the property pursuant to a deed from the sheriff’s office and began an ejectment proceeding. Defendants failed to respond to the ejectment complaint and the court granted the request and order that plaintiff immediately recover possession of the property. Defendants filed their notice of removal the same day, removing the state court ejectment proceeding to federal court based on an alleged violation of §3 of the Civil Rights Act. Plaintiff argued that defendants failed to show any basis for federal question jurisdiction. Defendants asserted jurisdiction was based on a third-party federal civil rights complaint “in the process of being filed.” A third-party complaint was insufficient to invoke the court’s jurisdiction. The court found that the “well-pleaded complaint” rule was not satisfied, that the “artful pleading” doctrine was not applicable and that it lacked federal question jurisdiction. [Filed March 8, 2017]

46-7-2737 Allen v. New Jersey State Police, D.N.J. (Martinotti, U.S.D.J.) (14 pp.) Defendants moved to dismiss plaintiff’s complaint, arising out of a traffic stop conducted by defendants in which plaintiff was arrested for an outstanding warrant. When the vehicle in which plaintiff was a passenger was being towed, the trunk inadvertently opened, in which state troopers discovered a quantity of drugs and paraphernalia which plaintiff was charged and convicted with possession of. Plaintiff’s possession conviction was ultimately overturned when the New Jersey Supreme Court ruled that the drugs and paraphernalia were not in plain view until troopers made an intrusion into the opened trunk. Accordingly, plaintiff’s complaint asserted §1983 claims against defendants for violation of plaintiff’s 4th Amendment rights, failure to implement appropriate policies, negligent hiring and retention, and malicious prosecution. In support of their motion to dismiss, defendants argued that plaintiff’s claims were barred by a two-year statute of limitations, contending that plaintiff was aware of his alleged injury no later than 2010 when he made a motion to suppress. Defendants further argued that plaintiff’s malicious prosecution claim could not be based solely on an unconstitutional search and seizure where there was an intervening independent judicial review that resulted broke the chain of causation. In response, plaintiff argued that his claims were tolled until his conviction was vacated, and contended that the troopers engaged in deceit during the suppression hearing thereby invalidating any intervening cause. The court agreed that plaintiff’s §1983 claims were time-barred, as they accrued from actions that took place during the traffic stop that led to plaintiff’s arrest and prosecution. The court held that tolling was not necessary to determine damages, as an action could accrue while damages had yet or continued to be incurred. Finally, the court noted that plaintiff’s complaint failed to allege any deceitful actions by the troopers that could preclude an intervening judicial decision. [Filed March 7, 2017]

46-7-2764 Natsis v. Turner, D.N.J. (Vazquez, U.S.D.J.) (23 pp.) Defendants moved to partially dismiss the second amended complaint filed by plaintiffs, which alleged various violations of the New Jersey Civil Rights Act, §1983, and other tort claims. Plaintiffs’ complaint stemmed from a course of dealings between plaintiffs and defendant township of Weehawken, in which plaintiffs alleged that the township and its mayor, defendant Turner, engaged in a course of harassment and intimidation concerning a sewer line for an uphill property that ran through an easement through plaintiffs’ property and was causing damage to plaintiffs’ property. Plaintiffs alleged that purpose of defendants’ conduct was to force plaintiffs to take responsibility for maintenance of the sewer line, although the grant of easement placed responsibility on the owners of the uphill property, whom plaintiffs alleged were political supporters of Turner. As to defendants’ motion, the court first ruled that claims against two of the individual defendants were barred by the statute of limitations, but found that two of the other individual defendants had waived a limitations defense in plaintiffs’ prior litigation. The court further ruled that plaintiffs’ retaliation claim against Turner in his personal capacity failed because they did not plead that specific actions taken by Turner caused them to be fearful in exercising their rights, or establish a causal link between Turner’s action and their protected conduct. The court also held that plaintiffs’ claim against Turner in his official capacity failed because plaintiffs did not demonstrate a “policy or custom” of retaliatory conduct. The court further held that plaintiffs’ abuse of process claim failed because plaintiffs did not specify which defendants the claim was being asserted against. Finally, the court ruled that plaintiffs’ §1985 civil conspiracy claim failed because §1985 did not provide a cause of action for discrimination motivated by political affiliations. [Filed March 10, 2017]

11-7-2765 Knights Franchise Sys., Inc. v. Patel, D.N.J. (Vazquez, U.S.D.J.) (6 pp.) Plaintiff moved for default judgment against defendants, in plaintiff’s action alleging defendants’ breach of a franchise agreement. Under the agreement, defendants were required to pay plaintiff various royalties, service assessments, taxes, interest, reservation system fees, and other fees collectively referred to as “recurring fees”. The agreement further allowed plaintiff to terminate without notice to defendants for various reasons, including defendants’ failure to pay any amount due to plaintiff, or their failure to remedy any default of their obligations under the agreement within 30 days of notice of default. In 2006, after defendants repeatedly failed to meet their obligation to pay recurring fees, plaintiff instituted litigation against defendants, obtaining a judgment that included outstanding recurring fees. Over several years, plaintiff repeatedly sent defendants notices informing them that they were in default under the agreement for failing to pay outstanding recurring fees. Ultimately, plaintiff terminated the agreement, advising defendants that they were obligated to pay all outstanding fees through the date of termination as well as liquidated damages under the agreement for premature termination. Plaintiff filed this complaint against defendants, but were unable to locate them to personally serve them, and instead served them by first class mail. However, the court ruled that default judgment was improper, finding that plaintiff did not serve defendants with the summons and complaint within the required 90-day period. The court noted that plaintiff failed to show good cause for failure to timely serve, and did not request an extension for time to serve. [Filed March 10, 2017]

15-7-2738 Ocwen Loan Serv., LLC v. Guarnieri, D.N.J. (Bumb, U.S.D.J.) (7 pp.) Plaintiff moved to remand its foreclosure action back to state court, after it had been removed to federal court by defendant. In reviewing defendant’s notice of removal, the court held that although defendant did not specifically identify the basis for which court could exercise subject matter jurisdiction, the court would nonetheless consider whether removal was proper under a federal question or diversity jurisdiction. The court first held that diversity jurisdiction was not satisfied because the “forum defendant” rule applied, since the action was brought in state court in New Jersey, and defendant was a citizen of New Jersey. The court further ruled that the action could not be remanded for a federal question. The court noted that a federal question permitting remand had to be apparent on the face of plaintiff’s complaint as a defendant’s counterclaim or affirmative defense, even if implicating a federal question, could not serve as a basis for removal under a federal question. Because plaintiff’s complaint was a pure foreclosure action seeking relief under New Jersey contract and foreclosure law, the court held that there was no federal question supporting removal, and accordingly ordered remand back to New Jersey state court. [Filed March 8, 2017]

31-7-2767 Samost v. Luborsky, D.N.J. (Kugler, U.S.D.J.) (11 pp.) Plaintiff moved to alter judgment to make supplemental and/or amended finding, or in the alternative, for reconsideration of the contempt trial in which the court ordered defendant to pay plaintiff’s attorneys’ fees, expert fees, and costs only as incurred in federal court, excluding fees and costs incurred in the related state court proceeding. Plaintiff additionally moved for attorneys’ fees and costs. Plaintiff’s motion sought to have the court make supplemental findings to permit plaintiff to submit an application for fees and costs incurred in related state court proceedings. Plaintiff contended that there were adequate facts in the record for the court to determine that plaintiff incurred attorneys’ fees attempting to enforce the court’s orders in state court. The court held that, even if plaintiff could prove that the state court could enforce the court’s order, plaintiff failed to cite any authority for the proposition that she could recover state court fees and costs from a federal court. The court noted that the law cited by plaintiff held that an award of contempt damages was intended to put the parties in the position had the court’s order been obeyed; the court found that its judgment accomplished exactly that. Similarly, the court ruled that plaintiff had not established cause for the court to reconsider judgment, finding that plaintiff failed to allege any intervening change in controlling law or new evidence that was unavailable when the court made its initial decision. However, the court granted plaintiff’s motion for attorney fees in light of its prior order, holding that plaintiff presented sufficient evidence to demonstrate that the fees sought were generated in this litigation against defendant, and that the rates charged by plaintiff’s counsel reflected the prevailing rate in the region for similar services provided by comparable lawyers. [Filed March 13, 2017]

31-7-2766 Nisnick v. U.S. Postal Serv., D.N.J. (Simandle, U.S.D.J.) (33 pp.) Defendant’s requirements for processing insurance claims for damaged packages, which allegedly were not shown to claimants who initiate the online claims process, include the requirement that the claimant bring the damaged package to a post office for inspection. Plaintiff claimed that he supplied detailed photos of the damaged package, but was uninformed of defendant’s requirement to produce the actual package until after it was discarded by the addressee. Plaintiff claimed that defendant arbitrarily failed to consider the photographs in rejecting his claim, and additionally sought an injunction forcing defendant to revise their website to properly inform and instruct future claimants of the requirements for filing an insurance claim. In support of its motion, defendant argued that plaintiff failed to exhaust his administrative remedies, and had not produced evidence that denial of his claim for failure to comply with regulations was arbitrary and capricious. The court first ruled that any failure on plaintiff’s part to exhaust his administrative remedies was excusable, since plaintiff exhibited substantial compliance with the administrative process but his ability to pursue such remedies was frustrated by defendant’s refusal to process plaintiff’s insurance claim without the original package. The court held that without genuine opportunity for adequate relief, the rule requiring exhaustion of administrative remedies could be excused. As to the substance of plaintiff’s claims, the court ruled that defendant was not entitled to summary judgment, holding that summary judgment was not the proper vehicle for determining whether defendant’s denial of plaintiff’s claim was arbitrary and capricious, noting that plaintiff provided proof of denial and cited specific actions by defendant as arbitrary. Accordingly, the court denied defendant’s motion. [Filed March 10, 2017]

25-7-2739 Ford v. Cnty. of Hudson, D.N.J. (Chesler, U.S.D.J) (32 pp.) Plaintiff, who was employed by defendant correctional facility, was suspended and terminated based on disciplinary charges. Plaintiff appealed and the ALJ found that the charges were not supported by sufficient evidence; the ALJ awarded back pay and restoration of her position. Plaintiff subsequently sued for retaliation and workplace gender discrimination. Following a five-week trial, the jury rejected most of plaintiff’s claims but awarded damages against defendant county for failure to train, supervise, or enforce its policies. As the prevailing party, plaintiff moved for an award of attorney’s fees with a contingency enhancement. Despite most of her claims being denied, the court granted attorney’s fees and costs, along with interest, concluding plaintiff was the prevailing party against her supervisor for a subordinate’s discriminatory act. In calculating the fees owed, the court considered the reasonable hourly rate, reasonable expended hours, and the relatedness of successful and unsuccessful clams. However, the court awarded a lower contingency enhancement finding the merits of plaintiff’s case were thin and the return meager. [Filed March 8, 2017]

23-8-274 Roche v. Aetna, Inc., 3rd Cir. (Smith, U.S.C.J.) (18 pp.) Appellant appealed order that she had to exhaust her administrative remedies before suing insurer over money she had to reimburse to insurer for medical expenses it paid on her behalf. Plaintiff was injured in a vehicle accident and her health insurance plans paid her medical expenses. She eventually settled with the driver of the other car and her attorney reimbursed insurer the amount paid for her medical expenses. She then sought damages arising from insurer’s subrogation lien and reimbursement demand and the trial court dismissed. The insurance plan in question was exempt from ERISA since it was a state plan. The regulations governing the state plan provided for administrative appeals to the Commission prior to filing in court. Additionally, the state plan provided a process for appealing decisions to the plan administrator and for two levels of appeal. Insurer’s decision to seek subrogation resulted in an “adverse benefit determination” that required appellant to exhaust her administrative remedies under the plan. Analogous ERISA case law supported the court’s reading of the state plan. Appellant’s argument that insurer gave no notice of the appeal procedures failed because the plan did not contain language requiring notice and she failed to explain why the court should apply an ERISA regulation. [Filed March 9, 2017]

25-7-2740 Lupian v. Joseph Cory Holdings, LLC, D.N.J. (Martini, U.S.D.J.) (8 pp.) Defendant moved to dismiss plaintiffs’ class action alleging violations of Illinois and New Jersey wage laws and unjust enrichment. Plaintiffs’ complaint arises from their independent contractor agreements with defendant, in which defendant hired plaintiffs to serve as delivery drivers pursuant to a dedicated contract carrier agreement under which plaintiffs and other drivers transported defendant’s property under the drivers’ own motor carrier authority. In support of their motion to dismiss, defendants argued that the Federal Aviation Administration Authorization Act pre-empted plaintiffs’ state law wage claims, that plaintiffs lacked standing to bring New Jersey state law claims, and that plaintiffs’ unjust enrichment claim failed because a contract governed the parties’ relationships. The court first held that since plaintiffs had pled their New Jersey claims in the alternative to their Illinois claims, it had to determine which law applied where the parties had agreed to a New Jersey choice-of-law provision. The court ruled that Illinois wage laws would be applied, noting that New Jersey’s conflicts of laws principles precluded application of a choice-of-law clause where it would be contrary to a fundamental policy of another state with a greater interest. The court held that Illinois wage laws were intended to protect Illinois workers such as plaintiffs, while New Jersey’s wage laws had been definitively held to not apply to workers outside of New Jersey. The court next ruled that the scope of the FAAAA’s preemption of state law did not apply to wage law claims, holding that the cost of labor was too tenuous or remote to have a direct, immediate impact on the setting of prices for or the relationship with consumers, which the FAAAA was intended to regulate. Finally, the court agreed with defendant that plaintiffs’ unjust enrichment claim could not stand where the parties’ relationship was governed by a contract. [Filed March 7, 2017]

26-8-2777 Islamic Soc. of Basking Ridge v. Twp. of Bernards, 3rd Cir. (per curiam) (6 pp.) Appellant appealed pro se from the District Court’s denial of his motion to intervene in the action between the Islamic Society and the township. Plaintiffs sued township alleging that township violated state and federal laws in denying plaintiffs’ application to build a mosque. Appellant, as a member of the public, objected to the mosque application at numerous hearings. Appellant was not named as defendant in plaintiffs’ action but was served with a subpoena seeking documents related to his participation in the application process. Appellant filed a motion to intervene for the “limited purpose” of filing a motion to dismiss plaintiffs’ complaint as lacking standing under the Religious Use and Institutionalized Persons Act. Plaintiffs withdrew the subpoena and the District Court denied intervention. The court found that appellant failed to show that his interest was sufficient to warrant intervention as of right. His interest in the litigation disappeared when plaintiff withdrew the subpoena and his interest as a member of the public was adequately represented by the township. Additionally, the record provided no basis for permissive intervention. [Filed March 8, 2017]

04-7-2768 Uddin v. Goodson, D.N.J. (Walls, U.S.D.J.) (9 pp.) Defendant John Caruso moved to dismiss plaintiff’s complaint as to himself for failure to comply with the affidavit of merit requirements. Plaintiff’s complaint alleged that defendants engaged in a fraudulent scheme to convince her to stop paying her mortgage under the stated reason of obtaining a loan modification, and subsequently initiated an improper short sale buyback scheme through which plaintiff ultimately lost the deed to her home. Plaintiff further alleged that Caruso, her attorney, acted as a conduit to perpetuate the fraudulent and criminal activity by defendants, by failing to adequately and competently represent plaintiff. In support of his motion to dismiss, Caruso alleged that plaintiff failed to file an affidavit of merit within 120 days of the filing of Caruso’s answer to plaintiff’s complaint. The court first noted that plaintiff neither filed an AOM nor a response to Caruso’s motion. The court further noted that New Jersey’s AOM statute required a plaintiff alleging professional negligence against certain professionals to produce an affidavit from an expert attesting to the merits of the plaintiff’s claim, and required the AOM to be filed no later than 120 days from the filing of the defendant’s answer. The court held that failure to file an AOM required dismissal of a malpractice claim with prejudice, except in very limited circumstances, since the purpose of the AOM statute was to eliminate frivolous malpractice claims. Finding that Caruso was a licensed professional under the AOM statute, and that the statute applied to plaintiff’s claim against Caruso, the court ordered dismissal of plaintiff’s claims against Caruso with prejudice, noting that plaintiff had been represented by counsel at all relevant times. [Filed March 10, 2017]

36-7-2778 DeMarco v. Avalonbay Cmtys., Inc., D.N.J. (Linares, U.S.D.J.) (10 pp.) Plaintiffs moved to certify a class action, appoint counsel, preliminarily approve the proposed settlement and schedule a final approval hearing. Plaintiffs were suing for compensation for a fire in an apartment building. The court rejected the objection that the proposed recovery was capped because the agreement set forth a cap only where a class member had no proof of a greater loss and claims for personal injury and emotional distress were not at issue in the federal class action case. Additionally, there was nothing prejudicial or complicated about requiring plaintiffs to send in a notice requesting to opt out, even if the that plaintiff was currently involved in litigation in state court. The court set a deadline of 45 days after the settlement notice was sent out for potential class members to object to participation. [Filed March 13, 2107]

29-7-2741 Rivera v. The Valley Hosp., Inc., D.N.J. (Linares, U.S.D.J.) (7 pp.) Defendant manufacturer moved for partial dismissal of plaintiff’s medical malpractice action arising from a hysterectomy done with a laparoscopic power morcellator produced by manufacturer. Decedent was diagnosed with cancer and, as part of her treatment, had a hysterectomy. Plaintiff alleged that decedent was never told that the use of the morcellator could spread the cancer throughout her abdomen. Plaintiff asserted two claims under the PLA against manufacturer alleging a defective product and failure to warn of the risks associated with the morcellator. Plaintiff also asserted two common law causes of action, negligent infliction of emotional distress and loss of consortium. The court found that the PLA foreclosed plaintiff from recovering under any other theory of liability and dismissed the common law counts. [Filed March 8, 2107]

14-8-2769 United States of Am. v. Aniello Palmieri, 3rd Cir. (Hardiman, U.S.C.J.) (6 pp.) Appellant, director of the Division of Facilities Management for Union County, allegedly used his influence to participate in kickback schemes, verifying false and inflated invoices, and receiving a portion of the vendors’ wrongful profit in return. Appellant agreed to cooperate with law enforcement officials in their attempt to prosecute the participants of one of these schemes. Appellant subsequently pled guilty to one count of mail fraud. At sentencing, the district court found that appellant qualified for a four-level enhancement as a “public official in a high-level decision-making or sensitive position.” Despite the government moving for a downward departure, the court sentenced appellant to 70 months’ imprisonment citing a pattern of prosecutors requesting downward departures for “people who were corrupt in their public duty.” On appeal, appellant argued the district court erred in both denying a downward departure and in applying a sentencing enhancement related to his status as a public official. The court affirmed the sentencing holding it lacked jurisdiction to review the known discretionary denial of a motion for downward departure based on substantial assistance in accordance with §5K1.1. Further, the court held appellant failed to show the district court erred when it found he exercised substantial influence over the vendor selection process and was therefore a public official in a position of high-level decision-making pursuant to §2C1.1(b)(3). Accordingly, the sentencing enhancement was appropriate and the court affirmed. [Filed March 13, 2017]

14-8-2770 United States of Am. v. Eli Chabot, 3rd Cir. (Hardiman, U.S.C.J..) (6 pp.) Having been informed that appellants had unreported foreign financial accounts, the Internal Revenue Service issued administrative summonses demanding records that were required to be maintained by the Bank Secrecy Act. In response, appellants asserted their Fifth Amendment privilege against self-incrimination and refused to produce the records. The district court issued an enforcement order finding that the documents fell within the required records exception to the Fifth Amendment privilege. Following a hearing on civil contempt for disobeying the enforcement order, the district court determined that the government satisfied its initial burden of producing clear and convincing evidence that appellant disobeyed. Shifting the burden to appellant, the district court held appellant failed to establish he lacked the requisite connection to the foreign account. On appeal, the court affirmed concluding the district court did not err in shifting the burden to appellant to establish “a present inability to comply with the order in question.” United States v. Rylander, 460 U.S. 752, 757 (1983). The court noted that appellant conceded (1) that the enforcement order was valid; (2) he had knowledge of the order, and (3) he produced no responsive documents. As such, the burden shifted to appellant to present evidence of his inability to comply as civil contempt was remedial. Accordingly, the order of the district court was affirmed. [Filed March 13, 2017]