36-3-3298 New Jersey Media Grp., Inc. v. IC Sys. Sol., Inc., Law. Div. (Wilson, J.) (40 pp.) (Feb. 18, 2014) Defendants filed three motions for summary judgment. Plaintiff’s complaint alleged that, over an eight-year period, it was the victim of a technology equipment and services scam orchestrated by a former executive, then employed with plaintiff, in collusion with two outside vendors; specifically, that defendant charged unreasonable rates for equipment and services, provided services that were unnecessary, and otherwise scammed plaintiff out of funds for the procurement of IT equipment and services. Plaintiff asserted claims of fraud, conversion, unjust enrichment, civil conspiracy, and sought a constructive trust. However, the court viewed plaintiff’s allegations as “buyer’s remorse,” nor was there a viable cause of action for plaintiff to claim that defendants got “ too good of a deal.” The court further noted that plaintiff had an opportunity to review its contracts and vendor relationships and the decisions of its senior managers, including the former executive at issue, and further had a duty to institute financial and management controls to avoid the problems it now alleged. Accordingly, the court granted defendants’ motion for summary judgment, finding that plaintiff failed to demonstrate a case for fraud or any other tort, or that there was any material fact in dispute. Instead, the court noted that plaintiff had merely presented various suppositions and conspiracy theories. The court found that there was no evidence of a knowing and material misrepresentation made by defendants to plaintiff, or any complaint about the services provided by defendants to plaintiff prior to the present lawsuit. The court held that simply because a party failed to live up to its contractual obligations was not a basis for fraud or any other tort claims. Finally, the court held that plaintiff’s claims for conversion and fraud based on “inflated” invoices and prices for services were nothing more than a regret that plaintiff paid more than it should have.

46-2-3276 Lai v. Langbert, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the order dismissing her complaint against defendants for failure to state a claim. Plaintiff was the principal of Fantastic Realty, which owned property leased to Dr. Carl Langbert, who operated his dental practice on the premises. Plaintiff alleged that Langbert stopped paying rent in January 2011, and subsequently retained defendant Shoshana Schiff to represent him in a Chapter 7 bankruptcy proceeding. Plaintiff further alleged that she requested her name be removed from Langbert’s creditor list, but that defendants refused to do so, based upon plaintiff’s status as a “multiple disabled, old, Chinese woman.” Defendants moved to dismiss plaintiff’s complaint for failure to state a claim, which was granted by the trial court upon its finding that plaintiff’s complaint failed to allege a factual basis for relief but instead merely contained conclusory language asserting the type of relief requested. On appeal, plaintiff asserted that the procedural history before the court demonstrated that defendants intentionally refused to remove her form Langbert’s creditor list because she was an elderly woman of Chinese ancestry, with multiple disabilities. The court affirmed the dismissal of plaintiff’s complaint, noting that plaintiff’s argument failed to address the basis for dismissal, namely, that she failed to set forth a factual basis to support the causes of action asserted. The court found the only facts alleged were that defendants failed to give plaintiff Langbert’s “asset listing,” and that defendants refused to remove plaintiff from the creditor list because she was a multiple-disabled, elderly Chinese woman. The court held that neither fact, without more, asserted a claim of discrimination under the state or federal Constitutions or under the Law Against Discrimination. Finally, the court held that because defendants did not represent plaintiff, her negligence claim could not stand.

11-2-3287 Jamco Heating & Air Conditioning, Inc. v. Procaccini, N.J. Super. App. Div. (per curiam) (8 pp.) Plaintiff appealed from the trial court’s order denying plaintiff’s motion to vacate the previous order dismissing plaintiff’s complaint with prejudice. Plaintiff, a HVACR contractor, filed a complaint for breach of contract against defendant. Plaintiff alleged that it had entered an agreement with defendant to perform HVACR work. When plaintiff billed defendant the final balance of $3,514, defendant only made partial payment of $2,000. Plaintiff’s sought the balance plus an additional late payment as set forth in the parties’ agreement. Following a bench trial, the trial court entered judgment in defendant’s favor. The trial court had apparently credited defendant’s contention that plaintiff’s contractor did not hold a valid HVACR license pursuant to N.J.S.A. 45:16A-1. In support of its motion for to vacate entry of judgment, plaintiff presented the letter of a deputy attorney general serving as counsel to the State Board of Examiners of Heating, Ventilation, Air Conditioning and Refrigeration Contractors, which plaintiff asserted stated that the board had determined that HVACR repairmen who possess a home improvement contractor’s license were eligible for waiver from the education and examination requirements of the statute during the grandfather period until they received their licenses. The trial court rejected plaintiff’s assertion that the letter constituted newly discovered evidence, ruling that it merely stated the opinion of a lawyer and was not indisputable evidence of legislative intent. On appeal, plaintiff argued that the letter was more than an opinion letter but instead represented an articulation of the board’s interpretation of the statute, which was entitled to deference. The court rejected plaintiff’s argument and affirmed judgment, holding that plaintiff had failed to establish that the letter, previously unobtainable, would have changed the result, or that truly exceptional circumstances warranted vacating of the judgment.

11-2-3288 Freeman v. St. Clair Kitchen & Home, LLC, N.J. Super. App. Div. (per curiam) (8 pp.) Defendants appealed from the orders denying their motion to vacate default judgment against them and denying reconsideration of their motion. Plaintiff filed a complaint against defendants asserting breach of a contract for renovation services. Plaintiff alleged that defendant St. Clair Kitchen & Home LLC owed plaintiff for labor and services, and that defendant Daniel Woltag, who owned the building being renovated, was unjustly enriched and liable as well. Prior to trial, defendants’ counsel was disqualified by the trial court. Counsel informed defendants of the trial date and of his disqualification, and attached the case detail from the court’s website, which indicated the case as “disposed.” Ms. J. Antoinette Hughes Frasier, principal for St. Clair, went to the courthouse to confirm the trial date, but was told there was no information about the case and that the order to withdraw had not been entered; Mr. Woltag called and was told no trial date was scheduled. Although Mr. Frasier was instructed to call the judge’s chambers, disqualified counsel told defendants not to do so. Defendants failed to appear on the trial date, and plaintiff moved for default judgment, although the trial judge warned plaintiff that the case was not on the court’s schedule and could potentially lead to a motion to vacate. After defendants secured new counsel, they moved to vacate default judgment, which was denied by the trial court. On appeal, the court reversed, agreeing that the trial court abused its discretion in denying their motion to vacate default judgment. The court held that the trial court omitted defendants’ reasons for their failure to appear, which constituted excusable neglect. The court noted that the trial was not on the calendar, and that defendants were informed by court staff that the matter was not on the court schedule.

11-2-3310 City of Perth Amboy v. Interstate Indus. Corp., N.J. Super. App. Div. (per curiam) (37 pp.) Defendants appealed from the judgment entered in the action filed against them by plaintiff, arising from disputes over the construction of buildings defendants were contracted to build for plaintiff. Defendants asserted various counterclaims against plaintiff, seeking determinations that they were not liable for any delays or damages in the project and various amounts of damages for themselves. On appeal, defendant Safeco argued that the trial court erred in concluding plaintiff legally terminated its contract with defendant TAK, for whom Safeco was providing a surety. Defendant Interstate also appealed, arguing that plaintiff wrongfully and in bad faith terminated its contract, and that the exculpatory clause in the contract was unenforceable and therefore it was entitled to delay damages. Interstate further argued that the trail court erred in granting summary judgment to defendant Imperial on Interstate’s indemnification claim. The court affirmed judgment, first rejecting Safeco’s and TAK’s arguments that any delays by TAK were not grounds for termination because TAK’s remaining work was not critical to completion of the project, finding no legal support for the proposition that termination could only be proper for “critical” work. The court held that Safeco’s and TAK’s arguments effectively asked the court to reject the trial court’s factual findings, which the court refused to do as they were supported by competent evidence. The court further agreed that plaintiff’s termination of Interstate for convenience was not improper, since the trial court did not find that plaintiff acted in bad faith. The court also agreed that Imperial only owed an obligation and indemnification to plaintiff, and such duty did not run to the defendant contractors. Finally, the court ruled that the exculpatory clauses did not violate public policy, finding that the legislature did not intend to broaden a public entity’s liability to include the negligence of its contractors.

15-2-3311 Wells Fargo Bank, N.A. v. Forte, N.J. Super. App. Div. (per curiam) (9 pp.) Defendants appealed the grant of summary judgment to plaintiff and the order foreclosing defendants’ interest in certain real estate. Defendants executed a note and mortgage on residential property in favor of World Savings Bank, FSB. World Savings later merged with Wachovia Mortgage, FSB, which in turn merged with plaintiff, who became the holder of the note and mortgage. In the interim, Wachovia settled a class action lawsuit that alleged the illegality of some of its loan products. The settlement provided monetary and non-monetary relief to different classes of borrowers. Defendants were a member of Class B, which entitled them to a small monetary payment and eligibility to participate in a loan modification program. Defendants ultimately defaulted on the note, and plaintiff issued a notice of intent to foreclose. Plaintiff later filed its foreclosure complaint, and was granted summary judgment after defendants failed to provide discovery, with the trial court also dismissing defendants’ affirmative defenses and counterclaims. On appeal, defendants argued that the mortgage note was void and unenforceable, that the settlement did not preclude their affirmative defenses, and that they did provide discovery in accordance with the case management order. The court affirmed judgment, ruling that defendants’ acceptance of the settlement offer in the class action precluded their affirmative defenses and counterclaims in the present matter. The court further added there was no issue regarding the validity of the mortgage or the amount of indebtedness precluding plaintiff’s right to foreclose, nor had defendants asserted defenses unrelated to the loan or the class action settlement.

39-2-3260 Grieco-Hicks v. Bd. of Trustees, Teachers’ Pension and Annuity Fund, N.J. Super. App. Div. (per curiam) (13 pp.) Petitioner appealed the decision denying her application for accidental disability retirement benefits. Plaintiff art teacher fell from a step stool at work and injured her knee. She continued to work for almost six weeks before her doctor advised her not to return to work. She received treatment, including surgery, for the next year and a half but her knee did not return to full strength and she was restricted from standing and walking for extended periods of time. She applied for accidental disability retirement benefits. The ALJ credited petitioner’s complaints of instability, numbness, pain, swelling, difficulty on steps and an inability to stand for more than ten minutes but rejected her claim that she was unable to perform her essential job duties and found that she was not totally disabled and that she failed to prove that the fall was the direct cause of her knee issues. The board adopted the ALJ’s decision. The court found no error in the board’s decision. Petitioner failed to show that she was unable to teach art. Her school was handicap accessible, had an elevator and she had no limitations on sitting. Furthermore, her employer would have been obliged to make reasonable accommodations for petitioner’s limitations to the extent they were not already provided.

39-2-3277 Truzzolino v. Bd. of Trustees, Police and Firemen’s Ret. Syst., N.J. Super. App. Div. (per curiam) (6 pp.) Appellant enrolled in the Police and Firemen’s Retirement System (PFRS) when she began employment as a correction officer with the Juvenile Justice Commission. Following an altercation with an inmate resulting in a concussion and persistent symptoms preventing her return to work, appellant applied for accidental disability benefits claiming she suffered from herniated disks in her neck, migraines, recurring nightmares, anxiety, panic attacks and depression. Respondent denied her application concluding that she was not totally and permanently disabled from the performance of her regularly assigned duties and there was no evidence of direct causation of a total and permanent disability from the incident. On appeal, the ALJ recommended reversal concluding appellant suffered a permanent and total disability. Respondent adopted the findings of fact “with amplification and modification” but rejected her conclusions of law and recommendation. Appellant argued she qualified for accidental disability and respondent’s decision was arbitrary, capricious, unreasonable, and unsupported by the record. The court affirmed holding respondent’s reasoning was supported by the record, including noted inconsistencies in appellant’s expert testimony and determining respondent’s expert was unbiased despite dedicating a portion of his practice to medical evaluations on behalf of the state. Finally, the court affirmed noting respondent’s rejection was based on the ALJ’s “flawed assessment” of the parties’ expert witnesses’ testimony which provided ample support for its decision.

20-2-3262 Dep’t of Children and Families v. A.I., N.J. Super. App. Div. (per curiam) (12 pp.) Defendant appealed from the final determination of the Division of Child Protection and Permanency that defendant abused his minor son, C.I., by striking the child on his buttocks with an electrical cord. The division received a referral from C.I.’s school nurse, whom C.I. had told about defendant striking him on his buttocks, making it painful to sit. Defendant was interviewed by a detective, admitting that he had struck C.I. with an electrical cord. Defendant challenged the division’s substantiation of abuse. At a hearing, the detective testified to not recalling how many times defendant struck C.I. or whether similar incident had occurred. The detective further testified that C.I.’s bruise was not concerning. The division caseworker admitted that she had no personal contact with defendant or C.I., but considered C.I.’s bruise to be severe based on a review of a photograph. Although the ALJ ruled that the lack of severe injury to C.I. and the isolated nature of the incident meant that the division had failed to prove excessive corporal punishment, the assistant commissioner of the division reversed, finding that defendant had severely beaten C.I. resulting in the impairment of his physical condition, that defendant’s punishment was not a reasonable reaction to C.I.’s conduct, and that there was a pattern of corporal punishment. On appeal, the court reversed, holding that the assistant commissioner’s findings were not supported by sufficient record evidence, since neither the detective nor the division caseworker testified as to how many times C.I. was struck or whether similar incidents had occurred. Moreover, although their testimony diverged as to the severity of C.I.’s bruise, the court noted that the detective inspected the bruise first-hand, whereas the caseworker only viewed a photograph. Finally, the court held that, beyond hearsay testimony from some of defendant’s other children, there was no record evidence of prior instances of corporal punishment.

20-2-3263 Lim v. Lim, N.J. Super. App. Div. (per curiam) (19 pp.) During the parties’ dissolution matter, they reached a settlement on the issues of child support, alimony, and equitable distribution, including a provision related to the entry of a Qualified Domestic Relations Order (QDRO). Appellant-husband subsequently failed to respond to a request for documentation to effectuate the QDRO and moved for a determination of the total amount to be distributed between the parties excluding any investment experience. The trial court concluded appellant was not entitled to the investment experience that had accumulated on respondent-wife’s share of the account just as respondent was not entitled to the investment experience that had accumulated on appellant’s share of the account. The trial court further denied reconsideration finding that respondent was entitled to the accruing investment experience as the funds which were not in a separate account. On appeal, the court affirmed holding there was no proof of “mistake, newly discovered evidence, fraud, overreaching, unconscionability, or any other enumerated ground to warrant modification of the equitable distribution provisions” of the judgment of divorce. The court noted both parties were represented by counsel and questioned as to their understanding of the settlement. Following no objections, the court entered the judgment of divorce. The court affirmed the entry of the judgment finding no further plenary hearing was required.

20-2-3264 Netta v. Monek, N.J. Super. App. Div. (per curiam) (9 pp.) Following the parties’ dissolution proceedings, the family court ordered that appellant-mother was to assume 32 percent of their daughter’s reasonable college expenses and respondent-father was to assume 68 percent. The parties cross-moved from the post-judgment order with respondent-father arguing their daughter dropped out of college and that it was unconstitutional to compel him to contribute to an adult child’s college expenses. Appellant argued their daughter was a full-time student, that respondent was kept appraised of her educational status, and that respondent has paid “virtually zero” in college costs. The trial judge denied appellant’s request to find respondent in violation of the prior order or pay for the schooling to an institution other than that previously agreed upon. The trial judge further denied respondent’s request to emancipate the daughter or decrease his child support obligation finding the daughter was not independent nor outside the influence of her parents. On appeal, the court reversed and remanded finding that a plenary hearing was required to determine the academic abilities and diligence of their daughter. The parties’ conflicting certifications made clear that there were material facts in dispute on the critical questions of whether the daughter has moved beyond the sphere of her parents’ influence or instead remained a full-time student entitled to some level of support.

20-2-3279 N.J. Div. of Child Prot. and Permanency v. C.S.R., N.J. Super. App. Div. (per curiam) (7 pp.) At birth, the minor children were removed from their home after testing positive for methadone and experiencing opiate withdrawal. The children were further removed from appellant-father’s care as he was homeless and unemployed as well as his missing several appointments with appellee. The children were placed with paternal relatives and appellant was evaluated by an expert who opined he was “not fit” to parent the children because he was unwilling to acknowledge any responsibility in the issues surrounding his children and unwilling to change in any way. Following respondent’s petition, the family part terminated appellant’s parental rights finding respondent had proven all four prongs of the best interest test; defendant surrendered her parental rights. The family part further found “that the children have developed a strong attachment with their aunt and uncle” due to the length of their placement, their ages, and the consistency provided. On appeal, the court affirmed the legal conclusion of the family part judge but remanded finding that, after the guardianship trial, the anticipated adoption of the girls by the paternal relatives did not come to fruition. Because the judge found that the relatives would mitigate any harm of terminating appellant’s rights, and such relationship was now disrupted, the court remanded for a further best-interests hearing.

20-2-3289 Scott v. Scott, N.J. Super. App. Div. (per curiam) (11 pp.) Defendant appealed numerous orders in a post-judgment matrimonial matter. Plaintiff and defendant divorced in 2007, and had joint legal and shared physical custody of their three children. The PSA set defendant’s child support obligation. Defendant reduced his child support payments and in 2010, plaintiff filed a motion to enforce the PSA’s child support provisions. Defendant moved to modify his obligation and over the next few years, moved for reconsideration of all of the trial court’s orders. In 2015, the trial court modified defendant’s child support obligation but declined to make it retroactive past 2014. Court later found plaintiff in violation and imposed a sanction against her if she remained non-compliant with paying outstanding tax liens on the former marital home. Plaintiff argued that her financial problems were caused by defendant’s failure to pay alimony and the children’s expenses and the trial court granted her motion for reconsideration in part. The court found that most of defendant’s appeals were untimely, but addressed the retroactivity of the child support obligation reduction and held that the statute barred a court from modifying retroactively a child support obligation to a date prior to the filing of the motion seeking that relief. Additionally, the trial court did not abuse its discretion in removing the monetary sanctions against plaintiff.

20-2-3278 Choi v. Choi, N.J. Super. App. Div. (per curiam) (4 pp.) Plaintiff appealed from the trial court’s order denying her motion to enforce a prior order. Plaintiff had filed a divorce complaint, and soon after moved for pendent lite relief. Defendant filed an answer and counterclaim. The trial court denied plaintiff’s motion without prejudice, along with her motion for reconsideration. Plaintiff sought leave to appeal, which was denied. The trial court subsequently issued the order on appeal, which dismissed the parties’ pleadings and directed them to attend binding mediation/arbitration, with defendant to pay all costs subject to final allocation. The arbitrator entered a case management order, which required both parties to deposit $5,000 to be applied toward hearing fees. Plaintiff moved to enforce the provision of the trial court’s order requiring defendant to pay arbitration costs subject to final allocation, but the trial court denied the motion, directing plaintiff to make her application to the arbitrator. Prior to plaintiff’s notice of appeal, the arbitrator withdrew due to the parties’ financial inability to pay the arbitrator’s fees. The arbitrator noted that if the parties could not secure and pay for a substitute arbitrator, their matter should have been restored the court calendar. Although it was not clear whether the parties brought the arbitrator’s order to the trial court’s attention, the court ruled that the posture of the case required a remand to the trial court to reinstate the parties’ pleadings and take appropriate action due to the arbitrator’s withdrawal, since the parties had been left without a forum to litigate their divorce

30-2-3299 Russo v. Plumsted Twp., N.J. Super. App. Div. (per curiam) (13 pp.) Appellant alleged several causes of action against respondent Michael Lynch, claiming that respondent acted beyond his statutory authority while serving as the defendant-Plumsted Township public safety director and responding to a noise complaint at appellant’s residence. Appellant owned and operated a 100-acre farm adjoining a residential development where respondent resided during the relevant timeframe. Respondent alleged he informed defendant to investigate and respond to the noise complaint; respondent had no other involvement with the matter and no involvement or knowledge regarding either appellant’s property assessment or dredge spoils allegedly dumped on the property—issues respondent raised in the complaint. Respondent moved for, and was granted, summary judgment to dismiss him from the complaint. In opposition, appellant alleged that respondent coordinated a conspiracy designed to prevent him from conducting his farm business and to deprive him of his constitutional rights. Appellant further alleged that respondent instigated the warrantless aerial search of his property. On appeal, the court affirmed in concurrence with the lower court’s opinion, that, although respondent may not engage in police-only activities, the constitutional claims were properly dismissed for lack of evidence regarding any such conduct or abuse of power. The court further affirmed dismissal of malicious prosecution finding no evidence supported respondent initiating a criminal or civil proceeding against appellant. The remaining causes of action were dismissed for lack of evidence and failure to demonstrate respondent’s involvement. Accordingly, the court affirmed the lower court’s grant of summary judgment.

21-2-3265 Karteron v. N.J. Dep’t of Human Servs., N.J. Super. App. Div. (per curiam) (7 pp.) Appellant filed a complaint requesting judgment for damages against respondents for allegations that respondent Office of Licensing improperly authorized her former employer to operate without employment contracts between the corporation and its employees. Appellant further alleged she had a “bad reputation” and was unable to obtain new employment in her field, presumably due to improper conduct by respondents. Respondents moved for, and were granted, dismissal contending appellant’s allegations were tort claims and civil rights violations against the state respondents in relation to their purported inaction with regards to alleged grievances. As such, respondents argue they were entitled to sovereign immunity, not “persons” amendable to suit, failure to file notice of her tort claims, and failure to state a claim. On appeal, the court affirmed supporting the district court’s ruling that appellant failed to provide a timely notice of tort claim to the state in order to ultimately proceed in a lawsuit against the statute under that statute. Further, the state was entitled to sovereign immunity as it was the real party in interest and respondents were agencies with officials acting within their official capacity. Finally, the court found that appellant’s pro se complaint failed to set out a cause of action. Accordingly, the court affirmed dismissal.

27-2-3266 The Ocean at 101 Boardwalk v. Pittman, N.J. Super. App. Div. (per curiam) (7 pp.) Defendant appealed the trial court’s order that denied her request to vacate a warrant of removal in an eviction action brought by plaintiff, her landlord. The parties had previously entered a stipulation in the eviction action, in which defendant agreed to pay rent she admitted was due and owing, and further agreed to the entry of a judgment of possession. Finally, the stipulation allowed plaintiff to serve a warrant of removal if she failed to make the payments required by the stipulation, which would have evicted defendant. Defendant failed to meet the stipulation’s initial deadline, but she filed an order to show cause to stay execution of the warrant of removal, paying $1506 into court. Defendant repeatedly failed to make rent payments on time, resulting in her eviction at the end of January 30, 2015. On appeal, defendant argued that she should not have been evicted based on the stipulation once she paid the $1506 into court, since the matter should have been dismissed. Defendant further argued that since plaintiff failed to move her into another unit per the terms of the stipulation, a warrant of removal should not have been granted. The court rejected defendant’s arguments, noting that the stipulation required defendant to be current on rent, and holding that because defendant was consistently late on rent, the warrant of removal could have been issued under the terms of the stipulation. Finally, the court further held that defendant’s execution of a new lease did not constitute waiver of the stipulation, since the move to the new apartment was expressly contemplated by the stipulation.

04-2-3280 Mitchell v. Skey, N.J. Super. App. Div. (per curiam) (18 pp.) Plaintiff appealed from the order granting summary judgment dismissal of her legal malpractice action against defendants. Plaintiff alleged that defendants negligently represented her in her divorce proceedings against her husband, Richard Miller. After plaintiff filed for divorce, trial was adjourned several times for various reasons, including plaintiff changing counsel 3 times due to alleged misconduct and conflicts. Trial finally commenced with defendants serving as plaintiff’s counsel. Mid-trial, plaintiff sought another adjournment to change counsel, asserting a conflict with defendants because of their conduct and defendant Skey’s cognitive difficulties. The family court judge denied the application, noting she had not witnessed any misconduct or cognitive difficulties from Skey, but offered plaintiff the option of retaining Skey, representing herself, or obtaining new counsel post-trial to prepare a written summation. When plaintiff refused to choose, the family court ordered Skey to continue as counsel. Plaintiff subsequently filed this malpractice action. Defendants moved for summary judgment based on plaintiff’s failure to serve a legal malpractice expert report. Although plaintiff was granted an opportunity to serve the report, when she failed to do so the trial court granted defendants’ motion. On appeal, plaintiff argued that no expert report was necessary because Skey’s negligence was obvious and a matter of common knowledge such that a juror of average intelligence could understand. The court rejected plaintiff’s argument and affirmed summary judgment. The court held that plaintiff’s malpractice claim was sufficiently complex to require expert testimony regarding the standard of care and how Skey breached it. The court distinguished malpractice cases where an attorney did no work or made misrepresentations to the client, as opposed to the present case where questions concerned the adequacy of Skey’s performance. The court held that allegations about the adequacy of performance were not so “readily apparent” as to not require expert testimony.

29-2-3267 Williams v. Atlanticare Regional Med. Ctr., N.J. Super. App. Div. (per curiam) (12 pp.) Plaintiff appealed the summary judgment granted to anesthesiologist and the order directing her counsel to pay defendant’s expert witness’ cancelation fee. Plaintiff alleged medical malpractice based on failed spinal surgery. Anesthesiologist, who was named in an amended complaint, argued statute of limitations and the court found that the claims were barred as to her because the anesthesiologist was identified in the hospital records and plaintiff did not use due diligence in attempting to learn her identity before the limitations period expired. The court granted defendant surgeon’s motion for summary judgment based on plaintiff’s failure to serve an affidavit of merit, surgeon sought to recover his expert witness fees and court ordered plaintiff’s counsel to pay expert the loss of income from the trial adjournment that was due to plaintiff’s counsel’s trial schedule. The court reversed the payment of fees to the expert witness because plaintiff’s counsel’s late adjournment request was not without “just excuse.” The court found the grant of summary judgment in favor of anesthesiologist was correct.

31-2-3314 Cherry v. City of Newark, N.J. Super. App. Div. (per curiam) (10 pp.) Plaintiff appealed the dismissal of her complaint. She fell in a crosswalk, injured her arm and alleged the fall was caused by cracked and uneven asphalt in the crosswalk. She did not submit any expert’s report regarding the cause of her fall, the nature of the street’s defective condition or how long it existed. She relied on photographs and work permits issued by city to establish defendant’s liability. The photographs taken shortly after her fall showed spray paint markings typically used to identify the location of underground utilities. She contended that the defect pre-existed the spray paint and that the accumulation of dirt and debris in the depression supported her inference that the defect pre-existed her fall. A photo taken a year later showed another depression which she asserted was evidence that the original depression stemmed from an underground cave-in. The motion judge granted summary judgment to defendant due to the lack of evidence as to how long the depression existed. The court noted that plaintiff failed to support her appeal with an appendix containing the submissions made to the motion judge and, after considering the limited record, agreed with the motion judge that plaintiff failed to show that defendant had notice of the condition that allegedly caused plaintiff’s fall.

31-2-3315 Corbisiero v. Schlatter, N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the dismissal of her action for personal injury from her fall from a ladder. Plaintiff fell when she was attempting to use a saw to cut the branches of tree located on an adjacent property. Plaintiff had asked defendant’s son to cut the overhanging branches and he said he would when he had time. Plaintiff purchased a saw to cut the branches herself. The branch she was cutting fell, struck her saw and caused her to fall off the ladder. She alleged defendant’s negligence in permitting a dangerous and defective condition of her premises was responsible for plaintiff’s fall. The motion court found no basis to impose a duty of care on defendant. The court agreed that defendant did not create an inherently dangerous condition that caused plaintiff’s fall. Plaintiff herself created the risk when she bought the chainsaw and used her own stepladder. She was not on defendant’s property when she cut the tree and there was no evidence the branches constituted a dangerous condition requiring immediate attention. Additionally, plaintiff’s reliance on Burke v Brigg, 239 N.J. Super. 269, was misplaced because she filed a negligence action not a private nuisance action.

34-2-3281 Regan v. Griggs Farm Condo. Ass’n, Inc., N.J. Super. App. Div. (per curiam) (7 pp.) Defendant appealed the judgment in favor of plaintiff in plaintiff’s suit over the removal of his fence. Plaintiff had installed a fence along the rear of his unit’s property with defendant’s approval. Defendant later decided to replace the side privacy fences with vinyl fencing and notified all unit owners. The notice offered to replace the rear fences for an extra cost, but said nothing about removing the rear fences. Plaintiff chose not to replace his rear fence but defendant removed it and did not replace it. The trial court determined that defendant had no right to remove the fence and that plaintiff was entitled to damages equal to the amount he would have been charged to replace the fence. The court found that defendant, having given plaintiff permission to install the fence, could not exercise its authority to care for the common grounds by removing plaintiff’s fence. The damages awarded were properly supported by the assessment defendant sought for replacing the fence.

34-2-3268 Royal Tax Lien Serv., L.L.C. v. Shuaib, N.J. Super. App. Div. (per curiam) (9 pp.) Defendants appealed the denial of a motion to vacate Final Judgment of Tax Sale Certificate Foreclosure. Brother and sister owned a house that was destroyed by a storm in 2006. Brother disputed the amount of taxes due during that time and stopped paying taxes in 2007. Plaintiff purchased the tax lien certificate in 2008 and gave written notice of its intention to foreclose in 2011. Brother was personally served with the complaint but told the process server that sister did not live at the address and that he had no forwarding address for her. Brother was defaulted when he did not file an answer to the complaint. Plaintiff’s attorney made a diligent inquiry to find a current address for sister that included an internet search, sister was eventually served by publication and then defaulted. Sister’s motion to vacate was denied due to deficiency for lack of a proper fee. That order was appealed but the notice of appeal was signed by brother not sister. However, the court considered the matter and denied the motion. While sister lived out-of-state, brother plainly communicated with her and would not give her address to plaintiff’s counsel and brother did not show that her address could have been found.

34-2-3300 In the Matter of the SADC Resolution FY2015R12(2), N.J. Super. App. Div. (per curiam) (13 pp.) Appellants appealed the denial of their request to relocate a right-of-way. Appellants access to a public road from their parcel was over a right-of-way created in 1951 by recorded easement deed. After they acquired their property, the neighboring landowner sold all non-agricultural development rights by deed of easement to the state and the United States. Appellants’ easement extended through that property. Appellants’ right-of-way included two 90 degree turns around a railway embankment that were difficult to negotiate with farm equipment and a dangerous entry on to the county road. The State Agricultural Development Committee acknowledged the legitimacy of the safety concerns. The Natural Resources Conservation Service rejected appellant’s proposed alternative right-of-way but consented to an alternative proposed by the SADC. The SADC rejected appellants’ application finding that it would result in the loss of farmland. Appellants argued that SADC’s decision was arbitrary and capricious. The court found that the record did not support a fair review of the agency decision because important information was lacking. Remand was required because appellants were not afforded due process and significant legal and factual questions were not addressed in the proceedings.

34-2-3269 State v. Wahlstrom, N.J. Super. App. Div. (per curiam) (9 pp.) During the protracted procedural history of the underlying code violations dispute, the township’s code enforcement officer filed four more property maintenance complaints against respondent, each containing a section requiring the officer to provide a description of the offense and requisite notice. Respondent moved to dismiss the complaints contending his prosecution of following the dismissal of the original complaint placed him in double jeopardy. The JMC denied dismissal and subsequently found respondent guilty of all four offenses. On remand and retrial, the code enforcement officer testified that respondent was charged with four separate ordinance violations; respondent was again determined guilty and fined. The JMC further rejected respondent’s double jeopardy argument but determined appellant failed to properly detail the violations or contain factual specificity thereby violating respondent’s due process rights. On appeal, the court reversed finding the JMC dismissed the complaints on an issue respondent did not expressly present. The court noted the JMC did not identify where in the record respondent had raised the due process claim prohibiting appellant a reasonable opportunity to be heard in a meaningful way with respect to the issue. Accordingly, the order of dismissal was vacated and remanded for further proceedings.

35-5-3270 Gurvey v. Montclair Twp., Tax Ct. (Novin, J.) (52 pp.) (May 8, 2017) Plaintiffs filed several motions to compel discovery, to admit facts into evidence, to find defendant in contempt of court, for entry of a writ of mandamus, for leave to file an amended complaint, and to vacate the court’s prior order and enter reassessment and an injunction. Plaintiffs were the owners of property that they alleged suffered water damage because of broken pipes. Plaintiffs engaged a firm to undertake asbestos and mold removal. During this work, plaintiffs alleged that they requested an abatement of property taxes for the period they did not occupy their home, but defendant failed to respond. Plaintiffs filed a complaint with the court in 2011, seeking to contest the 2009-2011 assessments. The court first denied plaintiffs’ motion to compel responses to their discovery requests, finding that they were beyond the authorized scope of discovery for small claims tax matters such as the present case. However, recognizing the unique facts surrounding the asbestos and mold contamination of the subject property, the court granted a limited expansion of the scope of discovery. The court further ruled that defendant’s conduct did not warrant an entry of contempt, since their extension of a settlement offer to plaintiffs was not ordered by the court. The court further rejected plaintiffs’ request for mandamus, finding that their appeal was facially untimely, and holding that the court lacked jurisdiction to afford the requested relief. The court also denied plaintiffs’ motion to amend its complaint to add a claim against their mortgage company for paying the disputed taxes out of plaintiffs’ escrow, ruling that the breach of contract claim was outside the court’s limited jurisdiction. Finally, the court denied plaintiffs’ request for injunction on the assessments, ruling that the requirement to pay did not violate a taxpayer’s due process as the court provided a remedy for erroneous assessment.

38-2-3290 Epstein v. Epstein, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant alleged that, as a result of respondent’s fraud and misrepresentations, the decedent removed appellant as a named beneficiary under his living trust and last will and testament, which named respondent as the trustee and executrix. In response to a motion filed by respondent, the court dismissed appellant’s complaint without prejudice for failure to state a claim pursuant to Rule 4:6-2(e). The court determined that the complaint failed to identify the dates upon which the alleged fraudulent conduct occurred, thereby preventing the court from determining whether the claims were barred by the applicable six-year statute of limitations. The court further held appellant failed to provide the specificity required by Rule 4:5-8(a) when pleading fraud. Appellant moved for leave to appeal arguing his complaint was sufficient and any excluded references to dates were due to their being unknown. On appeal, the court affirmed finding appellant’s argument was without sufficient merit to warrant discussion in a written opinion. The court noted the specificity required in a complaint alleging fraud included some designation as to when the fraud occurred and the content of any alleged misrepresentations. As appellant’s complaint made no attempt to even approximate when the conduct occurred during the decedent’s life or the content of the misrepresentation alleged, the court affirmed dismissal without prejudice.

36-2-3301 Savoia v. Healing Hearts, N.J. Super. App. Div. (per curiam) (3 pp.) Appellant claims related to ongoing divorce litigation in which there was a dispute over custody and visitation. In his amended complaint in the tort case, appellant asserted that, as part of the divorce case, the family part referred appellant and his family to respondent, a social services agency. Appellant argued that respondent wrongfully declined to provide reunification services and instead made a referral to the Division of Child Protection and Permanency. The family part dismissed appellant’s tort claims for failure to file a timely Tort Claims Act notice against respondent as well as immunity to a person or entity that made a good-faith referral to the division. The family part further dismissed finding appellant failed to identify any independent substantive or due process right that respondent allegedly violated. On appeal, the court reviewed the record in light of the applicable legal standards and concluded that the family part judge’s decision was correct. The court affirmed for the reasons stated and any further appellate arguments were without sufficient merit to warrant further discussion. Accordingly, dismissal of appellant’s tort claims was affirmed.

38-2-3302 Estate of Vincent E. Coyle v. Scott, N.J. Super. App. Div. (per curiam) (6 pp.) Respondent-estate filed a complaint seeking payment on a death benefit policy decedent obtained, and was informed would continue, despite the insurance company changing hands. At trial, the court heard testimony and considered various letters and documents submitted; appellant acknowledge that, although it did not assume the prior company’s liabilities or obligations, it had agreed to honor the death benefits for certain former employees. The trial court found that decedent retired from the company, received a letter that he would no longer receive the death benefit, but communicated with appellant who ultimately agreed to continue to provide decedent with a $3,000 death benefit. On appeal, appellant argued decedent could not collect from an individual, no enforceable contract, and collateral mistake. The court affirmed finding appellant’s first argument was a technical, procedural argument not previously raised as well as all parties involved understood the proper defendant was the corporation. The court further found appellant’s two other contractual arguments need not be analyzed given the principle of promissory estoppel bound defendant-corporation. Because decedent reasonably relied on appellant’s letter which clearly and definitively promised to provide the death benefit, failure to enforce would detriment decedent and appellant was estopped from contending that respondent was not entitled to the death benefit.

40-2-3316 Fowler v. Akzo Nobel Chemicals, Inc., N.J. Super. App. Div. (per curiam) (8 pp.) In October 2010, decedent received a diagnosis of mesothelioma as a result of workplace exposure to asbestos and succumbed to his illness three months later. Following his death, appellant, decedent’s widow, brought a wrongful death and product liability action against respondents on behalf of decedent’s estate. After the completion of discovery, respondent moved for, and was granted, summary judgment citing insufficient evidence that decedent was exposed to asbestos while working at its facility. On appeal, the court reversed holding appellant presented sufficient evidence that a reasonable jury could infer decedent suffered asbestos exposure from respondent’s products. In a products liability, failure-to-warn case, a plaintiff must prove (1) the product was defective; (2) the defect existed when the product left the defendant’s control; and (3) the defect caused injury to a reasonably foreseeable user. In an asbestos failure-to-warn case, “a plaintiff must prove two types of causation: product-defect causation and medical causation.” Here, the court noted, respondent delivered asbestos to its facility, decedent regularly worked directly with the injury-producing element of asbestos, and the causation of injury by respondent’s products could be proven through use of circumstantial evidence. Accordingly, the court reversed summary judgment finding a reasonably jury could infer the decedent suffered from exposure to respondent’s asbestos.

14-2-3291 State v. Lopez, N.J. Super. App. Div. (per curiam) (11 pp.) Defendant appealed the denial of his motion to suppress evidence and his sentences. The trial court denied defendant’s motion to suppress and he pled guilty to drug charges, hindering and eluding and was sentenced. Police made a motor vehicle stop of defendant’s vehicle, observed that defendant was nervous, saw a large amount of cash in the center console, suspected drug activity and requested consent to search the car. Defendant initially agreed, then drove away throwing a black object out of the car. Defendant eventually stopped and was arrested. The police found a plastic bag containing heroin near where defendant threw the object from the car. At the hearing on the motion to suppress, the trial judge found the stop was lawful because of the inoperable brake light and defendant’s change of lanes without signaling. The court found that sufficient credible evidence supported the stop and the request to search. Even if the request to search were not lawful, defendant’s flight attenuated the seizure from the alleged improper police conduct. However, the sentence imposed was not the sentence in the supplemental plea form signed by the prosecutor and defendant and the case had to be remanded for resentencing.

14-2-3292 State v. Cruz Martinez, Jr., N.J. Super. App. Div. (per curiam) (22 pp.) Appellant was tried before a jury and found guilty of murder and other offenses. The court sentenced him to life imprisonment, subject to the No Early Release Act. Appellant appeals from the judgment of conviction arguing the trial court coerced a juror into reaching a verdict as well as contending the life term was excessive and based on an inapplicable aggravating factor. Th court affirmed appellant’ conviction and the sentences imposed, but remanded the matter for entry of a corrected judgment of conviction. The court concluded the trial record showed that late in the afternoon of the second day of deliberations, the judge provided additional instruction per a jury question. Further, the judge identified the juror whose behavior was in question and conferred with counsel. Before reading the verdict, the judge again questioned the jury to ensure he understood and there was no rush to make a decision. Based on the record, the court rejected appellant’s contention that the judge improperly coerced the juror to reach a verdict and properly instructed the jurors as to their duty. Further, the court found the judge properly considered the aggravating factors set forth in N.J.S.A. 2C:44-1 which was supported by sufficient credible evidence and appellant’s criminal record. However, the court remanded to correct the judgment of conviction which erroneously stated that appellant was sentenced to seventy-five years, rather than life imprisonment.

14-2-3293 State v. Norris, N.J. Super. App. Div. (per curiam) (13 pp.) Defendant appealed from her judgment of conviction on resentencing for murder and attempted murder. The court had previously affirmed defendant’s convictions, but remanded for resentencing, finding that the trial court had effectively double-counted the first two aggravating factors—the cruel manner of the attack and the excessive force employed in the attack. On remand, finding one less aggravating factor on the murder count—apparently being persuaded by the state that the second aggravating factor was still applicable to defendant—and two fewer aggravating factors on the attempt count, the sentencing court imposed the same consecutive sentences it had previously imposed. The sentencing court failed to explain why the elimination of the most serious aggravating factors did not affect resentencing. In support of her appeal, defendant argued that imposing the same sentence upon resentencing after eliminating various aggravating factors was manifestly excessive. The court agreed, ruling that the trial court should not have imposed the same sentence without providing a compelling explanation for doing so. The court was unable to discern from the record an explanation for the trial court’s imposition of an identical sentence. The court held that the trial court was obligated to identify the relevant aggravating and mitigating factors, determine the factors supported by a preponderance of the evidence, balance the factors, and explain how it arrived at its sentence. The court further held that imposing the same sentence on remand without explanation raised the specter of capriciousness, particularly after the sentencing court eliminated the aggravating factors that appeared to motivate imposition of a lengthy sentence in the original sentence. Accordingly, the court reversed and remanded for resentencing.

14-2-3282 State v. Wilbert Hannah, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant was convicted of crimes arising from the death of two alleged drug dealers. Appellant’s first petitioned for post-conviction relief (PCR) was denied by the trial court, but remanded for an evidentiary hearing; the trial court denied on remand and was subsequently affirmed. Appellant brought a second petition arguing he was entitled to a new trial because respondent withheld evidence, specifically a report by the investigator which discussed a pager found at the crime scene. Appellant’s petition was denied but the court again remanded for an evidentiary hearing to determine whether a Brady violation occurred and whether the pager was newly discovered evidence. The matter was ultimately heard by a different judge due to conflict, and, following a three-day evidentiary hearing, the judge denied appellant’s petition. On appeal, appellant argued the trial court erred in not finding a Brady violation, failure to provide the investigator’s report, and failure to follow the initial remand instructions. The court concluded appellant’s first two arguments were without sufficient merit to warrant discussion in a written opinion. However, the court remanded for an evidentiary hearing to address whether the pager was newly discovered evidence pursuant to the court’s initial remand instructions. As the court failed to address both the Brady violation and the pager as newly discovered evidence, the court remanded for further hearing.

14-2-3304 State v. Moore, N.J. Super. App. Div. (per curiam) (22 pp.) Defendant appealed the denial of his motion to suppress evidence obtained pursuant to 2 search warrants. Following the denial of his motion, defendant and the state reached a plea agreement, wherein defendant pleaded guilty to two of the eight charges against him, aggravated manslaughter and desecrating human remains, stemming from the murder of Ervin Harper. Pursuant to the state’s recommendation, the trial court sentenced defendant to 20 years for the aggravated manslaughter charge, subject to the No Early Release Act, and a consecutive five-year term for the desecrating human remains charge. Both sentences were concurrent with a sentence defendant was serving for unrelated crimes. On appeal, defendant challenged the search warrants, arguing that stale information failed to support probable cause for the first search warrant, which in turn failed to support the second as fruit of the first. Defendant further contended that the sentencing court failed to comply with the Yarbough guidelines. The court first rejected defendant’s challenge, concluding that there was sufficient evidence in the affidavit of probable cause to support issuance of the first warrant authorizing a search of defendant’s home, garage, and car for evidence related to defendant’s marijuana distribution activities and crimes related to Harper’s disappearance. The court held that Harper’s family’s and friends’ consistent accounts about their sudden loss of contact with Harper, and Harper’s personal difficulties with defendant, gave police sufficient reason to believe he was the victim of a violent crime. The court further concluded that most of the citizen evidence, no more than a month old, was not stale. Finally, the court rejected defendant’s challenge to his sentence, finding that the trial court concluded that defendant’s two crimes were sufficiently independent of one another to deserve punishment for both.

54-7-3294 Glazer v. Honeywell Int’l, Inc., D.N.J. (Vazquez, U.S.D.J.) (13 pp.) Following a loss of cabin pressure while piloting his plane, plaintiff was observed by military aircraft unconscious in the pilot seat. The aircraft flew over the Atlantic, continued into Cuban airspace, and eventually crashed into the ocean near Jamaica after running out of fuel. Plaintiff-son filed the underlying complaint in both New York State Supreme Court and Superior Court of New Jersey on behalf of the estate alleging negligence and products liability against numerous defendants, including defendant Honeywell who manufactured the thermal sensors used in the aircraft’s cabin pressurization system. Plaintiff moved to remand the matter to state court arguing that DOHSA did not apply when the wrongful act, neglect or default occurred over land and that the court lacked jurisdiction due to the savings-to-suitors clause in 28 U.S.C §1333. The court granted remand holding the amended §1441(b)(2) permitted remand despite a claim for admiralty jurisdiction. The court further concluded that the amendment to §1441(b) did not disturb the settled principle that §1331(1)’s savings-to-suitors clause allowed a plaintiff to prevent removal where the only basis for federal jurisdiction was admiralty. The court noted the amendment was procedural in nature and the lengthy history of the clause would require a more explicit direction from Congress in order to overturn centuries of precedent. [Filed May 10, 2017]

42-6-3317 In re: Gertrude Tatum, U.S. Bk. Ct. (Papalia, U.S.B.J) (14 pp.) Prior to the confirmation of her Chapter 13 plan, debtor passed away with the case now being prosecuted by debtor’s estate. Creditor Unity Bank, holder of the first mortgage, filed an amended fee application for fees and expenses totaling $16,318. Debtor opposed the application pursuant to Fed. R. Bankr. P. 3002.1 as well as the reasonableness of the fees sought as not being allowed under the loan documents and disproportionate to the amount owed. Debtor further objected arguing the fees were excessive, duplicative and/or unnecessary. The court ordered a reduction in allowable fees and expenses in the total amount of $7,694 finding such reduction was reasonable and necessarily incurred in the circumstances and ordered the case to proceed to confirmation. The court noted a reduction was necessary under Fed. R. Bankr. P. 3002.1 as a portion of creditor’s calculated fees occurred outside the 180-day period provided under the statute. Further, creditor failed to specifically itemize the fees and work performed while incurring such expense. However, the court found that the plain language of the loan documents provided for the collection of the creditor’s reasonable attorneys’ fees and expenses incurred in connection with its enforcement of the mortgage and any bankruptcy proceedings. Finally, the court held a reduction in the amount requested was needed to comply with the reasonableness of the fees sought, travel time, and preparation. [Filed May 15, 2017]

46-7-3305 Bifalco v. Harvest Buffet, D.N.J. (Shipp, U.S.D.J.) (5 pp.) Defendant moved to dismiss plaintiff’s discrimination claim alleging hiring discrimination on the basis of race. Plaintiff’s complaint alleged that she had experience working at buffets and that, while dining at the restaurant, she approached defendant’s representative on several occasions and asked for a job. She asserted the representative took her phone number but never contacted her. She contended that defendant did not contact her because she was not Asian. She never alleged that she completed and submitted an application form or that defendant had any open employment positions. The court had no basis to believe that plaintiff could assert plausible factual allegations to state a claim for which relief could be granted. [Filed May 15, 2017]

11-7-3272 Linwood Trading LTD v. E.S. Recycling Express Corp., D.N.J. (Arleo, U.S.D.J.) (12 pp.) Plaintiff sought default judgment in its action asserting breach of contract, fraud and misrepresentation and tort claims for negligence and conversion. Plaintiff scrap metal broker contracted for deliveries of scrap metal from defendants, three companies that were represented as the same company owned by the same person. Plaintiff asserted that defendants delivered contaminated product and lesser amounts of product than contracted for. Plaintiff submitted claims for the impurities, shortfalls and damage caused to third party shipping containers by the contaminated product. The court found that two of the three defendants were properly served with the second amended complaint because they had been served with the prior complaint, entered an appearance in the case and were represented by counsel. However, electronic filing of the SAC was not sufficient to serve the third defendant because that defendant was not named as a party prior to serving the SAC. The court found that the answer of the two defendants served had been struck, they had not otherwise responded to the SAC and the court accepted the truthfulness of plaintiff’s allegations of breach of contract and awarded plaintiff’s requested damages minus the amount sought for third party shipping container damages. [Filed May 9, 2017]

11-7-3283 Valli v. Avis Budget Grp., Inc., D.N.J. (Cecchi, U.S.D.J.) (10 pp.) Defendant moved to dismiss plaintiff’s class action complaint alleging breach of implied covenant of good faith, unjust enrichment and violations of the NJCFA. Plaintiff rented a car from defendant. The rental agreement provided that plaintiff would pay all tickets. Plaintiff received a speeding ticket from the D.C. police, defendant paid the fine and billed plaintiff for the fine plus an administrative fee. Plaintiff alleged that by paying the fine without notice to her, defendant deprived her of her ability to contest the ticket and wrongfully forced an admission of guilt on her. Defendant argued failure to state a cause of action. The court found that plaintiff sustained her pleading burden. The complaint alleged defendant paid the ticket without notice to plaintiff and charged the fine and administrative fee to her credit card without opportunity to be heard or authorization. She alleged the rental agreement was a contract of adhesion and was unconscionable in that it failed to disclose that defendants would charge car renters for any alleged traffic infraction without opportunity to contest fines. [Filed May 10, 2017]

11-7-3295 IGEA Brain and Spine, P.A. v. Blue Cross and Blue Shield of Minnesota, D.N.J. (Wigenton, U.S.D.J.) (6 pp.) Plaintiff, a health care provider in New Jersey, rendered medical services to nonparty patient while he was a participant in defendant’s health benefit plan. Plaintiff alleged defendant has failed to fully reimburse it for those services, resulting in an underpayment of $181,200. Plaintiff obtained an assignment of benefits from the patient in order to bring the instant action pursuant to ERISA and alleged, among other counts, breach of contract, failure to make all payments, and breach of fiduciary duty. Defendants moved to dismiss under Fed. R. Civ. P 12(b)(6). The court granted dismissal holding the assignment of benefits under which plaintiff brought this action could not confer derivative standing because the plant at issue contains anti-assignment clauses that prohibit such transfer of rights. Additionally, courts within the district have found provisions similar to those contained in the plan to be valid and enforceable under ERISA. Here, the anti-assignment provisions contained in the plan were clear and unambiguous and thus valid and enforceable. Further, despite the parties’ interactions, any discussions did not constitute a wavier nor a “clear and decisive act” to waive the plan’s anti-assignment provisions. Accordingly, the court granted dismissal of the complaint as plaintiff lacked standing to sue. [Filed May 12, 2017]

11-7-3318 Schwartz v. Emp. Benefit Mgmt. Sys., D.N.J. (Wigenton, U.S.D.J.) (5 pp.) Plaintiff, a healthcare provider located in Bergen County, rendered various medical services to a beneficiary-patient of an employer benefit plan maintained and administered by defendants. Defendants allegedly agreed on multiple occasions to reimburse in full treatments provided to the patient. Plaintiff obtained an assignment of benefits from the patient and formally demanded reimbursement for the services rendered. Upon defendants failing to remit full payment, plaintiff brought the underlying breach of contract action pursuant to the assignment of benefits and ERISA. Defendants removed the action to the court and moved for dismissal under Fed. R Civ. P. 12(b)(3) and 12(b)(6). The parties appeared to agree that Montana was where the plan was administered and where defendants resided. However, plaintiff contended that because she provided patient’s treatments in New Jersey and she received defendants’ partial reimbursement in New Jersey, the alleged breach occurred in New Jersey. The court granted dismissal finding plaintiff’s claims arose out of defendants’ partial denial of the reimbursement claim. Given that the plan was administered in Montana, the decision to partially deny reimbursement occurred in Montana. Any alleged breach therefore took place in Montana and dismissal was warranted for improper venue. [Filed May 16, 2017]

15-7-3296 Execu-Ride Corp. v. Trucker’s Bank Plan, D.N.J. (Martinotti, U.S.D.J.) (10 pp.) Defendant moved to dismiss plaintiff’s complaint, or in the alternative, moved to transfer the case to the Northern District of Indiana. The parties entered a master installment note and security agreement under which defendant provided plaintiff a line of credit for plaintiff to finance the purchase or lease of its rental fleet. Plaintiff granted defendant a lien and security interest in the fleet, and defendant filed UCC-1 statements to perfect its security interest. Defendant decided to terminate its relationship, but advised plaintiff that it would agree to a “workout” in October 2013. Nevertheless, defendant declared plaintiff in default for failing to make the October payment, despite plaintiff believing the payment to be part of the workout. Defendant then filed a writ of replevin for seizure of plaintiff’s fleet. Defendant allegedly agreed to release its lien upon satisfaction of certain conditions, but despite plaintiff’s compliance defendant refused to release its liens until ordered to do so by the trial court. The court granted defendant’s motion for transfer, finding that the action could have been brought in the Northern District of Indiana. The court further held that plaintiff failed to show why the parties’ forum-selection clause selecting Indiana was invalid or unenforceable. The court rejected plaintiff’s assertion that defendant’s filing of the underlying action against plaintiff in New Jersey state court warranted filing in the District of New Jersey, holding that plaintiff’s claims arose out of the parties’ agreement containing the forum-selection clause and that defendant was obligated to file its writ of replevin where plaintiff’s fleet was located. The court further rejected plaintiff’s assertion that public factors weighed against transfer, noting that the Northern District of Indiana was fully capable of applying either Indiana or New Jersey law. [Filed May 10, 2017]

53-7-3306 Abraxis BioScience, LLC v. Acctavis, LLC, D.N.J. (Falk, U.S.M.J.) (10 pp.) In this Abbreviated New Drug Application (ANDA) patent case, plaintiff sought approval to market a generic version of Celegen’s Abraxane® product, which was used to treat breast, lung, and pancreatic cancer. Plaintiff argued that defendant’s accused ANDA product would infringe four patents. Defendant sought leave to amend pursuant to Local Patent Rue 3.7 its invalidity contentions pending an intervening decision form the United States District Court for the District of Massachusetts which allegedly gave rise to an additional defense in the case. Plaintiff opposed claiming that defendant’s proposed amendments were untimely, lacked “good cause,” and would cause undue prejudice to plaintiff. The court granted defendant’s motion finding that it had been diligent and had shown good cause for all three of its proposed amendments, and that none of the amendments would cause undue prejudice to plaintiff. Namely, the court found defendant’s amendments closely tracked and responded to secondary considerations and the pending decision was published after its contentions were served. Given the early stages of the case, the court did not believe that defendant delayed with respect to seeking amendments. Further, there was no undue prejudice as discovery was still in the early stages, plaintiff had not shown that it will be a large or disproportionately burdensome amount of time or money to respond to the amendments, there was no pending dispositive motion that would be impacted by the amendments, and defendant had no objections to plaintiff submitting amended responsive contentions. As such, the court granted defendant’s leave to amend. [Filed May 15, 2017]

53-7-3307 J&J Sports Prods., Inc. v. Passaic City Riders Motorcycle Club, D.N.J. (Linares, U.S.D.J.) (6 pp.) Plaintiff moved to alter or amend the court’s prior order, which resolved plaintiff’s motion for default judgment. Plaintiff sought default judgment and statutory damages, costs, and attorney’s fees in its complaint alleging defendants’ piracy of a television program to which plaintiff had exclusive licensing rights. Although defendants failed to oppose the motion, the court granted in part and denied in part plaintiff’s motion, finding that while plaintiff established a prima facie case of piracy against defendant motorcycle club, it failed to establish a basis for liability against the individual defendants. The court further concluded that maximum statutory or enhanced damages were unreasonable because defendants did not finally benefit from the unlawful exhibition, and instead awarded damages of $2,200, or the amount defendants would have paid to legitimately show the program. In its motion to amend, plaintiff sought to increase the amount of damages to accomplish the goal of deterrence and compensate plaintiff fully. However, since plaintiff failed to raise the issue of deterrence in its motion for default judgment, the court declined to consider it in a motion for reconsideration. The court further held that it properly based its award on the actual cost to show the program, nothing that the obvious starting point for determining damages was the licensing fee defendants would have paid to legally show the program. Finally, the court rejected plaintiff’s argument that the court erred in determining that plaintiff failed to establish the element of financial gain necessary to imposed enhanced damages or individual liability, noting that mere disagreement with the court’s decision was not adequate to prevail on a motion for reconsideration. [Filed May 15, 2017]

53-7-3284 Impax Labs., Inc. v. Actavis Labs. FL, Inc., D.N.J. (Chesler, U.S.D.J.) (27 pp.) In this patent infringement suit involving pharmaceutical patents, the parties sought construction of claims. The complaint alleged that defendant sought to make and sell a generic version of plaintiff’s Rytary® capsules prior to the expiration of the relevant patents. In Acumed LLC v. Stryker Corp., 483 F.3d 800, 804 (Fed. Cir. 2007) The Federal Circuit further established the framework for the construction of claim language to include the ordinary and customary meaning of a claim by a person of ordinary skill as well as examining the terms that have a particular meaning in a field of art. The crux of this underlying dispute was the question of what these claims meant in requiring the carboxylic acid component to be a “distinct component.” Here, the court found that “distinct” must mean “freely separable,” and could not mean “layer cake distinctness.” The court concluded the applicants clearly and unmistakably disclaimed coverage of formulations in which the carboxylic acid component was not freely separable from the controlled release and immediate release components prior to any final embedding of all elements in any constraining structure. Additionally, the court found the carboxylic acid component was not limited to a bead and must be coated with an enteric polymer. [Filed May 9, 2017]

53-7-3285 Mallinckrodt LLC v. Actavis Labs. Fl., Inc., D.N.J. (Hayden, U.S.D.J.) (19 pp.) Plaintiffs owned various patents covering an extended-release drug product containing the active ingredients of acetaminophen and oxycodone, which plaintiffs sold under the trade name XARTEMIS. Plaintiffs filed a complaint against defendant, alleging that that by submitting an abbreviated new drug application to market a generic version of XARTEMIS, defendant infringed patents held by plaintiffs. The court directed the parties to submit proposed claim constructions for various disputed claim terms in plaintiffs’ patents-in-suit. The parties first disputed what was meant by the claims of a subject taking the drug in a “fasted state” and in a “fed state.” As to “fasted state,” the court ruled that when a patentee assigns a specific definition to a term, that lexicography had to govern the claim construction analysis. Thus, because plaintiffs’ patents specifically defined fasted state as not having ingested food for at least 10 hours, the court adopted that construction. Similarly, for “fed state,” the court adopted the claim construction as having consumed food within 30 minutes prior, since that was how the patent claim defined the state. The parties next disputed what constituted a “single dose,” with defendant asserting indefiniteness due to a lack of antecedent basis in the independent claims. However, the court rejected defendant’s argument, finding the patent claim to have a plain and ordinary meaning. Similarly, the court found the term “oral administration” to have its plain and ordinary meaning. The parties further disputed the meaning of no difference in bioavailability of active ingredients in the presence of food, with the court agreeing with plaintiffs that defendants’ proposed construction was an impermissible narrowing of the claim, adopting the construction of “not substantially affected”. Finally, the court agreed with plaintiffs that the context in which the term “%” was used indicated that it was by percentage and not weight. [Filed May 9, 2017]

04-7-3297 J.L. v. Harrison Twp. Bd. of Educ., D.N.J. (Bumb, U.S.D.J.) (19 pp.) Plaintiffs filed for attorney fees for the negotiations regarding the submission of a proposed form of order. Plaintiff was the prevailing party in the underlying litigation pursuant to the IDEA and the Rehabilitation Act. Defendant agreed to stipulate plaintiffs’ requested hourly rate. The parties needed to submit a straightforward proposed form of order for the court’s consideration and signature embodying the agreement. The court held that the task could have easily been completed in well under an hour and that plaintiffs’ attorney’s demand for $5,000 in legal fees was unconscionable. Plaintiffs were mistaken in their contention that they were entitled to all attorney fees requested that defendants had not specifically challenged. The court declined to allow plaintiffs to recover attorney fees for hours that were excessive, redundant or otherwise unnecessary and found that plaintiffs’ counsel engaged in uncooperative conduct to increase his fees and unreasonably protracted the final resolution of the litigation. The court evaluated plaintiffs’ counsel’s billing entries, assigned appropriate time frames to the listed items and found that in a normal case, an attorney would be entitled to $750 for the listed work. However, in this case, the court declined to award any fees because counsel’s egregious litigation conduct forced defendants to expend unnecessary fees and required the court to divert its precious resources. [Filed May 11, 2017]

25-7-3273 Fraternal Order of Police Lodge 1 v. City of Camden, D.N.J. (Hillman, U.S.D.J.) (8 pp.) Plaintiffs moved to remand their case back to state court. Previously, the Third Circuit had affirmed the court’s grant of summary judgment in defendants’ favor on all of plaintiffs’ claims, excepting their claims for violations of the New Jersey Conscientious Employee Protection Act. Plaintiffs’ complaint sought to challenge defendants’ “directed patrols” policy, which plaintiffs alleged constituted an illegal quota system. Plaintiffs further accused defendants of retaliation in violation of CEPA, the First Amendment, and the Family and Medical Leave Act. In support of their motion for remand, plaintiffs argued that because no federal claims remained, the court should have declined to continue exercising supplemental jurisdiction over the remaining state claw claims. In response, defendants argued that judicial economy warranted the court’s continuing exercise of jurisdiction. The court first noted that a district court’s decision whether to continue exercising supplemental jurisdiction after dismissing all other claims over which it had original jurisdiction was purely discretionary. The court declined to continue exercising supplemental jurisdiction. It first held that the U.S. Supreme Court had directed district courts to avoid making decision of state law. The court found that the determination of what conduct constituted a CEPA violation was best left to the New Jersey courts. The court further noted that, despite having the option of having their CEPA claims tried in federal court, plaintiffs wanted to have their claims heard in state court. [Filed May 9, 2017]

29-7-3274 Mendez v. U.S., D.N.J. (Hillman, U.S.D.J.) (13 pp.) In this medical malpractice action, plaintiff asserted that the negligence of the various medical professionals who treated her during her pregnancy caused the death of her baby during, or shortly after, the baby’s birth. One of the professionals was employed by CAMcare Health Corporation, a federally qualified health center, who was then substituted for defendant, United States of America pursuant to the provisions of the Federal Tort Claims Act. Defendant moved to dismiss for lack of subject matter jurisdiction, or alternatively, for partial summary judgment pursuant to Fed. R. Civ. P. 56. At issue was whether the New Jersey Charitable Immunities Act applied to claims against the doctor; and if so, whether NJCIA’s absolute immunity provision, or the damages cap provision, applied. The court granted the partial summary judgment finding the damages cap provision applied but denied dismissal for lack of subject matter jurisdiction. The court held that defendant was not entitled to absolute immunity thereby permitting the court to exercise subject matter jurisdiction over the action. Further, the court found that CAMcare was organized exclusively for hospital purposes under NJCIA and, therefore, the NJCIA damages cap applied. [Filed May 9, 2017]

32-7-3308 Pro-Spec Painting, Inc. v. Sherwin-Williams Co., D.N.J. (Simandle, C.J.) (21 pp.) Defendant sought judgment on the pleadings in plaintiff’s breach of contract, negligence and breach of warranty claims arising from the sale of allegedly defective primer. Plaintiff had a contract to paint a municipal water tower. The contract required the use of defendant’s primer. Plaintiff applied the primer, was concerned that it did not harden properly and contacted defendant. Defendant’s representative directed plaintiff to remove the coating after plaintiff demonstrated how easily it could be scraped off. Plaintiff claimed damages amounting to $190,000. Defendant argued that the language of the express warranty required the dismissal of the complaint and that the UCC applied and the negligence claims were barred by the economic loss rule. Plaintiff argued that the express warranty was not controlling. The court agreed that the UCC governed the alleged negligence claim and dismissed it. The court also agreed that plaintiff admitted the express warranty covered the claim. Additionally, plaintiff’s claims of breach of implied warranty failed because the express warranty explicitly disclaimed all implied warranties. Plaintiff’s claim for damages beyond those provided for in the express warranty were barred. [Filed May 15, 2017]

50-7-3286 Dartell v. Tibet Pharm., Inc., D.N.J. (Vazquez, U.S.D.J.) (27 pp.) Defendants sought summary judgment in plaintiff’s Securities Act class action alleging misrepresentations in defendants’ IPO registration documents. Defendant was a holding company that allegedly controlled a Chinese company that manufactured and sold traditional Tibetan medicines. It filed an S-1 registration statement with the SEC in 2010. The prospectus failed to mention that a Chinese court had entered default against the Chinese company because it defaulted on three bank loans. Defendant auditor of the IPO knew of the loan but failed to discover the Chinese court judgment. In 2012, the Chinese bank auctioned the operating assets of the Chinese company because of the unpaid loans. Defendant issued a press release in which its CEO offered to buy all outstanding shares of company stock and take the company private. NASDAQ halted trading of the stock and delisted it. Individual defendants filed for summary judgment arguing that they were not proper defendants under §11 and not “control persons” under §15. The court granted summary judgment to defendant employee of the underwriter because as an employee, he was not personally liable under §11. However, the court further found that both individual defendants were named in the prospectus as Board Observers and that there was a genuine issue of material fact as to whether they would be performing the functions of a director. [Filed May 10, 2017]

14-8-3275 U.S. v. Michael F. Durante, 3rd Cir. (Hillman, U.S.D.J.) (6 pp.) A jury convicted appellant, a physician, of one count of conspiracy to distribute oxycodone and fifteen counts of distribution of oxycodone. On appeal, appellant challenged the district court’s denial of his motion for a new trial under Fed. R. Crim. P. 33 based on an alleged violation of Brady v. Maryland, 373 U.S. 83 (1963). Appellant alleged that the prosecutor’s statements at co-defendant’s sentencing hearing showed that the government violated Brady by withholding evidence that co-defendant had admitted forging prescriptions and filling those forgeries. The district court denied appellant’s Rule 33 motion determining that no Brady evidence had been suppressed and that the alleged nondisclosure was immaterial to appellant’s guilt. The court affirmed holding appellant failed to establish that evidence was suppressed or that the prosecutor’s statements at the sentencing hearing were based on evidence that was not disclosed to appellant’s counsel. The court noted that the district court’s determination that no evidence was suppressed under Brady was based on testimony that was “coherent and plausible, not internally inconsistent and not contradicted by external evidence.” Because appellant failed to establish a claim under Brady, he failed to show that the district court erred in denying his Rule 33 motion for a new trial. [Filed May 9, 2017]

14-8-3309 U.S. v. Andrew Cox, 3rd Cir. (per curiam) (5 pp.) Appellant pleaded guilty to six counts of knowingly distributing child pornography in violation of 18 U.S.C. §2252A(a)(2)(A). He later moved to withdraw his guilty plea, but the district court denied the motion and sentenced him to 262 months in prison, followed by five years of supervised relief. Thereafter, appellant began to inundate the district court with pro se post-judgment motions; the district court denied the motions, including the instant motions challenging his conviction and sentence as well as request to recuse the judge. Appellee opposed and moved for summary affirmance as well as prohibition against appellant filing any additional motions or documents without prior permission. On appeal, the court affirmed finding to the extent appellant’s recusal motion simply took issue with the judge’s rulings, such complaints were not a basis for recusal. Further, appellants’ request to transfer his case through Fed. R. Crim. P 21(a) was misplaced as the rule permitted a court to transfer a criminal trial—appellant’s trial has already taken place. The court noted any additional arguments supporting recusal were frivolous. For such reasons, the court concluded there was no substantial question presented by the instant appeal. Accordingly, the court granted appellant’s motion to summarily affirm the district court’s order but denied appellee’s request to bar appellant from further papers without leave of court. [Filed May 15, 2017]