06-2-3444 Triffin v. United States Fire Ins. Co., N.J. Super. App. Div. (per curiam) (10 pp.) Appellant, purchaser of the rights to defendant’s alleged bad check debt, filed suit against respondent as the drawer of the check and against defendant as the payee. During the litigation, the trial court dismissed appellant’s complaint with prejudice for failure to provide court-ordered discovery. On appeal, the court reversed dismissal finding appellant’s violation of the subject discovery order should have been addressed by a sanction less severe than a dismissal of his complaint with prejudice. Following remand, respondent moved to sanction appellant for his continued failure to serve the subject discovery; the court directed the outstanding discovery be served and imposed a $300 restoration fee. Appellant provided the subject discovery, paid the restoration fee, and the matter was reinstated. Thereafter, the court granted summary judgment to respondent dismissing the complaint finding appellant failed to show he was either a holder of the check or a nonholder in possession who had the rights of a holder. On appeal, the court reversed in part concluding the trial court mistakenly exercised its discretion when it ordered appellant to pay a $300 restoration fee as appellant filed his motion to restore within the requisite thirty days of the dismissal and in accordance with Rule 6:4-6. However, the court affirmed summary judgment, finding appellant failed to show he was either a “holder” of the instrument or a “nonholder in possession of the [negotiable] instrument…[with] the rights of a holder.” N.J.S.A. 12A:3-301.

07-2-3428 Twp. of Greenwich v. Block 117, Lot 1 Assessed to Ralph Sabatini, N.J. Super. App. Div. (per curiam) (8 pp.) Respondent obtained tax sale certificates against appellant’s residential property for failure to pay property taxes resulting in a $20,000 balance owed. Appellant did not respond to the complaint and respondent obtained a default final judgement against him. Appellant moved to vacate the default judgment asserting he had not been served the notice of foreclosure. In response, respondent’s counsels certified he sent the notice to foreclose by regular and certified mail to the last municipal tax address as well as posting copies of the notice and directly communicating with appellant. The court denied vacating the final default judgment concluding appellant had been properly served. On appeal, the court reversed holding service of the notice of foreclosure had not been accomplished pursuant to either Rule 4:4-4(a)(1) or (c). The court held that evidence of communication with the parties’ counsels was not dispositive and noted that the parties’ counsel did not discuss the foreclosure action at all. Further, there were questions regarding whether respondent personally served appellant with the notice of foreclosure in light of the competing certifications. Accordingly, the court reversed and remanded denial of appellant’s motion to vacate the default judgment.

07-2-3472 Louro v. Pedroso, N.J. Super. App. Div. (per curiam) (10 pp.) Defendants appealed orders compelling principal of defendant law firm to attend a deposition and provide financial documents to plaintiffs in their efforts to collect an unpaid judgment. Plaintiffs sued defendants for unpaid rent, jury found for plaintiffs and trial judge ordered defendants to pay $21,000. Plaintiffs moved for principal to appear for a post-judgment deposition and to produce bank records and tax returns. The trial court ordered principal to attend the deposition and to pay plaintiffs’ attorney fees. Defendants appealed that and subsequent orders arguing for reconsideration and a protective order. The court found that the trial court’s notes refusing in camera review of allegedly protected documents were ambiguous and the matter had to be remanded for clarification. Defendants relied on the rules for conducting discovery depositions to argue counsel fees were erroneously awarded since plaintiffs did not make a request for deposition prior to filing their motion to compel. Plaintiffs were not required to file a request since their motion was based on defendants’ failure to comply with an information subpoena and actions that appeared to be attempts to evade paying a judgment. However, principal should not have been included on the orders for costs because the jury verdict was not against him personally.

09-2-3429 Robinson v. J & C Auto Outlet, LLC, N.J. Super. App. Div. (per curiam) (5 pp.) Respondent commenced the underlying action claiming appellants misrepresented the condition of a vehicle she purchased. She also asserted—on behalf of herself and a class of others similarly situated—that an unexplained $199 documentary fee was improperly charged. The trial judge granted partial summary judgment against appellants finding that the imposition of the documentary fee violated, among others, the New Jersey Consumer Fraud Act. Following trial on the remaining issues, the trial court found appellants liable on respondent’s claim of misrepresentation with regard to the vehicle’s condition and awarded compensatory damages. The judge also imposed personal liability for damages suffered by the class members. On appeal, appellants argued the trial judge’s findings did not support the imposition of individual liability for the class action damages. The court affirmed for substantially the same reasons as discussed in the written opinion and found that appellant’s attempt to refute respondent’s proofs regarding the vehicle’s condition lacked credibility. Further, personal liability was warranted based on appellant’s testimony that he “ran the company,” it was “his company,” and he was “the person who handled all day-to-day business activities.” In this particular case, the court was satisfied the judge’s findings that appellant solely managed and operated the appellant-business was more than sufficient to support the imposition of personal liability on all aspects of the class and respondent’s claims.

11-2-3473 Polifly Gas, Inc. v. Schrader, N.J. Super. App. Div. (per curiam) (22 pp.) Plaintiffs’ complaint stemmed from the sale of a gas station. The owners of the station, defendants, entered an agreement to sell the property to plaintiffs for $1.5 million, and agreed to finance $1.1 million of the purchase price. Shortly after closing, plaintiffs discovered that several of the underground storage tanks had a breach of their outer hulls. Plaintiffs were required to close the station to perform repairs on the tanks. Plaintiffs’ complaint asserted claims of fraud, equitable fraud, and negligence, and sought compensatory and punitive damages or reformation of the purchase agreement. Plaintiffs alleged that defendants were aware of the breaches and concealed that information from plaintiffs. In the alternative, plaintiffs argued that defendants were liable for equitable fraud, and negligently failed to adopt proper monitoring of the tanks. Defendants moved to dismiss, which was granted by the trial court on the basis that plaintiffs were aware there were problems with the tanks and had the opportunity to perform due diligence, and defendants disclaimed any representation regarding the condition of the station, such that the trial court concluded there was no fraud. On appeal, plaintiffs argued that the trial court erred in looking beyond the face of the complaint to consider questions of fact not before the trial court, and thus improperly resolved those questions before discovery had been completed. The court agreed, holding that the trial court erroneously considered whether plaintiffs were able to prove their allegations, where it should have instead considered whether plaintiffs alleged sufficient facts that, if proven, would establish their claim. Moreover, the court ruled that plaintiffs should have been given an opportunity to amend their claim upon dismissal. Accordingly, the court reversed the orders of the trial court.

11-2-3445 Canon Fin. Servs., Inc. v. Linwood City Bd. of Educ., N.J. Super. App. Div. (per curiam) (12 pp.) The parties executed a contract for the lease of seven articulated copiers. For 24 months, appellant made timely monthly payments but ceased, claiming it never received two copiers and for failure of defendant to service those delivered copiers. Respondent filed suit for breach of the lease naming defendant as well for its failure to provide the two copiers appellant alleged were never received. Default judgment was entered in favor of respondent against defendant after that entity failed to file a responsive pleading. Following discovery, respondent moved for summary judgment; the parties subsequently memorialized a settlement agreement. Upon appellant’s default of the last two payments under the settlement and return of the copiers, the motion judge held that respondent was entitled to enforcement of the agreement. On appeal, appellant argued the trial court erred in ignoring and otherwise not adopting the settlement agreement’s plain meaning and, alternatively, failure to conduct a plenary hearing to determine meaning. The court affirmed holding the resolution laid within the language of the lease, which explicitly referenced seven copiers and the corresponding payment terms as well as the return of the copiers, or a substitute copier. The court noted the language referencing the lack of possession of the copiers by respondent did not vitiate its obligation to return the requisite number of copiers or a substitute. The court was satisfied the judge correctly considered the agreement as a whole and in the context of the resolution of the matters in dispute between the parties, particularly as appellant failed to explain the missing copiers.

11-2-3458 Realty Appraisal Co. v. City of Jersey City, N.J. Super. App. Div. (per curiam) (38 pp.) City appealed the order finding that city breached its contract with plaintiff realty appraisal company and awarding damages and costs. City contracted with plaintiff to conduct a revaluation of all real property in the city. During the bidding process, city business administrator recused himself to avoid a potential conflict of interest. He later retired and went to work for plaintiff before city issued its request for proposals. City awarded contract to plaintiff, plaintiff began work on the project, a new mayor was elected and he suspended work on the contract. The trial court found that city’s termination of the contract was in bad faith. City argued the contract was illegal and violated public policy due to the conflict of interest created by plaintiff’s employment of city’s former business administrator. The court noted that city’s corporate counsel had found that administrator’s post-retirement employment satisfied the city’s conflict of interest requirements and gave written approval and court found compelling evidence of administrator’s proper recusal in the entire revaluation process. The court also agreed with the trial court that plaintiff’s failure to comply completely with the ownership disclosure requirement was not a material deviation that invalidated the contract and that city acted in bad faith in terminating the contract. The court found no basis to disturb the damage award.

31-2-3430 Jersey Cent. Power & Light Co. v. Pontecorvo, N.J. Super. App. Div. (per curiam) (17 pp.) Plaintiff appealed the no cause jury verdict in a damages only jury trial. Plaintiff sought to recover the cost to replace a utility pole hit by defendant’s vehicle. Defendant backed into the utility pole and left the scene. An anonymous caller notified the police. Defendant admitted that he made contact with the pole but stated that the pole was old and leaning over before he hit it and there was no change in its condition after the accident. Plaintiff argued the verdict was against the weight of the evidence. The court found that plaintiff provided neither direct testimony nor documents showing that the pole needed to be replaced as a result of defendant’s accident. Additionally, plaintiff’s trial witnesses did not examine the pole until ten months after the accident. The jury could have reasonably relied on defendant’s testimony that the pole was unchanged after the accident. At trial, plaintiff did not object to the language on the verdict sheet but now argued the question asking if plaintiff had proven that the pole was damaged enough to require replacement enhanced its burden of proof. The court found that there was no miscarriage of justice since plaintiff sought replacement cost as its measure of damages.

39-2-3459 Pereira v. Oasis Foods, N.J. Super. App. Div. (per curiam) (10 pp.) This appeal involved a workers’ compensation claim by appellant for medical benefits for an alleged derivative injury he sustained while receiving treatment for a recognized work-related injury suffered six month earlier. Following a plenary hearing, the judge concluded the alleged derivative injury was not compensable as appellant failed to prove it was work-related or arose from his earlier work related injury. On appeal, appellant argued the judge’s findings were not supported by the evidence, she relied upon “incompetent evidence” and errors made by his first attorney, and failed to provide an interpreter. The court affirmed the judge’s findings and reasons that, based on her evaluation of the parties’ experts’ opinions and what she described as appellant’s conflicting testimony, appellant “failed to sustain his burden of proof” as the evidence established “it was more likely than not that [the] hernia was caused over a long period of time from the diastasis recti.” The judge explained she found appellant’s “testimony varied with each doctor he consulted from what he stated in open court [and it] varied from the medical records.” Further the court rejected appellant’s alleged new evidence developed after the hearing as such should be brought before that court for consideration. Finally, the court found appellant was not denied due process for lack of an interpreter as he never requested such and testified at length without any impediment.

25-2-3432 In the Matter of Saunders, N.J. Super. App. Div. (per curiam) (12 pp.) The DOC charged appellant, corrections officer recruit with failure to perform duties, insubordination, neglect of duty and conduct unbecoming an officer as a result of her actions during a cell search. Appellant then filed a complaint with the DOC’s Equal Employment Division alleging she was discriminated against based on disability, color and race. EED investigated and found no evidence of discrimination. An ALJ upheld the disciplinary charges and she was terminated. Appellant was charged for failing to properly search during a cell to cell search for a weapon. Her sergeant said that she could not have searched the cell properly because she only took six minutes to do it. Appellant alleged the sergeant did not like her and thought she was “slow” because she stuttered. The ALJ found the sergeant credible, that appellant violated department rules and regulations by failing to properly search the cell and disobeying an order to re-search the cell and that her offense was particularly serious because it contributed to a potential threat. The court found that the termination decision was supported by sufficient evidence in the record as a whole.

25-2-3447 Thompson v. Bd. of Review, Dep’t of Labor, N.J. Super. App. Div. (per curiam) (7 pp.) Respondent hired appellant as a part-time cashier at its store; her employment was later terminated after a customer complained appellant used foul language in the register line. When confronted, appellant admitted she used profanity, but asserted she was responding to obscenities directed at her by other people in the store. Despite union assistance, appellant did not object to her termination contending she had “been forced to resign and no-longer [felt] safe based on the practices that company has subjected me to.” Appellant subsequently applied for unemployment compensation. Following a determination and adoption by respondent Board, appellant was informed she was disqualified for unemployment benefits as she was terminated for misconduct and had failed to actively seek work. On appeal, appellant argued she was wrongfully terminated due to a hostile work environment, was subject to unfair practices, and should have been determined eligible. The court affirmed holding an individual was not eligible for unemployment compensation unless the individual “is able to work, and is available to work and has demonstrated to be actively seeking work.” Ford v. Bd. of Review, 287 N.J. Super. 281, 284 (App. Div. 1996). Here, appellant testified she was not actively seeking employment due to medical treatment, but admitted her doctor did not tell her she was unable to work. As such, appellant was not eligible for unemployment compensation pursuant to N.J.S.A. 43:21-4(c)(1). The court further noted that the agency’s definition of simple misconduct was under review for corrective action, but affirmed the instant decision on the alternative determination of appellant’s failure to actively seek employment.

25-2-3460 In the Matter of Holmes, N.J. Super. App. Div. (per curiam) (10 pp.) Appellant worked for city housing authority and sought classification review with the SLO in 2010 contending that she had performed the duties of purchasing agent since 2006. SLO determined that she had performed the duties of purchasing agent since 2002 and advised respondent to consider her a purchasing agent. Respondent appealed and the Commission affirmed the SLO. Appellant filed a letter with the Commission seeking enforcement of its decision, noting that her salary had not changed. Respondent replaced the title of assistant purchasing agent with the title of principal buyer. Commission denied the request for enforcement as moot and stated that it had no jurisdiction over local salaries that did not fall outside the minimum or maximum range for the title. Eventually the CPM issued a classification review and determined that appellant was serving provisionally in the title of principal buyer and appellant requested retroactive compensation. Commission denied the request as untimely. The court agreed that her request for additional compensation was untimely because she did to meet the time limit set out in N.J.A.C. 4A:2-1.6(a). Appellant’s retaliation argument failed because respondent had no legal obligation to reimburse her for training seminars, even though it had done so in the past.

25-2-3446 Castronova v. Cnty. of Bergen, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant resigned his position as a Haworth police officer, under suspicion of involvement in organized crime and allegedly in exchange for an agreement not to be prosecuted. Appellant’s resignation letter further acknowledged that his former employer would provide a copy of the letter to any prospective law enforcement employer and “shall be immune from civil suit for so doing.” In his complaint, appellant asserted that respondent-prosecutor attempted to persuade other law enforcement agencies to refrain from hiring appellant, based on the circumstances surrounding his resignation. Additionally, appellant asserted, among other causes, tortious inference with economic advantage, unwarranted criminal prosecution, and violation of constitutional rights. The court dismissed the action for failure to state a claim as well as prosecutorial immunity and that appellant had no constitutionally-protected property interest in prospective employment as a law enforcement officer. On appeal, the court affirmed denial of reconsideration for the reasons stated by the trial judge. Further, the court affirmed orders relating to change of venue, judicial assignment, and dismissal on mootness grounds.

25-2-3431 Hammer v. Hair Sys., Inc., N.J. Super. App. Div. (per curiam) (38 pp.) Plaintiff, a former board member and manager of defendant, a hair care business, filed suit for unlawful termination. Defendant justified the termination pursuant to an investigation into claims plaintiff sexually harassed other employees. Following years of litigation and a detailed and cogent opinion by the trial judge, plaintiff appealed arguing the trial court erred in its application of the legal standard, in its holding that individual defendants could not be sued for tortious interference, denial of plaintiff’s right to purchase stocks, miscalculation of fair value, and denial of attorney’s fees. On cross-appeal, defendants asserted the trial court erred in finding plaintiff to be an oppressed minority shareholder and in awarding him attorney’s fees. The court affirmed in substantial part holding plaintiff’s conduct in the workplace warranted termination and such did not violate any reasonable expectation of continued employment. Further, the court found that actions taken by defendant constituted oppression under N.J.S.A. 14A:12-7(1)(c), including their use of corporate money for personal expenses. Moreover, the court affirmed summary judgment finding sufficient evidence supported that defendants’ termination of plaintiff was in the interest of the business and not resulting from personal malice or without justification. However, the court reversed as to the attorney’s fees awarded to plaintiff finding that the total fees were more than 80 percent of defendant’s offer, and the fact that they prepaid some fees did not diminish such percentage.

20-2-3433 Dattoli v. Dattoli, N.J. Super. App. Div. (per curiam) (11 pp.) Defendant appealed the default divorce judgement and argued the trial judge used the wrong income for him and that plaintiff committed perjury in her testimony that he did not pay family expenses and had no relationship with the children. The parties married in 2000, had three children and plaintiff filed for divorce in 2015. Defendant did not appear for the default hearing. Plaintiff’s testimony was very limited and there was almost no testimony regarding custody, parenting time or alimony. Documents showed that the marital home was in foreclosure and documents subpoenaed from defendant’s employer showed his income. The trial court gave plaintiff sole legal and physical custody, ordered durational alimony and ordered defendant to pay health insurance and other expenses for the children. The court found that the trial court erred by making virtually no findings to support his decision, and where he did make findings, they were inconsistent or in error. Plaintiff did not meet her burden of proof and the record was insufficient to show how the trial court arrived at its decision.

20-2-3434 Lomangino v. Lomangino, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed the trial court’s denial of her order to show cause seeking to relocate with the parties’ children to Maryland. While married, the parties resided with their two children in Tinton Falls, where defendant operated his father’s business; plaintiff was employed as a government contractor at Fort Monmouth. The parties’ final judgment for divorce incorporated a matrimonial settlement agreement, which gave the parties joint legal custody over the children and designated plaintiff the parent of primary residence as the children would continue to attend the Tinton Falls school district so long as defendant continued to reside in Tinton Falls. Subsequently, plaintiff’s employer informed her that her position at Fort Monmouth was being relocated to Maryland, and that she would be terminated if she did not accept transfer. Plaintiff filed the present order to show cause to relocate with the children, which was denied by the trial court. On appeal, plaintiff argued that the trial court’s findings were erroneous and constituted an abuse of discretion, and that the trial court erred as a matter of law by failing to grant plaintiff’s application under Baures v. Lewis, 167 N.J. 91. The court declined plaintiff’s invitation to exercise original fact-finding jurisdiction, and affirmed the decision and findings of the trial court. The court noted the trial court’s rejection of plaintiff’s assertion that her change in employment constituted changed circumstances sufficient to warrant modification of the MSA was based on its finding that the terms of the MSA were motivated by the fact that plaintiff might have been subjected to employment change. Thus, because plaintiff could not show her transfer was unanticipated, the court held that she further failed to show that the terms of the MSA were no longer in the best interests of the children.

20-2-3475 A.C. v. M.P.C., N.J. Super. App. Div. (per curiam) (6 pp.) On appeal, the court affirmed the issuance of a final restraining order for substantially the same reasons set forth by the trial judge. Following a hearing, the trial judge granted respondent a final restraining order predicated upon observations regarding the demeanor of the witnesses and the manner in which they testified, considered how they allegedly gained knowledge of the events about which they testified, evaluated the plausibility of their versions of events, and examined their motives and biases. The judge found that the dual-element test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-128 (App. Div. 2006) was met: (1) appellant committed the predicate act of assault and (2) a restraining order was necessary to protect respondent from immediate danger or prevent further abuse. The trial judge noted appellant picked up a heavy fruit bowl, ran toward respondent, and threw it directly at her “with full force” from a close distance. These circumstances presented evidence of motive and intent sufficient to prove that it was appellant’s conscious object to cause respondent bodily injury, establishing the elements of the predicate offense. Further, respondent’s credible testimony regarding the history of domestic violence between the parties, and the existence of immediate danger, substantiated the judge’s determination that a final restraining order was necessary to prevent future acts of domestic violence. Accordingly, the court affirmed the grant of a final restraining order.

22-2-3435 In the Matter of St. Mary’s Gen. Hosp. SFY 2016 Charity Care Subsidy Appeal, N.J. Super. App. Div. (per curiam) (10 pp.) St. Mary’s General Hospital appealed from the final agency decision of the New Jersey Department of Health, which denied the hospital’s appeal of the department’s 2016 charity care subsidy allocation. The hospital argued that the department’s allocation failed to use the most recent census data, as required by statute. The hospital alleged that the department used 2000 census data instead, and that using that data deprived the hospital of enhanced subsidies accorded to the 10 municipalities in New Jersey with the lowest median annual household income. The court noted that the legislature had instructed the department to use the “source data for the most recent census data as used in the State fiscal year 2015″ to calculate the 2016 charity care subsidy. Although the hospital contended that the department should have used the 2010 five-year American Community Survey census report, the department asserted that it used the same data used in state fiscal year 2015 to calculate the 2016 allocations. On appeal, the court agreed that the department complied with the language of the legislature’s appropriations act in using the 2000 census as the most recent census data, since the department had used that data in state fiscal year 2015. The court held that it was the legislature’s intention that the department continue to use that same census data for the 2016 allocations. The court rejected the hospital’s assertion that the department now uses the ACS census report, finding that such a requirement was only adopted in the most recent appropriations act, and holding that the department was not free to select any ACS census report for its subsidy calculations. Accordingly, the court affirmed the department’s final agency decision.

23-2-3461 Jarantow v. Winant Bomack Ins. Agency, N.J. Super. App. Div. (per curiam) (6 pp.). Plaintiff operated Priced Rite, LLC, a used car business, and contacted defendant to obtain business insurance for the LLC, providing a check drawn on the account of the LLC. Defendant then contacted Zurich American Insurance Company, which issued the LLC a business insurance policy. Shortly after coverage commenced, plaintiff contacted defendant to cancel the insurance. Defendant faxed plaintiff’s cancellation form to Zurich, which canceled the policy. Plaintiff advised defendant to mail the refund check directly to him instead of the LLC’s address because plaintiff was “not there anymore.” Zurich issued a refund check payable to “Priced Rite Auto Sales, LLC,” which was subsequently negotiated, apparently not by plaintiff. Defendant contacted plaintiff to explain that although they had received plaintiff’s instruction to send the refund directly to him, they had no record of a subsequent communication from plaintiff providing a mailing address. Plaintiff filed suit against defendant for the refund, and the trial court entered judgment in favor of plaintiff, finding his testimony to be credible. In support of its motion to vacate, defendant argued there was no evidence it had received the refund money from Zurich, which was rejected by the trial court, which concluded that defendant could have made sure “any refund check was processed through their office” but instead “simply dropped the ball.” The trial court also held that defendant assumed responsibility for the refund because it was acting as a middleman for Zurich. On appeal, the court reversed the trial court and vacated the judgment, finding no reason to conclude other than that the refund check was sent to the LLC at its address. The court held that Zurich and defendant were statutorily required to send the check to the LLC, the insured.

25-2-3462 Wright v. Twp. of Cherry Hill, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the order denying his motion for reconsideration of the grant of summary judgment in favor of defendant. Plaintiff was a police officer for defendant. After an automobile accident while on duty, plaintiff suffered a brain injury that later caused plaintiff to suffer from headaches, major depression, and numerous personal and psychological problems. Despite his injury, plaintiff returned to full duty after several psychological examinations. However, plaintiff was later suspended after an internal affairs investigation discovered plaintiff had engaged in improper conduct, including failing to appear in court when required and abandoning hundreds of law enforcement items and documents. While on paid leave, plaintiff submitted to an examination and was found to be suffering from severe depression. Although counseling was recommended, plaintiff failed to fully comply. Plaintiff failed to appear at a disciplinary hearing, and the arbitrator agreed that termination was warranted because plaintiff could no longer function as a police officer. Plaintiff filed suit, asserting a NJLAD claim based on alleged adverse employment consequences from a disability, and a NJCRA claim based on an alleged violation of his constitutional rights during an illegal search of his home. On appeal from the grant of summary judgment in favor of defendant, the court affirmed. The court held that the trial court properly adopted defendant’s arguments and record facts deemed material and admitted in determining that plaintiff had failed to set for a prima facie case of disability discrimination, since defendant had asserted a nonpretextual, nondiscriminatory basis for terminating plaintiff.

26-2-3436 Am. Dream at Marlboro, LLC v. Planning Bd. of Twp. of Marlboro, N.J. Super. App. Div. (per curiam) (20 pp.) Respondent filed the underlying action following defendant-Board’s denial of its application for a new plan on the grounds that it failed to record the prior deed restriction. Following an original summary judgment in favor of defendant and appeals, the Supreme Court affirmed and modified the court’s earlier decision to reverse and remand the Law Division’s initial determination that respondent failed to demonstrate it should be relieved of the deed restriction and granting appellant/intervenor summary judgment dismissing the complaint. Appellant appealed from the Law Division’s orders entered on remand, denying her motions for summary judgment and to strike respondent’s expert’s report and testimony, and granting final judgment in favor of respondent. The court affirmed holding the trial court properly determined there was no evidence of concern that the deed restrictions were meant to address. Thus, the continued imposition of the deed restriction after respondent modified its plans to eliminate the disputed lot was unwarranted. Further, the trial court was left with no other evidence to support or contradict a finding that the deed restriction was part of an effort to accomplish some other goal. As an ambiguous restriction will not be enforced in equity so as to impair the alienability or use of property, the court affirmed that the restriction should no longer be enforceable. Finally, the court affirmed the determination that respondent’s unclean hands did not bar the court from granting it the equitable remedy of relief from a deed restriction.

26-2-3449 Zervopoulos v. Planning Bd., N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiffs’ appealed the Planning Board’s approval of a final site plan and building variances for the development of the lot next to their laundromat. Developer sought approval to build a three-story mixed use building with retail and residential space. Developer’s witnesses admitted that they did not consider the easement relating to shared parking space with the laundromat when determining the effects of the development. Plaintiffs filed a complaint challenging the Board’s decision, arguing that the proposal to add two additional floors of residential space violated the amended easement agreement as the parties intended to share parking of the laundry and retail store only and asserting that the use restriction limited developer to constructing only retail stores. The trial judge dismissed the challenge to the plan approval and found that there was no actual or anticipatory breach of the easement agreement. The court found that the record provided ample support for the Board’s decision to approve the site plan and variances and there was no proof that the trial judge erred in his interpretation of the easement.

26-2-3464 Robinhood Plaza, Inc. v. City Council of Jersey City, N.J. Super. App. Div. (per curiam) (9 pp.) (06/09/17) Respondents owned property subject to an adopted ordinance altering the zoning requirements on its property. Respondent filed the underlying complaint challenging the legality of the plan, and contending that the “downgrade of zoning” violated the Local Redevelopment and Housing Law. After negotiations, the parties entered into a settlement agreement which incorporated dismissal of the complaint without prejudice, pending implementation of the executory terms of settlement and amended ordinance. Following appellant’s adoption of an amended ordinance in violation of the settlement agreement, respondent moved to enforce litigant’s rights and requested the court compel appellant to adopt an ordinance in compliance with the settlement agreement. Appellant argued the settlement agreement was “ultra vires because it contained agreements for future Council action and such a condition impermissibly restricts the legislative function of a future Council.” In granting respondent’s request, the trial court found that, under LRHL, a municipality had the power to adopt a redevelopment plan and execute contracts in its exercise of agency powers. On appeal, the court affirmed holding the LRHL authorized appellant to undertake obligations or limit its powers as well as effectuate a redevelopment plan entered into by agreement. Further, the LRHL recognized that by their very nature, redevelopment projects require many years to come to fruition and it would be illogical to conclude that an agreement entered into by a council would not extend beyond that council’s term. Accordingly, the court affirmed that the agreement was not ultra vires and must be enforced. (Revised)

26-2-3463 Avalon Princeton, LLC v. Princeton, N.J. Super. App. Div. (per curiam) (17 pp.) In an effort to construct a 280-unit rental community, including 56 affordable units, the parties entered into a developer’s agreement which contained a deed restriction. Appellant contended he drafted the deed restriction “in protest” and filed the underlying action to challenge its legality. As the parties agreed that the case presented a purely legal issue, they opted to forgo discovery and moved for summary judgment. The motion judge granted respondent summary judgment concluding that the Uniform Housing Affordability Control (UHAC) §26.1 set a “30-year minimum to affordability controls” with respondent determining when such control shall be lifted. The judge held §26.11 pre-empted the municipal ordinance relied upon by appellant, and that the developer’s agreement was unenforceable as it “imposed an affordability control that contravened UHAC regulations.” On appeal, the court affirmed holding the plain language of the statute required language that a deed restriction was to remain in place for “at least thirty years.” Further, the court reviewed the legislative history finding the legislative intent was that the restrictions were to remain for a minimum of 30 years, the municipality may elect to release the affordability controls only after the expiration of the minimum control period and only by way of a municipal ordinance. Further, the court held respondent’s ordinance was pre-empted by the UHAC regulations as it provided for a firm 30-year affordability control period rather than stating “at least thirty years.” Accordingly, the court affirmed summary judgment for respondent.

04-2-3450 Portes v. Tan, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed the dismissal of his legal malpractice complaint for failure to comply with the requirements of the Affidavit of Merit Act. Plaintiff filed a pro se action alleging legal malpractice against the attorney he hired to submit an expert report in his legal malpractice action against the attorneys who represented him in an employment discrimination case. The trial court had rejected the expert report and dismissed action against the employment discrimination case attorneys. Attorney who wrote the expert report moved to dismiss plaintiff’s legal malpractice action for failure to file a timely affidavit of merit. Plaintiff moved to amend his complaint to add a count for breach of contract. The trial judge denied the motion to amend and dismissed the complaint. The court found that the trial judge properly dismissed the complaint as a matter of law. Plaintiff’s cause of action was clearly predicated on legal malpractice. Although the parties had a contract, the essence of the contract was for attorney to provide a legal opinion on the performance of other attorneys. Plaintiff had to show that attorney deviated from the standard of professional competence expected from an attorney and that required an affidavit of merit.

04-2-3465 Petrone v. Sabo, N.J. Super. App. Div. (per curiam) (10 pp.) Appellant’s financial services firm retained respondent-law firm to defend and represent them at a National Association of Securities Dealers (NASD) arbitration hearing; respondent-attorney was the attorney who handled the matter. As appellant believed he was not liable, appellant opted against settlement and subsequently retained his own attorney. All parties eventually settled; appellant then brought an action against the firm for misrepresenting his contribution to the settlement in its requisite “Form U4.” A three-member panel found in appellant’s favor and ordered the firm to remit damages as well as expunge all references from appellant’s registration records. Appellant filed the underlying legal malpractice action alleging respondents had a conflict of interest when they represented both him and the financial services firm, abandoned appellant days before the arbitration hearing, and were responsible for the misleading content in the forms. Respondents moved for, and were partially granted, dismissal of compensatory damages under collateral estoppel, but appellant was permitted to move forward with any damages as a result of the improper forms. Although the parties entered into a settlement order, appellant appealed, arguing the trial court erred by barring him from relitigating subject damages on the grounds of collateral estoppel. The court affirmed, holding the damages sought were previously litigated, appellant had adequate opportunity to fully adjudicate the matter, and a final judgment was entered on the merits.

31-2-3438 Wright v. Premier Bus. Mgmt., N.J. Super. App. Div. (per curiam) (10 pp.) Plaintiff appealed the grant of summary judgment to defendant in a personal injury action. Plaintiff lived in a building owned by defendant. A storm caused an electrical power outage that lasted for several days. The stairwells in the building had battery operated emergency lights but the batteries only lasted six hours and were recharged by the building’s electricity. Plaintiff walked down a dark stairwell using a hand-held flashlight, slipped on the last two steps and broke her ankle. She alleged her injury was caused by the failure of the emergency lighting which she argued was required by state and local building codes. Defendant contended that the power outage was an act of God and that plaintiff failed to provide expert testimony to support her claim that the emergency lighting did not comply with state and local codes. The court found that the trial court correctly determined that expert testimony was required to support plaintiff’s argument founded on violations of state and local codes. Additionally, res ipsa loquitor did not apply because the electrical outage was beyond defendant’s control, there was no expert testimony establishing the standard of care under the codes and her injury resulted, at least in part, from her own negligence.

31-2-3451 Torres v. Krank, LLC, N.J. Super. App. Div. (per curiam) (9 pp.) When plaintiff joined defendant’s gym, he signed a membership commitment, waiver, and release of liability form. Plaintiff subsequently injured his Achilles tendon while performing an exercise during a class run by defendant Ramon Escobar, who ran the class on Sundays when the gym was closed. The class cost an additional fee not included with the gym membership. Defendant moved for summary judgment, relying on the waivers of liability. The trial court granted the motion, ruling that the waiver released defendant and was fully applicable to the class where plaintiff was injured. On appeal, plaintiff challenged the trial court’s determination that Krank LLC and Krank Systems LLC were the same entity and therefore both covered by plaintiff’s waiver, and that the waiver applied to Escobar’s class because the waiver expressly included “open classes” such as Escobar’s. The court agreed with the trial court’s determinations, finding that “open classes,” though not defined in the waiver, were classes open to members of the gym, as Escobar’s class was. Finally, the court rejected plaintiff’s assertion that the question of gross negligence should have gone to the jury, holding that the record did not support a finding of gross negligence because plaintiff did not complain of discomfort while performing the exercise and performed multiple repetitions until his injury occurred, without indicating that he needed to stop performing the exercise. Accordingly, the court affirmed summary judgment in favor of defendant.

31-2-3452 Valentine v. Almanzar, N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the grant of summary judgment in favor of defendants. Defendants resided in their three-family home that they owned, renting out two of the units to nonrelative tenants. There was no evidence that defendants or their tenants used the property for office or other business purposes. Plaintiff allegedly suffered injuries when he slipped and fell on ice or snow on the public sidewalk abutting defendants’ property. Plaintiff filed suit against defendants, alleging that they breached their duty to maintain the sidewalk in a safe condition. Defendants moved for summary judgment, arguing that as residential homeowners they had no duty to clear snow and ice from the public sidewalk abutting their property. Finding that defendants owned the property and occupied 1/3 of it, that there were no commercial entities located at the property, and that the property was not profit-generating for defendants, the trial court ruled that defendants’ property was not commercial and granted their motion for summary judgment. On appeal, plaintiff argued that the trial court erred in classifying defendants’ property by disregarding its capacity to generate a significant profit once defendants’ mortgage was paid off. The court affirmed the trial court’s findings and ruling, holding that the record supported the determination that the property was residential in nature, noting that it was defendants’ long-time residence and that the small profit they generated from renting the other two units, after making mortgage payments, was insufficient to cover upkeep expenses, which defendants paid for from their personal funds. The court found that defendants were not using the property to make money but instead to retain their home. Accordingly, the court affirmed the grant of summary judgment to defendants.

31-2-3476 DiGiovanni v. Saker Shop Rites, Inc., N.J. Super. App. Div. (per curiam) (21 pp.) Plaintiff Deborah DiGiovanni was a cashier at one of defendant Saker Shop Rites, Inc.’s ShopRite supermarkets, and alleged that she slipped and fell on a puddle of water near an ice machine at the entrance to the store. The trial court granted defendant summary judgment on the basis that it was plaintiff’s employer and therefore immune from suit under the Workers’ Compensation Act. Plaintiffs did not appeal the grant of summary judgment to Saker Shop Rite, but instead only appealed the grant of summary judgment to defendants Wakefern Food Corporation, which supplied the ice machine, and Arctic Glacier, Inc., which was contracted to service and repair the ice machine, and Leer, Inc., which manufactured the ice machine. Plaintiffs argued that the ice machine was not properly serviced, which caused water to leak. Plaintiffs had retained an expert, George Meinschein, who drafted a report that was barred by the trial court as net opinion. Meinschein concluded that defendants failed to have the machine properly serviced and their failure to keep service records was indicative of substandard maintenance practices; the report did not allege any design or manufacturing defects. However, the court noted that Meinschein’s deposition testimony provided no support for these conclusions, or supported plaintiff’s allegation that the water leaked from the ice machine. Thus, the court affirmed the exclusion of Meinschein’s report. The court further affirmed the grant of summary judgment to defendants. The court held that without an expert opinion, plaintiffs failed to establish an applicable duty of care or a theory of how defendants breached their duty. The court rejected plaintiffs’ assertion that no expert testimony was necessary, ruling that an expert was necessary to explain the mechanical intricacies of the ice machine to the jury.

31-2-3466 Stevens v. Gonzalez, N.J. Super. App. Div. (per curiam) (16 pp.) Appellant’s personal injury action arose when respondent struck his vehicle “head on”; appellant refused medical care at the scene, citing his only injuries were a pain in his left wrist and left foot primarily. Appellant subsequently admitted himself to the hospital where he was diagnosed with a sprain to his left wrist and left foot as well as a fractured sternum. Appellant alleged he sustained permanent injuries as a result of the accident caused by respondent’s negligent operation of her vehicle. The trial court granted a directed verdict on respondent’s liability, but determined the case would proceed on the issue of damages only. The jury returned a damage award of $4,125 in lost wages, determining appellant’s injuries stemmed from the accident, but were not permanent. On appeal of appellant’s denied motion for a new trial, the court affirmed, holding the jury charge as to the aggravation of a pre-existing condition was correct and effective in providing the jury with the proper guidelines from which to render a verdict and any error was not capable of producing an unjust result. Further, it was reasonable to conclude that even if the jury found appellant’s asymptomatic pre-existing condition was aggravated by the accident, the jury may also have concluded that the aggravated condition did not constitute a permanent injury. Accordingly, the court affirmed denial of a new trial.

31-2-3477 Innarella v. Wedgewood Condo. Ass’n, Inc., N.J. Super. App. Div. (per curiam) (11 pp.) Appellant, a former superintendent for respondents, filed the underlying personal injury action alleging he tripped and fell on a broken step while walking down an exterior staircase at respondents’ condominium complex. Respondents moved for summary judgment, arguing appellant held the relationship of a special employee and therefore his third-party claim was barred under the workers’ compensation statute. The trial court granted summary judgment for respondents finding there was an implied contract between the parties with respondent-management company having the right to control appellant’s job duties of the inspection, repair and maintenance of the property. On appeal, the court affirmed, holding respondent-management company was a “borrowing employer” precluding appellant from bringing an action against it. The court noted appellant’s employment contract advised that all of his work assignments would be through respondent-management company and controlled by respondent-management company. Although respondent-management company did not remit wages to appellant, the court found a special relationship existed between the parties warranting an implied contract and barring appellant’s claim under the workers’ compensation statute.

34-2-3439 Wells Fargo Bank, N.A. v. Torney, N.J. Super. App. Div. (per curiam) (7 pp.) Edward Shuman, the winning bidder at a sheriff’s sale, appealed from the order of the trial court vacating the sale. Following entry of final judgment of foreclosure, plaintiff submitted its sheriff sale package to the county sheriff, which included a short form property description to be used by the sheriff to advertise the sale. The description disclosed that the property was subject to a first mortgage and that all interested parties were to rely upon their own investigation of any remaining outstanding interests. However, the sheriff’s website, where Shuman learned of the sale, did not disclose the prior mortgage, nor was the existence of the mortgage disclosed at the sale. Shuman was the winning bidder, and tendered a $10,000 deposit; later that same day, Shuman first learned of the prior mortgage. When plaintiff refused to return his deposit, Shuman filed the present action. At oral argument, plaintiff argued that Shuman was not a first-time purchaser at a sheriff’s sale and should have read the sale package submitted to the sheriff. Shuman argued that plaintiff did not comply with the statutory advertisement requirement. The trial court agreed with Shuman and vacated the sale, but ruled that he had fallen short of his obligation to conduct diligent inquiry, and allowed plaintiff to retain $2,500 to relist the property and pay taxes and interest until a new sale. On appeal, Shuman argued that he was entitled to return of the full deposit. The court affirmed the ruling of the trial court, holding that the trial court did not abuse its discretion in balancing the equities. The court held that both parties bore responsibility since plaintiff should have disclosed the mortgage, but noted that had Shuman made any inquiry about the property he would have discovered the mortgage.

14-2-3420 State v. Christopher Desa, N.J. Super. App. Div. (per curiam) (15 pp.) Following a multi-day trial, appellant was found guilty of, among other things, robbery, eluding a law enforcement officer, aggravated assault and criminal mischief. The trial judge imposed an aggregate 38-year term of imprisonment. On appeal, appellant argued the prosecutor’s opening statement was not supported by the record and violated his constitutional right to a fair trial as well as a sentencing error by failing to merge his eluding conviction with causing injury while eluding. The court affirmed appellant’s conviction but vacated the sentence merging appellant’s two eluding convictions. The court concluded the prosecutor’s opening statement did not rise to the level of prosecutorial misconduct requiring reversal of appellant’s convictions. The prosecutor’s opening statement was limited to the facts respondent later presented at trial and his comments drew legitimate inferences from those factors. However, the court vacated the eluding sentencings, concluding the eluding and the assault occurred congruently and qualified for merger under N.J.S.A. 2C:1-8(a). The court noted that appellant may be prosecuted for each offense but may not be convicted of more than one offense if one offense is included in the other. Accordingly, the court affirmed the convictions, but vacated the eluding sentences and remanded for resentencing.

14-2-3421 State of New Jersey v. Nicholas M. Ives, N.J. Super. App. Div. (per curiam) (9 pp.) Appellant was a senior corrections officer at Bayside State Prison. An inmate gave a correction officer a bundle of heroin with a note attached, implicating appellant in prison drug transactions. Thereafter, the New Jersey Department of Corrections Special Investigations Division began investigating appellant which resulted in his indictment for official misconduct and conspiracy to distribute a controlled dangerous substance. Following testimony, the jury found appellant guilty of both charges; the trial judge denied appellant’s motion for a new trial, and, after merging the two counts, sentenced appellant to a seven-year prison term with a five-year period of parole ineligibility. On appeal, appellant argued the convictions were clearly against the weight of the evidence and the sentence imposed was manifestly excessive. The court affirmed the convictions finding the jury’s assessment of the witnesses’ credibility and all of the evidence presented, the jury could reasonably find appellant guilty of both charges. As such, appellant’s convictions were not against the weight of the evidence, and there was no miscarriage of justice warranting a new trial. However, the court vacated appellant’s sentence as the judge’s findings on the applicable aggravating and mitigating factors conflicted and were not supported by the record. Because the trial judge’s finding of mitigating factor related to the risk of re-offense and no prior history of criminal activity conflicted, the court remanded for resentencing.

14-2-3424 State v. Rucker, N.J. Super. App. Div. (per curiam) (22 pp.) Defendant appealed from his conviction for unlawful possession of a firearm, as defendant had a Michigan felony conviction. Defendant was arrested after local law enforcement was contacted by authorities in Detroit regarding an arrest warrant that had been issued for defendant, a fugitive, who was believed to be in possession of a firearm that was a murder weapon. Defendant was ultimately arrested in a motel, found nearby a rolled-up mattress that contained a loaded handgun. On appeal, defendant challenged the trial court’s denial of his suppression motion, as well as the failure to award him sentence credits and state reasons for imposing consecutive sentences. As to defendant’s suppression claim, the court noted that defendant failed to raise it before the trial court. Nevertheless, the court held that the arrest warrant was sufficient to authorize police’s entry and search of the motel room where police reasonably believed that defendant was an occupant of the room. The court rejected defendant’s contention that a search warrant was required because the room was the residence of a third party. However, the court vacated defendant’s sentence and remanded for resentencing. The court found that the trial court failed to discuss the factors required for imposition of consecutive sentences, holding that it was insufficient that the plea agreement alone called for consecutive sentences. The court further noted that a defendant was entitled to credit even if the charges were not directly related to defendant’s incarceration. Nevertheless, the court denied defendant’s request for increased credits, ordering that, upon defendant’s resentencing on remand, the trial court should apply defendant’s credits to the front of the aggregate sentence regardless of whether it was concurrent or consecutive.

14-2-3425 State v. Williams, N.J. Super. App. Div. (per curiam) (12 pp.) Defendant appealed from his conviction for an incident in which the victim, a home health aide, was leaving a client’s home when she was robbed at knifepoint. Police later showed the victim books of photographs, with the victim picking out defendant’s photo. Following his arrest, defendant asserted his innocence, arguing that there was no evidence connecting him to the robbery other than the victim’s identification. On appeal, defendant argued that the prosecutor engaged in improper tactics that unfairly bolstered the victim’s identification, that the trial court erred in not charging the jury on false testimony, and further erred in barring counsel’s statements that the robber was far shorter than defendant. The court agreed with defendant that the trial was subjected to prejudicial errors requiring reversal of defendant’s conviction and remand for retrial. The court ruled that the trial court erred in excluding a police report in which the victim initially described the robber as 5 feet, 4 inches tall, whereas defendant was over 6 feet tall. Although the court noted that the victim’s statement was not admissible for its truth as to the robber’s height, the court ruled that it was admissible and relevant to the police investigation and the credibility of the victim’s identification. The court further held that exclusion of this evidence impacted his tampering conviction, which was based on a letter from defendant to the victim, which included the police report in which defendant asserted he was a victim of misidentification. The court also noted that the prosecutor admonished defendant for lack of evidence corroborating his misidentification defense even though the police report had been excluded. Because the excluded report impacted defendant’s credibility and his substantive defense, the court ruled that its exclusion was harmful error warranting a new trial.

14-2-3440 In the Matter of Civil Commitment of C.F., N.J. Super. App. Div. (per curiam) (12 pp.) C.F. appealed from the judgment ruling that he continued to be a sexually violent predator in need of civil commitment pursuant to the Sexually Violent Predator Act. C.F. was first convicted of a sex offense for his assault of a cognitively limited adult female, to which he pleaded guilty to second-degree sexual assault and was required to attend a psychiatric institute. While on probation for that offense, C.F. sexually assaulted a minor female he was babysitting. C.F. pleaded guilty to second-degree sexual assault and was sentenced to 10 years at the Adult Diagnostic Treatment Center. In addition, C.F. admitted to sexually assaulting between 10 to 25 victims from the time he was 18 years old. C.F. had been subject to various treatment programs since his commitment in 1990, without demonstrated success. C.F. was later transferred to Trenton Psychiatric Hospital, where he failed to successfully complete a sex offender relapse program. A TPH psychiatrist recommended C.F. be considered for SVPA commitment. At a trial court hearing, a psychiatrist who interviewed C.F. estimated his risk to reoffend at 50 percent. The trial court ruled that the state had met its burden to commit C.F., finding that he suffered from mental abnormalities that predisposed him to engage in acts of sexual violence. On appeal, the court affirmed, noting that the testimony of the state’s experts supported the trial court’s determination by clear and convincing evidence that C.F. suffered from mental abnormalities and disorders that impaired his ability to control his sexual behavior. The court rejected C.F.’s contention that the state was using his 27-year-old sexual assault conviction to commit him, finding that the trial court considered both C.F.’s criminal history and his present condition.

14-2-3453 State v. Irizarry, N.J. Super. App. Div. (per curiam) (29 pp.) Defendant appealed from his conviction for first-degree aggravated sexual assault and third-degree aggravated criminal sexual contact. Defendant’s conviction arose from an incident in which defendant engaged in sexual activity with an adult woman, P.R. The state, based on P.R.’s version of events, alleged that defendant threatened P.R. at knifepoint, drove her to a desolate location, and sexually assaulted her. Defendant, testifying in his own defense, asserted that P.R. offered to have sex with him in exchange for drugs, and that their sexual activity was consensual. On appeal, defendant argued that the trial court improperly permitted the prosecutor to cross-examine him about his failure to divulge his sex-for-drugs explanation after being arrested. Defendant further challenged the jury charge, asserting that it omitted instructions about consent defenses, and failed to alternatively charge lesser-included offenses. Finally, defendant contended that his sentence was manifestly excessive. The court agreed with defendant that the trial court erroneously allowed prosecutors to cross-examine defendant about his failure to disclose to police his version of events asserted at trial. The court agreed that the trial court’s ruling undermined his constitutional right to be silent and refrain from providing any narrative, including an exculpatory narrative, to investigators. Although the court acknowledged that cross-examining a defendant on differences between a post-Miranda statement and testimony at trial did not violate the right to silence, the court held that the present case because, instead of providing an affirmative narrative, defendant instead only offered flat denials combined with outright refusals to respond to investigators’ questions. Because the trial turned on the credibility of defendant’s and P.R.’s versions of events, the court held that the state’s repeated emphasis on defendant’s refusal to offer his exculpatory version constituted prejudicial error warranting a new trial.

14-2-3479 State v. Tineo-Paulino, N.J. Super. App. Div. (per curiam) (17 pp.) State appealed order requiring the return of $75,000 of a $100,000 bail bond to surety. Bail bond company posted bond for defendant who disappeared. Bail was forfeited, a default judgment issued against the surety for $100,000 and bond company filed an application to vacate the forfeiture, for exoneration and discharge, producing a death certificate from the Dominican Republic and an apostille certifying the authenticity of the document. The judge vacated the prior judgment and orders. The state later learned that the defendant was alive and had been arrested by the DEA and the judge again forfeited bail. Bond company filed a second motion to vacate which was denied and state filed an unsuccessful motion for counsel fees. A week later, a prosecutor dismissed the charges against defendant because, due to his pending federal sentence, prosecution would serve no purpose. The trial judge applied Remission Schedule 3 and ordered surety to remit $25,000. Court reversed the trial court’s calculation of a remission because it did not address the surety’s complete failure to supervise defendant and trial court made a mistake of law in applying the wrong tables. Surety was not out of time to seek the return of the funds.

14-2-3423 State v. Randolph McLeod, N.J. Super. App. Div. (per curiam) (12 pp.) Following a traffic stop whereby the driver consented to a vehicle search, respondent, a fugitive recovery employee, was indicted for 21 counts regarding unlawful possession of a prohibited weapon and large capacity ammunition magazine. Although the trial judge found that the consent to search was obtained voluntarily, he concluded there was insufficient reasonable and articulable suspicion “to suggest that the driver or passenger had engaged in, or were about to engage in, criminal activity” as testimony indicated the arrest was predicated on outstanding warrants. The trial judge, in suppressing the evidence, opined that a “hunch” that bail bond employees often illegally carried firearms and the parties’ empty holsters were not indicative of criminal activity. On appeal, appellant contended the trial judge erred because he mischaracterized the facts, namely that the decision to search was based on the officer’s expression of a hunch. The court reversed, holding the officers’ testimony indicated they were considering searching the vehicle prior to another officer arriving and articulating his “hunch.” As the stop of the vehicle was lawful, the conduct of the driver and appellant was suspicious, the parties being dressed in highly unusual military or police garb, and the empty holsters, the officers had reasonable suspicion to request a consent to search. As such, the circumstances did give rise to a reasonable and articulable suspicion that a search would produce evidence of criminal wrongdoing and the court reversed suppression of the evidence.

07-7-3455 Dominguez v. Galaxy Recycling, Inc., D.N.J. (Wettre, U.S.M.J.) (18 pp.) Plaintiffs moved for approval of the proposed settlement of their class action asserting overtime violations under the FLSA and New Jersey minimum wage law. Plaintiff employees asserted class and collective claims against waste collection service. The class was certified and the parties reached a tentative settlement. Settlement administrator mailed notice of the proposed settlement to 614 potential class and collective members, 135 were not located or notified, there were 108 authorized claimants and no class members opted out of the settlement. An in-person fairness hearing was held and no objections were made to the settlement. The court found that defendants could not withstand a judgment significantly greater than the proposed settlement amount and that FLSA collective members would receive “full liquidated damages equal to 100 percent of their allocation.” The court determined that there was a strong initial presumption of fairness and that the Girsh and Prudential factors weighed in favor of approval. The court found the final certification of the FLSA collective was appropriate and approved the FLSA collective claim settlement. The court found that while the proposed 37 percent counsel fee award was higher than the more typical 33 percent, it was within the 19-45 percent range recognized as appropriate and was reasonable in the circumstances. [Filed June 9, 2017]

07-7-3426 Immunex Corp. v. Sandoz Inc., D.N.J. (Falk, U.S.M.J.) (15 pp.) Plaintiff filed a letter motion asking the court’s in camera review of and ruling on the application of the common-interest doctrine to 31 communications exchanged between plaintiff and co-plaintiff in patent infringement suit brought under the Biologics Price Competition and Innovation Act. Defendant sought approval to license a “biosimilar” to a biologic patented by plaintiff. Due to the tight scheduling of the case the court made its informed privilege determinations on the letters and arguments presented. Two of the patents involved were owned by co-plaintiff and plaintiff had an exclusive license. The court found that any document protected by an underlying privilege, such as attorney-client, and that was made to further the legal interest associated with the licensing arrangement qualified for the common-interest doctrine. The court examined the 31 documents and held that some were privileged and some were not. [Filed June 7, 2017]

09-7-3468 Bacon v. Avis Budget Grp. Inc.,D.N.J. (McNulty, U.S.D.J.) (29 pp.) Defendants filed motions to compel arbitration in the putative class action filed by plaintiffs, who alleged that defendant rental car companies routinely charged customers’ credit and debit cards for ancillary products and services that those customers did not authorize, and in certain cases, had specifically declined. Plaintiffs asserted claims under New Jersey, Florida, and Nevada consumer protection and unfair trade practice statutes, in addition to claims for injunctive relief, unjust enrichment, and conversion. Plaintiffs proposed to certify the class action containing five subclasses. Defendants’ first motion concerned plaintiff Arcadia Lee, who rented a car in Costa Rica, while their second motion concerned the remaining plaintiffs, whose rentals occurred in New Jersey, Nevada and Florida. Defendants moved to have plaintiffs arbitrate their claims on an individual basis, and further sought to dismiss the complaint or stay the action pending arbitration. The court first noted that the rental agreements for U.S. customers included an arbitration provision. The Costa Rican rental agreement apparently included a “dispute resolution” clause purportedly committing disputes to arbitration in Costa Rica. Plaintiffs alleged they only received the arbitration or dispute resolution language after they had signed the rental agreements. Accordingly, the court denied defendants’ motions, finding that there was a factual dispute as to whether the arbitration provisions were properly included in the parties’ agreement. Specifically, the court noted that New Jersey law required a party to a contract to have knowledge of an extrinsic document, such as the documents containing the arbitration clauses at issue, sufficient to identify the document and the contents herein. The court held that because there was a factual question of whether plaintiffs were provided the additional terms including the arbitration clauses prior to signing the rental agreement that incorporated those terms by reference, defendants’ motion to compel arbitration was premature. [Filed June 9, 2017]

12-7-3474 Demase Warehouse Sys., Inc. v. Demase, D.N.J. (Linares, U.S.D.J.) (7 pp.) Plaintiffs’ moved to remand under 28 U.S.C. §1447. Plaintiffs alleged that former company president and warehouse secretary and treasurer mismanaged the company’s pension and defined benefits plans, removing employees from the plans, reducing accrued employee benefits, creating a class of employees whose benefit formula violated the terms of the plan and siphoning money for defendant secretary’s benefit. Plaintiffs filed an order to show cause to restrain defendants from interfering in company’s affairs, to compel defendants to sell their stock to plaintiffs and to remedy the alleged conduct. Plaintiffs’ claims were based on violations of the New Jersey Corporations Act. Defendants removed the case to federal court and plaintiffs sought remand. Defendants argued that plaintiffs’ state law claims were preempted by ERISA and fell within the scope of §502 of ERISA. The court noted that only two of the eight causes of action referred to ERISA and found that the suit did not fall within §502 since plaintiffs were suing as shareholders of the company and not as beneficiaries and were not looking to recover benefits from the plans. [Filed June 12, 2017]

15-7-3469 Ebner v. Statebridge Co., LLC, D.N.J. (Martinotti, U.S.D.J.) (19 pp.) Following a default in mortgage payments and an attempt to reinstate the mortgage in accordance with figures provided by defendants, plaintiffs filed the underlying complaint alleging the reinstatement figures originally presented were false and misleading, the refusal of defendants to reinstate the loan or return the funds following acceptance of monies was unconscionable, and the second reinstatement figures provided were false and misleading. Upon defendant’s motion to dismiss for failure to state a claim, the court granted dismissal in part holding plaintiffs’ claims as to the original reinstatement figure letter drafted by defendants in November 2015 was time barred and the second reinstatement letter dated October 2016 was not sent or drafted by defendant-law firm. However, the court denied dismissal of claims against defendant-law firm for the September 2016 correspondence and the remitted loan history statement as plaintiffs sufficiently pleaded allegations under the Fair Debt Collection Practices Act. (FDCPA). Moreover, the court denied dismissal of claims against defendant-mortgage company as defendant was a “debt collector” under the FDCPA and correspondences provided could be deemed deceptive under the allegations as pled. Finally, the court denied dismissal of the unjust enrichment claim against defendant-mortgage company as plaintiff pleaded sufficient facts to state a claim and there was no express contract between the parties given defendant was an assignee of the original mortgage.[Filed June 9, 2017]

5-7-3480 Gebhardt v. LJ Ross Assocs., Inc., D.N.J. (Cooper, U.S.D.J.) (14 pp.) This matter arose out of alleged violations of the Fair Debt Collection Practices Act (FDCPA) wherein plaintiff argued defendant called him regarding collection of a debt after it had received a letter from his counsel demanding that it cease all communications to him and direct all contact to his attorney. On competing motions for summary judgment, the court found in favor of defendant holding defendant lacked actual knowledge of plaintiff’s legal representation prior to making a communication. Although defendant admitted a letter was received, plaintiff had not put forth any evidence that such letter was actually read by an employee prior to the communication at issue. The court noted §1692c(a)(2) mandated that plaintiff demonstrate actual knowledge of his legal representation, not just mere receipt of a letter from counsel. Further, the court concluded defendant had a sufficient bona fide error defense immunizing it from liability for a violation of 15 U.S.C. §1692c(c) as it did not intend to violate the FDCPA, the phone call was not unreasonable, and it had reasonable precautions in place to protect against making communications after the receipt of the cease-and-desist letter. Accordingly, the court granted summary judgment in favor of defendant. [Filed June 12, 2017]

11-7-3443 DeBellis v. Hollahan, D.N.J. (Kugler, U.S.D.J.) (6 pp.) The parties entered into agreements for the purchase of three mares to plaintiff in exchange for plaintiff’s alleged payment of a finder’s fee. Plaintiff asserted defendant reneged on the agreement because she suddenly discovered one of the horses might have value. As a result of the alleged breach, plaintiff claimed loss of the costs of the insurance he purchased, breeding contracts he made, and standing in the community and moved for summary judgment. The court denied summary judgment, concluding plaintiff failed to present the court with evidence of a valid contract. To prove there was a valid contract, plaintiff relied on a series of text message exchanges, however nowhere do the parties reference plaintiff’s consideration theory as the bargained-for performance in return for the horses. Summary judgment was furthermore inappropriate given the failure to satisfy the statute of frauds as the contract for a sale of goods over $500 was not in writing and signed by the parties; the court noted text messages did not qualify as an adequate writing. As it was unclear whether there was a valid contract between the parties expressing essential terms and failure to satisfy the statute of frauds, the court denied summary judgment. [Filed June 8, 2017]

16-7-3470 L.M. v. Willingboro Twp. Sch. Dist., D.N.J. (Rodriguez, U.S.D.J.) (22 pp.) Both parties moved for summary judgment in plaintiffs’ IDEA action alleging that school district’s IEP for their daughter was inadequate. District proposed no related services for child entering school because district had not completed any evaluations. District proposed to add related services later in the school year after the teacher and related service providers evaluated the child’s skill levels in the classroom. Plaintiffs requested independent therapy evaluations but district refused. Plaintiffs filed a complaint in 2013, alleging that district failed to offer a FAPE for their child. In 2016, the ALJ found in favor of plaintiffs and ordered compensatory education. ALJ found that the three proposed IEPS provided no present levels of academic performance and thus, no way to measure child’s progress as to goals and objectives and district failed to complete a comprehensive evaluation that included a functional assessment of the student. District filed a separate court action appealing the ruling. The court found that district did not show that the ALJ’s finding that the IEPs were inappropriate was clear error. Court declined to make a determination regarding the 2015-2016 IEP and declined to allow the record to be supplemented to include information regarding child’s current placement for 2016-2017 at a private school. Court affirmed the order for compensatory education. [Filed June 12, 2017]

22-7-3481 Talone v. The Am. Osteopathic Ass’n, D.N.J. (Hillman, U.S.D.J.) (25 pp.) Plaintiffs, osteopathic physicians certified and paid members of the American Osteopathic Association (AOA), filed the underlying complaint alleging unlawful tying of board certification and professional association membership. Plaintiffs claimed that in order to avoid the loss of their board certification, they have been forced to purchase AOA membership even though it served no purpose with respect to, and had no actual connection with, AOA board certification or their practice as physicians. Further, the resulting requirement has forced an increase in membership pricing and loss of competitive offerings. Plaintiff alleged that defendant’s actions violated 15 U.S.C. §1, N.J.S.A. 56:9-3 and the Consumer Fraud Act. Defendant moved to dismiss, or alternatively, transfer venue to the Northern District of Illinois. The court denied defendant’s motion holding plaintiffs sufficiently stated claims for per se and “rule of reason” antitrust violations. The court noted that plaintiffs’ allegations that they were required to purchase membership to prevent loss of certification and would opt for a less costly membership showed that defendant had market power and affected interstate commerce. Moreover, plaintiffs alleged sufficient fats to support a viable NJCFA claim through defendant’s cancellation of its lifetime certification permission. Finally, the court denied transfer of venue as the effect of defendant’s policy is felt by “thousands” of physicians located in New Jersey. [Filed June 12, 2017]

25-7-3471 Acosta v. A.C.E. Rest. Grp., Inc., D.N.J. (Rodriguez, U.S.D.J.) (15 pp.) Defendants moved to dismiss action alleging FLSA violations for failure to pay minimum wages and overtime and failing to keep and preserve adequate records based on unlawful tip, payroll and recordkeeping practices. Defendants argued that the complaint was factually deficient, failed to meet the pleading standards and the matter could not be “re-litigated” in light of the N.J. Department of Labor’s Orders of “no violation.” The court found that the complaint sufficiently set forth claims of minimum wage, overtime and record keeping violations by alleging examples of dates and times when employees worked in excess of 40 hours without the benefit of overtime compensation, that tip-ineligible employees were included in the tip pool and a failure to keep records with respect to employee meals and off the clock workers. While the complaint provided only a few examples, the complaint alleged a common management team controlled the individual restaurants. The court disagreed that res judicata and collateral estoppel applied in light of the NJDOL Orders of “no violation” because the record showed that there was no litigation to inform the NJDOL determination and the NJDOL could not be said to have acted in a judicial capacity. [Filed June 12, 2017]

25-7-3482 Yeager v. Covenant Sec. Serv., Ltd., D.N.J. (Bumb, U.S.D.J.) (33 pp.) Plaintiff alleged that he was terminated unlawfully and in retaliation for his support of a former co-worker’s unlawful termination suit against defendant, a security and protection services company. Plaintiff was initially hired as a security guard, and was later promoted to site manager, undergoing supervisory training that included defendant’s sexual harassment policies and procedures. Defendant’s sexual harassment policy instructed employees to report incidents to their supervisors, who in turn were instructed to immediately forward those reports to human resources. An employee reported an incident of sexual harassment to plaintiff, who documented the complaint but did not forward it to HR. The employee reported successive incidents, which plaintiff again failed to immediately forward to HR. Defendant ultimately terminated the employee for poor performance. The employee later filed suit against defendant, and plaintiff spoke with the court-appointed mediator about the employee’s complaints. Plaintiff himself was subsequently terminated by defendant for failing to follow its sexual harassment policy. In support of its motion, defendant argued that the time between plaintiff’s participation in the litigation and his termination failed to raise an inference of retaliation, and that there was no other supporting evidence. However, the court held that since defendant initiated its investigation of plaintiff because of his participation it the underlying litigation, a jury could reasonably infer a causal connection between plaintiff’s participation and his termination. Moreover, the court held that a jury could find that defendant was on notice of the fact that the employee had reported sexual harassment to plaintiff and that plaintiff had documented the complaints but did not report them to HR, which supported plaintiff’s pretext argument. Accordingly, the court denied defendant summary judgment on plaintiff’s retaliation claim, but granted it as to the wrongful termination claim, as the court found it pre-empted. [Filed June 13, 2017]

04-7-3483 Archer & Greiner, P.C. v. Rosefielde, D.N.J. (Hillman, U.S.D.J.) (21 pp.) Plaintiff moved for judgment on the pleadings on defendant’s counterclaims against plaintiff and two of its attorneys for malpractice, breach of fiduciary duty, and breach of contract, all arising from plaintiff’s representation of defendant that resulted in plaintiff’s claim for unpaid legal fees. Plaintiff represented defendant in a dispute between him and Bruce Kaye, who retained defendant as counsel for Kaye’s business entities and for Kaye himself. Defendant committed serious misconduct by acting on his own behalf and exposing those entities to potential liability. In a separate action, Kaye obtained a judgment against defendant for compensatory and punitive damages and legal fees, but not disgorgement of his salary. However, that ruling was overturned by the New Jersey Supreme Court. In his counterclaims against plaintiff, defendant argued that the N.J. Supreme Court’s certification of the disgorgement issue was flawed because plaintiff failed to correct the court’s mistaken assumption that defendant was an employee of the Kaye entities. Defendant additionally argued that plaintiff failed to advance multiple arguments before the court. In support of its motion for judgment on the pleadings, plaintiff argued that the N.J. Supreme Court’s decision did not hinge on plaintiff’s employment classification, and that the other errors alleged by defendant had no impact on the court’s ruling. As to the employment classification issue, the court ruled that plaintiff was entitled to judgment because it did in fact notify the court that the lower courts had determined that defendant did not qualify as an employee, and agreed that the ultimate ruling did not hinge on defendant’s employment classification as the dispositive question was one of economic loss. However, the court declined to grant judgment on defendant’s excessive billing claim, ruling that he could assert counterclaims on the same bases as his affirmative defenses to plaintiff’s claim. [Filed June 12, 2017]

35-6-3427 In re Bernstein, Bankr. D.N.J.. (Poslusny, U.S.B.J.) (13 pp.) Debtor sought to discharge her IRS debt because she allegedly did not sign or review the tax returns before they were filed by her ex-husband. Debtor worked in the travel industry for 10 years before she met her ex-husband. They started a company, married and operated a scheme that defrauded 800 victims of $2.5 million. New Jersey filed an indictment against her in 2013, she pleaded guilty to theft by deception and agreed to forfeit her interests in the assets seized. She and her husband were ordered to pay restitution. She and her husband divorced in 2014 and in 2015, she filed a Chapter 7 bankruptcy petition and sought to discharge her liability to the IRS. The court found that collateral estoppel applied to show that she underreported her income but the case went to trial on the issue of whether she intentionally evaded taxes. Ex-husband testified that he prepared the tax returns but his testimony was not credible. IRS auditor found large understatements of cash and fabricated business expenses and debtor told him she prepared the tax returns. The court found that the IRS met its burden of proof because while debtor did not conceal assets, she did not cooperate with taxing authorities, her unreported income was generated by illegal activity and she intentionally violated her duty to file. [Filed June 6, 2017]

32-7-3456 Kuhar v. Petzel Co., D.N.J. (Simandle, U.S.D.J.) (14 pp.) Defendants Thompson Manufacturing, Zedel SAS, and Big Bang SAS moved to dismiss plaintiff’s amended products liability complaint for lack of personal jurisdiction. Plaintiff’s complaint concerned a safety harness that caused serious injury to plaintiff Nicholas Kuhar when the harness snapped. Plaintiffs alleged that the harness was negligently designed, manufactured, and sold by various defendants, who all asserted cross-claims for contribution and indemnification against all other defendants. Thompson produced and sold a component part that was allegedly used in plaintiff’s harness. Thompson was incorporated in and maintained its principal place of business in Utah, and did not have property in, employ anyone, conduct any operations, or market, sell, or deliver its products to or in New Jersey. Thompson argued that it did not have contacts that would subject it to general jurisdiction in New Jersey, nor would an exercise of specific jurisdiction be proper because it did not have knowledge that its products would reach New Jersey through the stream of commerce. In response, plaintiffs and defendant Petzel Co. argued that there was a related company, Rock Exotica, which plaintiffs and Petzel asserted could have been an alter ego of Thompson, that sold similar or identical products in New Jersey. Given the factual allegations made by plaintiffs and Petzel, the court denied the motion to dismiss as to Thompson, without prejudice to refiling following jurisdiction discovery. However, the court granted the motion as to Zedel and Big Bang, noting that both were French companies and conducted all their operations in and from France, having no other connection with New Jersey. The court dismissed plaintiffs’ evidence that Big Bang was the sole owner of Petzel, noting that plaintiffs had presented no evidence that the independence of both corporate entities was ever disregarded such that Petzel’s New Jersey contacts could be imputed to Big Bang. [Filed June 9, 2017]

14-7-3457 Stevens v. Jones, D.N.J. (Martinotti, U.S.D.J.) (8 pp.) Plaintiff filed suit under 42 U.S.C. §1983 following his arrest for an alleged burglary. Plaintiff claimed defendant, an officer with the New Brunswick Police Department, was falsely arrested and imprisoned without substantial proof and for racial bias. On defendant’s motion, the court dismissed those claims related to malicious and selective prosecution but permitted the false arrest and false imprisonment counts to proceed to the extent plaintiff sought relief other than his release or the court’s interference with his underlying state court prosecution. The court noted that plaintiff remained incarcerated and therefore failed to plead a claim for malicious prosecution. Further, plaintiff failed to allege defendant has treated others similarly situated in a different fashion thereby not supporting a charge of selective enforcement. Moreover, the court may not involve itself in plaintiff’s ongoing state criminal prosecution and was without authority to dismiss his charges as such runs contrary of the abstention doctrine. Finally, the court found plaintiff may not seek release through this §1983 action, and his false imprisonment and false arrest claims were permitted to proceed only to the extent he sought damages and forms of relief other than his release or interference with the ongoing criminal prosecution. [Filed June 8, 2017]