46-2-3725 Pace v. Twp. of Nutley, N.J. Super. App. Div. (per curiam) (17 pp.) Plaintiffs, husband and wife, appealed the dismissal of their complaint alleging excessive force in husband’s and son’s arrest for obstructing the administration of law and resisting arrest. When police responded to the 911 call for domestic violence, wife was outside the house and told police she wanted the husband out of the house and wanted to file a complaint against him. Father and son were screaming at each other inside the house and when officer attempted to enter the house to discuss the situation, son pushed officer, husband moved forward in a menacing manner, officer pepper-sprayed both men and officers arrested them after a struggle. The trial judge found that based on the totality of the circumstances, the police were justified in arresting husband, in using force to do so, that the use of pepper spray was not excessive and that defendants were entitle to qualified and specific immunity under the PDVA. The court agreed that the police had probable cause to arrest husband and to enter the home to effectuate his arrest. Plaintiffs’ contention that defendants were not entitled to specific immunity because the incident was not a domestic violence incident lacked merit. Additionally, in light of the circumstances confronting the officer, the use of pepper spray was objectively reasonable.

10-2-3692 Nanticoke Lenni-Lenape Tribal Nation v. Hoffman, N.J. Super. App. Div. (per curiam) (19 pp.) In its five-count complaint, appellant alleged respondent, the New Jersey Attorney General, violated its rights under the New Jersey Constitution and breached duties imposed under the common law by denying and repudiating the State’s prior recognition of appellant as an American Indian Tribe. Appellant argued respondent’s actions had and will deprive it of benefits under various federal statutes and programs that were conditioned upon the State’s recognition of it as an American Indian Tribe. The trial court dismissed the complaint under Rule 4:6-2(e), finding appellant’s claims were barred because the State never enacted a statute expressly recognizing appellant as an American Indian Tribe. On appeal, the court reversed finding the trial court applied the wrong legal standard and incorrectly failed to accept appellant’s factual allegations in the complaint as true. The court concluded that the trial court’s determination that a statute was required to extend the recognition was incorrect as a matter of fact based on the allegations in the complaint. Moreover, the trial court erred by failing to consider or apply the federal standard for determining whether appellant was a state recognized American Indian Tribe entitled to receive the benefits cited in the complaint. Because the trial court failed to accept as true the facts alleged or the federal standards for state recognition, the matter was reversed and remanded.

09-2-3708 Bacon v. Bob Ciasulli Auto Grp., Inc., N.J. Super. App. Div. (per curiam) (6 pp.) Defendant appealed the grant of summary judgment and award of damages in favor of plaintiff in her Consumer Fraud Act action. Plaintiff purchased a car from defendant in 2008 and bought an extended warranty that covered the vehicle for seven years. Five years later, she took the car to another dealer who told her the extended warranty had been cancelled in 2008, a few months after she purchased the warranty. Plaintiff sought relief under the CFA, the trial judge granted plaintiff’s motion for summary judgment and a bench trial awarded compensatory damages and counsel fees. The court found that summary judgment was proper and appropriately awarded and rejected defendant’s argument that the proper measure of damages was cost of the warranty. The trial judge properly found that the appropriate damages was the cost of the repairs that would have been covered had the warranty not been wrongfully cancelled. However, the award of counsel fees had to be vacated and remanded for findings of fact on the quantum of fees and costs.

11-2-3693 Summit Res. Grp., Inc. v. Mercer Grp. Int’l of N.J., Inc., N.J. Super. App. Div. (per curiam) (15 pp.) Plaintiff was a broker for sources of steel and other metals, and had a relationship with Covanta Energy Corporation, which converted municipal solid waste into renewable energy and removed metals during the process. Defendants were engaged in the business of scrap metal recycling and processing. The parties entered a contract for defendants to purchase scrap metal from Covanta, with plaintiff receiving commission as a broker. Plaintiff then sent defendants a commission agreement, and defendants paid commission from contracts awarded by Covanta until defendants entered an asset purchase agreement with Simsmetal East, LLC. Instead of assigning the Covanta contracts, Sims and Covanta entered “new” contracts. After defendants ceased purchasing scrap metal from Covanta and making commission payments to plaintiff, plaintiff filed the present complaint, arguing that Sims and Covanta’s contract was not a “new” contract, and seeking declaratory judgment that the commission agreement remained valid and binding. Defendants moved for summary judgment, arguing that Sims was not a “purchaser” or “related company” of defendants, since it only purchased certain assets that did not include the Covanta contracts. The trial court granted summary judgment, and later dismissed the remainder of plaintiff’s complaint, ruling that Sims was not a purchaser under the commission agreement, and defendants had ceased scrap metal purchases. On appeal, the court affirmed, rejecting plaintiff’s argument that Sims was a purchaser because the commission agreement did not distinguish between a sale of defendants’ company or their assets. Instead, the court held there was a distinction between the sale of a company and the sale of assets, and the commission agreement’s failure to note the distinction was fatal to plaintiff’s claim.

11-2-3709 MFC Res., Inc. v. Homann, N.J. Super. App. Div. (per curiam) (26 pp.) Plaintiffs appealed from the orders denying their motion to dismiss defendant’s counterclaim, granting defendant’s motion to compel discovery, enforcing a settlement between the parties, and a grant of judgment to defendant. Plaintiff was the sole owner of ACC Resources, Co., L.P. Plaintiffs entered a purchase agreement with defendant to purchase 70 percent of his interest in ACC. The agreement gave plaintiffs the right to purchase defendant’s remaining interest upon his breach of the purchase agreement. Defendant remained CEO of ACC, but was terminated in May 2013 after plaintiffs claimed he threatened to leave for a competitor. Plaintiffs purported to exercise its option to purchase defendant’s remaining interest, but defendant disputed the validity of this exercise. Plaintiffs filed suit against defendant and defendant counterclaimed for breach and fraud. Defendant moved to compel discovery, while plaintiffs moved to dismiss defendant’s counterclaims; during the pendency of the motions, the parties engaged in settlement talks, and defendant subsequently moved to enforce an alleged oral settlement. Plaintiffs disputed the existence of a settlement, contending that multiple critical items remained unsettled. The trial court denied the motion to dismiss and granted the motion to compel discovery. The trial court later granted the motion to enforce the alleged oral settlement, finding that defendant agreed to the terms believing plaintiffs’ representatives were authorized to settle. The parties then cross-moved for final judgment, disputing defendant’s indemnification obligations, and the trial court granted judgment in defendant’s favor. On appeal, the court reversed, agreeing with plaintiffs that there should have been an evidentiary hearing to determine whether all parties intended to be bound and/or had agreed to the essential terms of the alleged settlement. The court noted that the trial court failed to credit testimony that the term sheet of the settlement was based on “rudimentary” notes, and that plaintiffs still needed to approve the terms.

11-2-3710 N.J. Intergovernmental Insur. Fund v. Selecky, N.J. Super. App. Div. (per curiam) (8 pp.) Respondent and the Borough of Roselle Park Police Department executed a settlement agreement on her claims of malicious prosecution after being acquitted of a parking offense. The settlement agreement contained a confidentiality provision and an agreed upon payment amount. Within several days of the parties reaching the agreement, an unrelated third party made an OPRA request and both a blog post and a local newspaper article appeared. Appellant subsequently filed the underlying action for breach of the confidentiality provision and moved for summary judgment arguing that the statements made to the newspaper violated the terms of the agreement. Respondent cross-moved contending the comments did not reference the complaint against the Borough or the settlement agreement, and that the agreement was already lawfully published twice as the result of the OPRA request. The motion judge granted respondent’s cross-motion concluding the comments did not violate the terms of the agreement. On appeal, the court affirmed holding the statements respondents made to the newspaper did not breach the agreement and were within the scope as defined by the settlement terms. Further, the statements respondents made, as compared to the borough’s attorney’s comments, did not concern the malicious prosecution at all. Accordingly, the court affirmed summary judgment in favor of respondents.

15-2-3687 Triffin v. Sinha, N.J. Super. App. Div. (per curiam) (6 pp.) Triffin filed the underlying complaint seeking payment of $10,081 for a check appellant issued to defendant Cabanaman Pools & Spa, LLC – defendant was contracted to perform services at appellant’s home. Unknown to the check-cashing agent, appellant had previously stopped payment on the check; the account was assigned to respondent for collection. Upon completion of discovery, respondent moved for, and was granted, summary judgment finding that the undisputed material facts entitled respondent to judgment as a matter of law. Appellant had argued that the check-cashing agent was precluded from attaining holder in due course status because the check was to a contractor performing home improvement work and the agent had a duty to investigation any violations of the Consumer Fraud Act. On appeal, the court affirmed for substantially the same reasons as the trial judge, finding no language on the check in any way indicated that the payment was contingent on any condition requiring further inquiry or investigation. The court noted the mere words “pool renovation” in the memo line would not be sufficient to alert the check cashing entity or the assignee of any problem with the issued check. Further, there was no relationship between appellant and respondent that would invoke the CFA. Accordingly, the court affirmed finding respondent was entitled to judgment as a matter of law.

15-2-3694 Nationstar Mortg., L.L.C. v. Bros., N.J. Super. App. Div. (per curiam) (4 pp.) Respondent filed a foreclosure complaint with no defendant answering; a default was subsequently entered. Appellants than filed an emergent application to stay the sheriff’s sale of the property – on the day of the scheduled sale – alleging he was not served with the foreclosure complaint. The trial judge denied the application, relying on the court’s electronic filing record which indicated appellant was served with the complaint. On appeal, appellant argued the trial court’s order should be reversed because he was never served with the foreclosure complaint. The court affirmed holding a review of the transcript revealed the judge referred to the electronic filing system and discovered respondent provided proof to the court it served appellant by both certified and regular mail. Further, respondent provided certifications, which stated service had been completed by certified and regular mail as confirmed by the United States Postal Service. The court was satisfied respondent established proper service under Rule 4:4-3. Moreover, the trial judge advised appellant he had recourse to seek two statutory adjournment pursuant to the sheriff’s directive about the sale, which appellant had not attempted to do. Accordingly, the court found no error in the trial judge’s finding appellant was properly served and affirmed its decision.

15-2-3696 Wells Fargo Bank, N.A. v. Nemeth, N.J. Super. App. Div. (per curiam) (6 pp.) Decedent executed a mortgage and note with nonparty World Savings Bank, FSB, in the amount of $247,500; respondent acquired the mortgage and note upon merger. Following seven years of nonpayment, respondent initiated foreclosure proceedings. The trial court granted respondent summary judgment and entered final judgment. On appeal, appellants challenged their denial to vacate the final judgment asserting numerous claims of trial court error, including lack of equal access to the court, failure to hold a hearing before granting summary judgment, jurisdiction, due process violations, and lack of ownership of the loan. The court affirmed concluding appellant admitted he executed the note and mortgage which was properly recorded and conceded that no payments were made in over seven years. The record further showed respondent sent appellants a notice of its intention to foreclose, and it possessed both the note and the mortgage. Respondent clearly had standing to foreclose on the property and unquestionably established a prima facie right to foreclose on it. Although appellants’ brief listed seventeen different bases for seeking reversal of the final judgment, the court found no support in the record for the allegations and affirmed the judgment of the trial court.

15-2-3711 Wells Fargo Bank, N.A. v. Collucci, N.J. Super. App. Div. (per curiam) (5 pp.) Defendant-husband executed a promissory note in favor of respondent; his wife, appellant, did not sign the note; the note was secured by a mortgage signed by both parties. Subsequently, the parties divorced and appellant-wife continued to reside in the marital home. Unbeknownst to appellant, defendant ceased paying the required monthly payments on the note and respondent sent defendant a Notice of Intent to Foreclose to the marital resident. Respondent did not send the NOI to appellant, personally, or copy her on the NOIs sent to defendant. Respondent filed a complaint for foreclosure and moved for summary judgment. Appellant opposed the motion and cross-moved to dismiss arguing she had not been served with any notice of foreclosure. The chancery division judge granted respondent’s motion for summary judgment finding it had satisfied the requirements of the Fair Foreclosure Act by only sending notice to defendant as appellant had not signed the note and was not required to receive notice of intent to foreclose. On appeal, the court affirmed concluding respondent’s statutory obligation was to provide notice of its intention to foreclose to the residential mortgage debtor. The statute defined the debtor as “any person shown on the record of the residential mortgage lender as being obligated to pay the obligation secured by the residential mortgage.” As appellant did not sign the promissory note, respondent was not obligated to provide her notice and therefore, the court affirmed the decision of the chancery division.

03-2-3726 Blaichman v. Pomeranc, N.J. Super. App. Div. (per curiam) (7 pp.) The parties were partners in several limited partnerships that owned, developed, and managed residential real estate. Following a dispute, they entered into a signed settlement agreement regarding the management and operation of their limited partnerships. Unfortunately, the “peace” did not last and respondent initiated litigation; each party sought the entry of restraints to keep the other from being involved in the operation of their entities. After the court denied their application, the parties entered into an agreement to arbitrate their dispute; the arbitration agreement identified the scope of the arbitration but made no provision for any type of fee shifting or award of attorneys’ fees to either party. However, the arbitrator entered a case management order which provided that if he had to decide a motion to enforce the terms of the order, the nonprevailing party shall be responsible to pay reasonable counsel fees. A year later, the arbitrator was confronted with a dispute about respondent’s compliance with the management order and the arbitrator found respondent in violation. The award was confirmed and appellant sought an award of attorneys’ fees. The judge denied fees concluding the fee-shifting provision in the management order did not constitute an express agreement between the parties that would support an award of fees to the prevailing party in the litigation, only to enforcement proceedings within the arbitration. On appeal, the court affirmed finding the arbitration agreement did not provide for fee-shifting and the management order was not an agreement. Accordingly, the court affirmed denial of counsel fees.

39-2-3712 Muska v. Bd. of Trustees, N.J. Super. App. Div. (per curiam) (7 pp.) Petitioner appealed the denial of his application for accidental disability retirement. Petitioner worked for the county road department from 1986 to 2009. In 2008, he fell into a hole and injured his back. He ceased treatment for his injury in February 2009, and applied for accidental disability retirement benefits. The Board denied his application and petitioner appealed. The ALJ rejected the testimony of petitioner’s treating physician because the physician had not read the incident report and was unaware of a 2002 MRI of petitioner’s back. The ALJ relied on the Board’s expert, who testified that there were no changes in petitioner’s back between the 2002 MRI and the post-accident MRI and that petitioner’s symptoms were the continuation of a chronic back condition and related to age. The court found no basis to reverse the Board’s decision. The record showed that the Board’s expert had more information available to him than did petitioner’s treating physician and the MRI evidence bolstered the ALJ’s and the Board’s decision. Additionally, petitioner’s denial that he had back pain when he had the 2002 MRI raised questions as to his credibility.

39-2-3727 Savio v. Giambri, N.J. Super. App. Div. (per curiam) (10 pp.) Appellant drove respondent to a job site where he was tasked with removing siding from the residence. After the siding was removed, respondent began to descend from a ladder when it suddenly broke, causing him to fall and injure his spine. He was subsequently informed by his physician he could never resume work in the construction field. Following a worker’s compensation hearing, the judge found respondent “extremely credible” and, after considering the twelve factors set forth in Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 594 (2015), to determine if a party was an employee of another, concluded respondent was appellant’s employee at the time he was injured. On appeal, the court affirmed holding appellant controlled the means and manner in which respondent completed his duties. The court noted that, although appellant departed the worksite, there was no evidence respondent required any more supervision or direction from appellant to complete the task at hand. Further, appellant furnished the equipment and workplace, employed respondent for approximately four weeks, and provided a W-2 form with payment by cash or personal check. Moreover, respondent’s work was integral for appellant’s business and the evidence revealed a dynamic between the two consistent with the existence of an employer-employee relationship. Accordingly, the court affirmed the conclusion that respondent was an employee entitled to receive compensation under the Workers’ Compensation Act.

25-2-3713 In the Matter of Joseph Lang, N.J. Super. App. Div. (per curiam) (12 pp.) Appellant was employed by the Harrison Fire Department as a Fire Captain, which at the time was a first-level supervisor title. In 2009, he passed a promotional examination for the second-level supervisor title, which was then known as Battalion Fire Chief. Appellant, along with four others, were placed on an eligible list that was effective for a three-year period–appellant was third on the list. However, following financial difficulties resulting in appellant’s demotion and a reorganization to correct administrative errors, appellant was left out of testing for the second-level supervisor Fire Captain title. The commission denied his request for a retroactive permanent appointment determining he did not have a vested property interest in the position as the prior list expired and appellant did not commence or complete a working test period. On appeal, appellant argued the commission’s decision was made without a rational basis and was arbitrary, capricious, and unreasonable. He contended the commission erred in finding that he never performed second-level supervisor duties because he performed such duties prior to the reorganization. The court affirmed holding the commission’s determination that appellant was not entitled to a retroactive appointment based on administrative errors was well-reasoned and supported by the evidence. The court noted the employees who were warranted retroactive appointments did not face previous demotions and such retroactivity was justified to correct the administrative error. In addition, those employees did perform second-level supervisor duties at all times following the reorganization whereas appellant only performed first-level supervisor duties. As appellant stood in shoes very different from those of the other employees, the court affirmed the commission’s determination that appellant was not entitled to a retroactive appointment.

25-2-3729 Jurkowski v. Bd. of Educ. of the City of Atlantic City, N.J. Super. App. Div. (per curiam) (10 pp.) Respondent hired appellant as an educational media specialist in October 2005, and she received tenure in 2008. During her employment, her children received home schooling services whereby appellant signed invoices for such instruction; however, at some point the instructor ceased providing tutoring services yet appellant continued to approve invoices. Appellant was subsequently charged with conspiracy, theft, forgery, and falsifying or tampering with records. By letter, appellant promptly informed respondent of the criminal charges and was placed on suspension with pay. Following a jury verdict of guilty, appellant was notified that her employment was terminated. However, the verdict was set aside upon agreement of a pretrial intervention conditioned upon appellant’s forfeiture of her current employment. Upon completion, appellant sought, and was denied, reinstatement of her employment and back pay, claiming this was in accordance with a prior discussion. On petition to the OAL, appellant argued she believed her forfeiture was moot as she had already been terminated. The ALJ concluded respondent incorrectly terminated a tenured instructor upon a jury verdict and therefore appellant was still employed when she entered into the PTI with the agreed upon forfeiture condition. On appeal, the court affirmed holding appellant remained employed by respondent on the date she entered PTI as her termination letter was procedurally defective. Therefore, appellant forfeited her position in the PTI and the decision to deny reinstatement was not arbitrary, capricious or unreasonable.

20-2-3689 L.K. v. A.K., N.J. Super. App. Div. (per curiam) (16 pp.) Defendant and plaintiffs’ son Max were married in 1997 and had 2 children, Jeffrey and Jennifer. After Max unexpectedly died in 2011, defendant ceased regular contact between the children and Max’s family. Plaintiffs filed a complaint seeking grandparent visitation, claiming that defendant was not acting in the best interests of the children. The trial court conducted in camera interviews of both children, who expressed hostility toward plaintiffs. A court-ordered psychological evaluation of the children concluded that they had a significant and positive bond with plaintiffs and that their continued alienation was emotionally harmful to the children. Defendant retained an expert who disputed much of the evaluation, noting that the children stated they did not want a relationship with plaintiffs. At a hearing, the trial court, crediting the evaluation and finding defendant’s expert less credible, granted plaintiffs visitation rights. Plaintiffs later filed a motion asserting defendant had willfully violated the trial court’s orders granting visitation and requesting enforcement by economic sanction, counseling for defendant and the children, and incarceration. A new trial judge denied the motion, finding that it was not in the children’s best interest to force visitation they did not want. Instead, the trial court ceased all court-ordered visitation to protect the best interests of the children by insulating them from the effects of further litigation. On appeal, plaintiffs argued that the trial court did not have the “right” to refuse to enforce prior orders and violated the law of the case. The court rejected plaintiffs’ argument, ruling that the trial court properly considered the entire case, including the negative impacts subsequent court-ordered visitation was having on the children, who maintained their unwillingness to visit with plaintiffs.

20-2-3690 T.F. v. F.S., N.J. Super. App. Div. (per curiam) (17 pp.) Respondent filed her original request for a restraining order following her allegations that appellant harassed her despite asking he cease communications. The municipal court judge issued a temporary restraining order despite no allegations of prior domestic violence. Subsequently, respondent filed her first amended complaint seeking a final restraining order and alleging a history of domestic violence, including pending harassment and sexual assault charges. A second amended complaint was then filed adding sexual assault as a predicate act. Following testimony and a police report, the trial court credited respondent’s testimony that appellant had sexually assaulted her. The trial court also found respondent’s delay in reporting the sexual assault “was driven by the prosecutor’s office, as well as the police department;” a final restraining order was issued against appellant. On appeal, the court vacated the FRO concluding that, although the police report corroborated some aspects of respondent’s testimony, it was inconsistent with her claim that she did not initially seek a TRO for sexual assault because the police told her they hoped to conduct a consensual intercept with appellant. Further, the trial court erred in denying appellant’s counsel to cross-examine the detective regarding his police report or permit rebuttal evidence. Despite respondent’s evidence, the court vacated the FRO and remanded due to the trial court’s preclusion of the cross-examination and rebuttal witnesses to test the credibility of such testimony.

20-2-3697 Henneberry v. Henneberry, N.J. Super. App. Div. (per curiam) (16 pp.) Defendant appealed the denial of his motion to eliminate or reduce his alimony obligation and requiring him to maintain a life insurance policy. The parties divorced after more than 30 years of marriage. They negotiated an Interspousal Settlement Agreement that was incorporated into the Final Judgment of Divorce. Both parties retired subsequent to the divorce and defendant sought to terminate his alimony obligation based on his retirement. The trial court correctly found that there was nothing in the ISA to indicate that alimony would automatically terminate when defendant reached retirement age. A good-faith retirement did not trigger an automatic termination or reduction of alimony. The statute pertaining to modification applications upon retirement listed eight factors to be considered. The trial court gave full consideration to each of the factors, noted that defendant had not been forthcoming in submitting information and withheld critical information about inherited properties and found that plaintiff had a continuing need for the full amount provided in the ISA. The court found the trial court’s analysis was thorough and based on competent evidence in the record. The court also rejected defendant’s contention that he was automatically entitled to a plenary hearing based on his good-faith retirement.

20-2-3699 Villegas v. Villegas, N.J. Super. App. Div. (per curiam) (5 pp.) Respondent-wife filed a complaint for divorce and, following a trial, a judgment of divorce was entered. Appellant-husband appealed the court’s decision, specifically challenging the determinations of alimony and child support, and the allocation of college costs. On appeal, the court affirmed the awarded but independently queried whether the equitable distribution decision in which both parties kept their respective accounts was correct. As a result, the court remanded the matter for clarification as to whether the judge intended to allow respondent-wife to retain the excess monies and to articulate his reasons for the allocation. In response, the family part judge issued an order and supplemental memorandum of decision amending the judgment of divorce. In the memorandum, the judge stated he intended the monetary difference to be an offset as he granted appellant-husband less years in alimony. The judge further determined he had overlooked the credit to which appellant-husband was entitled with regard to respondent-wife’s assets that she had used to buy out his interest in the marital home. Upon reconsideration, the judge recalculated to the original numbers in the judgment of divorce and in accordance with the case information sheet. On appeal, appellant-husband argued the trial court failed to comply with the court’s order to articulate its reasons for the allocation of the parties’ assets, and its calculations remained ambiguous. The court affirmed finding it was satisfied that the trial judge adequately accounted for the allocation of the equitable distribution—to which appellant-husband did not actually argue—and affirmed the decision.

20-2-3714 N.J. Div. of Child Prot. and Permanencyv. A.A., N.J. Super. App. Div. (per curiam) (26 pp.) Parents appealed the termination of their parental rights to their sons. In 2012, the Division received referrals asserting mother abused her step-daughter. Mother admitted hitting the child and parents were referred to parenting and anger management classes. In 2014, a visiting division worker saw that step-daughter had black eyes and a medical examination showed numerous scars and lesions. She and older son were removed from the home. A psychological evaluation showed that parents had cognitive disabilities and were unable to provide adequate parenting. Both parents began therapy and parenting skills classes. Mother admitted she hit step-daughter and alleged domestic violence issues with father. After second son was born, both boys were placed with their paternal grandmother. A further examination of father showed that, as a result of a traumatic brain injury from a car accident, he was not capable of being a minimally effective parent. Testimony at the hearing showed that both parents were unemployed and neither had stable housing. Father argued that his counsel’s failure to call his expert to testify constituted ineffective assistance of counsel. The court found that father was entitled to have the trial court review the expert’s testimony and report because the Division had received a copy of the report well before trial and expert testified on behalf of mother.

20-2-3730 A.L.I. v. D.W., N.J. Super. App. Div. (per curiam) (5 pp.) Plaintiff appealed the dismissal of the Prevention of Domestic Violence action she brought against her second cousin. Defendant stayed with plaintiff and her husband for ten days in 2015 and, when defendant left, husband went with her and they began cohabiting. In 2016, defendant and plaintiff’s husband arrived at plaintiff’s home and defendant spoke abusively to plaintiff and physically attacked her. Plaintiff filed a complaint. The trial judge concluded that plaintiff was not a “victim of domestic violence” because defendant was not at any time a household member. Plaintiff argued that the scope and nature of the parties’ relationship qualified her as a “victim” based on the remedial nature of the statute. The statute defined a victim of domestic violence as a person who was subject to domestic violence by “any person who is a present or former household member.” The trial judge correctly found that the parties were never household members. Although they may have occasionally stayed under the same roof on visits to plaintiff’s mother when they were children or taken vacations together or had overnight visits in each other’s homes over the years, they were never members of the same household.

20-2-3731 Div. of Child Prot. and Permanency v. M.C., N.J. Super. App. Div. (per curiam) (14 pp.) (April 5, 2017) Defendant appealed from the order terminating her parental rights to her three children. Defendant’s case was opened when defendant, while pregnant with her middle children, tested positive for opiates. Although the referral to the division was unfounded, a protection plan was put in place for defendant’s older son. The division then filed a complaint for care and supervision of defendant’s children, and was later granted custody after the division received another drug-related referral. The children’s resource parents indicated their willingness to adopt, and a bonding evaluation recommended defendant’s older children be adopted by their foster parents. Throughout the litigation, the division attempted to provide substance abuse treatment to defendant with limited success. The bonding evaluation also diagnosed defendant with bipolar disorder, opioid and cocaine use, and unspecified personality disorder, and recommended her parental rights terminated because she could not provide a safe and stable environment for her children. At a guardianship trial, the trial court dismissed without prejudice the petition to terminate defendant’s parental rights, subject to defendant allowing inspection of her home and providing proof of employment within 10 days. At a reconvened hearing, the deputy attorney general requested to reopen the guardianship docket because the division presented new evidence. The trial court agreed and ordered defendant’s parental rights terminated, after the trial court sua sponte reopened the guardianship docket. On appeal, defendant argued the new evidence regarding her housing and employment was insufficient, and that the conduct of the proceedings deprived her of due process. The court agreed that defendant was deprived of due process, since she was not given notice that the trial court would apply the clear and convincing standard of a Title Thirty hearing when it reconvened the Title Nine matter. The court held that the division should have been required to refile its guardianship complaint.

20-2-3688 Doblin v. Doblin, N.J. Super. App. Div. (per curiam) (20 pp.) The parties married in 1994, had one child and divorced in 1998. Their prenuptial agreement was the subject of much litigation after the divorce and the trial court addressed child custody issues over multiple years. Eventually, the Family Part denied reconsideration of defendant’s request to reinstate alimony and held that alimony had been waived by defendant’s failure to seek it in a timely manner. Defendant appealed and claimed for the first time that her signature on a 2006 consent order was forged and that certain 2007 orders were invalid because they were entered without a motion. The trial court denied her motions as barred by res judicata and assessed counsel fees against defendant’s counsel for frivolous litigation. Defendant appealed and sought relief under Rule 4:50-1(d) and (e). The court found that defendant’s application was per se frivolous by attempting to challenge old orders through different legal arguments without the facts to support her claims. The imposition of counsel fees as a sanction for frivolous litigation was appropriate because defendant had previously been warned about the possibility of sanctions.

20-2-3732 Estate of Patricia M. Quinn v. Quinn, N.J. Super. App. Div. (per curiam) (6 pp.) The dispute in this post-judgment matrimonial matter related to claims made by the estates of both parties who were now deceased. Specifically, Marita Quinn, second wife and executrix of defendant’s estate appealed from an order denying her “informal request” for Rule 1:4-8 sanctions against respondent’s counsel. Previously, the court issued an opinion reversing and remanding a dispute over defendant’s life insurance proceeds between Marita and respondent’s testatrix with specific instructions for the court to enter an order directing the release of certain funds to Marita. After issuing the opinion, Marita wrote to the judge requesting Rule 1:4-8 sanctions upon respondent’s counsel contending counsel engaged in fraudulent conduct over the years with respondent in an attempt to prevent Marita from recovering her portion of defendant’s life insurance proceeds. In response to the remand order, the judge entered an order to show cause allowing the parties to raise any arguments; Marita responded with such sanction request. The judge disbursed the funds as directed but found no impropriety justifying sanctions. On appeal, the court affirmed finding Marita failed to follow the detailed procedures set forth in Rule 1:4-8 for a litigant to seek sanctions against an attorney for pursuing a frivolous claim, including making a formal motion. Moreover, Marita sought fees for periods of time where she appeared as a self-represented litigant which was not compensable under the Rule. Accordingly, the court affirmed the denial of sanctions.

23-2-3700 Matchaponix Estates, Inc. v. First Mercury Ins. Co., N.J. Super. App. Div. (per curiam) (13 pp.) Bicycle rider fell and was injured riding on a roadway in a development built by plaintiffs. She alleged the accident was caused by a sinkhole and sued for negligent management and maintenance. Plaintiffs submitted a claim to defendant which disclaimed coverage based on the policy’s subsidence exclusion provision. Undisputed expert opinion showed that the sinkhole was caused by underground leakage from a storm-water pipe. The court disagreed with the trial court that the exclusion language was ambiguous. The court found that the language plainly excluded any losses from the movement of land or earth ‘however caused.” In this case, the factual predicate for the occurrence was the manmade movement of earth. The court noted that defendant’s interpretation of the provision would apply to the mere act of putting a shovel in the ground and then considered plaintiffs’ reasonable expectations. The court held that an unreasonably narrow interpretation of the subsidence exclusion was in discord with plaintiffs’ reasonable expectations as land developers regarding the type of coverage provided under the policy and affirmed the lower court.

23-2-3715 Luca v. GEICO Indem. Co., N.J. Super. App. Div. (per curiam) (10 pp.) Plaintiff appealed from the grant of summary judgment to defendant, after the trial court ruled that plaintiff’s injuries did not satisfy the limitation on lawsuit threshold under the Automobile Insurance Cost Reduction Act. Plaintiff was rear-ended by an uninsured motorist; plaintiff was determined not to be at fault for the accident. Her insurance policy, issued by defendant, included a provision for uninsured motorist benefits. Plaintiff filed the present action against defendant seeking UM benefits to compensate her for injuries she sustained in the accident; plaintiff’s husband asserted a per quod claim. Plaintiff’s policy was subject to the limitation on lawsuit threshold, which required her to show an injury by objective medical evidence, and that said injury was, within a reasonable degree of medical probability, permanent. Plaintiff’s orthopedists and neurologist authored reports stating plaintiff had suffered various injuries, including herniated discs of her cervical and lumbar spine, and cervical radiculopathy; however, neither rendered an opinion as to permanency. The parties participated in mandatory arbitration, which awarded plaintiffs $30,000 in aggregate. Dissatisfied with the award, plaintiffs filed for a trial de novo. However, after discovery defendant moved for summary judgment, which the trial court granted. Plaintiff moved for reconsideration, submitting a new report from one of her orthopedists that indicated plaintiff’s injuries were permanent. The trial court denied reconsideration, ruling that plaintiff could have provided the report before the original summary judgment motion. On appeal, the court affirmed summary judgment, noting that plaintiff failed to secure during discovery any reports stating she suffered a permanent injury. The court further noted that plaintiff’s report submitted on reconsideration failed to state that plaintiff’s condition was permanent as defined by statute.

25-2-3716 Hendrickson v. United Parcel Serv. – Edison, N.J. Super. App. Div. (per curiam) (14 pp.) Defendant appealed the decision of the division of workers’ compensation granting petitioner’s motion for temporary benefits and medical treatment. Petitioner was 59 years old and had worked for defendant for approximately 30; for his first 19 years, petitioner worked as a package car driver, a job that required petitioner to make over 100 stops a day to deliver or pick up packages weighing up to 150 pounds. Petitioner testified that he began suffering lower back problems in 1992, but he did not file a workers’ compensation claim, instead receiving chiropractic treatment that allowed him to return to work with no residual effects. Petitioner suffered another lower back injury in 2002, and was diagnosed with degenerative disc disease. After physical therapy, petitioner returned to work, but filed a claim and was awarded 15 percent partial total disability, later increased to 17.5 percent in 2006. That year, petitioner began working as a feeder and shifter driver, which he claimed caused him to suffer shock and vibration over pot-hole ridden roads due to his vehicle’s lack of air suspension. At trial, both parties’ experts agreed that petitioner would require additional surgery, but disagreed as to why. Petitioner’s expert opined that his injuries were an extreme form of repetitive occupational stress, whereas defendant’s expert opined that petitioner’s injuries were the result of chronic degenerative changes due to his 2002 injury. A WCJ granted petitioner’s claim, finding him and his expert credible and defendant’s expert not credible. On appeal, defendant argued petitioner’s claim was barred by the two-year statute of limitations. The court rejected defendant’s argument, finding it to merely be a disagreement with the WCJ’s factual findings. The court ruled that petitioner’s claim was timely, as the WCJ credited testimony that his current condition was the result of his subsequent feeder/shifter driving work rather than his 2002 injury.

25-2-3734 The Ocean Cnty. Utilities Auth. v. United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied-Indus., and Serv. Workers Int’l Union AFL-CIO Local 1-149, N.J. Super. App. Div. (per curiam) (10 pp.) Defendant appealed the denial of its reconsideration motion. Plaintiff had fired one of its employees, Paul Gudzak, who was represented by defendant as his collective bargaining representative. Defendant filed a grievance, and the parties ultimately filed for arbitration with the state board of mediation as provided in the parties’ CBA. The arbitration resulted in an award reversing plaintiff’s action and reinstating Gudzak with back pay after a 30-day suspension. Plaintiff then filed suit to vacate the arbitrator’s award as untimely under the CBA and therefore void, since the CBA required an award rendered within 30 days after a hearing and the arbitrator did not issue its award for approximately 6 months. The trial court agreed with plaintiff and granted it summary judgment, vacating the award as untimely and remanded for a new arbitration. No arbitrator was appointed for over a year, and plaintiff moved to dismiss the new arbitration for failure to prosecute. Defendant moved for reconsideration of the order vacating the arbitration award, arguing that it was palpably incorrect to automatically vacate an award issued beyond the 30-day limit; defendant contended the trial court’s order was interlocutory and could be reconsidered at any time. The trial court rejected defendant’s arguments, holding that an order compelling arbitration was final. On appeal, defendant reiterated its arguments in support of its reconsideration motion. The court first rejected defendant’s contention that the trial court’s order was not a final order, and therefore concluded that reconsideration was correctly denied. The court ruled because an order compelling arbitration dismissed the complaint, that decision ended the litigation and was therefore final because there was nothing left for the trial court to decide.

26-2-3691 Princeton Battlefield Area Pres. Soc’y v. Inst. for Advanced Study, N.J. Super. App. Div. (per curiam) (19 pp.) Plaintiffs appealed the final agency decision of the Delaware and Raritan Canal Commission approving defendant’s development application. The commission was established to preserve, improve, and enlarge the Delaware and Raritan Canal State Park, and was authorized to review all development projects within and nearby the park. Defendant’s property was located within the commission’s review zone. In 2015, defendant submitted a renewed application to develop permanent faculty housing. At a commission meeting, plaintiffs objected to the plan, presenting expert testimony regarding the project’s detrimental impact to waterways and wetlands. Defendant presented expert testimony rebutting plaintiffs’ claims. One commissioner, Mark Texel, expressed his personal objection to the application, but noted that it complied with all regulations, and abstained from voting. Although defendant’s application failed to gain the required affirmative votes, Texel requested reconsideration. Plaintiffs objected, arguing the commission could not sua sponte reconsider its prior decision, but the commission approved reconsideration, with Texel voting in approval. On appeal, plaintiffs reiterated their argument that, absent fraud or material change in facts or applicable law, the commission lacked authority to permit a commissioner to request reconsideration to change his vote. The court held that the only constraints on an agency’s authority to reconsider a decision were reasonableness, fairness, and good cause. The court ruled that the commission acted within its authority, since it undertook reconsideration within the period that defendant could have requested an adjudicatory hearing at which the commission could have reconsidered and approved defendant’s application. Furthermore, the court rejected plaintiffs’ argument that the commission was statutorily required to consider the project’s impact on waterways, finding that the statute only required consideration if the project included a portion of a stream corridor, which defendant’s project did not include.

26-2-3735 Piscitelli v. Zoning Bd. of Adjustment, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiffs appealed the denial of their challenge to the Zoning Board of Adjustment’s grant of defendant’s land use application. The land use application was for a partially abandoned commercial development located partly in a residential zone and partly in a B-2 business zone. The property had always been used for commercial, automotive related uses and the Board granted variances permitting the building of a car wash, gas station and quick lube. The trial judge properly relied on his credibility findings to conclude that the allegations of conflict of interest by one board member were not true. The trial court also properly found that Board members who worked for the local board of education were not disqualified from voting on the application because the board of education was not the applicant and the application did not concern BOE property or property owned by a BOE official. The fact that a member of the BOE had previously been a part owner of two of the lots was too attenuated to support a finding of a conflict of interest since the property had been sold before the filing of the current land use application.

26-2-3736 First Ave. Realty, LLC v. City of Asbury Park, N.J. Super. App. Div. (per curiam) (9 pp.) Plaintiff appealed the dismissal of its complaint seeking damages against defendants. Plaintiff formerly owned property in defendant city of Asbury Park, a multi-family apartment building sited in an area deemed to be blighted and therefore subject to the city’s waterfront redevelopment plan. The city designated defendant Asbury Partners as the master developer for the plan. Plaintiff applied for and received permits to perform repairs to its property. Due to heavy rain during repairs, a tarp blew off the roof resulting in significant damage, after which the city deemed the property uninhabitable and relocated the tenants. A city inspector determined that plaintiff was performing renovations beyond the scope of work authorized by their permits and issued a stop-work order, requiring plaintiff to submit plans regarding work beyond the scope of the permits. Plaintiff applied for a new zoning permit, but the zoning official deemed the proposed work “redevelopment” and denied the permits, as plaintiff would have been required to obtain developer status from Asbury Partners and to pay fees to cover infrastructure improvements Asbury Partners was performing throughout the redevelopment zone. Plaintiff did not appeal the stop-work order, but instead filed the present complaint. Defendants moved to dismiss, arguing plaintiff failed to exhaust its administrative remedies and did not comply with the redevelopment plan. The trial court granted the motion, finding that plaintiff’s complaint failed to state a basis for non-compliance. On appeal, the court affirmed, agreeing that plaintiff failed to exhaust its administrative remedies and had not asserted any exceptions to the exhaustion doctrine.

27-2-3701 John Caruso Realty, Inc. v. Jersey City Rent Leveling Bd., N.J. Super. App. Div. (per curiam) (6 pp.) Appellant owned property which contained two separate residential buildings. A judge hearing a 2003 landlord-tenant action issued a judgment of possession regarding a tenant in the rear building, finding the Anti-Eviction Act did not apply because the building was owner-occupied with not more than two rental units. Subsequently, respondent, a tenant in the front building, filed a complaint following appellant’s attempt to increase her monthly rent by 25 percent for violation of the Rent Control Ordinance §260. Appellant opposed arguing the ordinance exempted “dwellings with four or less housing spaces” from its definition of a dwelling. Respondent-board rejected appellant’s exemption claim and set respondent-tenant’s lawful monthly rent. Upon filing the underlying complaint, the law division judge dismissed the matter noting that the language of the Anti-Eviction Act permitted eviction of a tenant by the “owner of a building of three residential units or less” who intended to “personally occupy the unit.” The judge noted the ordinance’s use of the word “structures” was plural and independently concluded both buildings constituted “structures;” therefore, there were six rental units and the Act was inapplicable. On appeal, the court affirmed finding the clear intent of the ordinance was to exempt dwellings with four or less housing spaces from the strictures of rent control. The language of the ordinance was plain and unambiguous, and when applied to the facts in this case, it was obvious that two structures, containing a total of seven housing spaces. As a result, the exemption in the ordinance did not apply.

04-2-3717 Bell v. Klein, N.J. Super. App. Div. (per curiam) (22 pp.) Plaintiff appealed the grant of summary judgment in favor of defendants, dismissing plaintiff’s legal malpractice claim. Plaintiff had retained defendants to represent her in a divorce action filed by her husband. A pendente lite order was entered against plaintiff’s husband. The couple was divorced by a final judgment that included their settlement agreement. Plaintiff acknowledged she was freely and voluntarily entering the agreement. The final judgment provided plaintiff permanent alimony, and declared two indemnification agreements signed during the marriage unenforceable. The Florida home was sold, while plaintiff was given the option to refinance or sell the marital home. Defendants later sued plaintiff for unpaid legal fees, and plaintiff counterclaimed malpractice, alleging that defendants forced her to sign the settlement agreement, and failed to enforce the pendente lite orders or use escrow funds to pay plaintiff’s delinquent mortgage and taxes. Plaintiff later voluntarily dismissed her malpractice claim without prejudice, and accepted defendants’ offer of judgment on the legal fees claim. Plaintiff later filed the present malpractice action, reiterating her allegations in her malpractice counterclaim. Plaintiff’s expert report concluded that defendants erred in settling when trying the divorce would have resulted in a larger alimony and equitable distribution for plaintiff. Defendants were granted summary judgment after arguing that plaintiff’s complaint was barred by the entire controversy doctrine and that her expert report constituted inadmissible net opinion. The trial court that plaintiff was estopped from now denying that she voluntarily entered the settlement agreement. On appeal, the court affirmed in part, concluding that plaintiff was judicially estopped from claiming duress or defendants’ lack of discovery. However, the court ruled that plaintiff was not estopped from raising claims regarding defendants’ drafting of the settlement agreement. The court further agreed with plaintiff that her expert opinion did not constitute a net opinion, as it was based on case authority.

36-2-3718 Paramel v. Martinez, N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiff appealed from the grant of summary judgment to defendants, dismissing plaintiff’s complaint with prejudice. Plaintiff was traveling eastbound on a state route, and defendant Merca Martinez was traveling westbound on the same route in a vehicle owned by defendant Jose Martinez. Merca’s vehicle came into plaintiff’s lane and struck his vehicle; a second collision occurred when another westbound vehicle attempted to stop but rear-ended the vehicle in front due to a slippery substance on the roadway. Police officers noted that the slippery material had spilled onto both sides of the roadway, although it was thicker on the westbound side. Due to the presence of the substance, officers shutdown the roadway. The substance had caused Merca to lose control of her vehicle and strike plaintiff’s vehicle. A subsequent investigation concluded that a truck owned by 3rd-party defendant DJM Transport, LLC and driven by third-party defendant Orelvy Gonzalez had spilled sewage onto the road. Following discovery, defendants moved for summary judgment. The trial court granted the motion, concluding there was no evidence that Merca was negligence and ruling that an accident itself was not proof of negligence. On appeal, plaintiff contended there were disputed issues of material fact as to Merca’s negligence. The court disagreed, agreeing with the trial court that the loss of control of a vehicle on a slippery roadway did not establish negligence, or establish an inference of negligence on the part of the driver. The court noted there was no evidence that Merca knew or should have known of the slippery substance on the road or could have engaged in evasive maneuvers to avoid it.

31-2-3719 Crossing-Lyons v. Towns Sports Int’l, Inc., N.J. Super. App. Div.(per curiam) (6 pp.) Plaintiff appealed the dismissal of her personal injury action. Plaintiff was a member of a fitness club and signed a waiver and release as part of her membership. The exculpatory clause provided that she engaged in physical exercise or activity at her own risk. She tripped and fell over a weight belt while walking to meet a trainer. Another member had left the belt on the floor and the trainer knew it was there but did not remove it despite the center’s policy of keeping the floors clean and picked up. Plaintiff argued the trial judge misapplied the decision in Stelluti v. Casapenn Enterprises, L.L.C., 203 N.J. 286, and that the exculpatory clause was unenforceable. The court agreed with plaintiff, applied the Gershon factors and found the clause unenforceable because it adversely affected the public interest by transferring redress of civil wrongs to either an innocent injured party or society-at-large. The court also found that Stelluti was factually distinguishable because plaintiff did not engage in any activity involving an inherent risk of injury, she simply walked across the floor.

31-2-3720 Pinnella v. Medford Twp. Pub. Sch. Dist., N.J. Super. App. Div. (per curiam) (16 pp.) Appellant, a camp counselor with third-party defendant, slipped and fell on the wet cafeteria floor sustaining serious injuries including fractures to both wrists. Appellant brought the underlying personal injury action against respondent whom had an agreement with third-party defendant to allow it to operate before and after school programs at certain locations in certain schools, including the elementary school where the incident occurred. Respondent moved for summary judgment contending appellant disregard wet floor signage and her injuries were the result of her own unsafe actions and conduct. The trial court granted summary judgment finding that putting signs up and mopping a cafeteria floor did not create a dangerous condition and would put individuals on notice that there was water on the floor. To establish a prima facie tort claim alleging a dangerous condition of public property, appellant must prove, among other elements, that the action respondent took to protect against the condition was palpably unreasonable. N.J.S.A. 59:4-2 On appeal, the court affirmed holding the trial court correctly determined respondent’s conduct in placing cones or signs to warn of the wet floor was not palpably unreasonable. The court agreed that the action respondent took did not create a jury question as to palpable unreasonableness and therefore affirmed the trial court’s order granting summary judgment dismissing the complaint.

31-2-3721 Ruff v. West Kinney Gardens, N.J. Super. App. Div. (per curiam) (6 pp.) While walking to a family reunion, respondent was shot by an unknown assailant on a public sidewalk in appellant-Newark. Appellant issued the permit for the reunion and arranged for a police officer to be present. Although respondent was not on appellant property when she was shot, she argued the shooter was located on appellant property and asserted appellant was responsible for a lack of police protection. The trial court denied appellant’s motion for summary judgment, and reconsideration, finding a material factual dispute as to the location of the shooter at the time of the incident. On appeal, appellant argued the trial court erroneously denied summary judgment, arguing it was entitled to immunity under the New Jersey Tort Claims Act and that the location of the shooter was not a material factual dispute. The court reversed, concluding the statute was clear that appellant was immune from the present suit pursuant to N.J.S.A.59:5-4. The court noted respondent conceded her theory of liability against appellant was the failure to provide police protection at the time of the incident. This court has previously stated the legislative purpose behind the statute was “to protect the public entity’s essential right and power to allocate its resources in accordance with its conception of how the public interest will best be served, an exercise of political power which should be insulated from interference by judge or jury in a tort action.” Therefore, appellant was entitled to summary judgment and the location of the shooter was not a material fact warranting denial of summary judgment.

35-5-3692 Camden Day Nursery Assoc. v. City of Camden, Tax Ct. (per curiam) (25 pp.) Plaintiffs, a non-profit corporation that owned real property in defendant-city, operated a day care center for children on its property. Despite being tax exempt for a number of years, in December 2010, the municipal tax assessor issued a letter to each plaintiff stating that the facility was not eligible for exemption of real estate taxes and ordered that each building be taxed beginning January 2011. Following a lengthy procedural history, the court subsequently granted motions for summary judgment exempting the properties for the tax years 2011-2016, but reserving a decision with respect to the 2014 tax year to permit the parties to brief the jurisdictional question addressed. After receiving supplement briefing, the tax court determined plaintiffs failed to satisfy the statutory filing deadline at the county board of taxation with respect to tax year 2014. Further, plaintiffs failed to file a separate complaint for each tax year as required under Rule 8:3-1(c), failed to accompany each complaint with a case information sheet, and failed to pay the appropriate filing fee for each complaint. Finally, the court rejected the “square corners” doctrine as it was not credible for plaintiffs’ counsel to argue that he did not file timely 2014 appeals because he remained under the impression that defendant would enter into a consent order as nothing in the record suggested a consent order was entered into with regards to the 2014 tax year. Accordingly, the court lacked jurisdiction to review the denial of exemption for tax year 2014.

35-2-3737 Rosenblum v. Borough of Closter, N.J. Super. App. Div. (per curiam) (6 pp.) Appellant initially filed a complaint in the Tax Court, regarding farmland assessments on property owned by respondent Watkins for the years 1997 through 2000, which was dismissed. Appellant then filed complaints with the Tax Court regarding assessments on the same property for the years 2005, 2006, 2009 2010, and 2011. The complaint was subsequently withdrawn on the understanding that respondent-Borough would assess the property fairly and consistently with applicable law. Thereafter, respondent-Borough issued new assessments of the property. Dissatisfied and denied a conference with the Tax Court, appellant filed a four-count complaint alleging respondents breached their “agreement” by refusing to negotiate a fair assessment, payment of roll-back taxes, false applications, and conspiracy. The court granted respondents’ motion to dismiss for lack of jurisdiction and untimeliness as well as requiring appellant to pay legal fees and sanctions. On appeal, the court affirmed for the same reasons as the law division concluding it lacked jurisdiction to hear tax appeals as the complaint should have been filed in the Tax Court. Further, the complaint was untimely under N.J.S.A. 54:3-21 and appellant failed to seek leave to appeal pursuant to Rule 2:4-1. Moreover, because respondents served appellant notice that his complaint was frivolous, the court properly awarded sanctions since appellant, who previously filed numerous “procedurally sound” tax appeals, was not the usual pro se litigant. Accordingly, the court affirmed the judgment of the law division.

14-2-3677 State v. Mark Green, N.J. Super. App. Div. (per curiam) (6 pp.) Defendant appealed his convictions for possession of controlled substances and possession with intent to distribute. Officer stopped defendant’s vehicle because he made a turn without signaling. Defendant argued the evidence should have been suppressed because defendant’s unsignaled turn had no effect on traffic. The trial judge correctly found that the reference to “other traffic” in the statute could include the vehicle of the trooper following and observing defendant’s driving. Defendant also challenged his sentence, arguing that the plea agreement called for a parole disqualifier of 20 months but the trial judge sentenced him to a 36-month parole disqualifier. The court found that defendant entered an open plea with no agreement as to the minimum period of parole ineligibility. The state conceded that defendant was entitled to a remand so he could file a motion to withdraw his guilty plea because the record showed that he may have believed he would receive a 20-month parole ineligibility period.

14-2-3678 State v. Darnell Reed, N.J. Super. App. Div. (per curiam) (18 pp.) Defendant appealed his conviction of third-degree resisting arrest by physical force and subsequent sentence of a discretionary extended nine-year term of imprisonment with discretionary 4.5-year period of parole ineligibility running consecutive to a 364-day sentence defendant was serving on an unrelated probation violation conviction. On appeal, defendant challenged the jury instructions, arguing that the jury should have been instructed as to the right to resist law enforcement’s unlawful use of force and as to unanimity as to the victim. Defendant further challenged his sentence as excessive and failing to include a gap-time credit. As to defendant’s arguments to the jury instructions, the court first noted that defendant failed to lodge an objection to the instructions at trial, and therefore held that the instructions would be reviewed under the plain error standard. The court also noted that an arrestee could not resist even an unlawful arrest, but could use reasonable force in self-defense or to break away if arresting officers employed a level of physical force beyond that necessary to effectuate the arrest. The court held that the evidence, viewed in the light most favorable to defendant, indicated that police officers used unnecessary and excessive force in arresting defendant, establishing a rational basis for a self-defense charge. Thus, the court ruled that the failure to instruct a jury that legitimate self-defense is a justification for resisting arrest when officers employ excessive and unnecessary force constituted plain error. The court further ruled that the failure to instruct the jury on self-defense constituted plain error where the jury’s acquittal of defendant on the remaining drug-related charges indicated that it found aspects of the state’s evidence less-than-credible, such that the evidence of defendant’s guilt on the resisting arrest charge was not overwhelming. Accordingly, the court reversed defendant’s conviction and remanded for retrial on the resisting arrest charge.

14-2-3679 State v. John A. Vicari, N.J. Super. App. Div. (per curiam) (23 pp.) Appellant pled guilty to second-degree possession of a weapon for an unlawful purpose, after being indicted for this and other offenses. Respondent offered a plea agreement whereby all other charges would be dismissed and recommended a minimum five-year sentence. Prior to sentencing appellant, a first-time offender, filed a request for the prosecutor to waive the mandatory minimum sentence in favor of a probationary sentence, or alternatively, to reduce the period of parole ineligibility. The prosecutor rejected the request and the trial judge concluded such decision was not patently or grossly an abuse of discretion thereby imposing the recommended sentence. On appeal, the court affirmed in part finding the prosecutor did not abuse its discretion by denying a Graves Act waiver to provide a probationary sentence. However, the court remanded for further review of the denial of a waiver to reduce the mandatory period of parole ineligibility in order to weigh the applicable aggravating and mitigating factors. The court noted that the unambiguous statutory language imposed tougher penalties for gun offenses and applied to a very narrow group of cases. Further, the court found the facts in this case included no basis to support the interest of justice which required a probationary sentence. As appellant did not meet the necessary criteria to warrant a waiver for a probationary sentence, the court affirmed the prosecutor’s decision to deny such request. However, the court remanded finding the trial judge erred in analyzing the aggravating and mitigating factors which may warrant a reduction in the parole ineligibility time.

14-2-3693 State v. M.E.D., N.J. Super. App. Div. (per curiam) (17 pp.) Appellant was convicted of crimes connected with sexual assaults against her younger sister and sentenced to an aggregate term of 15 years in prison with an 85-percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A.2C:43-7.2. On appeal, appellant argued the trial court violated N.J.R.E. 404(b) by allowing a DYFS worker to testify that she interviewed the victim, thereby depriving appellant of her right to a fair trial. She further challenged the court’s jury charges and excessive sentence. The court affirmed the convictions, holding the caseworker’s testimony was relevant as it provided the jury with an explanation as to how the conduct became known to the authorities. The risk of prejudice was minimal because the caseworker told the jury that the division was not investigating any mistreatment of the victim by appellant. The court noted that N.J.R.E. 404(b), which regulated the admissibility of other crimes or bad acts, was not applicable. Additionally, the court affirmed the jury charge as it properly defined the legal duty and assumed responsibility of appellant; the trial court’s charge, when viewed as a whole, did not contain prejudicial error. However, the court remanded for resentencing as the court erred in using the victim’s age as support for an aggravating factor when such age was also an element of the crime. Finally, the court found the trial court failed to provide a statement of reasons for the monetary penalty imposed prohibiting appropriate appellate review. Accordingly, the court affirmed the conviction, but remanded for resentencing and a statement of reasons.

14-2-3703 State v. Marc Gallucci, N.J. Super. App. Div. (per curiam) (48 pp.) Defendants appealed their convictions for the aggravated assault of defendant Stephanie Tylka’s former paramour. In his appeal, defendant Marc Gallucci argued that the trial court unduly restricted evidence of the victim’s violent behavior toward Tylka and improperly instructed the jury on prior bad acts, failed to sua spone give a Clawans charge on two witnesses the state failed to call, and finally mishandled a juror issue. Gallucci further argued that the prosecutor committed misconduct in his summation. Tylka further argued that the trial court erred in admitting certain text messages and a 911 call, failed to sua sponte give a curative instruction when the victim testified to selling controlled dangerous substances, and finally improperly excused a juror. The court affirmed defendants’ convictions, remanding solely to correct a clerical error in Gallucci’s conviction. The court first ruled that defendants were not entitled to introduce the victim’s prior bad acts because Tylka declined to be cross-examined regarding those acts and the victim’s assault. The court further noted that there was no uncontroverted evidence that the victim physically abused Tylka or that Gallucci knew the victim had physically abused Tylka. The court next ruled that the 911 call was properly admitted, since it was not a “structured” police investigation but merely intended to elicit details about the ongoing emergency necessary to dispatch police to the scene, and was admissible under either the excited utterance or present sense impression hearsay exceptions. The court rejected defendants’ assertion of improper prosecutorial commentary, ruling that right to silence was not violated by cross-examination on differences between voluntary statements and trial testimony. The court further rejected defendants’ challenge to the potential juror bias issue, finding that the trial court adequately preserved the collective nature of the jury’s deliberations. Finally, the court rejected defendants’ remaining issues without extended discussion.

14-2-3723 Shawn July v. N.J. Dep’t of Corr., N.J. Super. App. Div. (per curiam) (4 pp.) Appellant, an inmate at New Jersey State Prison in Trenton, appealed from a final decision regarding the calculation of gap-time credits. On June 25, 1999, appellant began serving a five-year maximum sentence for, among other things, unlawful possession of a firearm, possession and distribution of controlled substance, and receiving stolen property. On January 6, 2002, appellant was sentenced to an aggregate 20-year term with an 85-percent period of parole ineligibility pursuant to the No Early Release Act for aggravated manslaughter and unlawful possession of a weapon. The 2002 sentence ran concurrent to the 1999 sentence, totaling an aggregate maximum sentence of 22 years, six months, and 13 days. Appellant was awarded 927 days of gap-time credit for the time he spent incarcerated between the two convictions. Appellant filed an inmate grievance seeking a correction to his sentence and arguing his gap-time was not applied. Respondent determined that the credit was properly calculated and issued its final decision. On appeal, the court affirmed holding appellant’s aggravated manslaughter conviction required he serve a term of 17 years before he was eligible for parole; gap credits cannot reduce that term. As he was awarded 927 days of gap-time credits and 400 days of work credit by the court, respondent properly reduced the maximum sentence to 17 years and the decision was not arbitrary or capricious.

20-2-3738 State v. A.J., N.J. Super. App. Div. (per curiam) (10 pp.) Defendant appealed his convictions for harassment, contempt, and violating a New York state order of protection. A New York state protection order prohibited defendant from contacting his former spouse or their children except for issues regarding the children. Defendant missed picking up the children for a scheduled visitation and he called and texted spouse to set up an alternative pickup time. The exchange culminated in an email in which he called spouse “the problem” and threatened to have her found in contempt of court. Spouse filed complaints for harassment and contempt. The trial court found that the phone call and texts were about the children but that the email was about the spouse and was an attempt to shift the blame for the mix-up about picking up the children onto her. The court found that the trial judge erred in finding that defendant committed harassment because the judge made no specific finding that defendant acted with the requisite purpose. However, the record supported defendant’s contempt conviction because the email went beyond the order of protection which only allowed communications “with respect to the subject children.”

07-7-3680 Machado v. Law Offices of Jeffrey H. Ward, D.N.J. (Shipp, U.S.D.J.) (12 pp.) Plaintiff filed the underlying complaint alleging violations of the Fair Debt Collection Practices Act and invasion of privacy by intrusion upon seclusion against defendant-law office. Under both counts, plaintiff requested actual damages, any applicable statutory damages, reasonable attorneys’ fees and costs, and any other appropriate relief. Defendant made an offer of judgment that included reasonable attorneys’ fees and costs pursuant to Fed. R. Civ. Proc. 68. Plaintiff subsequently moved for attorneys’ fees and costs in the total amount of $11,453. The court granted plaintiff’s motion holding he demonstrated the requested fees represented a reasonably hourly rate and time expended on litigation. However, the court excluded from the award amount those expenses associated with the dismissed individual defendant as well as a reduction for the costs in filing an amended complaint where minor changes occurred. Moreover, because defendant’s offer of judgment which provided for attorneys’ fees without stating how each would be apportioned, the court determined that the fees would be equally allocated to each count. Therefore, the court granted plaintiff’s motion for attorneys’ fees and costs as modified. [Filed June 30, 2017]

09-7-3694 Stever v. Harrison, D.N.J. (Linares, C.D.J) (15 pp.) Defendant sought to dismiss plaintiffs’ putative class action asserting violations of the FDCPA. Plaintiffs alleged that the debt collection letters they received had glassine windows that showed a barcode containing personal identifying information that could be read by a smartphone scanner and thus, violated §1692f(8). Defendants argued that plaintiffs lacked standing to bring the action because they showed no injury-in-fact and failed to state a claim under 12(b)(6). The court found that plaintiffs’ allegations satisfied the concrete requirement of the injury-in-fact analysis. The FDCPA granted every individual the right to have his or her status as a debtor concealed from the public and to the extent the plaintiffs could successfully argue the barcode threatened that right, they sufficiently pled a concrete injury. Additionally, the bar code was clearly a “symbol” and violated the plain language of the statute. [Filed July 5, 2017]

09-8-3681 Martinez v. TD Bank USA, N.A., D.N.J. (Simandle, C.J.) (35 pp.) Defendants moved for summary judgment or to strike the class allegations in plaintiff’s TCPA and California’s RFDCPA putative class action arising from telephone calls to collect a consumer debt on plaintiff’s credit card. Defendants argued that plaintiff provided prior express consent for the calls. Plaintiff opened a store credit card in 2007 and agreed that store or its agents could call her. Plaintiff got a cellphone in 2011, updated her credit card account information using store’s website and provided her cellphone number as her “home” number. The website had a disclosure that said by providing the phone number, she consented to receiving calls at that number. Her account became delinquent in 2014 and store called her 165 times between August 2014 and April 15, 2015, when she told store she was filing for bankruptcy. Plaintiff asserted her bankruptcy attorney faxed letters to bank, but not to store, on April 10, 2015, revoking consent to call but bank had no record of receiving the faxes. Plaintiff failed to show that her method of revocation was a reasonable one under the circumstances. Plaintiff did raise a genuine issue under the California law whether the volume and pattern of calls constituted harassment. The court struck plaintiff’s class action allegations because the proposed class was a fail-safe class. [Filed June 30, 2017]

11-7-3682 Brownstone Specialty Fin., Inc. v. Freedom Mortg. Corp., D.N.J. (Hillman, U.S.D.J.) (16 pp.) Plaintiff, asserted claims for allegedly unpaid commissions in violation of the New Jersey Sales Representatives’ Rights Act (“SRRA”) and breach of contract by defendant. Plaintiff alleged it began “working for defendant as a ‘Consultant’ providing ‘commercial loan origination referral services’ pursuant to a Services Agreement” between the parties. Defendant subsequently verbally terminated the parties’ agreement, and followed up the same by written notice. Plaintiff alleged that after the termination defendant remained obligated to pay it a monthly draw but failed to do so in violation of the agreement. Defendant moved to dismiss the claim for violation of the SRRA arguing that any alleged failure to pay the monthly draw was not a valid claim for unpaid “commissions” under the SRRA. The court granted dismissal concluding the monthly draw was predetermined by the parties’ “Fee Schedule” as a fixed and was fixed and independent of the number of sales of loans referred by plaintiff. By contrast, the SRRA’s definition of “commissions” contemplated a form of compensation the calculation of which was derived from, and dependent upon, the work performance of the sales representative. Although the monthly draw constituted an advance of “expected earned Consultant Fees,” it was not sufficient to make it a “commission” under the Act. Accordingly, the court dismissed violation of the SRRA. [Filed June 30, 2017]

11-7-3695 Dando v. Bimbo Food Bakeries Distribution, LLC, D.N.J. (Hillman, U.S.D.J.) (7 pp.) The trial court previously granted defendants’ request dismissing all of the tort counts, with prejudice, as barred by the economic loss doctrine. However, the court permitted the breach of the covenant of good faith and fair dealing, unjust enrichment, and breach of contract to proceed concluding the requested compensatory damages was not barred by language in the parties’ distribution agreement. Defendants moved to reconsider asserting the court failed to address its argument that (1) consequential damages, (2) exemplary damages of treble the amount of actual damages, and (3) any monetary award of lost profits should be dismissed. The court denied as moot reconsideration as to consequential damages as no item of consequential damages had been specifically pled in the amended complaint and therefore there was no valid claim to consequential damages. Additionally, the amended complaint did not demand lost profits and any ruling that lost profits was unavailable was denied as moot. However, the court granted reconsideration as to exemplary treble damages given the remaining counts of the amended complaint sound entirely in common-law contract and quasi-contract claims whereby treble damages were not recoverable. [Filed July 5, 2017]

11-7-3683 In Re: Caterpillar, Inc., D.N.J. (Simandle, U.S.D.J.) (27 pp.) In this consolidated multi-district litigation, plaintiffs were initial or subsequent purchasers or lessees of vehicles with an EPA 2007 Compliant Caterpillar on-highway C13 or C15 engine manufactured by defendant. The parties reached a class-wide settlement of plaintiffs’ breach of express warranty claims and “any claims for relief…that [were] based on or in any way related” to the allegations that the subject engines were defective. Shortly after entering judgment and closing the case, the court received belated motions to opt-out of the class action settlement by two parties arguing lack of notice who had a pending litigation against defendant in Texas; defendant moved to enforce the final approval order and judgment. The court determined it would not bind these class members to the settlement agreement and would permit both to file late opt-out notices. The court noted that the class notice was adequate under constitutional due process but that these particular parties had demonstrated good cause to recognize their continuation of litigation during the opt-out period was a de facto opting out for which fairness required permitting the filing of a formal opt-out notice. The fact that two class members apparently did not receive individual notice packets from the settlement administrator did not change the court’s determination that the notice program on the whole constituted the best notice practicable under the circumstances, and satisfied the requirements of Rule 23 and due process. However, the two class members sufficiently showed excusable neglect and good faith to opt-out through their individually litigated claims against defendant prompting the court to permit their late-requested opt-out. [Filed June 30, 2017]

15-7-3705 Capital One Equip. Fin. Corp. v. Joseph, D.N.J. (Vazquez, U.S.D.J.) (6 pp.) Plaintiff sought default judgment in its action for breach of a security agreement. Defendant delivered a promissory note in favor of plaintiff in connection with a security agreement. The note provided that in addition to interest and other obligations, defendant agreed to pay all attorneys’ fees, court costs and other expenses incurred in the enforcement of the agreement. The loan matured in January 2016, but defendant failed to pay all amounts due and defaulted under the note. Defendant continued to make partial payments through 2016 and 2017. Plaintiff filed a complaint and sought the outstanding balance on the loan and costs associated with the legal action. Defendant did not respond to the complaint. The court found that it had jurisdiction, plaintiff sufficiently pled its cause of action and its damage claim was sufficiently supported by documentation and that all factors weighed in favor of entering default judgment. [Filed July 6, 2017]

15-7-3706 Cardinale v. Diversified Adjustment Serv., Inc., D.N.J. (Linares, U.S.D.J.) (8 pp.) Plaintiff filed the underlying complaint alleging violations of the Fair Debt Collection Practices Act when defendant sent an initial written communication seeking to collect an alleged unpaid debt without including the requisite information under 15 U.S.C. §1692g. Specifically, plaintiff alleged the letter did not state the identity of the creditor to whom the debt was owed. Defendant moved to dismiss for lack of subject matter jurisdiction and failure to state a claim under Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6). Defendant argued that the court lacked subject matter jurisdiction since plaintiff has supposedly failed to “plead any factual basis establishing that the debt in question [was] consumer related as defined by the statute.” The court denied dismissal holding plaintiff had pleaded that the alleged debt defendant sought to collect was a “financial obligation” that was primarily for personal, family or household purposes. As such, the allegations were within the FDCPA’s definition of “debt.” The court noted that merely calling the debt an “alleged debt” or including prefix language did not transform the statements in the complaint. Further, plaintiff has pleaded that (1) she was a consumer, (2) the defendant was a debt collector, (3) the defendant’s challenged practice involved an attempt to collect a debt as the Act defined it, and (4) the defendant had violated a provision of the FDCPA. Accordingly, the court was satisfied that plaintiff had sufficiently pleaded a prima facie claim for violation of the FDCPA and denied dismissal. [Filed July 6, 2017]

25-8-3739 Bulifant v. Delaware River & Bay Auth., 3rd Cir. (Krause, U.S.C.J.) (13 pp.) Appellants were seasonal crew members for appellee’s ferry services at various points between 2006 and the present. Appellants applied for full-time positions in response to job postings and received interviews nearly each time they applied, but ultimately were not selected for any of the openings. Appellants subsequently filed suit asserting they were not hired for these positions due to their age in violation of the Age Discrimination in Employment Act. The district court granted appellee’s motion for summary judgment concluding that, even assuming appellants had established prima facie cases of discrimination and retaliation under the ADEA, they had not established that appellee’s articulated legitimate reasons for their hiring decisions were pretextual. Although all appellants satisfied the initial burden of showing (1) they were at least 40 years old; (2) suffered an adverse employment decision; (3) were qualified for the position; and (4) were ultimately not hired in lieu of a younger candidate, the court affirmed concluding appellee had a legitimate nondiscriminatory reason for its failure to hire appellants. Further, the court noted appellee followed its own process which was “formal, open, objective, and documented.” However, the court vacated summary judgment as to appellants Hughes and McClintock for the September 2012 position as there existed competing evidence that a reasonable jury could conclude the failure to hire explanations were pretextual given individuals younger and ranked lower were hired in lieu of the two individual appellants. Accordingly, the court affirmed in part and reversed in part. [Filed July 7, 2017]

17-7-3684 Delaware Riverkeeper Network v. Soil Safe, Inc., D.N.J. (Bumb, U.S.D.J.) (80 pp.) Plaintiff filed an action against defendant pursuant to the Resource Conservation and Recovery Act. Defendant operated a soil recycling center nearby the Delaware River watershed. Plaintiff alleged that defendant’s operations were contaminating the Delaware River and its tributaries, causing environmental damage and impact to the public’s use and enjoyment of the river. Defendant’s recycling permit authorized the use of defendant’s recycled soil at three specified sites in the Delaware River watershed, as part of contamination remediation projects at those sites. Defendant’s customers were required to certify that the soil they sent to defendant was nonhazardous and to be tested by the customer prior to delivery to defendant. Plaintiff hired an environmental consultant to test samples from sites using defendant’s recycled soil. The test results revealed three chemicals at levels above required standards, but defendant’s representatives testified that the samples did not match the “fingerprint” of defendant’s recycled soil. Accordingly, the court concluded that the sampling did not demonstrate that the contaminants were from defendant’s soil, as the contaminants were present prior to the remediation with defendant’s soil. Following trial, the court first ruled that plaintiff had standing to pursue its claim, as it alleged that its members were harmed by contamination of the waterways they used by soil processed by defendant. Turning to the merits of the case, the court granted judgment to defendant, finding that defendant’s soil did not constituted “solid waste” because it had the beneficial purpose of being recycled for use in property remediation. The court noted that plaintiff presented no evidence that defendant was not in fact recycling the soil, pointing to the extensive testing performed by defendant as proof. Finally, the court ruled that plaintiff had failed to establish that defendant’s soil presented imminent and substantial endangerment to the environment. [Filed June 30, 2017]

23-8-3685 McDowell v USAA Gen. Indem. Co., D.N.J. (Simandle, U.S.D.J.) (40 pp.) Both parties moved for summary judgment in plaintiff’s action against insurer based on hurricane damage to his home. Plaintiff had a SFIP and a homeowner’s policy issued by defendant. A 2011 hurricane caused the right wall of the home to bow out, plaintiff repaired the wall himself and defendant denied the claim because there was no evidence of “a general condition of flooding.” A 2012 hurricane seriously flooded plaintiff’s house. Plaintiff was advised to mitigate damages and by the time the claims adjuster got to the house, plaintiff had removed the contents and the dry wall. The adjuster looked at available photos and concluded that the house was in the same condition it had been in after the 2011 hurricane and partially denied the claim. Plaintiff submitted a POL that included estimates to tear down and rebuild the house. Defendant denied the claim arguing plaintiff failed to comply with mandatory SFIP policy provisions by not providing an inventory of damaged property and the court agreed. The court also agreed that plaintiff failed to submit a proper POL with supporting documentation prior to FEMA’s proof of loss deadline because he failed to specify the damages or provide a detailed repair estimate and his eventual proper POL was untimely. The court denied summary judgment on defendant’s pre-existing conditions argument. [Filed June 30, 2017]

23-7-3686 Penn Nat’l Ins. Co., Inc. v. Crum & Forster Ins. Co., D.N.J. (Hayden, U.S.D.J.) (7 pp.) The parties cross-moved for summary judgment in their declaratory relief action, seeking a judgment as to their rights and obligations with respect to insurance coverage they provided to Gus Bittner, Inc., a defunct waste hauler named as a defendant in multiple environmental superfund litigations. Bittner was in the business of hauling waste to landfills throughout New Jersey from the late 1950s until 1996. After the landfills where Bittner deposited its waste were closed, Bittner was named as a defendant in superfund lawsuits as an alleged transporter of waste. Plaintiff insured Bittner under several commercial general liability policies from 1976 to 1986. Defendant insured Bittner under excess/umbrella policies from 1976 to 1985; defendant’s policies required exhaustion of the limits of plaintiff’s primary policies before defendant incurred any defense and indemnity obligation. Plaintiff provided defense and indemnity to Bittner in three litigations for a total of approximately $2.7 million; Defendant also paid approximately $350,000 on Bittner’s behalf as part of the settlement reached in one of the three litigations. Plaintiff subsequently filed a declaratory judgment action against defendant, seeking a declaration that the limits of plaintiff’s primary policies have been exhausted and that defendant was required to reimburse and contribute to any past and future defense and indemnification costs exceeding plaintiff’s policy limits. In its summary judgment motion, plaintiff acknowledged that its policies for the years 1976 through 1981 had no aggregate limits, but argued that those policies were nevertheless exhausted under a Carter-Wallace allocation. Defendant argued that plaintiff had failed to establish proper exhaustion, and could not retroactively reallocate amounts paid in settlement. The court denied both parties’ motions, directing plaintiff to reconcile its inconsistent positions on the exhaustion of its policies, considering the existence of any aggregate limits on its policies. [Filed June 29, 2017]

23-7-3707 Shah v. Aetna, D.N.J. (Simandle, U.S.D.J.) (9 pp.) Defendant moved to dismiss plaintiff’s action alleging denial of benefits under §1132(a)(1)(B), breach of fiduciary duty under §1132(a)(3) and failure to maintain reasonable claim procedures. Plaintiff performed surgery on a patient who had health insurance through defendant. Defendant paid only a small portion of plaintiff’s bill. Defendant moved to dismiss all but the denial of benefits claim. The court agreed with plaintiff that dismissal of an ERISA breach of fiduciary duty claim was not appropriate at this early procedural stage. The court agreed with defendant that the failure to maintain reasonable claim procedures count had to be dismissed because ERISA §503 did not establish a private right of action for failure to comply with regulatory disclosure requirements. [Filed July 6, 2017]

25-8-3740 Rutledge v. Int’l Longshoremen’s Ass’n AFL-CIO, 3rd Cir. (Ambro, J.) (14 pp.) Defendants appealed the district court’s decision to remand to state court 3 of the 5 claims filed by plaintiff. Defendants had denied plaintiff the opportunity to resume working as a union longshoreman after he completed an addiction treatment program following an arrest for drug possession. An arbitration panel denied plaintiff’s reinstatement, citing the depressed economy and plaintiff’s arrest. Plaintiff filed a complaint in state court, which defendants removed. Defendants then moved to dismiss all of plaintiff’s claims, arguing that they were time-barred by the LMRA’s six-month statute of limitations. The district court ruled that two of plaintiff’s claims were governed by LMRA and dismissed them as untimely. However, the district court concluded that the remaining three claims were state law claims and remanded to state court. On appeal, the court first considered its jurisdiction to hear defendants’ appeal, as the district court cited 28 U.S.C. §1447 as its basis for remand, which stated that an order under that section was not reviewable on appeal. The court noted that the bar to appeal was only applicable to remand due to a defect in removal or lack of subject matter jurisdiction. However, the court further noted that the district court exercised its discretion to decline to exercise supplemental jurisdiction after dismissing the federal claims, and therefore concluded that it had jurisdiction to hear the appeal. Turning to the merits, the court rejected defendants’ argument that plaintiff’s NJLAD claims concerned the CBA, ruling that the elements of the claim did not require interpretation of the CBA. Similarly, the court held that plaintiff’s fraud claim did not require interpretation, since it merely alleged that defendant asserted a false basis for denying reinstatement. However, the court agreed that the tortious interference claim did require interpretation of the CBA to determine whether plaintiff had a reasonable expectation of continued employment. [Filed July 7, 2017]