11-2-3945 Markeim-Chalmers, Inc. v. Willingboro Urban Renewal, LLC, N.J. Super. App. Div. (per curiam) (36 pp.) Defendant sought a new tenant for its property. Plaintiff’s open listing agreement with defendant provided for a five percent commission if a “sale or exchange” occurred before a specified date and the prospective buyer had been “registered” with defendant. The parties’ “lease commission agreement” required defendant to pay a commission if the property was leased to a “registered” third party by a specific date. Plaintiff “registered” a potential buyer with defendant, buyer negotiated directly with defendant, plaintiff’s listing agreement expired, defendant and buyer formed a limited liability company which leased the property for 99 years and LLC then subleased the property after the open listing and lease commission agreements expired. Plaintiff argued it was entitled to commissions under the open listing commission and the lease commission. Defendant asserted plaintiff’s commission was only due on a sale, which did not occur. The court agreed with the trial court that the 99-year lease was effectively a sale and triggered the commission but remanded the calculation of the commission. Plaintiff was not entitled to a sublease commission because both commission agreements expired before the sublease occurred but plaintiff’s unjust enrichment, civil conspiracy and tortious interference claims required remand.

15-2-3946 U.S. Bank National Assoc. v. Ferreira, N.J. Super. App. Div. (per curiam) (10 pp.) Appellant executed a note and non-purchase money mortgage encumbering his residential property; the mortgage was subsequently assigned to respondent. Following appellant’s failure to maintain payments on the mortgage, respondent initiated foreclosure proceedings and a final judgment was entered. The parties attempted several loan modifications but a sheriff’s sale was ultimately conducted. Appellant moved to vacate the sale arguing he was not notified before the sale that his appeal of the denial of his latest loan modification application had been denied. In denying the motion, the trial court noted the motion was untimely and appellant’s multiple applications for modification did not halt the foreclosure process, particularly in the absence of any evidence of bad faith on the part of respondent in reviewing appellant’s applications while repeatedly postponing the sale to accommodate such review. On appeal, the court affirmed concluding appellant was not entitled to protections of 12 C.F.R. §1024.41(g) as such protections were to only apply to review of a single complete loss mitigation application. As appellant acknowledged that he “submitted multiple modification applications” since his default, any violations of the statute were inapplicable. Further, as the sheriff sale occurred more than six years after the mortgage loan went into default, the court determined the trial court did not abuse its discretion in denying appellant’s motion. Accordingly, the court affirmed.

15-2-3959 Santander Bank, N.A. v. Griggs, N.J. Super. App. Div. (per curiam) (7 pp.) Following a default in mortgage payments, respondent, as successor, initiated foreclosure proceedings against appellants. Appellants failed to answer, explaining that they were “trying to get in touch with the mortgage lender for some time” and both were ill. A default was entered and a final judgment of foreclosure subsequently ordered. Appellants moved for, and were denied, vacation of the final judgment of foreclosure; the property was sold at a sheriff’s sale. On appeal, appellants argued the trial court erred in denying the motion to vacate as they “raised legally sufficient questions as to the merits of respondent’s foreclosure action and legal justification.” Appellants also claimed respondent lacked standing to foreclose. The court affirmed finding respondent had standing based upon the bank’s representative whom certified that respondent was the “holder of the aforesaid note.” Further, an attorney for respondent certified as required by Rule 4:64-2(d) about communications with respondent’s employee who personally reviewed the affidavit of the amount due and the original note, mortgage and assignments. Therefore, the trial court did not abuse its discretion in denying the motion to vacate because respondent was assigned the mortgage and held the note prior to filing the complaint. Accordingly, the court affirmed.

15-2-3990 Wells Fargo Bank, N.A. v. Ugactz-Gonzalez, N.J. Super. App. Div. (per curiam) (11 pp.) Appellants executed a mortgage and note with non-party World Savings Bank, FSB secured by their residential property; respondent was assigned the note following a merger. Respondents subsequently defaulted under its terms by failing to make the requisite monthly payment. In response, respondents initiated a foreclosure complaint and moved for summary judgment. The trial court struck appellants’ answer and counterclaims as well as granting summary judgment for respondents. On appeal, appellant urged that there were genuinely disputed issues of material fact, and her proofs established that respondent lacked standing to foreclose. The court affirmed concluding appellant offered nothing more than her bare allegations when contesting the execution of her loan documents. The court noted respondent had standing following a proper merger with non-party and held the note without any endorsement. Consistent with N.J.S.A. 17:9A-139(1) and the requirements set forth in N.J.S.A. 12A:3-301, respondent was the holder of the instrument and the motion judge properly found it had standing to commence the foreclosure action against appellants. Accordingly, the court affirmed summary judgment.

15-2-3991 E* Trade Bank v. Boyle, N.J. Super. App. Div. (per curiam) (8 pp.) On assignment, the parties executed a mortgage and note secured by appellants’ residential property. Appellants subsequently defaulted on the terms of the mortgage and respondent initiated the underlying foreclosure action. In their answer, appellants asserted that they had been improperly double-charged for certain insurance costs. Declining oral argument and relying on the parties’ papers, the trial court granted respondent’s full amount sought. The narrow focus of this residential foreclosure appeal was whether the final judgment of foreclosure reflected duplicative or excessive charges that should be subtracted from appellants’ monetary obligation to respondent. The court concluded that the fairest and most appropriate course of action was to remand the matter to the trial court for further proceedings concerning the alleged overcharges. The court noted that where, as here, a timely request had been made for oral argument on a civil motion not related to discovery or calendaring, Rule 1:602(d) prescribed that such a “request shall be granted as of right.” Further, oral argument would have been manifestly productive. Moreover, the trial court’s decision did not address why appellants’ request for oral argument was denied. Although the court appreciated the trial court’s legitimate interest in disposing of pending motions efficiently, this particular instance would have been better disposed of through oral advocacy and a plenary hearing.

15-2-3992 U.S. Bank, N.A. v. Ceasar, N.J. Super. App. Div. (per curiam) (4 pp.) (August 7, 2017) Defendants appealed from the final judgment of foreclosure entered against them and in favor of plaintiff. In 2003, defendants executed a note and mortgage in favor of plaintiff’s predecessor-in-interest. Plaintiff acquired the loan in 2004, but its predecessor continued to service the loan and sent the original note to plaintiff’s document custodian. In 2008, defendants began to fail to pay the monthly mortgage payments or the real estate taxes for the property. The servicer sent notice of default and commenced a foreclosure action in 2009. The servicer obtained the original note from plaintiff and forwarded it to its counsel, but its counsel had no record of ever receiving the note. The 2009 foreclosure action was later dismissed. In 2013, the servicer sent another notice of default and intent to foreclosure, and in May 2014 plaintiff filed the current foreclosure action. After striking defendants’ answers and defenses, the trial court deemed the matter uncontested and granted judgment to plaintiff. On appeal, defendants argued that the 2013 notice of foreclosure failed to comply with the original loan agreement and the Fair Foreclosure Act because it was not issued by the original note holder and did not state when it was mailed. The court rejected defendants’ argument and affirmed the judgment of foreclosure, finding that the notice received by defendants was sufficient to fulfill the requirements to provide notice to take immediate action to forestall foreclosure.

15-2-3993 Wells Fargo Bank, N.A. v. Hassan, N.J. Super. App. Div. (per curiam) (5 pp.) Defendant appealed from the chancery division’s order denying her motion to vacate the default judgment of foreclosure granted in favor of plaintiff. Defendant executed a note and mortgage in favor of plaintiff’s predecessor-in-interest. Defendant stopped making mortgage payments in September 2014, and after plaintiff was assigned the note and mortgage it filed a foreclosure complaint in February 2015. Plaintiff attempted personal service upon defendant at the mortgaged property, but was informed that defendant no longer lived there, and had not provided a forwarding address. Plaintiff found another address for defendant; although the tenant at that address told the process server that defendant no longer lived there, on appeal defendant contended that she now lived at that address. Thereafter, plaintiff effected service by publication in 6 different newspapers, and mailed a summons to the mortgaged property. After defendant failed to file an answer, the clerk entered default, and the chancery division ordered the sale of the mortgaged property and fixed the amount owed on the mortgage. Defendant later moved to vacate judgment, although she did not explain how she learned of the judgment. The chancery division denied the motion. On appeal, defendant challenged plaintiff’s standing to foreclose. However, the court rejected defendant’s challenge and affirmed the judgment of foreclosure, noting that plaintiff filed its foreclosure complaint after the assignment of the mortgage to plaintiff was recorded, and that plaintiff produced a copy of the allonge endorsing the note to plaintiff.

15-2-3960 Nationstar Mortgage, LLC v. Iudina, N.J. Super. App. Div. (per curiam) (9 pp.) Appellant executed a note secured by her property which was subsequently assigned to and recorded by respondent. Appellant ceased making payments in 2011. As a result of appellant’s default, respondent initiated foreclosure proceedings and moved for summary judgment. At trial, the court found respondent was the proper successor and holder of the note, and the trial court granted summary judgment in favor of respondent and denied appellant’s motion to dismiss. The matter was forwarded to the foreclosure unit and entered a final judgment. One month later, appellant moved to vacate the final judgment contending that her newly assigned counsel was unaware of the motion and therefore had not had the opportunity to respond. The trial court vacated the order but further found the matter was tried and appellant’s only recourse was an appeal. On appeal, the court affirmed determining that appellant’s motion to vacate was untimely and without merit. The court further found that the trial court afforded appellant the opportunity for oral argument at which time appellant advised she would rely upon the papers submitted and advanced no further arguments; appellant offered nothing that altered the court’s initial findings. Finally, the court affirmed that respondent had standing to proceed with foreclosure based upon proofs presented establishing that it had a valid assignment, as well as presentation of the original note and mortgage. The court did remand for correction of the vacation order but otherwise affirmed.

15-2-3972 Ocwen Loan Servicing LLC v. Vargas, N.J. Super. App. Div. (per curiam) (7 pp.) Following the original mortgage holder’s Chapter 11 bankruptcy, respondent purchased its interest in the subject mortgage. Based on an alleged delinquency in payments, respondent remitted a notice of intent to foreclose on appellant; appellant conceded that payments had not been tendered to either lender for several years. However, appellant challenged the foreclosure action by raising affirmative defenses and seven counterclaims. Initially, the trial court granted respondent’s motion to strike all affirmative defenses and counterclaims, except those related to the date of default and amount due. Subsequently, respondent moved for, and was granted, dismissal of its foreclosure action without prejudice. In an attached statement of reasons, the trial court recounted that appellant’s counterclaims were stricken but did not amplify its reasons. On appeal, the court vacated the order concluding the trial court failed to explain the basis for its dismissal in accordance with Rule 1:7-4. As a result of the trial court’s silence, the court could not decipher either the legal standard it applied or the basis for its dismissal. Further, it was unclear whether the court barred appellant’s counterclaims under Rule 4:6-2(e) for failing to state a claim, or whether the court converted the motion to one for summary judgment under Rule 4:46. Given appellant’s multiple assertions, the court remanded for an explanation relating to dismissal.

39-2-3947 Pinto v. Bd. of Trustees, N.J. Super. App. Div. (per curiam) (8 pp.) Petitioner appealed the denial of her application for accidental disability benefits and the grant of ordinary disability benefits. Petitioner school custodian fell in elevator shortly after it had been waxed. All the floors in the school were being waxed that day and petitioner’s supervisor told her several times not to use the elevator but to use the back stairs to avoid the areas being waxed. Petitioner denied being told not to take the elevator or that it was being waxed. The ALJ credited the supervisor’s testimony about the warnings and concluded that petitioner’s fall was caused by her willful negligence in using the elevator. Petitioner argued the ALJ’s findings of fact lacked evidential support. The court found that the testimony showed that petitioner was told not to take the elevator, to avoid the floors being waxed, that she was aware of the risk involved and that she disregarded the risk.

39-2-3961 Huguenin v. Bd. of Review, N.J. Super. App. Div. (per curiam) (6 pp.) Petitioner appealed the denial of his application for unemployment benefits. Petitioner was injured on the job, considered temporarily but totally disabled and received workers’ compensation benefits from August 2013 until November 2015. He was cleared to return to work in November 2015 and applied for unemployment benefits because his former employer no longer had any work for him. His claim was denied. The court agreed that petitioner did not meet the “base week” or “wages” requirement of N.J.S.A. 43:21-4(e)(4) because his only income was from workers’ compensation which he had received for more than two years. Petitioner’s argument that the workers’ compensation temporary disability benefits should constitute “wages” failed. The statutory definition of wages did not include workers’ compensation benefits and the alternative base years were limited to persons receiving workers’ compensation for less than two years.

39-2-4004 Sassman v. Bd. of Trustees of the Pub. Employees. Ret. Sys., N.J. Super. App. Div. (per curiam) (8 pp.) Plaintiff appealed from the final decision of defendant, which adopted the decision of an ALJ affirming the board’s denial of plaintiff’s application for accidental disability retirement benefits. In 2012, plaintiff, then 61 years old, was employed as a teacher’s assistant for autistic children, when she was pushed to the floor by a student, landing on her right shoulder. A subsequent MRI revealed a torn rotator cuff, which was surgically repaired. However, plaintiff claimed she was unable to return to her job because movement in her arm was restricted, and asserted that, but for the injury, she would have continued working. Defendant approved plaintiff’s application for ordinary disability retirement, finding she was totally and permanently disabled, but denied her application for accidental disability retirement benefits. At a hearing before an ALJ, plaintiff’s orthopedist testified that plaintiff’s rotator cuff tear probably existed before her fall, but opined that the tear was smaller and that the fall caused the full tear. Defendant’s orthopedist opined that the full tear existed before the fall, noting that her MRI revealed medial retraction of the tendon which would not have been present in an acute tear. The ALJ credited defendant’s expert’s testimony and concluded that plaintiff’s disability was not caused by the fall. On appeal, the court affirmed, finding that the ALJ’s conclusion, adopted by defendant, that plaintiff’s fall was not the direct cause of her disability was supported by substantial credible evidence, since the ALJ credited defendant’s expert’s opinion that plaintiff’s fall did not cause the full tear.

25-2-3948 Roopchand v. Complete Care, N.J Super. App. Div. (per curiam) (16 pp.) Plaintiff appealed the summary judgment granted to defendants in her action asserting discrimination based on her pregnancy. Plaintiff medical technician worked for defendants, two doctors, and her duties included patient care and administrative duties. Plaintiff informed one doctor that she was pregnant and that it was a high risk pregnancy. Several days later, other doctor asked plaintiff to wash windows, which was not part of her regular duties and would have required her to climb a ladder. She refused thinking he was joking. Doctor asked her two more times to wash windows in front of the other employees and then fired her for insubordination. The trial court found that plaintiff’s assumption that one doctor had told other doctor about the high-risk pregnancy was an assumption without any supporting facts and that plaintiff had never asked for an accommodation. The court found that plaintiff made a prima facie case for disparate treatment under the PWFA and submitted sufficient evidence for a reasonable jury to infer that her termination was a pretext for unlawful discrimination. She was the only employee asked to stand on a ladder and wash windows and was fired for refusing to do so although another, non-pregnant employee was not fired for persistent insubordination.

25-2-3962 JPRC, Inc. v. N.J. Dept. of Labor and Workforce Development, N.J. Super. App. Div. (per curiam) (7 pp.) Appellant appealed from respondent’s administrative decision which determined that exotic dancers who worked at appellant’s place of business during the years 2002 through 2005 were employees, within the meaning of N.J.S.A. 43:21-19(i)(1)(A), and assessed appellant approximately $9,000 for unpaid contributions to the unemployment compensation fund and the state disability fund. On appeal, the court affirmed concluding appellant’s evidence in this matter was insufficient to satisfy its burden of proof as to N.J.S.A. 43:21-19(i)(6), also known as the “ABC test.” Under the ABC test, services performed by an individual for remuneration shall be deemed to be employment unless it is shown such individual is (a) free from control or direction over the performance, (b) such service is outside the usual course of business, and (c) such individual is customarily engaged in an independent occupation. The court noted appellant’s advertising belied its claim that the dancers were merely incidental or peripheral to appellant’s business of serving food and drink. Further, appellant presented little evidence concerning the individual dancers it alleged were independent contractors. In sum, the court affirmed finding the dancers performed their services for remuneration within the meaning of the statute.

25-2-3973 In the Matter of Carr, N.J. Super. App. Div. (per curiam) (11 pp.) Appellant appealed her suspension, demotion and removal from her position as Personnel Assistant. She was served with a disciplinary notice for incompetence, insubordination, conduct unbecoming, neglect of duty and abuse of authority and, after a hearing, was suspended and demoted. She filed an administrative appeal. Two months after the first notice, she was served with a second disciplinary notice seeking her removal from office for failure or delay in carrying out duties, insubordination, conduct unbecoming and divulging confidential information. After another hearing, she was terminated and filed an administrative appeal. The ALJ credited the hospital’s witnesses and found that appellant never prepared the electronic payroll manual that she had been asked to create, failed to respond to directives from supervisors, failed to obtain authorization for certain payments she ordered made on her own behalf and divulged confidential information. The ALJ upheld the suspension and the termination. Appellant contended the ALJ’s findings were not supported by credible evidence. The court affirmed the decisions for the reasons expressed by the ALJ and the Commissioner and found that credible evidence in the record supported the decisions.

25-2-3994 Mitchell v. Borough of Roseland, N.J. Super. App. Div. (per curiam) (5 pp.) Plaintiff challenged his termination for cause from borough police department through a complaint in lieu of prerogative writs. Defendant was charged with misconduct arising from his involvement in a marital dispute and his failure to obey department orders to submit weekly reports to remediate his alleged issues. A hearing officer recommended his termination and the municipal council adopted the recommendation. Plaintiff filed his complaint and defendant counterclaimed seeking the recovery of salary paid to defendant while he was suspended. The trial court affirmed the termination and awarded repayment to defendant. The court found that the trial court, confronted with an action in lieu of prerogative writs, erred in applying the “arbitrary, capricious or unreasonable” standard instead of the de novo review applicable to claims of wrongful termination by municipal employees. Even though plaintiff filed an action that was technically inappropriate to his claim, he was still entitled to de novo review and the matter had to be remanded.

25-2-3949 Harris v. Lourdes Medical Center of Burlington, N.J. Super. App. Div. (per curiam) (12 pp.) Petitioner was employed by respondent as a security guard when he suffered a work-related injury to his right thumb. Petitioner filed a claim for benefits that culminated in the entry of an order approving a settlement for permanency benefits. Consequently, petitioner was awarded five percent of the statutory right hand for orthopedic residuals of a sprain and strain of the thumb with pain and weakness into his right hand. On application for review, respondent denied the need for additional medical treatment. As such, petitioner moved to compel respondent to pay the cost of further treatment for his right hand. Following an evidentiary hearing, the JWC found petitioner credible and ordered the requested treatment. On appeal, the court affirmed concluding the JWC saw and heard the testimony of the competing experts, and was in the best position to assess their demeanor and credibility. The court noted the JWC gave several valid reasons for crediting petitioner’s expert as the treating physician. Further, the compensation judge’s findings of fact were supported by substantial credible evidence and were not so wide of the mark as to be manifestly mistaken. Accordingly, the court affirmed the decision to provide such requested treatment.

17-2-3963 N.J. Highlands Coalition v. New Jersey Dept. of Envt’l Prot., N.J. Super. App. Div. (per curiam) (31 pp.) Plaintiffs challenged a settlement agreement between defendants, relating to defendant Bi-County Development Corp.’s development of an inclusionary housing project; plaintiffs also appealed from defendant DEP’s approval of two freshwater wetlands general permits and a transition area waiver. Bi-County’s property was in the Highlands Region, and therefore subject to the Highlands Water Protection and Planning Act. DEP determined Bi-County was entitled to an exemption to the Highlands Act, due to a prior settlement agreement and stipulation of dismissal in an action Bi-County had filed against the municipality nearly 20 years prior. Bi-County applied to DEP for freshwater wetlands permits and a transition area waiver, but DEP determined the property contained exceptional resource value wetlands that served as a habitat for threatened and endangered species. Ultimately, defendants executed a settlement agreement for the issuance of the permits and transition area waiver. On appeal, plaintiffs argued that DEP erred in finding that Bi-County was entitled to a Highlands Act exemption, because the municipality’s planning board’s approval of Bi-County’s land development application in 2007 was a final approval, but Bi-County failed to begin construction. The court noted that the planning board approved Bi-County’s proposed development, but conditioned approval on Bi-County satisfying 57 conditions, some of which remained unsatisfied when DEP issued the permits and waiver. Thus, the court ruled that the 2007 approval was not a final approval, and held that DEP correctly determined Bi-County was entitled to a Highlands Act exemption. The court further rejected plaintiffs’ contention that DEP acted capriciously in approving the general permits, finding that DEP carefully considered Bi-County’s project’s impacts on threatened and endangered species. Finally, the court also rejected plaintiffs’ contention that DEP arbitrarily granted the transition area waiver in exchange for preserving other lands on the property, since none of the proposed structures were located within wetlands.

20-2-3964 K.V. v. C.Y., N.J. Super. App. Div. (per curiam) (17 pp.) Appellant-father filed the initial complaint seeking joint legal and physical custody of the parties’ minor child following a disagreement over the child’s day care attendance. The court entered an order reducing day care attendance to part-time but authorized a best-interest evaluation. Following a fifteen-day trial, expert testimony and a thorough evaluation of the best interest factors, the trial court found the parties could jointly parent their child and that respondent-mother was the parent of primary residence. The trial court further imputed income on appellant-father and recalculated child support accordingly. On appeal, the court affirmed concluding the trial judge’s oral decision reflected a thoughtful and thorough analysis of each of the issues before the court. The court noted the trial judge, utilizing the factors set forth under N.J.S.A. 9:2-4(c) and made detailed factual findings. It was clear that the trial court found that respondent-mother had been the parent of primary residential custody without discounting appellant-father’s time spent with the child and his role as primary caretaker until the child commenced daycare. Further, the trial judge concluded that it was respondent-mother who was most attuned to the child’s needs and who addressed those needs. Finally, the court affirmed the imputed income as appellant-father offered no competent testimony that his underemployment was justified thereby requiring a recalculation under the child support guidelines.

20-2-4005 Catchpole v. Zhang, N.J. Super. App. Div. (per curiam) (26 pp.) Defendant appealed the parties’ divorce judgment. The parties had one child. Before they married, plaintiff purchased a home for them to live in. During the marriage, plaintiff wrote a letter to defendant about an anger issue, told her he was seeking help and offered to assume all household expenses and to give her all the money in their accounts. That letter became the basis of a consent order drafted by defendant’s attorney which the unrepresented plaintiff signed, allegedly under duress. Defendant sought to enforce the consent order pendente lite in the divorce action and threatened to take the parties’ child out of the country. The trial court restrained defendant from making a relocation application for at least five years and enforced the provisions of the consent order it found to be fair and reasonable, calculated child support in accordance with the guidelines, found that the house was a martial asset subject to equitable distribution, enforced the consent order provision giving defendant the money in the parties’ accounts and ordered four years limited duration alimony. Defendant argued the decision was unsupported by the evidence. The court found the trial judge’s decisions and calculations reasonable and supported by the evidence and ordered a limited remand to remove the provision restricting defendant from applying to relocate with the child.

20-2-3974 Gargiulo v. Gargiulo, N.J. Super. App. Div. (per curiam) (9 pp.) Defendant appealed the trial court’s order finding him in contempt for not paying IRS tax liens against real estate owned by intervenor Summit. Defendant and Summit also appealed the trial court’s order allowing plaintiff to obtain discovery from Summit and intervenor Loupet Realty to determine if intervenors made distributions to defendants for his membership interests therein. The parties’ final judgment of divorce contained an equitable distribution of the parties’ marital assets and responsibility for marital debts. Specifically, the FJOD required defendant to pay IRS liens on marital property. Defendant was also permitted to retain his 50 percent stake in properties and businesses he co-owned with his brother, including Summit and Loupet Realty. However, defendant could not transfer or encumber his stake in Summit without permission of plaintiff or the trial court, as plaintiff’s equitable share of the marital estate was secured by a recorded lien on defendant’s stake in Summit. The trial court granted plaintiff’s motion to hold defendant in contempt for failure to pay the IRS liens, but did not render an opinion or mention defendant’s pending tax court appeal. The trial court further granted plaintiff discovery of Summit’s and Loupet Realty’s distribution records, based on the trial court’s observed lack of veracity from defendant. On appeal, defendant argued the contempt order was contrary to the FJOD, which held that his liability for the IRS liens would depend on the tax court proceedings. The court agreed, ruling that because the tax court proceedings were pending, there was no factual basis to find defendant in contempt for not paying the liens. The court also reversed and remanded the trial court’s discovery order for the trial court to make factual and legal findings on the record, which the court noted was likely due to the failure to grant oral argument.

23-2-4007 Thomas v. Bobadilla, N.J. Super. App. Div. (per curiam) (7 pp.) All-State Insurance Company appealed from the trial court’s denial of All-State’s motion for summary judgment to dismiss plaintiff’s claim against it. Plaintiff alleged she was injured in an accident caused by defendant’s negligence. Plaintiff was insured by All-State through a policy she purchased in Florida. Plaintiff had moved from Florida to New Jersey about seven months prior to the accident, and although plaintiff had her vehicle at all times in New Jersey, at the time of the accident it was still registered in Florida and insured under the All-State policy purchased in Florida, under which plaintiff declined uninsured motorist coverage. The trial court denied All-State’s motion for summary judgment on the basis that it was obligated to provide plaintiff with uninsured motorist benefits under the Deemer Statute, because defendant was covered by a basic insurance policy without injury protection. The trial court rejected All-State’s argument that the Deemer Statute could not afford uninsured motorist coverage to an out-of-state policy when plaintiff’s vehicle was principally garaged in New Jersey for several months prior to the accident, during which time All-State asserted plaintiff should have obtained a New Jersey insurance policy. Instead, the trial court concluded that seven months was an insufficient time for plaintiff to be declared a New Jersey resident. On appeal, the court reversed, noting prior precedent that held that four months was a sufficient amount of time for a driver to acquire New Jersey residency and register his or her vehicle, and thus be obligated to obtain New Jersey automobile insurance.

25-2-3965 Mara v. United Parcel Serv., N.J. Super. App. Div. (per curiam) (5 pp.) The Workers’ Compensation Act required that a compensation petition be filed within two years of the date when the claimant first knew the nature of their disability and its relation to their employment. However, if an employer or its insurer agreed to pay compensation, a petition could be filed within two years after the employer/insurer failed to make payment. At a hearing, plaintiff claimed he did not know his knee condition was work-related until after his 2010 surgery, and further argued that the two-year limitation period was tolled because his employer-provided health insurance paid for some of the treatment for his knee. However, the WCJ ruled that plaintiff knew as early as 2006 that his knee pain was related to his work, as his treating chiropractor advised him of such. The WCJ also rejected plaintiff’s argument that the two-year limitations period was tolled because his employer-provided health insurance paid for his knee surgery and treatment, since the employer’s health insurance plan was separate from its workers’ compensation plan, and defendant had done nothing to cause plaintiff to believe his health insurance coverage constituted workers’ compensation payment or an agreement to pay same. On appeal, the court affirmed, holding that the WCJ’s finding that plaintiff was aware more than two years prior to his petition that his knee problems were work-related. The court further rejected plaintiff’s additional argument that he did not realize the extent of his disability until after his surgery, noting that plaintiff did not assert this argument before the WCJ.

25-2-3997 Feti v. Bd. of Education of the Bor. of Netcong, N.J. Super. App. Div. (per curiam) (11 pp.) The tenure dispute in this matter concerned the Commissioner’s application of N.J.S.A. 18A:17-3, which addressed tenure for custodians employed by school districts. The documentary and testimonial evidence admitted by the ALJ adequately established that appellant was appointed for a “fixed term” under a successive series of contracts. Further, respondent adopted a policy whereby tenure for custodians was under an annual employment contract and custodians would not receive tenure. On cross-examination, appellant testified that he had not read the most recent contract that included such policy. Despite being unable to produce the actual contract, the ALJ concluded that appellant was appointed for a fixed, one-year term. On appeal, the court affirmed finding the decision was amply supported by the evidence and not inconsistent with legislative policy and reason. Moreover, appellant’s claim that the Commissioner erroneously shifted the burden of proof to him had insufficient merit to warrant any comment beyond reference to respondent’s policy which prohibited unlimited appointments for custodians. Further, the court affirmed the ALJ’s payment to appellant for time worked and vacation days; however, remanded for an explanation for that payment amount due. Accordingly, the court affirmed the decision that appellant was not in a tenured position but remanded for specificity regarding payment due.

26-2-3950 Matthies v. Dietrich, N.J. Super. App. Div. (per curiam) (17 pp.) Respondents filed the underlying complaint alleging appellants violated the terms of a deed restriction by planting the subject trees on the property. They demanded the trees be removed and the area in the easement restored to its natural condition. The trial court found the subject trees violated the deed restriction, because its purpose was to protect steep slopes from erosion and the “testimony [was] uncontroverted that Leyland Cypress trees do not prevent erosion.” Further, the court found the planting of the trees removed the ground cover, thereby violating the easement and concluding the trees were to be removed. On appeal, the court reversed holding the trial testimony merely indicated the trees were not common to the area; however, there was no testimony that the trees could not also prevent erosion in compliance with the deed restriction. In addition, the trial court did not provide a reason why all of the trees should be removed and those areas where the trees had stood replaced with grass, when there was no evidence the integrity of the slope was being compromised. Moreover, there was insufficient evidence to suggest ground cover was removed or that the planting of the subject trees was inconsistent with the definition of “open space” in the easement. Accordingly, as it did not appear there was a violation of the easement and the court reversed.

26-2-4008 Hedvat v. Tenafly Planning Bd., N.J. Super. App. Div. (per curiam) (22 pp.) Plaintiffs appealed the denial of their application for minor subdivision approval. Plaintiffs applied to subdivide their lot into two lots. One lot did not meet the 50-foot frontage requirement and plaintiffs sought a variance, but withdrew the application. Years later plaintiffs again applied to subdivide the property into two. Their new surveyor found that the lot met the frontage requirement. Objector’s expert argued the frontage was the 41.68 feet it had been found to be in plaintiffs’ original application. The Boards’ expert agreed with objector’s expert as to the priority of calls. Experts also differed as to whether the sight lines from the driveway met the distance requirement. The Board found that the property ended at the right-of-way, that the frontage was deficient and that plaintiffs failed to satisfy the criteria for a variance. Plaintiffs obtained a new survey showing a 54.2 foot frontage and appeared at an uncontested proof hearing before a judge who ordered the Borough to set a new right-of-way line consistent with the new survey. Plaintiffs then appealed the earlier order affirming the Board’s denial of the application. The court declined to address the argument based on the court order, reviewed the record before it and found the record amply supported the finding that plaintiffs failed to demonstrate the criteria for a c(1) variance.

26-5-3966 Ciba Specialty Chem. Corp. v. Township of Dover, Tax. Ct. (DeAlmeida, P.J.T. C.) (20 pp.) Property owner sought partial summary judgment in its challenge to the assessments on its property for the tax years 2004 through 2011.Years of chemical industrial operations had contaminated the property. The property was designated a super fund site in 1983, commercial operations ceased by 1996 and contamination was remediated starting in 2004. The township designated the property as an area in need of development in 2006 and requested RFPs but redevelopment never took place and township did not change the zoning of the property. The issue before the court was the true market value of the property on the relevant valuation dates. The court determined that a bifurcated trial was required, the first issue was whether there was a reasonable probability of a zoning change from industrial to mixed-use including residential and the burden of proof was on the township. Township offered a report by a land development planning expert and property owner argued that only a licensed real property appraisal expert could offer such an opinion. The court found that there was no precedent to support property owner’s assertion that only a licensed real estate appraiser could offer an opinion on the probability of rezoning. It was for the trial court to evaluate the testimony and credibility of the experts. [Filed Aug. 3, 2017]

05-2-4009 Almonte v. Ulloa Tineo, N.J. Super. App. Div. (per curiam) (6 pp.) Defendant appealed the judgment for plaintiff in automobile accident case. Defendant was involved in an automobile accident with several other vehicles. Plaintiff sued for damages to her car which had been parked at the time of the collision. Plaintiff presented no witnesses and relied on the police report in which the investigating officer attributed fault to the defendant based on information from unidentified witnesses. The trial judge admitted the police report into evidence over defendant’s objections. Defendant testified that he was struck by another vehicle that pushed him into the other cars and sought dismissal of the complaint because plaintiff presented no proof of negligence on his part. The trial court found that defendant was responsible for the damage because he was unable to regain control of his car after he was struck by another vehicle. She additionally considered that the check sent by defendant’s insurer to plaintiff showed that insurer had determined that defendant was responsible. Defendant argued that the trial court erred by admitting the police report into evidence and erred in considering the insurance payment. The court found that without any testimony by the police officer or the witnesses themselves, the police report was inadmissible hearsay and the trial court erred in considering the insurance payment as determinant of defendant’s liability.

31-2-3967 Lloyd v. Underpass Enterprises, Inc., N.J. Super. App. Div. (per curiam) (6 pp.) Plaintiffs appealed the dismissal of their personal injury action. Plaintiff went to a gentlemen’s club with friends. One of the friends was drunk and ended up in a fight. The bouncers broke up the fight, escorted the combatants outside and plaintiff followed. Plaintiff saw the other combatant rushing his friend, stepped between them and woke up in the hospital four days later. The trial court dismissed the action against the gentlemen’s club because it had no legal duty to plaintiffs since the incident was not foreseeable and plaintiff voluntarily placed himself in harm’s way. Plaintiff contended the bouncers had a duty to protect him after escorting the combatants outside. The court agreed with the trial court. Plaintiff had not been involved in the fight and stepped in to help a friend. There was no evidence of prior incidents, that the fight would continue outside or that the club was familiar with the combatant. It was not foreseeable that plaintiff would have been in any danger outside or that he would intercede in the altercation.

31-2-3998 Gaughran v. Cnty. of Warren, N.J. Super App. Div. (per curiam) (29 pp.) (August 7, 2017) Plaintiffs appealed from the grant of summary judgment in favor of defendants in plaintiffs’ personal injury action. Plaintiff Amanda Gaughran was injured when she was struck by a hay bale during a crate derby. The derby was organized by a non-profit, although defendant Washington Borough maintained the public road where the derby took place and supplied barricades for the event, while defendant Washington Township Police Department provided officers to prevent vehicular access to the derby course and to provide assistance with spectators if requested by the organizing non-profit. The non-profit also placed hay bales along the derby course. Plaintiff alleged that she was seated behind a hay bale when a racing crate encountered a pothole in the road, causing it to veer off-course and strike the hay bale that fell on her. On appeal, plaintiffs argued that defendants were not entitled to immunity under the Tort Claims Act, because police negligently performed their ministerial duties during the derby. The court first noted that the TCA provided that a public entity was not liable for failure to provide police services or failure to provide sufficient police services. However, the court noted that immunity did not extend to negligence in the performance of police ministerial duties. The court rejected plaintiffs; contention that defendants were negligent in the performance of ministerial duties, finding insufficient evidence to establish that the police were tasked with patrolling the derby course and ensuring that spectators were safe. The court held that plaintiffs’ argument would unreasonably impose upon police a duty to inform of dangerous conditions in situations where they were not tasked with inspecting a location or were not responding to a dangerous condition. The court further rejected application of the real property exception to liability, finding that the borough did not have actual or constructive notice of a dangerous condition creating a reasonably foreseeable risk of injury.

31-2-3976 Gould v. Corizon Health of NJ, N.J. Super. App. Div. (per curiam) (13 pp.) Petitioner, a licensed professional nurse employed by respondent, fell in a parking lot owned by Burlington County after completing her shift. The compensation judge determined that the parking lot was part of petitioner’s workplace and her injury arose out of and in the course of her employment with respondent. Respondent appealed arguing petitioner’s injuries were not compensable under N.J.S.A. 34:15-36. In 1979, the worker’s compensation statute was amended with the “premises rule” which was “based on the notion that an injury to an employee that happens going to or coming from work arises out of and in the course of employment if the injury takes place on the employer’s premises.” Kristiansen v. Morgan, 153 N.J. 298, 316 (1997) The pivotal questions under the premises rule were (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred. Livingston v. Abraham & Straus, Inc., 111 N.J. 89, 96-97 (1988) On appeal, the court affirmed finding the parking lot was under the control of respondent as it was the only lot available for employees, it was adjacent to the prison and enclosed by a fence. The court found that clearly the lot was intended for the use of employees who had no alternative but to park in the lot. Given that respondent was required to provide medical services and the dedicated parking lot with restricted access, the court was satisfied that petitioner’s workday commenced when she arrived at the parking lot in her car. Therefore, her injury occurred during the course of her employment.

31-2-4010 Roy v. Marsden & Sons Electric, N.J. Super. App. Div. (per curiam) (13 pp.) In this workers’ compensation matter, appellant argued respondent presented insufficient credible evidence to prove his partial total disability increase from 22.5% to 42.5%. Respondent contended that while working on a ladder during the course of his employment with appellant, he fell eight to ten feet resulting in injuries to his lumbar spine. Slightly two years after the parties entered into a settlement, respondent moved to reopen arguing he “suffered an increase in disability since the entry of the prior award.” Following discovery and expert reports, the judge of compensation determined respondent sustained an increase in his permanent disability and increased his award accordingly. On appeal, the court affirmed finding the JOC’s decision was supported by sufficient credible evidence on the record as a whole. The court noted the parties agreed to present the medical evidence in reports rather than by experts’ testimony; appellant’s argument criticizing the JOC for doing precisely what the parties tasked her with doing was without merit. The JOC sufficiently determined the credibility of the conflicting medical reports based on all the documentary evidence as well as respondent’s testimony; her findings were amply supported by the admissions. Accordingly, the court affirmed the increase in partial total disability award.

52-2-3978 Paff v. N.J. State Police, N.J. Super. App. Div. (per curiam) (7 pp.) Plaintiff appealed from the order denying his application to compel defendants to produce certain investigatory records, or alternatively seeking a Vaughn index or in camera review of the documents, and dismissing his complaint. Plaintiff’s request was spurred by rumors he had heard that a particular county sheriff was under investigation for “some sort of impropriety.” Plaintiff sought to post information about the investigation on his blog to inform the public of the outcome of the investigation. Plaintiff applied to defendants requesting copies of their agencies’ files regarding the investigation, expressing a concern regarding whether those agencies had “conducted a reasonable investigation.” In response, the State Police confirmed that the records plaintiff sought were part of a criminal investigation and included two investigation reports, but declined to provide further information, asserting that the documents were exempt from disclosure under OPRA and because the state’s interest in confidentiality of criminal investigatory records outweighed plaintiff’s common-law interest in access. Plaintiff filed the present action, asserting a right to access only under the common law. The trial court denied plaintiff’s application, agreeing that the state’s interest in the confidentiality of the criminal investigation, the privacy interests of any victims or witnesses, and the privacy interests of the target of the investigation (which did not result in criminal charges) outweighed plaintiff’s interest in access, since victims or witnesses could be chilled from coming forward if criminal investigations could be released. On appeal, the court affirmed, noting that limited disclosure of criminal investigatory materials had been permitted in cases of great public notoriety and interest, as opposed to the present case that was based on a rumor apparently disseminated by plaintiff himself.

34-2-3953 Township of Hardyston v. Block 63, N.J. Super. App. Div. (per curiam) (21 pp.) The parties were involved in a tax foreclosure sale of the subject property whereby appellant argued it held a lien for assessed sewer charges. Respondent argued the sewer lien against the property was not valid as the property was undeveloped. On reversal, the trial court found such lien was invalidated permitting respondent to complete its foreclosure proceeding without encumbrance. On appeal, the court remanded concluding the record was insufficient to permit the court to resolve the question of whether the property owner’s contractually bargained for sewer allocation charge qualified as a “sewer service charge” within the meaning of MCUAL, N.J.S.A. 40:14B-3(19) and N.J.S.A. 40:14B-22, and was thus a lien against the property for which respondent held a tax certificate. Accordingly, the court remanded for further proceedings designed to ascertain the facts and apply the statutory law in accordance with Airwick Indus. V. Carlstadt Sewerage Auth., 57 N.J. 107 (1970). Under Airwick, appellant had a purpose for the sewer charges, including the necessity to maintain and operate the system, and that every property within a sewerage authority’s service area benefits from such system. Based on these pillars, the lower court must determine whether the unpaid sewer charges were properly a lien against the property.

34-2-4011 Hossain v. Dept. of Community Affairs Hurricane Sandy Div., N.J. Super. App. Div. (per curiam) (10 pp.) Following Superstorm Sandy, appellant applied for and received a $10,000 grant from respondent for one of the two residences he owned. At the time, respondent assumed the damaged residence was appellant’s primary one. Thereafter, respondent checked the provided information and determined the residence was not appellant’s primary one and deemed him ineligible for the grant. Respondent demanded appellant return the grant money. Following a hearing, the ALJ noted the eligibility criteria for the subject grant were found in the Policy and Procedure manuals for the Resettlement Program which required an applicant to have owned and occupied the property that was the subject of the application as his or her primary residence on the date of the storm. The ALJ determined the property was not appellant’s primary residence as he failed to change his driver’s license and mailing address to reflect his change in residence. On appeal, the court remanded finding the production of a driver’s license was merely the “preferred” method of establishing a residence is primary under the policy; therefore, the production of this evidence was not the only method. Further, the policy stated verification of a primary residence was determined through the evaluation of “multiple data sources and documents.” The court concluded the ALJ was required to make findings on whether the residence constituted appellant’s primary residence, and that required, at the outset, a determination of what constituted a primary residence. The court noted the omission of documents on appellant’s part did not necessarily establish the property was not his primary residence and the court remanded for further findings.

40-2-3981 Ferreira v. Quezada, N.J. Super. App. Div. (per curiam) (12 pp.) While driving to work in a vehicle owned by his wife, defendant tragically struck and killed a pedestrian. Appellant, the decedent’s mother, filed suit seeking damages from among others, defendants and their employer, respondent. Appellant alleged that respondent was liable for defendant’s negligence under the doctrine of respondeat superior. On respondent’s motion, the law division granted dismissal finding defendant was not acting within the scope of his employment when the accident occurred. Appellant appealed arguing that the court erred by not recognizing that there remained genuine issues as to material facts, by failing to allow for additional discovery, and by denying reconsideration. The court affirmed dismissal holding defendant was not working under respondent’s control when the accident occurred so that any exception to respondeat superior would apply. The court noted respondent did not require defendant to drive his vehicle to work or prevented him from using alternate means of transportation. Further, the court found there was no evidence that defendant was on call or on any type of “special mission” for respondent. Finally, “the fact that [defendant] was on [his] way to the office to perform some work-related duty [was] not sufficient in and of itself to constitute a mission undertaken on [respondent's] behalf,” Mannes v. Healey, 306 N.J.Super 351, 355 (App. Div. 1997). Accordingly, the court affirmed dismissal as it related to respondent.

14-2-3954 Vasil W. Heisler v. New Jersey Dept. of Corrections, N.J. Super. App. Div. (per curiam) (9 pp.) Appellant, an inmate at New Jersey State Prison, appealed from the final administrative decision of respondent that upheld a hearing officer’s decision finding him guilty on two counts of misuse and possession of an electronic communication device and conspiracy to disrupt or interfere with the running of the facility. Appellant’s charges resulted from a system-wide investigation to uncover a large-scale conspiracy to smuggle contraband into prisons by inmates and corrupt prison staff. The court affirmed holding appellant was afforded the limited procedural safeguards during the hearing, including written notice, an impartial tribunal, the right to call witnesses and present documentary evidence, and a written statement of the evidence relied upon. In this exceptional instance, the prohibited acts charged were asterisk offenses, which were considered the most serious. As such, appellant’s prehearing detention length was necessary to prevent an adverse impact or impede any ongoing activities related to the corruption investigation. Further, appellant had not identified any prejudice he suffered in preparing a defense to the charges as a result of the delays. Additionally, the court was satisfied appellant received all due process protections afforded to him given the confidential nature of the investigation. As the resulting sanctions were not arbitrary, capricious or unreasonable, the court affirmed.

14-2-3955 State v. Stuart, N.J. Super. App. Div. (per curiam) (43 pp.) Defendant appealed from his sentence of 30 years’ imprisonment with no parole, following his conviction by a jury for knowing murder and aggravated manslaughter, for the homicide of David Compton, who was killed by a single gunshot wound to his head. Defendant was also charged with purposeful murder and possession of a firearm with purpose to use unlawfully, for which he was acquitted. On appeal, defendant argued that erroneous instructions permitted the jury to find him guilty of murder and aggravated manslaughter even though there was only one victim, since the requisite mental states for each crime were irreconcilable. Defendant further argued that the trial court failed to charge the jury on mistake of fact and intoxication defenses, and erred in denying his motions for judgment of acquittal and new trial on the murder charges. Finally, defendant asserted that the state improperly elevated defendant’s standard of care above the reasonable person standard for the aggravated manslaughter charge. The court agreed that the trial court erroneously failed to instruct the jury to consider the charges sequentially and on the mistake of fact defense. The court noted that, because defendant failed to raise either argument at trial, the court would review under the plain error standard. However, even under that standard, the court ruled that failing to instruct the jury to consider the murder charge first, then consider the aggravated manslaughter charge only if the jury acquitted on the murder charge, constituted plain error, because defendant couldn’t have acted with both differing mental states under each charge. The court further ruled that failure to instruct the jury on the mistake of fact defense constituted plain error because the state was required to prove that defendant did not believe his gun was unloaded. Accordingly, the court reversed defendant’s conviction and remanded for a new trial on the knowing murder and aggravated manslaughter charges.

14-2-3968 State v. Juan Del Rosario, N.J. Super. App. Div. (per curiam) (26 pp.) Following a jury trial, appellant and co-defendant were convicted of aggravated assault, endangering an injured victim, unlawful possession of a weapon, and obstruction. The charges against appellant stemmed from his alleged involvement with codefendant in the assault of a security guard, who was struck in the head with a baseball bat during a brawl in a nightclub parking lot. On appeal, the court reversed in part finding the officer’s lay witness testimony exceeded the bounds of permissible testimony. As the officers neither saw appellant at the scene nor had knowledge of appellant’s appearance either prior to or at the time of the crime, their testimony crossed the line from suspicion to fact with no personal knowledge. Such baseless testimony unfairly prejudiced appellant without providing the jury any meaningful identifying information. However, the court affirmed the jury charge as it mirrored the model jury charges, N.J.S.A. 2C:2-6, and adequately informed the jury as to the mental states necessary to convict appellant as an accomplice to the indictable charges, as well as the lesser-included offenses. Although the judge initially included appellant in the general aggravated assault and weapons charge, she later clarified that he could only be charged as an accomplice if he purposefully facilitated the commission of the offenses. Considering the mistake within the context of the charge as a whole, it did not amount to reversible error. Accordingly, the court reversed and remanded for a new trial.

14-2-3982 State v. Enrico, N.J. Super. App. Div. (per curiam) (5 pp.) Defendant filed for leave to appeal the trial court’s denial of his request for the prosecution’s reasons for denying a waiver under the Graves Act. Grand jury charged defendant with unlawful possession of a weapon and the prosecutor decided not to seek a Graves Act waiver. The defendant requested written reasons for the decision as well as other waiver case files containing the aggravating and mitigating factors the prosecutor considered. The prosecutor denied the request. The trial judge denied defendant’s motion to compel discovery and his motion to compel the prosecutor to provide written reasons for withholding consent to waiver under the Graves Act. Defendant filed for leave to appeal which was denied. Meanwhile, the Supreme Court decided State v. Benjamin, 228 N.J. 358, and remanded this case for reconsideration in light of Benjamin. The court reversed its holding denying defendant’s application to compel the prosecutor to provide written reasons for the decision not to seek a Graves Act waiver and remanded the case for the prosecutor to provide a statement of reasons.

14-2-3983 State v. Groething, N.J. Super. App. Div. (per curiam) (11 pp.) Defendant appealed from his conviction of a disorderly person’s offense of simple assault, stemming from an altercation between defendant and Nicholas Garret in the laundry room of their apartment building, which was caught on surveillance video. At the time of the altercation, defendant was employed as a police officer. Garret was initially charged with third-degree aggravated assault of a police officer, which was later downgraded to simple assault. Garret filed a private criminal complaint charging defendant with the disorderly person’s offense of simple assault. The municipal court found both men guilty of petty disorderly person’s offense of simple assault by mutual consent, and found defendant guilty of the petty disorderly person’s offense of harassment. Both parties sought de novo review in the trial court, which reversed Garret’s conviction and defendant’s conviction for harassment but found defendant guilty of the more serious offense of simple assault, concluding that Garret acted in self-defense. Based on the more serious offense, the trial court added anger management classes to defendant’s sentence. On appeal, defendant argued that the trial court erred in convicting him of simple assault when he was acquitted of that charge and found guilty instead of petty disorderly person’s simple assault. Defendant further argued that the evidence did not support a finding that he possessed the requisite intent to fight to support a conviction for fighting by mutual consent. The court first agreed that the trial court erred in its de novo review of defendant’s municipal court conviction. The court held that convicting defendant of disorderly person’s simple assault after he was acquitted of that offense in the municipal court violated defendant’s double jeopardy protections. Moreover, the court noted that once Garret was acquitted for lack of consent, defendant should have similarly been acquitted.

14-2-3999 Carlos Guerrero v. N.J. Dept. of Corrections, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant, an inmate at Bayside State Prison, appealed from respondent’s disciplinary decision finding he committed a prohibited act, namely fighting with another person. Assisted by counsel, appellant waived his right to twenty-four hours’ notice and stated he acted in self-defense. Relying on the senior corrections officer’s report, the disciplinary officer concluded that insufficient evidence supported appellant using self-defense and therefore should be held accountable. Accordingly, appellant received 180 days of administrative segregation and 180 days loss of commutation time. On appeal, the court affirmed concluding appellant’s appeal lacked merit. The court found sufficient credible evidence in the record to support the finding that appellant failed to retreat or to cease fighting when commanded to do so; thus, self-defense was not available. Further, appellant was not denied his procedural rights regarding notice since he expressly waived them before the hearing. Finally, in view of appellant’s extensive disciplinary record, the court concluded the sanction was neither arbitrary, capricious, nor unreasonable. As such, the court affirmed the decision of the hearing officer.

14-2-4000 State v. Legrande, N.J. Super. App. Div. (per curiam) (13 pp.) Defendant appealed his conviction for second degree conspiracy to commit aggravated assault. Defendant was indicted with codefendant who pled guilty to second degree unlawful possession of a fire arm and testified against defendant. One participant in a “party bus” party heard shooting as he drove away after the party ended and found bullet holes in his car. The participant was an uncooperative witness who said he had no idea who fired the shots. Co-defendant said he was there and gave defendant a gun but did not see him fire it. Defendant argued that the trial court erred by failing to instruct the jury on the lesser included offenses to second degree conspiracy. The court found that there was a rational basis to instruct the jury on the lesser included offenses of conspiracy to commit third degree aggravated assault and conspiracy to commit fourth-degree aggravated assault. The trial judge erroneously believed that the lesser included offense analysis under N.J.S.A. 2C:1-8(d) was bound by the four corners of the overt acts described in the indictment. The jury could have found that the original conspiracy did not exclusively involve actually shooting anyone and the trial judge’s mistake was plain error that had the clear capacity to produce an unjust result. [Filed Aug. 7, 2107]

10-8-3984 Johnson v. Fuentes, 3rd Cir. (Shwartz, U.S.C.J.) (10 pp.) Appellant, an African-American trooper with the New Jersey State Police, was a lieutenant in charge of one of three units that focused on drug trafficking. Respondent-Fuentes was the superintendent of the state police and controlled the disciplinary system with respondent-Silver being appellant’s commanding officer. In his underlying complaint, appellant alleged that defendants “depriv[ed] [him] of his rights because he is African-American” in violation of 42 U.S.C. §1983. Appellant alleged he was denied his retired law enforcement credentials and emoluments because of an ongoing disciplinary investigation; appellant initially identified another Caucasian trooper who allegedly received his benefits despite criminal charges. The district court granted defendants’ motion for summary judgment finding appellant’s race was not the cause of his disciplinary charges and appellant’s “unsubstantiated accounts” were insufficient to create a factual dispute. On appeal, the court affirmed holding appellant had not shown that respondents intentionally treated him differently on the basis of race. Therefore, appellant cannot demonstrate a violation of the Equal Protection Clause. The court noted there was no evidence that appellant faced racial discrimination when he was investigated or transferred or that appellant was treated differently than a similarly situated person. Accordingly, the court affirmed summary judgment.[Filed Aug. 3, 2017]

10-7-4012 Bordamonte v. Lora, D.N.J. (Martini, U.S.D.J.) (6 pp.) In his complaint, plaintiff alleged violations of his first amendment right to freedom of speech and the Conscientious Employee Protection Act by defendant’s alleged retaliatory actions against him due to his political support of a competing candidate for mayor. Specifically, plaintiff alleged that he was demoted from detective and assigned to patrol duties following his support, as well as losing his leadership position and being subject to harassment. Defendants variously moved to dismiss alleging plaintiff failed to establish a causal link between any act or omission in connection to the retaliatory acts alleged. In response, plaintiff moved to amend in an effort to clarify the allegations against defendants. The court granted plaintiff’s motion to amend as the amendments did not make any new factual allegations or add new counts nor was there undue delay, bad faith or dilatory motive on the part of plaintiff. Further, the court denied dismissal of plaintiff’s civil rights claims finding the complaint specifically alleged one defendant directed another defendant to harass plaintiff and was “instrumental” in the decision to demote plaintiff. At a minimum, the complaint sufficiently alleged defendant had actual knowledge of, and acquiesced to, plaintiff’s demotion. However, the court granted dismissal of plaintiff’s §1985 claim as he failed to submit that he was a member of an independent and identifiable class which was the target of the alleged retaliation. The court noted that discrimination on the basis of political affiliation was not, as a matter of law, discrimination so invidious such that §1985(3) would apply. As such, the court denied dismissal in part and granted in part. [Filed Aug. 8, 2017]

09-7-3985 Cardenas v. Spinnaker Resorts, Inc., D.N.J. (Linares, U.S.D.J.) (12 pp.) Defendant moved to dismiss plaintiff’s putative class action complaint for lack of personal jurisdiction. Plaintiff, on behalf of a proposed class, alleged that defendant violated the Telephone Consumer Protection Act by making unsolicited telephone calls to plaintiff’s and the putative class’ landline telephone numbers, which are registered on the “Do Not Call Registry.” Defendant, a Florida corporation with its headquarters in South Carolina, purportedly relied on unsolicited telemarketing to generate sales for its vacation ownership business. Plaintiff alleged that she had received as many as four calls per day from telemarketers identifying themselves on behalf of defendant, and that despite telling callers that she was not interested, was on the Do Not Call Registry, and to not call her back, she continued to receive multiple calls every week. Plaintiff alleged actual harm in the form of annoyance, nuisance, and invasion of privacy. In support of its motion to dismiss for lack of personal jurisdiction, defendant argued that it was not domiciled in and lacked sufficient systemic contacts with New Jersey to render it “home”, and lacked sufficient minimum contacts either directly or under agency to warrant exercise of specific personal jurisdiction. Defendant contented that the evidence did not demonstrate that the companies responsible for marketing defendant’s timeshares were defendant’s agents. In response, plaintiff contended that there was common ownership between defendant and the marketing companies, and defendant supported them financially and controlled their affairs. The court granted defendant’s motion, ruling that the marketing companies were not defendant’s agents, and noting that plaintiff had failed to allege that the marketing companies made the unsolicited phone calls at issue. The court held that forum contacts of a subsidiary would not be imputed to a parent merely based on ownership or sharing of common administrative resources.” [Filed August 3, 2017]

11-7-4002 The Bancorp Bank v. Condor Developers, LLC, D.N.J. (Hillman, U.S.D.J.) (13 pp.) Plaintiff moved for summary judgment in its foreclosure action against developers who were unable to complete a housing project for veterans. Developers took over the project, were unable to complete it and defaulted on the loans and lines of credit. The court appointed a receiver to manage the property. Plaintiff moved for summary judgment and defendants counterclaimed for fraud in the inducement, breach of covenant of good faith, misrepresentation and unlawful permanent contract recission. One defendant admitted he signed a guarantee on the line of credit but argued that he was not individually liable based on promises made by plaintiff’s former vice president. The court found that neither party addressed the application of the parol evidence rule in the context of defendant’s claims of fraudulent inducement and the court directed the parties to file supplemental letter briefs to address the issue. [Filed Aug. 7, 2017]

11-7-3971 Roxanna Tanker Pool Inc. v. Safesea Transport Inc., D.N.J. (Walls, U.S.D.J.) (5 pp.) Plaintiff and nonparty Safesea Steamship PVT LTD (“SSP”) executed a voyage charter agreement for the carriage of a cargo of fuel oil; the agreement provided the SSP was responsible for payment but also included a full guarantee by defendant. Plaintiff alleged that defendant had not paid ocean freight, demurrage, and associated charges owed to it under the parties’ voyage charter agreement. Following defendant’s failure to plead or otherwise defend the lawsuit, plaintiff moved for a default judgment under Fed. R. Civ. P. 55(b)(2). To prevail on a breach of contract claim, the claimant must prove existence of a contract, breach, damages and that the claimant performed his own contractual obligations. Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007) The court granted default judgment holding the unchallenged facts demonstrated that the voyage charter agreement was a valid contract which plaintiff satisfactorily performed, and that defendant breached by failing to guarantee payment. Further, the court found plaintiff would suffer prejudice if default was denied because SSP and defendant have refused to arbitrate under the terms of the agreement or defend this action. The court found that default judgment was appropriate and that plaintiff’s damages calculations were accurate and reasonable. Accordingly, the court granted plaintiff’s motion for default judgment. [Filed July 10, 2017]

15-7-3956 Kraft v. Wells Fargo & Co., D.N.J. (Martinotti, U.S.D.J.) (23 pp.) Defendants moved to dismiss plaintiff’s action asserting violation of his procedural due process rights and the FDCPA, property damage, slander of title, malicious prosecution and trespass. Bank filed a mortgage foreclosure action and the court issued a final judgment and writ of execution. Bank retained company to conduct inspections and provide property field services. Plaintiff alleged company broke into the house 15 times, changed locks and damaged and removed property while he was living there. Town declared the home unfit for habitation due to the lack of utilities. Plaintiff filed for Chapter 7 bankruptcy, the utilities were reinstated, and the trial court granted a preliminary injunction preventing town defendants from enforcing an order to vacate or interfere with his occupation of his home. Bank argued that court lacked subject matter jurisdiction because the claims attacked the underlying state court foreclosure order. The court found that the Rooker-Feldman doctrine did not bar plaintiff’s claims because he complained of injuries that arose from bank’s actions after the final judgment and writ of execution were entered. Additionally, the entire controversy doctrine, res judicata and collateral estoppel did not bar plaintiff’s claims against bank and bank’s actions did not constitute an attempt to collect a debt from plaintiff under the FDCPA. The court declined to exercise supplemental jurisdiction over the state law claims. [Filed July 31, 2017]

15-7-4013 Webb v. Krudys, D.N.J. (Walls, U.S.D.J.) (8 pp.) Plaintiff, as executor of the estate of Norman Webb, deceased, moved for summary judgment on his breach of contract claim arising from a note executed by defendant in favor of decedent. The note was for a principal of $150,000, payable in monthly installment over a four-year term at four percent annual interest. Defendant made the first 13 monthly payments, and then two subsequent partial payments. Following the filing of plaintiff’s complaint, defendant filed for divorce from his wife, with their marital settlement agreement providing that defendant would be solely responsible for the debt owed to decedent’s estate. In support of his motion for summary judgment, plaintiff argued that because of defendant’s breach, decedent’s estate was due the remaining principal balance, plus interest and late fees on scheduled payments. Plaintiff also applied for attorney fees and costs as provide for in the note. In opposition, defendant argued that while he did not personally pay off the note, his ex-wife told him that the note was paid from her share of the inheritance she received from decedent’s estate; defendant argued that whether the note was paid from his ex-wife’s inheritance was a genuine issue of material fact precluding summary judgment. Plaintiff noted that the court had previously ruled that evidence of the amount of inheritance defendant’s ex-wife received had no bearing on defendant’s defense. Plaintiff also pointed to several sworn statements from the estate and defendant’s ex-wife that no portion of her inheritance was used to pay defendant’s debt. The court granted summary judgment, finding that defendant presented no evidence to create an issue of whether his debt was satisfied by his ex-wife’s inheritance. The court noted that defendant’s evidence only created an issue of whether his ex-wife received her full inheritance, which had no bearing on defendant’s case. [Filed August 8, 2017]

21-7-3986 D. Russo Inc. v. Chiesa, D.N.J. (Chesler, U.S.D.J.) (10 pp.) This case arose from a long-running dispute between plaintiffs, an adult entertainment business, and its owners. The second amended complaint asserted that it concerned events which occurred when officers from the Township closed down the establishment on the basis that it violated the Sexually Oriented Business Act (“SOBA”). The parties cross-moved for summary judgment which the court granted in part and denied in part. Upon agreement, the court entered summary judgment in defendants’ favor on all claims against the police department concluding the department was not a “person” separate from the municipality within the meaning of 42 U.S.C. §1983. The court further granted summary judgment on all Monell claims holding plaintiffs failed to identify what constitutional right was violated — much less offered sufficient evidence to lead a jury to conclude that such a violation occurred. Additionally, summary judgment was warranted for the individual defendants on the §1983 claims as plaintiffs lacked specificity and sufficient evidence to prove any of such claims. However, the court denied summary judgment under qualified immunity as to the individual defendants as defendants are not yet in a position to show that they have produced enough evidence to support the findings of fact necessary to win on their affirmative defense. Finally, the court denied plaintiff’s cross-motion for a declaratory judgment as it sought judgment on a claim that was not present in the second amended complaint. [Filed Aug. 2, 2017]

23-7-3969 Papalia v. Arch Ins. Co., D.N.J. (Vazquez, U.S.D.J.) (32 pp.) Plaintiff’s action arose from defendant’s denial of insurance coverage for matters that plaintiff alleged were “related claims” in the parties’ insurance policy and therefore subject to coverage. Plaintiff, a former life insurance agent and CFP, purchased professional liability insurance from defendant. Plaintiff’s former clients asserted claims against him, alleging that plaintiff made misrepresentations regarding the establishment of welfare benefit plans, and regarding the sale of universal life insurance products. Defendant covered some claims but not others, and plaintiff filed the present action seeking coverage for the denied claims. Defendant denied coverage for claims on the basis that they were made after the end of the policy period and were not “related claims” to the covered claims. The court noted that the parties’ policy was a “claims made” policy, such that timely notification was importance since the making of the claim is what invoked coverage. The court further noted that prior case law had rejected defendant’s argument that “related claims” required the source or party of the underlying claims to be identical, instead utilizing a “common nexus” test. Turning to interpretation of the parties’ “related claims” provision, the court first ruled that it would apply the common nexus test, and concluded that the uncovered claims made against plaintiff were “related claims” to the other claims covered by defendant. The court noted that all the claims arose from one of two distinct schemes plaintiff was alleged to have engaged in, and therefore all the claims arising from those schemes were related to one other. Finally, the court denied defendant’s motion to limit plaintiff’s liability, finding that plaintiff’s individual was not shared with the sponsoring insurer. [Filed August 1, 2017]

23-7-4015 Lourdes Specialty Hospital of Southern New Jersey v. Anthem Blue Cross Blue Shield, D.N.J. (Hillman, U.S.D.J.) (11 pp.) This matter was one of many ERISA suits in the district filed by purported assignee –plaintiff–against the patients’ various insurance companies, namely defendant. Plaintiff claimed that the insurance companies wrongfully denied requests for payments of benefits under the patients’ health insurance policies, and consequently, bills for services were not paid, or not fully paid. Defendant moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim. The court denied dismissal in part regarding standing by finding the parties’ interpretation of the insurance policy’s assignment clause differs and such determination must be decided on a more complete record. Further, defendant’s limitations period argument that the suit was untimely implicated matters outside the pleadings, including whether defendant failed to inform plaintiff or the patient of the plan-imposed deadline for judicial review. The court further found that dismissal of the breach of fiduciary claim on a motion was not appropriate as this early procedural stage. However, the court dismissed the claim for violation of 29 C.F.R. 2560.503-1 as such statute did not give rise to a private right of action. Accordingly, the court denied dismissal in part and granted in part. [Filed Aug. 7, 2017]

25-7-3957 Favors v. Aughtry, D.N.J. (Kugler, U.S.D.J.) (8 pp.) Defendant moved to vacate default, substitute the United States, and dismiss plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff initially filed his complaint in state court, alleging that he experienced defamation and discrimination based on gender while employed by the U.S. Department of Veterans Affairs. In state court, plaintiff moved for entry of default, but the state court did not enter judgment against defendant. Defendant later removed the action to the court, then filed the present motion. The court first granted defendant’s motion to substitute the United States as defendant, noting that any action against a federal employee such as defendant should be deemed an action against the U.S. upon certification from the Attorney General that defendant was acting within the scope of her employment at the time the alleged conduct occurred. The court noted that the U.S. Attorney’s Office certified that defendant was acting within the scope of her employment at the time of the alleged conduct. The court further vacated the entry of default, ruling that plaintiff would not be prejudiced because defendant was not the proper party, and because plaintiff’s complaint would be dismissed for procedural issues. The court held that plaintiff’s defamation claim was dismissed on sovereign immunity grounds, noting that the waiver in the Federal Tort Claims Act specifically excepted any claim arising from libel, slander, or misrepresentation. The court further held that plaintiff’s gender discrimination claim was dismissed pursuant to the doctrine of res judicata, as plaintiff previously filed suit against the Department of Veterans Affairs in the Eastern District of Pennsylvania, which was dismissed with prejudice. Though the court noted that plaintiff’s prior action alleged racial rather than gender discrimination, the court found that it arose from the same facts underpinning plaintiff’s current action. [Filed July 31, 2017]

26-7-3987 1840 P. Cheeseman Rd., LLC v. Township of Gloucester, D.N.J. (Hillman, U.S.D.J.) (9 pp.) Defendants moved for reconsideration of the order denying in part and granting in part the motion to dismiss plaintiffs’ complaint alleging that defendant unlawfully impeded plaintiffs’ efforts to build a substance abuse treatment facility. Plaintiffs filed for a preliminary injunction to enjoin defendants from persisting in their discriminatory conduct and to order the issuance of the necessary zoning approvals. Defendants argued that the two phases of plaintiffs’ single variance application had to be considered separately. The court denied the motion for a preliminary injunction but ordered the zoning board to rule on Phase One of the application, which was approved. The trial court then granted defendant’s motion to dismiss some of plaintiffs’ claims. Defendants argued plaintiffs’ entire case had to be dismissed for failure to exhaust administrative remedies and that the zoning board did not have the jurisdiction to consider the Phase One application because that application did not require approval of a variance. The court found the issue was moot and that township should discuss its zoning board’s authority with the zoning board. The court found that plaintiffs’ claims against the township survived defendants’ motion to dismiss because zoning board’s solicitor was an employee of the township and the transcripts showing that his allegedly discriminatory statements were not made as reported were not properly before the court. [Filed August 4, 2017]

36-7-3988 Williams v. BASF Catalysts, LLC, D.N.J. (Linares, U.S.D.J.) (22 pp.) Plaintiffs objected to the court’s appointment of a special discovery master in its action against defendants, whom plaintiffs alleged conspired to prevent thousands of asbestos litigants from obtaining recovery by destroying or hiding tests and reports that document the presence of asbestos in the talc product manufactured by defendant BASF Catalysts LLC’s predecessor, Engelhard Corp. Plaintiffs’ action alleged violation of the New Jersey RICO Act, fraud, civil conspiracy, unjust enrichment, and legal misconduct. After plaintiffs’ RICO claim was dismissed, the parties appeared for a status conference where defendants asserted that plaintiffs waived attorney-client and work product protections by placing at issue plaintiffs’ reliance on what their former counsel did or did not tell them regarding Engelhard’s defenses and the merits of plaintiffs’ underlying asbestos claims. As a result, the court appointed a special master to oversee discovery. In support of their objection to the special master, plaintiffs argued that a judge should determine the scope of discovery because it was a “fundamental issue of law” not appropriate for discovery and because defendants sought discovery into the merits of thousands of cases that ended decades prior. In response, defendants contented that their discovery requests were necessary to test whether plaintiffs settled or dismissed their cases because of defendants’ alleged concealment, or because of some deficiency in the merits of plaintiffs’ cases. The court affirmed its appointment of a special master but, pursuant to plaintiffs’ objections, clarified the scope of discovery and guidelines regarding privilege issues. The court held that defendants were entitled to explore the causation element of plaintiffs’ tort claims, including inquiry into why plaintiffs dismissed or settled their claims. The court agreed with defendants that plaintiffs made have made a limited waiver of privilege by putting at issue plaintiffs’ reliance on the advice of their former counsel. [Filed August 3, 2017]

31-7-3989 Hoffeditz v. AM General, LLC, D.N.J. (Cecchi, U.S.D.J.) (10 pp.) Defendants moved to exclude plaintiff’s expert’s testimony in plaintiff’s asbestos case after the Daubert hearing. Executrix’ decedent worked as a mechanic and heavy equipment repairer and worked on transmission, brake parts and gaskets that allegedly contained asbestos starting in 1968. He was diagnosed with mesothelioma in 2008. The court found that the expert was qualified to testify as an expert and that her methodology was reliable and would assist the trier of fact. Defendants argued that expert relied on an impermissible “each and every breath” theory of causation but the court disagreed. The court found that the expert considered deceased’s specific exposure to defendants’ products and the work he did with those products and her testimony was sufficiently reliable. Expert examined deceased’s answers to interrogatories, his deposition transcript and his medical records to determine his exposure and considered the amount and type of work he performed with different products and compared them to studies considering individuals working in similar capacities or analysis of similar products. Expert additionally offered competent criticisms of studies defendants cited in opposition to her opinion. [Filed August 4, 2017]

32-7-4003 Coba v. Ford Motor Co., D.N.J. (McNulty, U.S.D.J.) (22 pp.) Defendant moved for summary judgment on plaintiffs’ remaining New Jersey Consumer Fraud Act claim in their putative class action, arising out of defendant’s alleged inability to cure a defective fuel tank installed in certain vehicles designed and manufactured by defendant. Specifically, plaintiffs alleged that defendant knowingly concealed the material fact that the vehicles at issued suffered from a common defect resulting in fuel tank materials clogging the fuel system. Plaintiffs further alleged that defendant purposefully failed to disclose and/or actively concealed this defect to plaintiffs and putative class members during their purchase of the vehicles to secure sale of the vehicles at a premium price and mislead owners during the express warranty period to avoid having to perform its contractual duties under the warranties. In support of its motion for summary judgment, defendant argued that it violated no duty to disclose the alleged material facts relating to the fuel tank at the time of plaintiffs’ purchases. The court noted that plaintiffs’ allegations required a showing that defendant knowingly concealed a material fact with intent to have the consumer rely on that omission, and a showing that defendant had a duty to disclose the concealed fact. The court held that plaintiff also had to show that defendant knew with certainty that the warranted product or component was going to fail to prevail on a CFA claim based on a concealed but warranted-against defect. The court granted defendant’s motion for summary judgment, finding no evidence to show that defendant knowingly concealed material facts about the fuel tank with the intention to have purchasers rely upon that concealment, or that it had an obligation to disclose information it knew about the defect, since it believed at the time of plaintiffs’ purchases that fuel tank delamination was likely due to fuel contamination rather than a defect with the tank. [Filed August 4, 2017]

50-8-3970 N. Sound Capital, LLC v. Merck & Co. Inc., 3rd Cir. (Greenberg, J.) (13 pp.) Defendants appealed from the order of the district court ruling that plaintiffs’ Exchange Act claim was timely under the doctrine established by American Pipe & Construction Co. v. Utah, 414 U.S. 538. In American Pipe, the Court established a rule for class actions tolling the limitations period for unnamed members of a putative class action during the time that a district court was deciding whether to certify the class. Plaintiffs’ action stemmed from a clinical trial known as ENHANCE, designed by defendants to determine whether their cholesterol-treating drugs could be combined to create a new product known as Vytorin. However, the ENHANCE trial revealed that Vytorin did not produce any added benefit compared to defendants’ individual products alone. Following the release of the trial results, defendants’ stock fell precipitously. Representative plaintiffs filed 2 putative class actions in 2008, which had their classes certified in September 2012. However, plaintiffs of the present action opted-out of the class actions, and initiated the present actions in November 2013 and January 2014. Defendants moved to dismiss, arguing that plaintiffs’ complaints were untimely under the Exchange Act’s 5-year statute of repose, and that American Pipe only applied to “equitable” tolling of statutes of limitations rather than extending statutes of repose. The district court denied defendant’s motion, ruling that American Pipe could be applied to statutes of repose. On appeal, the court reversed, noting that the Court had ruled in the interim that American Pipe equitable tolling did not apply to federal securities laws statutes of repose. [Filed August 2, 2017]