Nov. 1 to 7, 2012

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
BANKING — MORTGAGES
06-2-8118 PNC Mortgage v. Williams, App. Div. (per curiam) (9 pp.) This appeal arises from a residential mortgage foreclosure proceeding. Defendant Raynard Williams appeals from the order that denied his motion to vacate an entry of default. On Jan. 15, 2010, plaintiff PNC Mortgage filed a two-count foreclosure complaint against Williams. According to the complaint, Williams made two monthly installment payments, and went into default on Aug. 1, 2009. For the almost 22 months since Williams had been served with the pleadings, he had failed to participate in the formal litigational process that was engulfing him. In his motion, Williams asserted unsuccessful efforts to refinance the unpaid mortgage and his claim that the notice of intention failed to identify “the lender and the lender’s representative.” The motion court correctly rejected the contention that Williams’ efforts to save his realty constituted good cause for ignoring his legal obligation to answer the complaint. The panel also finds no abuse of discretion in the motion court’s summary rejection of Williams’ unfocused notice-of-intention argument. On the face of the notice of intention is the identification of the lender and its servicer. It is reasonable to conclude that Williams supplied that very information to his credit counselors because it was used to communicate with PNC. [Decided Nov. 2, 2012.]
 
CONTRACTS — SALES
11-2-8119 Skylands Saddlery v. Haggerty, App. Div. (per curiam) (5 pp.) This small-claims matter arises from defendant Dionne Haggerty’s agreement to purchase from plaintiff Skylands Saddlery a saddle, subject to Haggerty’s right to a seven-day trial period within which Haggerty could rescind the transaction. The trial judge determined that, one day after termination of the trial period, Haggerty requested and Skylands consented to an extension of the trial period “for a few more days” but that Haggerty failed to return the saddle for another 13 days. The appellate panel defers to these findings and concludes that the judge correctly determined that Haggerty’s failure to return the saddle within the extended trial period finalized the sale. The panel therefore affirms the judgment awarding plaintiff the balance of the sale price. [Decided Nov. 2, 2012.]
 
CRIMINAL LAW AND PROCEDURE
14-2-8123 State v. Gordon, App. Div. (per curiam) (15 pp.) Defendant appeals from a jury verdict finding him guilty of first-degree robbery and third-degree theft. The trial judge charged the jury, instructing them on the elements of first-degree and second-degree robbery. The jury convicted defendant of first-degree robbery, after concluding he was armed with a deadly weapon. On appeal, defendant challenges the denial of his motion for acquittal and identifies what he suggests were trial errors warranting reversal. The appellate panel concludes the state’s evidence was insufficient to sustain a conviction for first-degree robbery and the court erred in denying defendant’s motion at the conclusion of the state’s case. The panel reverses and remands for the entry of a judgment of acquittal for the first-degree armed robbery conviction, amendment of the judgment of conviction to reflect the conviction of second-degree robbery, and for sentencing. [Decided Nov. 2, 2012.]
 
14-2-8144 State v. D.P.H., App. Div. (per curiam) (10 pp.) Defendant, who in 2011 pleaded guilty to a pre-1985 sexual assault on his then less than 6-year-old daughter, appeals from the imposition of notification and registration requirements pursuant to N.J.S.A. 2C:7-2 and community supervision for life pursuant to 2C:43-6.4. Because Doe v. Poritz held that registration and notification requirements are remedial, not punitive, and State v. Schubert determined that CSL is punitive, the panel concludes that the sex offender CSL requirement imposed on defendant is a punitive measure and constitutes punishment for purposes of ex post facto analysis and it therefore vacates the imposition of CSL on him but affirms the imposition of the registration and notification requirements contained in Megan’s Law. [Decided Nov. 7, 2012.]
 
CRIMINAL LAW AND PROCEDURE — POSTCONVICTION RELIEF
14-2-8117 State v. Peterson, App. Div. (per curiam) (13 pp.) In appealing the denial of his postconviction relief (PCR) petition, defendant seeks a new trial based on, among other things, State v. A.O., which precludes admission of polygraph evidence when stipulated by the accused without the advice of counsel. Defendant was tried and convicted in 1998, and his direct appeal regarding the admission of polygraph evidence and other points was decided in 2000 — nine years before A.O. was decided. As a result, even if appropriate, pipeline retroactivity provides defendant no benefit. Additionally, the appellate panel concludes that A.O. should not be applied to this case because the admission of polygraph evidence here did not strike at the heart of the truth-seeking function. The panel affirms the denial of relief on this ground but remands for an evidentiary hearing on defendant’s ineffectiveness claim based on the alleged failure of trial counsel to pursue a diminished-capacity defense. [Decided Oct. 29, 2012.]
 
14-2-8124 State v. Burden, App. Div. (per curiam) (15 pp.) Defendant appeals from an order denying his petition for postconviction relief (PCR). After conducting an evidentiary hearing, the PCR judge issued a written opinion denying PCR, concluding that, although defendant demonstrated that his trial counsel was ineffective, defendant failed to prove that there was a reasonable probability that the result would have been different absent his attorney’s errors. Despite a juror’s statement that he thought defendant was guilty and that all he could do was “try” to sit on the jury, defense counsel did not ask that he be excused for cause and he did not use a peremptory challenge to remove him from the jury. Concluding that defense counsel’s admitted error in failing to strike an obviously biased juror from the jury, which prevented defendant from receiving a fair trial, the appellate panel reverses and remands to the trial court. [Decided Nov. 2, 2012.]
 
FAMILY LAW
20-2-8126 Kilgore v. Kilgore, App. Div. (per curiam) (14 pp.) Defendant-former husband appeals from Family Part postjudgment orders denying his motion to enforce litigant’s rights and modify the parties’ dual judgment of divorce and motion for reconsideration. The panel concludes that where the judge correctly found that the applicable statutory requirements for the establishment of child support under the circumstances were set forth in N.J.S.A. 2A:34-23(a) but that the court could not make a clear determination pursuant to the statute or the Newburgh factors because of confusing, inconsistent and insufficient financial information submitted by defendant, the court should have conducted a plenary hearing to resolve the contested issues of material fact. The panel also concludes that defendant’s request that the court impute income to plaintiff is premature and without a proven basis. The panel reverses the award of counsel fees to plaintiff and the denial of counsel fees to defendant. The matter is remanded for a hearing at which the court is to review the incomes and earning capacities of the parties and consider anew the parties’ fees applications. The panel affirms the determination of the parties’ entitlement to tax dependency deductions for the reasons expressed below. [Decided Nov. 5, 2012.]
 
20-2-8127 New Jersey Division of Youth and Family Services v. S.M., App. Div. (per curiam) (8 pp.) In this Title Nine case, the Division of Child Protection and Permanency appeals from an order permitting the children’s guardian ad litem (GAL) to intervene, and an order dismissing the division’s complaint. S.M. sought to adopt two children who were in S.M.’s custody. The adoption matter is pending; the GAL was appointed in that proceeding. Meanwhile, the division filed a Title Nine action against S.M. based on an allegation made by J.A., a woman who claimed S.M. engaged in inappropriate sexual conduct decades ago. The Family Part judge decided to hold a bifurcated hearing, first hearing the testimony of J.A. and other witnesses on the issue of whether the incident actually occurred. If he found it occurred, the judge planned to hear testimony from expert psychologists on whether S.M. was currently fit to safely parent the children. The intervenor, joined by S.M. and the GAL, filed a motion for reconsideration of the judge’s subsequent determination that the incident had occurred. However, instead of ruling on the motion, the judge sua sponte dismissed the case. The appellate panel finds no abuse of discretion in the judge’s decision to permit the GAL to intervene. However, finding the judge’s decision to sua sponte dismiss the Title Nine action was a violation of due process, the panel reverses the order of dismissal and remands to the Family Part. [Decided Nov. 5, 2012.]
 
FAMILY LAW — CHILD ABUSE
20-2-8107 DYFS v. C.P., App. Div. (per curiam) (11 pp.) Trial court’s finding of abuse and neglect — that the legal guardian of a 9-year-old child, her great niece, abandoned her to the child’s mother without approval of the Division of Youth and Family Services — is reversed where the appeals court is not convinced the guardian subjected the child to significant risk of harm such as to constitute abandonment or abuse or neglect within the intendment of statutory or case law. The record shows that for nine years and under extremely difficult circumstances, the guardian provided food, shelter, love and nurturing and tried her best to address the child’s significant psychiatric and emotional problems, withstanding physical attack and destruction in her home and never knowing when the child would act out and pose a threat to herself or others. [Decided Oct. 29, 2012.]
 
FAMILY LAW — CHILD SUPPORT — SPOUSAL SUPPORT
20-2-8120 Proetto v. Proetto, App. Div. (per curiam) (11 pp.) Plaintiff appeals from provisions of a postjudgment Family Part order that denied reconsideration of a previous order that dismissed his motion to reduce his alimony and child-support obligations; denied his motion to suspend his support obligations pending a plenary hearing; and granted defendant’s cross-motion “to order plaintiff’s arrest until he complies with all orders.” In his motion for reconsideration, plaintiff improperly attempted to expand the record and reargue the motion. Notwithstanding its determination that plaintiff failed to satisfy the requirements for reconsideration, the trial court disposed of the child support and alimony issues on the merits. The appellate panel finds the court did not abuse its discretion in determining plaintiff had failed to demonstrate a prima facie case of a permanent change in his financial circumstances. The panel rejects plaintiff’s argument that the trial court ignored the PSA provision concerning his right to apply for modification of his alimony payments. The PSA provision stated that he could seek modification if his income dropped below $153,000, however, it did not guarantee that his application would be successful or that he would be entitled to a hearing in the absence of a prima facie showing of changed circumstances. Finding no abuse of discretion by the trial court, the appellate panel affirms. [Decided Nov. 2, 2012.]
 
FAMILY LAW — DOMESTIC VIOLENCE
20-2-8108 A.G.D. v. C.C.C., App. Div. (per curiam) (8 pp.) The final restraining order (FRO) entered against defendant under the Prevention of Domestic Violence Act is reversed, and the case is remanded for a new hearing, where the FRO judge erred in (1) requiring defendant to disprove that predicate acts occurred and (2) focusing on incidents not mentioned in the domestic-violence complaint, which occurred after the temporary restraining order had been issued. [Decided Oct. 29, 2012.]
 
FAMILY LAW — EQUITABLE DISTRIBUTION
20-2-8109 Mantey v. Schwartz, App. Div. (per curiam) (19 pp.) In this matrimonial case, both parties appeal/cross-appeal certain aspects of the amended dual judgment of divorce, relating to the equitable distribution of two assets: the marital residence and a Morgan Stanley investment account. In light of gaps and apparent inconsistencies in the trial court’s reasoning and analysis, the contested issues are remanded to the Family Part for re-examination under the applicable statutory factors and case law. [Decided Oct. 29, 2012.]
 
FAMILY LAW — SPOUSAL SUPPORT
20-2-8110 Means v. Snipes, App. Div. (per curiam) (34 pp.) On defendant’s appeal, the appellate panel affirms various provisions of the amended final judgment of divorce (AJOD) and postjudgment orders, with the exception of those provisions in the AJOD that call for an automatic reduction in alimony based on predetermined income amounts. Paragraph 21 of the AJOD provides for a pro-rata reduction in alimony payments if defendant’s annual gross earnings drop below $2.8 million in a given year. Paragraph 8 provides that defendant “will have an automatic right to receive a reduction in Alimony” if his gross annual earnings fall below $2 million. The parties did not agree to an automatic adjustment in alimony based on this criterion. The court erred in including this provision in the AJOD. The appellate panel reverses that part of the court’s decision set forth in Paragraphs 8 and 21 of the AJOD that calls for an automatic reduction in alimony based on predetermined income amounts, and directs that it be vacated from the order. [Decided Oct. 29, 2012.]
 
20-2-8121 Eberhard v. Eberhard, App. Div. (per curiam) (13 pp.) Defendant appeals from three orders that awarded an increase in alimony to plaintiff, granted her request for counsel fees incurred in filing the motion, and denied defendant’s motion for reconsideration. Defendant argues the determinations are unsupported by the record. The appellate panel finds the motion judge erred as a matter of law because an increase in the cost of living unaccompanied by a demonstrated need will not satisfy a movant’s burden to show the necessary substantial change in economic circumstances to warrant modification of alimony. Second, the judge’s statements accompanying the order granting the increase in alimony includes only the court’s naked legal conclusions and opinion that an increase was “obvious” and “appropriate,” precluding appellate review and resulting in a denial of justice. The panel reverses and remands for full review of the parties’ requests for a modification of alimony, noting that any change bottomed on a finding that an increase is necessary to maintain the marital lifestyle shall include findings defining that lifestyle, which most likely will necessitate a plenary hearing. Also, the award of counsel fees to plaintiff must be reviewed to set forth the basis for the amount of the fee awarded. [Decided Nov. 2, 2012.]
 
20-2-8128 Hendrickson v. Hendrickson, App. Div. (per curiam) (7 pp.) Defendant (Mark) appeals postjudgment matrimonial orders that denied his motion to terminate his limited-duration alimony obligation to plaintiff (Kathleen). The appellate panel finds defendant is correct that the motion judge mistakenly determined the impact of his retirement on the alimony obligation. The parties did not agree that Mark’s retirement would end the limited-duration alimony provision. The PSA states only that Mark’s death, Kathleen’s death or the passage of eight years would end his alimony obligation. But the judge’s misconception of this fact does not mean that Mark is entitled to relief. To the contrary, the referenced provision of the PSA further confirms that Kathleen was correct in claiming that Mark’s retirement was not an event that permitted termination of the alimony obligation. The appellate panel affirms, for reasons somewhat different from those provided by the motion judge, concluding that defendant’s retirement from his place of employment was an insufficient ground for a cessation of his alimony obligation. [Decided Nov. 5, 2012.]
 
GOVERNMENT — STATE AND LOCAL GOVERNMENT
21-2-8111 State v. Heine, App. Div. (per curiam) (3 pp.) Defendant was found guilty in municipal court of violating Garfield Ordinance 1723, Ch. 181-3, concerning a property owner’s obligation to permit construction officials to conduct inspections. Defendant’s principal contention is that the ordinance violates her Fourth Amendment right to insist that inspectors not enter her premises without a search warrant. The appellate panel concludes that this case is controlled by a prior opinion in State v. Heine, which held that Heine had a Fourth Amendment right to exclude inspectors from her premises unless they had a search warrant. This applied even if she initially consented and then withdrew that consent, as occurred in this case. The inspector’s remedy was to obtain a search warrant rather than to charge her with violating the ordinance. The panel reaches the same conclusion here, reverses the order on appeal and vacates the judgment of conviction. [Decided Oct. 29, 2012.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION
25-2-8112 Queen v. City of Bridgeton, App. Div. (per curiam) (19 pp.) The summary judgment dismissal of a complaint by the city police dispatcher alleging disability discrimination is affirmed because she has not established any violation of the employer’s duty to reasonably accommodate her alleged disability. Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide. [Decided Oct. 29, 2012.]
 
LABOR AND EMPLOYMENT — WAGES AND HOURS
25-2-8129 Wagner v. Blue Sky Classic Cars, App. Div. (per curiam) (31 pp.) Defendants appeal from a judgment awarding unpaid overtime wages, liquidated damages and counsel fees to plaintiff, a mechanic, as a result of their failure to pay him overtime wages despite his having often worked more than 40 hours per week. The panel affirms, finding, inter alia, that (1) the trial court did not abuse its discretion in granting plaintiff’s in limine motion to preclude introduction of documents defendants proffered to support their affirmative defense that Blue Sky was exempt from paying plaintiff overtime wages because more than 50 percent of its business is derived from the sale of automobiles where defendants inexplicably failed to comply with Rule 4:17-7 in attempting to supplement their discovery responses after the close of the discovery period; (2) the trial court did not err in its interpretation of the good-faith defense under N.J.S.A. 34:11-56a25.2 and finding it inapplicable to this case or in excluding the testimony of a Department of Labor investigator because it would confuse the jury or be unduly prejudicial to plaintiff; and (3) the trial court did not err in permitting plaintiff to testify as to his opinion concerning the percentage of Blue Sky’s revenue that came from sales as opposed to other activities or in permitting the issue of liquidated damages to proceed to the jury. [Decided Nov. 5, 2012.]
 
LANDLORD/TENANT — COMMERCIAL LEASES
27-4-8130 Cablevision of Oakland v. CK Bergen Holdings, Ch. Div. — Bergen Co. (Doyne, A.J.S.C.) (11 pp.) Plaintiff, which entered into a 20-year lease with defendant that contained an option to extend for an additional five years pursuant to certain conditions, seeks an order directing defendant to enter into a lease amendment memorializing the fair market rent determined by the appraiser appointed by the court after the parties were unable to agree on the fair market rental value and to award attorney fees and costs incurred as a result of being compelled to bring this motion. The court grants the requested relief, finding that the appraisal is not flawed and that defendant has not executed the required amendment in accordance with the appraisal and thus is in violation of the lease and the order and appears to be acting only for the purpose of delay. [Decided Oct. 26, 2012.]
 
PUBLIC EMPLOYEES
33-2-8113 In the Matter of Pastoriza, App. Div. (per curiam) (12 pp.) Appellant Luis Pastoriza, the municipal clerk of Camden, appeals from the final administrative determination of the Civil Service Commission, which rejected his claim that the city’s temporary layoff plan violated his rights under N.J.S.A. 40A:9-165. This matter concerns the interplay of the commission’s general Title 11A oversight of employment issues in civil service municipalities with the narrow application of N.J.S.A. 40A:9-165’s salary protection for municipal clerks in the state. The commission concluded that because N.J.S.A. 40A:9-165 included language making it subject to Title 11A, a municipal clerk had no right to insist on being excluded from a commission-approved layoff plan. Pastoriza argues that municipal clerks are protected municipal employees who cannot be forcibly disadvantaged by financial decisions invoked by municipalities. The appellate panel reverses, finding the commission’s disregard of N.J.S.A. 40A:9-165’s no-diminution protection in civil service municipalities defeats a primary purpose of the statute giving municipal clerks statutory financial protection. [Decided Oct. 29, 2012.]
 
REAL ESTATE
34-2-8143 Kanter v. Scharf, App. Div. (per curiam) (11 pp.) Plaintiff Sidney Kanter appeals from an order dismissing his complaint for lack of subject-matter jurisdiction. After the entry of the judgment of foreclosure on the property at issue in the Chancery Division, vesting defendant Malcolm Scharf with absolute and indefeasible estate of inheritance in fee simple, Sidney sought to obtain a judgment in the Law Division subverting and superseding that judgment. Sidney concedes that he was aware of the foreclosure proceeding in the Chancery Division and knew he had a right to intervene. He chose not to. Plaintiff denies that his action was an attack on the final judgment of foreclosure, claiming that judgment only divested the “named defendants.” This argument ignores the plain language of the judgment, which covers any interest that may have passed to Sidney through various quitclaim deeds. The appellate panel rejects plaintiff’s argument that the Law Division has jurisdiction to render a declaratory judgment establishing his interest in the property at issue, and affirms the order dismissing plaintiff’s complaint. [Decided Nov. 7, 2012.]
 
REAL ESTATE — CONTRACTS
34-2-8115 Occhifinto v. State of N.J. Through Comm’r of Dept. of Transportation, App. Div. (per curiam) (9 pp.) The plaintiff landowner sought a declaratory judgment that he had “an easement by way of necessity” over the DOT’s land in Green Township. Summary judgment was granted to the DOT, and the plaintiff appealed. The appellate panel affirmed the summary judgment because the relevant deed unambiguously conveyed the right of way “free and clear” of “all easements and rights of access ... even if such easements and rights would otherwise arise by reason of necessity.” If parties choose to contract for a forfeiture, a court of equity will not interfere with that contract term in the absence of fraud or the like. [Decided Oct. 29, 2012.]
 
REAL ESTATE — MORTGAGE FORECLOSURE
34-2-8132 NVE Bank v. Ber-Loew Partnership, App. Div. (per curiam) (13 pp.) Appellant Richard Berlowe, a member of the Ber-Loew partnership, appeals from the denial of his motion to intervene in a foreclosure action brought by NVE Bank against defendants Ber-Loew Partnership and Christopher Durso. He also argues that the trial court erred when it found that the partnership’s guaranties and mortgages were enforceable. Finding that Berlowe failed to satisfy the first of the four Chesterbrooke required elements — that he had an interest relating to the property that was the subject of plaintiff’s action — because, since the properties at issue were owned solely by the partnership, the partnership has the sole interest in defending any actions relating to them, and that permissive intervention was untimely, the panel concludes that the Chancery Division properly denied the motion to intervene. It, therefore, declines to consider the issues regarding the merits of the foreclosure action. [Decided Nov. 5, 2012.]
 
REAL ESTATE — MORTGAGES — EVIDENCE
34-2-8133 EMC, L.L.C. v. Cooper, App. Div. (per curiam) (30 pp.) After a two-day bench trial, plaintiff EMC, successor in interest to Emigrant Mortgage Company Inc., obtained a judgment of foreclosure against defendants Ivy Cooper and Vashti Brouwers on a defaulted residential mortgage loan. The trial judge rejected defendants’ claim that their signatures on the mortgage documents had been forged, instead adopting the opinion of Emigrant’s handwriting expert that the signatures were authentic. Also, applying the cleric-penitent privilege, the judge excluded testimony proffered by defendants alleging that Cooper’s son-in-law had admitted to a reverend of the church he attended that he had forged their signatures. The appellate panel affirms, finding the judge appropriately concluded that the signatures were genuine and that defendants had unsuccessfully attempted to disguise them as forgeries. Further, the judge correctly excluded the son-in-law’s testimony under the cleric-penitent privilege. If, as defendants posit, the son-in-law had forged their names on the mortgage documents, his confession of such a wrongful act to a cleric would provide an occasion for potential spiritual guidance and redemption. There was an ample basis for the trial judge to deem such proof privileged, and to exclude it. [Decided Nov. 5, 2012.]
 
TAXATION
35-5-8122 HPFVI Pisc. Portfolio v. Piscataway Twp., Tax Ct. (Menyuk, J.T.C.) (3 pp.) Defendant filed a motion to dismiss the complaint on the ground that plaintiff failed to respond to the assessor’s request for income and expense information made pursuant to N.J.S.A. 54:4-34 (Chapter 91). The motion is opposed on the basis that defendant failed to establish that the Chapter 91 request had actually been received by the taxpayer. The court concludes that, in the absence of a certification from the plaintiff that the Chapter 91 request was not received by the addressee, it is sufficient for the defendant-municipality to produce the certified mail receipt received from the post office as evidence of receipt, even where the certified mail receipt was not signed. In the absence of an affirmative showing by plaintiff that the request was not received, defendant’s proofs are sufficient. Defendant’s motion is granted, subject to plaintiff’s right to a reasonableness hearing. [Decided Oct. 26, 2012.]
 
35-5-8134 North Brunswick Twp. v. Gochal, Tax Ct. (Menyuk, J.T.C.) (5 pp.) Finding that the judgment of the Middlesex County Board of Taxation reducing the assessment on defendants’ property was contrary to the statutory directions in N.J.S.A. 54:3-22, the court grants the township’s motion to restore the original assessment. [Filed Nov. 1, 2012.]
 
TORTS — DEFAMATION
36-2-8135 Hunt v. Callahan, App. Div. (per curiam) (21 pp.) Plaintiff Mary Hunt appeals from orders granting summary judgment to defendants Charles Callahan and the Veterans of Foreign Wars, Post 2189 (VFW). Hunt’s complaint alleged that while employed by the VFW, Callahan engaged in harassment with the purpose of intimidating her on the basis of race, national origin and/or religious affiliation. Hunt also alleged that Callahan defamed her. The trial court concluded that Hunts’ LAD claims against the VFW failed as a matter of law because she did not present a prima facie case of unlawful discrimination or denial of access to a place of public accommodation on any prohibited basis. Also, Hunt failed to present sufficient evidence to support her claim against the VFW for negligent supervision or negligent hiring. The court further concluded that Callahan was entitled to summary judgment, finding Hunt did not present evidence indicating that Callahan’s purpose was to intimidate her on the basis of race, religion, gender or ethnicity. The evidence did not support Hunt’s claim that Callahan intimidated her on the basis of her Quaker religion. Callahan’s alleged statements that Hunt was a traitor, could not be trusted, was like Jane Fonda, and “supported” Ho Chi Minh were not slander per se but “pure expressions of opinion” based on his belief that Hunt had protested the war. Callahan’s statement that Hunt was a member of the American Friends Service Committee was false, but not defamatory. [Decided Nov. 5, 2012.]
FEDERAL COURT CASES
 
 
ADMINISTRATIVE LAW — SOCIAL SECURITY
01-7-8145 Jones v. Astrue, U.S. Dist. Ct. (Linares, U.S.D.J.) (11 pp.) Before the court is plaintiff’s appeal seeking review of a final determination by the administrative law judge denying her application for Supplemental Security Income Benefits (SSI) in part. The court finds that the ALJ erred at step three of her disability analysis by failing to properly consider plaintiff’s impairments in combination before proceeding to step four, and by failing to adequately compare the combination of plaintiff’s severe impairments with the commissioner’s listings to determine medical equivalence. Accordingly, the court remands the case for a detailed analysis by the ALJ of the evidence and, specifically, an explanation of her determination that the combination of plaintiff’s impairments does not medically equal any of the listed impairments. [Filed Nov. 5, 2012.]
 
AGENCY AND PARTNERSHIP
02-7-8125 Glielmi v. The Raymond Corporation, U.S. Dist. Ct. (Hillman, U.S.D.J.) (13 pp.) The court previously entered an order denying defendant The Raymond Corporation’s motion for summary judgment in this matter involving a forklift accident. The court found that an agency relationship existed between defendant Arbor Material Handling Inc. and Raymond — specifically, that Raymond, as the manufacturer, was the principal in the relationship, and Arbor, as the dealer that provided rentals and training related to the forklift machinery, was the agent. Here, the court denies Raymond’s motion for reconsideration that it could be held liable under the agency principles of New Jersey law. Raymond avers that any liability related to the accident should be imputed to Malin Integrated Handling S&D, which supplied the rental forklift to Arbor. Nothing in the record indicates that evidence related to Malin was previously unavailable “new evidence” requiring reconsideration. Even if the court were to consider this information new evidence, reconsideration would be unnecessary because it would not alter the court’s prior ruling. Even if Malin was responsible for the rental request, the record indicates that an agency relationship existed between the manufacturer, Raymond, and its dealer — regardless of whether that dealer was Malin or Arbor. [Filed Nov. 1, 2012.]
 
ARBITRATION AND MEDIATION
03-7-8136 New Jersey Building Construction Laborers District Council v. Robert DeForest Demolition Co. Inc., U.S. Dist. Ct. (Pisano, U.S.D.J.) (5 pp.) Respondent moves to set aside the judgment confirming an arbitration award in favor of petitioner and to vacate the award. The court denies the motion, finding that the circumstances here — respondent’s lone shareholder died after entry of the award and before petitioner’s filing of the petition to confirm the arbitration, and his wife, as his executrix, did not take any action with respect to the arbitration award or the petition until filing this motion — do not satisfy the standards of either Rule 60(b)(1) or 60(b)(6). [Filed Oct. 25, 2012.]
 
CRIMINAL LAW AND PROCEDURE — IMMIGRATION — DETENTION
14-7-8142 Baguidy v. Elwood, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (24 pp.) Petitioner is currently being detained by the Department of Homeland Security, Immigration and Customs Enforcement (DHS/ICE) at the Monmouth County Correctional Institution in Freehold pending his removal from the United States. Petitioner was taken into criminal custody for a removable offense on March 1, 2001, and was released on June 1, 2001. Over nine years later, on Jan. 19, 2011, petitioner was taken into DHS/ICE custody pending removal proceedings. He has been detained for more than 18 months when he filed this habeas petition, in which he challenges his pre-removal period mandatory detention under 8 U.S.C. § 1226(c). The court holds that petitioner’s detention is governed by 8 U.S.C. § 1226(a), and grants this petition for habeas relief directing the immigration judge to conduct a bond hearing to determine if petitioner is a flight risk or danger to the community. [Filed Nov. 5, 2012.]
 
EDUCATION
16-7-8137 Crisdon v. N.J. Dep’t of Education, U.S. Dist. Ct. (Hillman, U.S.D.J.) (8 pp.) Plaintiff seeks to vacate a judgment granting, on the basis of the Eleventh Amendment, defendant’s motion to dismiss the complaint in this matter alleging the defendant failed to issue him a high school diploma after he met the high school graduation requirements in the spring of 2006, resulting in his inability to pursue his dream of becoming a professional basketball player. The court denies the requested relief because plaintiff does not specify the existence of any mistake, inadvertence, surprise or excusable neglect and he fails to offer a sufficient argument supporting his conclusion that the judgment was void and instead simply seeks to reargue the same legal errors he previously asserted and a Rule 60(b) motion is not meant to be used as a substitute for an appeal and cannot serve as a basis for challenging the prior judgment. [Filed Nov. 5, 2012.]
 
GOVERNMENT — ELECTION LAW
21-8-8146 Democratic-Republican Organization of New Jersey v. Guadagno, Third Cir. (Fuentes, U.S.C.J.) (2 pp.) The court affirms the district court’s denial of plaintiffs’ motion for preliminary injunctive and declaratory relief, finding that the district court properly applied the applicable balancing test and correctly concluded that (1) plaintiffs had failed to provide any support for their claim that the ballot placement provisions in New Jersey law burdened their independent candidacies; (2) New Jersey’s interest in maintaining a manageable ballot sufficiently justified its statutory scheme; (3) plaintiffs failed to establish that prohibiting them from referencing the names of the state’s political parties in their ballot slogan impermissibly burdened their First Amendment rights; and (4) the state’s interest in avoiding voter confusion justified the ballot slogan limitation. [Filed Nov. 5, 2012.]
 
JURISDICTION — CONTRACTS
24-7-8147 Salandstacy Corp. v. Freeney, U.S. Dist. Ct. (Hammer, U.S.M.J.) (14 pp.) In this action arising out of a two-page term sheet executed by plaintiffs and defendant Roof Group under which plaintiffs were to manage a restaurant in Los Angeles, and plaintiffs’ termination after issues with funding arose, the court determines that venue would be proper in the proposed transferee district and considers the Jumara private and public interest factors and concludes that on balance, they strongly favor transfer. It therefore grants Roof Group’s motion to transfer the matter to the U.S. District Court for the Central District of California under 28 U.S.C. § 1404(a). [Filed Nov. 5, 2012.]
 
JURISDICTION — REMOVAL
24-7-8139 Stiglich v. Chattem Inc., U.S. Dist. Ct. (Bumb, U.S.D.J.) (7 pp.) Plaintiff has moved to remand this matter to the New Jersey Superior Court, Atlantic County. Defendant Chattem Inc. has moved to transfer this matter to the U.S. District Court for the Western District of Washington. This matter was removed based on diversity jurisdiction. Plaintiff’s original complaint alleged claims against Chattem and defendant Garden State Nutritionals, a citizen of New Jersey. These claims were based on plaintiff’s alleged consumption of products labeled “Dexatrim” that were produced by Chattem and Garden State, contained phenylpropanolamine (PPA) and ephedra, and caused him injury. Plaintiff filed an amended complaint deleting references to PPA and asserting certain Dexa-trim products containing ephedra caused him to be injured. The appellate panel rejects plaintiffs’ argument that Garden State was fraudulently joined for the purpose of blocking removal based on the forum defendant rule. Based on the facts presented, the court concludes that plaintiff has problematic claims against both defendants, not a fraudulent claim against Garden State. Because Garden State was not fraudulently joined, Chattem’s removal of this action violates the forum defendant rule. Plaintiff’s motion to remand is granted. Chattem’s motion to transfer is denied as moot. [Filed Nov. 5, 2012.]
 
LABOR AND EMPLOYMENT — DISCRIMINATION
25-7-8148 Bratek v. TD Bank, U.S. Dist. Ct. (Kugler, U.S.D.J.) (7 pp.) Defendant moves to dismiss the second amended complaint of plaintiffs, formerly employed as customer service representatives at defendant’s call center, which asserts claims of age discrimination. The court denies the motion, finding that although plaintiffs have failed to properly plead the prima facie elements of a claim for disparate treatment discrimination based on a theory of wrongful termination under the New Jersey Law Against Discrimination because they do not allege which individuals replaced them nor do they allege the age of any such persons, the complaint does allege facts in support of a disparate treatment claim based on a reduction-in-force theory that are sufficient to state a claim to relief plausible on its fact. [Filed Nov. 5, 2012.]
 
LABOR AND EMPLOYMENT — NEGLIGENCE
25-7-8138 Gargano v. Wyndham Skyline Tower Resorts, U.S. Dist. Ct. (Simandle, U.S.D.J.) (21 pp.) Plaintiff, an employee of Mastercorp, a company that provided cleaning services to a Wyndham hotel on a contract basis, alleges that she was sexually assaulted at the hotel by Luis Lopez, a Wyndham employee. Plaintiff sued Wyndham for negligently hiring Lopez under New Jersey law. Plaintiff argues that Lopez had a reputation for a quick temper and was involved in at least two documented incidents of aggression toward other employees that should have put Wyndham on notice that hiring Lopez put other employees at risk of physical violence. Because plaintiff has not adduced sufficient evidence to enable a reasonable jury to find that (1) Wyndham knew or should have known about a particular unfitness or dangerous attribute of Lopez’s personality or (2) plaintiff’s injury, sexual assault, was reasonably foreseeable based on Lopez’s record and employment history, the court will grant defendant Wyndham Vacation Resorts’ motion for summary judgment. [Filed Nov. 2, 2012.]
 
PUBLIC EMPLOYEES — DISCRIMINATION
33-7-8140 Andriani v. City of Hoboken, U.S. Dist. Ct. (Martini, U.S.D.J.) (6 pp.) Angelo Andriani, a former lieutenant, filed a complaint against various defendants related to the Hoboken Police Department. Andriani asserted that from December 2005 until August 2010, defendants treated him differently from similarly situated officers on the basis of his race, in violation of Title VII, the New Jersey Law Against Discrimination, and 42 U.S.C. §§ 1981 and 1983. Andriani listed his mailing address and also completed and signed a consent and registration form to receive documents electronically. Defendants moved for summary judgment, asserting in part that Andriani could have raised his claims in a 2007 lawsuit in which a group of Hispanic Hoboken police officers sued him based on alleged inappropriate and discriminatory behavior as their supervisor. Defendants provided the court with a copy of a settlement agreement and release that Andriani signed before the dismissal with prejudice of the 2007 lawsuit, as settled. Defendants’ summary judgment papers, with the settlement agreement and release, were emailed to Andriani and a paper copy was mailed to him. Andriani never responded. The court granted defendants’ motion for summary judgment, finding Andriani’s claims barred by the doctrine of federal claim preclusion. Here, the court denies Andriani’s motion for reconsideration, rejecting his arguments that he did not receive the motion papers and defendants filed an incorrect copy of the settlement and release. [Filed Nov. 5, 2012.]
 
TORTS — FAMILY LAW
36-7-8141 D.B. v. Division of Youth and Family Services, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (15 pp.) Through this suit, plaintiff D.B. seeks to hold defendant Division of Youth and Family Services (DYFS), the Department of Human Services (DHS), and the state of New Jersey (state defendants), along with several unnamed state officials (state official defendants), accountable for alleged systematic acts of verbal and physical abuse perpetrated on him while he was placed in the state foster care system. Here, the state defendants move to dismiss the complaint under sovereign immunity grounds and for failure to file a tort claim notice. Plaintiff correctly argues that the § 1983 counts are not made against the state, DYFS or DHS. The state defendants’ motion to dismiss the § 1983 claims on sovereign immunity grounds is denied. Plaintiff’s § 1983 counts are limited to the state official defendants in their personal capacities. Finding case law supports plaintiff’s argument that the tort claim notice requirement is tolled during a plaintiff’s infancy, and where plaintiff has yet to reach his 18th birthday, the court denies the state defendants’ motion to dismiss based on a failure to file a tort claim notice. [Filed Nov. 5, 2012.]
 

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