Nov. 29 to Dec. 5, 2012

Unpublished Opinions

New Jersey Law Journal


01-2-8301 In the Matter of the Petition of Waste Management of New Jersey Inc., App. Div. (per curiam) (8 pp.) Atlantic County Utilities Authority appeals from a final order of the Department of Environmental Protection approving Waste Management of New Jersey’s purchase of a solid-waste transfer station and related assets from Cifaloglio Inc. The panel affirms, noting that the authority did not object to the sale prior to its approval by the DEP and in essence now seeks to raise on appeal issues that it could have, but did not, raise before the DEP during the public comment period and that the issue that prompted the belated objection to the sale, Waste Management usage of an out-of-state disposal site, has become moot because the Atlantic County solid-waste management plan has been amended to prohibit use of an out-of-state site. [Decided Nov. 29, 2012.]
14-2-8352 In the Matter of the Expungement of the Criminal Records of T.S., App. Div. (per curiam) (14 pp.) Petitioner T.S. appeals from an order of the Law Division denying his petition for expungement of a 2002 judgment of conviction for third-degree distribution of a controlled dangerous substance (CDS), cocaine, within 1,000 feet of a school zone. The “early pathways” law requires a finding that expungement is in the public interest. In denying the application, the trial court found that because of the relatively serious and ongoing nature of his criminal enterprise at the time of arrest, expungement would not be consistent with the public interest. The appellate panel rejects petitioner’s appeal and affirms, finding the motion judge properly weighed the positive evidence presented by T.S., before concluding that the petitioner’s character and conduct since conviction did not outweigh the serious nature of his offense. Contrary to petitioner’s argument, in reaching this conclusion the motion judge did not impose a heightened standard of exceptional conduct. [Decided Dec. 4, 2012.]
14-2-8309 State v. Dennis, App. Div. (per curiam) (32 pp.) Defendant, convicted of conspiracy to commit armed robbery, armed robbery, murder, felony murder, unlawful possession of a weapon, possession of a weapon for unlawful purposes and certain persons not to possess weapons, appeals from his convictions and sentence. The panel affirms the convictions but holds that although the court properly merged the felony murder conviction with the murder conviction, the armed robbery survives as a separate offense and should not have been merged. It also holds that the conviction for unlawful possession of a weapon should not have been merged with the offense of certain persons not to possess weapons. It therefore remands for resentencing on the unmerged offenses. [Decided Nov. 29, 2012.]
14-2-8326 State v. Graham, App. Div. (per curiam) (20 pp.) Tried to a jury, defendant was convicted and sentenced for the following offenses: second-degree robbery, simple assault, as a lesser included offense of the indicted charge of third-degree aggravated assault, third-degree receiving stolen property, third-degree conspiracy to commit the crimes of tampering with public records, forgery, and motor vehicle title offenses, third-degree tampering with public records, third-degree forgery, and third-degree motor vehicle title offenses. On defendant’s appeal, the appellate panel holds that an amended judgment of conviction shall be entered to reflect the merger of the counts charging second-degree robbery with third-degree receiving stolen property. Because theft is a lesser-included offense of robbery, and because all theft crimes have been consolidated under Chapter 20 in the Code of Criminal Justice, double punishment would result if these offenses were not merged. The panel otherwise affirms. [Decided Nov. 30, 2012.]
16-2-8332 Negron v. Bd. of Educa. of South Plainfield, App. Div. (per curiam) (12 pp.) Petitioner Jose Negron appeals from the final decision of the acting commissioner of the Department of Education concluding that the South Plainfield Board of Education was not legally bound to renew his contract as district superintendent for three years and did not act to extend his existing contract for an additional one-year period. The panel affirms, finding that after the resolution to offer him a new four-year contract failed, the board understood its decision — and its vote against extending his contract for one year — as having declined to continue his employment and the board secretary had authority to send him the letter notifying him that his contact would not be renewed without a formal board resolution authorizing her to do so and he therefore received valid notice pursuant to N.J.S.A. 18A:17-20.1. Also, the panel finds that a resolution to extend a superintendent’s existing contract for an additional one-year period requires an affirmative vote of the majority of the board and that the resolution to extend Negron’s contract therefore failed since the four affirmative votes were less than a majority of the full nine-member board. [Decided Dec. 3, 2012.]
17-4-8318 Envirofinance Group, L.L.C. v. Environmental Barrier Co., L.L.C., Ch. Div. — Bergen Co. (Contillo, P.J.Ch.) (21 pp.) The sole legal issue is whether plaintiff has established as a matter of law that defendant Geo-Con is not entitled to an equitable lien on certain mitigation credits (or the proceeds of the sale of the mitigation credits) in connection with an environmental mitigation project. Finding no express or implied agreement to grant a lien against specific property in the contractor consent agreement and other relevant documents, the court determines that EFG is entitled to partial summary judgment extinguishing Geo-Con’s equitable lien claim to the extent that it is based on any alleged agreement. Similarly, it determines that EFG is entitled to summary judgment extinguishing Geo-Con’s equitable lien claim to the extent that it is based on unjust enrichment because, while EFG has received a benefit as a result of Geo-Con’s uncompensated work on the project, and there is at least some basis in the record from which a fact finder could determine that Geo-Con did at least some of the work for which it now seeks payment, expecting to be paid by EFG, there is no evidence from which one could find that EFG expected to pay Geo-Con and there is no evidence to support Geo-Con’s claim that EFG benefited beyond its contractual rights. [Decided Nov. 13, 2012.]
17-2-8302 Marolda Farms Inc. v. Maryland Casualty Insurance Co., App. Div. (per curiam) (15 pp.) In this environmental remediation case, plaintiffs appeal from a Law Division order dismissing without prejudice their complaint against several insurance companies. The motion judge determined that because the action required him to rule on the fairness and scope of a consent decree entered years earlier in the district court, plaintiffs were required to litigate their claim in that forum. Here, the terms of the releases were incorporated into the consent decree. It is evident, not only by the court’s language in the decree expressly reserving to itself continuing jurisdiction to enforce the terms of the decree, but also by the extent of the terms of the settlement incorporated in the decree, that the court intended to retain jurisdiction to enforce the decree. Although plaintiffs were not parties to the action, the issues raised in their complaint in the Law Division explicitly challenged the lawfulness of the terms embodied in the consent decree. Even assuming the district court decree was not intended to bind plaintiffs, as a matter of comity, the appellate panel finds the Law Division properly dismissed plaintiffs’ complaint. [Decided Nov. 29, 2012.]
20-2-8303 Lenowitz v. Lenowitz, App. Div. (per curiam) (16 pp.) Plaintiff appeals, and defendant cross-appeals, from provisions of a postjudgment order addressing alimony, child support, equitable distribution and other issues. The panel affirms substantially for the reasons expressed below. It adds that, inter alia, (1) the record does not support plaintiff’s claim that the trial judge refused to honor her reasonable requests for accommodations; (2) the trial judge did not abuse his discretion regarding the parties’ imputed income; (3) the judge considered all the alimony factors as required by N.J.S.A. 23:34-23(b) and did not abuse his discretion in setting defendant’s alimony obligation or by awarding plaintiff permanent alimony; (4) child support was properly calculated under the guidelines; and (5) there is no basis to disturb the decision requiring plaintiff to pay part of defendant’s counsel fees as the award is discretionary and the judge appropriately considered the factors in Rule 5:3-5(c). [Decided Nov. 29, 2012.]
20-2-8319 Biancamano v. Biancamano, App. Div. (per curiam) (19 pp.) Defendant Jeffrey Biancamano appeals from the Family Part order substantially modifying his parenting time as originally agreed to in a consent order embodied in a final judgment of divorce. The panel reverses the modification order and remands for further proceedings, finding that the motion judge erred in substantially curtailing defendant’s parenting time based on conflicting certifications that contained disputed facts, accusations and allegations without benefit of a plenary hearing, to which defendant is entitled, and that in conditioning restoration of his parenting time on the approval of outside experts, the court wrongly delegated its judicial responsibility to resolve family disputes. [Decided Nov. 30, 2012.]
20-2-8320 Moreno v. Javan, App. Div. (per curiam) (20 pp.) In this postjudgment matrimonial action challenging certain Family Part determinations, defendant alleges that the trial judge erred in permitting plaintiff to choose the child’s pediatrician and health-care insurer in violation of the parties’ matrimonial settlement agreement, in refusing to impose a geographic limitation on plaintiff’s place of residence in light of the MSA’s statement that the parties agreed to live within close proximity, and in denying his request for oral argument. The panel affirms the refusal to impose geographical limitations on plaintiff’s residence, finding that defendant failed to show that plaintiff’s relocation to Flanders, as opposed to a town in closer proximity to his residence in Piscataway, substantially interfered with his parenting time and thus failed to establish any change in circumstances warranting a modification of the MSA, much less the imposition of geographical restrictions on her choice of residence. The court affirms the order permitting plaintiff’s selection of a pediatrician and health insurer as a temporary order since plaintiff’s unilateral selection of the pediatrician and health insurer did not comply with the provisions of the MSA that require consultation and cooperation but the record fails to show that the selections were inimical to the child’s best interests, and the issue is remanded to the trial judge for further consideration. The panel finds that the court did not err in denying oral argument because no formal request for oral argument was made and affirms the court’s denial of defendant’s motion that the matter be sent to a different judge. [Decided Nov. 30, 2012.]
20-2-8321 N.D. v. M.D., App. Div. (per curiam) (21 pp.) Both parties appeal from a final judgment of divorce. Defendant M.D. appeals from the provisions addressing reunification of the children with plaintiff. Plaintiff N.D. appeals from the provisions awarding defendant alimony and counsel fees, granting her sole custody, and granting a divorce on the extreme-cruelty grounds. The panel affirms, finding that (1) the trial judge did not abuse her discretion in relying on the report of the psychologist the court appointed to evaluate plaintiff and provide an opinion on whether he should be reunited with his children since, although the panel disapproves of plaintiff’s self-serving conduct in providing the expert with a favorable defense expert report from his criminal case, the court required that he be provided with additional documents providing a more complete picture of plaintiff’s conduct and there is no evidence the expert was biased against defendant; (2) there is sufficient credible evidence to support the award of a divorce on grounds of extreme cruelty given the evidence that plaintiff verbally abused defendant on a regular basis and that he pleaded guilty to abuse of one of the children; (3) the award of alimony is supported by substantial credible evidence; (4) defendant’s counsel properly supported her fee application with an affidavit of services; and (5) given the evidence, the court did not err in granting defendant sole custody of the children. [Decided Nov. 30, 2012.]
20-2-8322 Dash v. Dash, App. Div. (per curiam) (5 pp.) Plaintiff Darien Dash appeals from a Family Part order finding him in violation of an order requiring him to pay his ex-wife’s rent, and awarding counsel fees to his ex-wife. The panel affirms, finding a modest counsel fee award to be justified since plaintiff repeatedly had violated the property settlement agreement by failing to pay defendant’s rent and that, as a result, she was threatened with eviction, that when she filed her motion to enforce litigant’s rights, plaintiff still had not paid the rent, and, further, that the parties had agreed in the PSA that in the event of a violation, necessitating an enforcement action, the defaulting party would be responsible for the other party’s reasonable and necessary counsel fees. [Decided Nov. 30, 2012.]
20-2-8304 DiOrio v. DiOrio, App. Div. (per curiam) (7 pp.) In this postjudgment matrimonial matter, defendant appeals from the provision of the Family Part’s Jan. 19, 2011, order relative to his contributions toward his daughters’ student loans. To the extent defendant is challenging prior orders requiring him to contribute 50 percent toward his daughters’ college education, the authenticity of the loans, or the quantum of his obligation, the appellate panel finds the judge correctly determined that defendant is out of time. Defendant’s concern whether his daughters are contributing toward his share is irrelevant to his previously court-ordered support obligation. To the extent defendant is challenging the offset of his child-support overpayment against his outstanding college loan obligation, the panel is satisfied the judge acted within her discretion. The judge’s ruling that defendant’s college loan repayment obligation can be retroactively characterized as child support following emancipation and paid through the Probation Department by wage garnishment was a discretionary decision and the judge should have explained her reasoning for reversing her two previous rulings on that issue. Thus, the panel remands that portion of the order to the Family Part judge for redetermination on the record. [Decided Nov. 29, 2012.]
20-2-8305 Nwosu-Sylvester v. Ejiofor, App. Div. (per curiam) (5 pp.) In this postjudgment matrimonial matter, defendant appeals from a Family Part order requiring him to pay 50 percent of the parties’ children’s medical expenses and 50 percent of the maintenance fees for the parties’ timeshare. Finding no abuse of discretion, the appellate panel affirms. The judge appropriately granted plaintiff’s motion to order defendant to pay 50 percent of the children’s medical expenses and required plaintiff to pay the first $250 annually and to consult with defendant on any medical expenses more than $100. The judge observed that although a prior order had required that each party’s share of medical expenses be in accordance with his or her income as stated in the property settlement agreement, the agreement did not contain that information. [Decided Nov. 29, 2012.]
20-2-8349 Mateen v. New Jersey Department of Human Services, App. Div. (per curiam) (6 pp.) Plaintiff appeals from a final decision by the New Jersey Department of Human Services (DHS), Division of Family Development, Office of Child Support Services, notifying him that he owes $45,820.85 in child support and levying on his bank account. Plaintiff argues primarily that the DHS failed to recognize that levying on his bank account may cause him extreme hardship when he is released from prison. Plaintiff speculates that he will be unable to support himself when he is released from prison if the levy is not canceled. It is unknown when he will be released from prison, whether his income level will change while he remains incarcerated, and what his financial circumstances will be on release. As such, the appellate panel concludes that plaintiff did not meet his burden to prove extreme hardship and affirms. [Decided Dec. 4, 2012.]
20-2-8306 I.L. v. R.F.D. Jr., App. Div. (per curiam) (6 pp.) Defendant appeals from a final restraining order entered against him in this action brought pursuant to the Prevention of Domestic Violence Act. Giving deference to the trial judge’s credibility determinations, the panel affirms, concluding that the evidence was sufficient to permit a finding of harassment; that the judge made the requisite finding that a restraining order was necessary to prevent further abuse in light of defendant putting plaintiff into a chokehold, slamming her fingers in a computer, and his entering the residence in violation of a consent order; and that the judge’s examination of the witnesses was representative of his considerable discretion in such matters and also a model as to how to conduct a domestic-violence trial between pro se parties. [Decided Nov. 29, 2012.]
20-2-8333 O.R. v. A.G., App. Div. (per curiam) (12 pp.) Defendant A.G. appeals from an order entering a final restraining order in favor of his ex-wife, plaintiff O.R., pursuant to the Prevention of Domestic Violence Act. A.R., a retired police detective who had worked for the parties in a business they owned, testified that he witnessed numerous conflicts between them, sometimes physically interposing himself. A.R. corroborated plaintiff’s testimony about the threats from defendant, confirming defendant had told him that he would kill plaintiff and put her children in foster care. A.R. testified that he inferred from their conversations that defendant intended that he tell plaintiff about the threats. Attempting to show plaintiff’s domestic-violence complaint was false and motivated by a desire to obtain an advantage in business litigation, defendant produced a purported Russian language translation of voicemail messages plaintiff had left on his cell phone. The judge concluded that the translation was unreliable. Without objection, the judge used the services of a Russian-speaking court clerk to translate another voicemail message on defendant’s cell phone that revealed, contrary to defendant’s assertion, that plaintiff had called defendant begging him to leave her alone. The judge found plaintiff and A.R. to be credible witnesses. By contrast, she did not credit defendant’s testimony, for reasons she explained, including her evaluation of his demeanor. The appellate panel affirms, finding the judge properly found that defendant committed terroristic threats and harassment. [Decided Dec. 3, 2012.]
20-2-8334 Valdez v. Cagua-Valdez, App. Div. (per curiam) (10 pp.) Plaintiff appeals from orders entered by the Family Part, which provided for the execution of a qualified domestic relations order (QDRO) distributing the parties’ retirement and investment accounts. Plaintiff objected to the QDRO’s division of his Local 731 annuity fund. Plaintiff first argues that the parties intended to divide the marital portion of their retirement and investment funds as of the date the complaint was filed, and made no provision for the division of any contributions in these funds after that date. Plaintiff acknowledges that the property settlement agreement (PSA) lists subsequent account balances, but says that this was done solely to identify the funds, rather than to specify the amounts to be divided. The appellate panel rejects that argument where the agreement was negotiated by the parties and they had the benefit of counsel during the negotiations. The agreement was presented to the court, and plaintiff assured the court that he understood the contents of the PSA, was satisfied with its terms, was satisfied with his attorney’s representation, and was signing the PSA voluntarily and without any coercion. In addition, division of the accounts in the manner prescribed in the PSA is not unjust or inequitable. The panel also finds the trial court did not err by ordering the division of the Local 731 annuity fund because his right to those benefits had not vested. [Decided Dec. 3, 2012.]
20-2-8335 Steele v. Steele, App. Div. (per curiam) (14 pp.) Defendant appeals from provisions of a Family Part order that denied his motion to modify the parenting-time schedule the parties agreed on in their matrimonial settlement agreement (MSA); denied his request for an order compelling plaintiff to schedule the children’s medical appointments at times when he could attend; denied his request for counsel fees; and granted plaintiff’s request for counsel fees. The appellate panel rejects defendant’s argument that he was not required to make a showing of changed circumstances because he was competing for parenting time with the children’s grandparents and was presumed to have priority. Defendant did not dispute that at the time of the divorce, he knew her parents would care for the children when plaintiff was at work. Considering those circumstances, the trial court did not err by refusing to indulge in a presumption that would have been dispositive of defendant’s request for a change in the parenting-time schedule. Nor did defendant make a prima facie showing of changed circumstances that entitled him to a plenary hearing. Defendant’s primary argument — that he was presumptively entitled to a modification of the MSA parenting schedule — presented a legal issue. There is no need to remand for further fact-finding. The panel reverses and remands the issue of attorney fees. [Decided Dec. 3, 2012.]
22-2-8350 In the Matter of the Certificate of Need for HUMC North Hospital v. Commissioner of Health and Senior Services, App. Div. (per curiam) (50 pp.) In these two consolidated appeals, appellants Englewood Hospital and Medical Center and The Valley Hospital Inc. challenge a decision of the commissioner of the Department of Health and Senior Services granting a certificate of need to Hackensack University Medical Center to open a new 128-bed hospital in Westwood at the former site of Pascack Valley Hospital, arguing that the commissioner’s decision was arbitrary and capricious, as well as procedurally defective. Applying the well-established judicial deference that must be accorded to an administrative agency head acting within the agency’s field of expertise, the panel affirms. It also rejects appellants’ contention that the decision must be set aside because of alleged procedural deficiencies as the department did not violate the law or act arbitrarily by issuing a February 2011 “limited” call for CN applications confined to the Bergen County area. [Decided Dec. 4, 2012.]
23-2-8323 Chery v. New Jersey Indemnity Insurance Company, App. Div. (per curiam) (5 pp.) Plaintiff was injured in a hit-and-run motor vehicle accident and sought compensation through an uninsured (UM) claim against defendant New Jersey Indemnity Insurance Company. The policy provided UM coverage for personal injury of $15,000 per person and $30,000 per accident. A UM arbitration was conducted and plaintiff was awarded $17,500. Defendant timely rejected the award and demanded a jury trial. Plaintiff filed a complaint to confirm the arbitration award and a motion for summary judgment. Plaintiff argued that because the mandatory minimum liability limit specified by the Financial Responsibility Law of New Jersey and the actual liability of defendant’s policy are the same, $15,000, the contract provision does not permit defendant to appeal the award or demand a trial de novo. In other words, the award should be molded to $15,000. The court denied plaintiff’s motion for summary judgment and dismissed plaintiff’s complaint. The appellate panel affirms where plaintiff purchased UM coverage with a potential per-person limit of $15,000, and expressly contracted to be bound by an arbitration award unless it exceeds $15,000. Based on the unambiguous language of the policy, as the arbitration award exceeded $15,000, defendant was legally entitled to reject it. [Decided Nov. 30, 2012.]
23-2-8363 Simpson v. Sctoot, App. Div. (per curiam) (12 pp.) Plaintiff was injured when the vehicle he was driving was struck by a car being driven by an individual who fled the scene and that had been stolen prior to the accident. He filed this action against the owners of the car and his insurer after his insurer denied his claim for uninsured motor vehicle (UM) benefits on the basis that he had been driving while his license was suspended. Plaintiff appeals from the grant of defendant-insurer’s motion for summary judgment on the basis that he lacked a reasonable belief that he was entitled to UM coverage because he knew or should have known that he did not have a driving privilege and that his failure to disclose the identity of the driver, which he subsequently learned, prejudiced its subrogation rights. The panel affirms, finding that his failure to receive the notice of suspension had no effect on the suspension because he failed to advise the MVC of his change of address and he therefore did not have a reasonable belief that he was entitled to operate his vehicle and coverage was excluded under the clear terms of the policy. [Decided Dec. 5, 2012.]
25-2-8325 Trevino v. Board of Trustees, Public Employees’ Retirement System, App. Div. (per curiam) (12 pp.) Appellant Jerri Trevino appeals from a final determination of the board of trustees of the Public Employees’ Retirement System (PERS) denying her application for ordinary disability retirement benefits. Appellant’s application asserted that she was disabled by “bipolar disorder, depression [and] ADHD.” The board credited the live testimony of defendant’s expert, Regis Acosta, M.D., a board-certified psychiatrist, that appellant had not demonstrated she was disabled. In so ruling, the board explained that appellant’s doctors never performed any objective testing on her and, instead, relied solely on her own self-reporting of her claimed problems. The doctors also never considered increasing appellant’s level of care, even though they opined her condition was worsening, and medication and therapy had helped her in the past. The board therefore found that appellant had not met her burden of proving by a preponderance of the evidence that she was incapacitated from the performance of her duties and should be retired on an ordinary disability pension. The appellate panel affirms, finding there is substantial credible evidence in the record to support the board’s determination. [Decided Nov. 30, 2012.]
26-2-8336 Tan v. Planning Bd. of Jersey City, App. Div. (per curiam) (3 pp.) In this prerogative writs matter, plaintiff appeals from the Law Division final judgment in favor of defendant in his action challenging defendant’s 2011 resolution denying his petition for amendments to the Tidewater Basin Redevelopment Plan to accommodate his proposal to renovate his building that the board had declined to adopt in a 2010 resolution. Because appellant failed to include in his appendix the 2010 and 2011 resolutions and the transcripts from all hearing before the board, all of which were considered by the Law Division judge, the panel affirms, finding that a review on the merits is impossible. [Decided Dec. 3, 2012.]
27-2-8337 6404 Park Ave., L.L.C. v. Betancourt, App. Div. (per curiam) (13 pp.) In this action in which plaintiff-landlord initiated an action for possession for nonpayment of rent that resulted in a consent judgment and thereafter filed an action for habitual late payment of rent, the appellate panel affirms the dismissal of the complaint for possession based on habitual late payment of rent. Looking to the terms of the consent judgment and the facts, and recognizing the role of equitable considerations in dispossess cases, the panel affirms, concluding that plaintiff’s attempt to obtain possession based on its acceptance of late payments occurring prior to execution of the settlement agreement, which permitted the tenancy to continue, without showing defendant made subsequent late payments of rent is not sustainable, plaintiff’s failure to return certain payments is wholly inconsistent with an intention to seek surrender of possession of the premises, and plaintiff could not show that defendant habitually paid her rent in an untimely fashion following satisfaction of the terms of the settlement agreement. [Decided Dec. 3, 2012.]
04-2-8361 Abreu v. Mackiewicz, App. Div. (per curiam) (34 pp.) Plaintiff appeals from a no-cause judgment after a jury trial in this legal-malpractice action against defendant Mackiewicz and his law firm, arguing that the trial court erred in deciding, before it submitted the case to the jury, that plaintiff was a former client or nonclient, and not a current client of defendants and that the court erred in its jury instructions regarding the duty of care that an attorney owes to a former client or nonclient. The claim arises of out defendant’s role in negotiating a 2005 transaction between plaintiff and Ted Worthington, which amended a 2002 agreement. Defendant conceded that he had represented plaintiff personally and business entities in which plaintiff had interests but ceased doing so in 2001. The panel affirms, finding that (1) the judge correctly held that there were insufficient facts from which a jury could reasonably conclude that there was a current attorney-client relationship between the parties when the 2005 agreement was negotiated where, inter alia, the 2005 agreement clearly stated that defendant was serving as Worthington’s attorney, not plaintiff’s and the evidence of surrounding circumstances and the parties’ past interactions did not suffice to create a genuine issue regarding the existence of the relationship; (2) although an attorney’s duties to a former client are not necessarily limited to those defined in RPC 1.9, there was no harmful error in the court’s instruction that RPC 1.7 was not relevant and that RPC 1.9 alone encompassed defendant’s duty to plaintiff as a former client, and the court’s instruction was sufficient because under the facts, defendant did not owe plaintiff any “responsibilities to a former client” under RPC 1.7, in addition to those described in RPC 1.9 and elsewhere in the court’s charge — the court adequately addressed the duties established in RPC 1.9 and the duty of an attorney not to provide misleading information on which a nonclient would rely; and (3) the court did not err in providing a copy of RPC 1.9 to the jury. [Decided Dec. 5, 2012.]
29-2-8364 Mitry v. Okafor, App. Div. (per curiam) (9 pp.) Plaintiff appeals from the dismissal with prejudice of his complaint alleging that defendant Okafor, a board-certified physician in internal medicine and emergency medicine, while acting within the scope of his employment with defendant East Orange General Hospital, committed medical malpractice in his treatment of a laceration on plaintiff’s forehead. The panel reverses and remands, finding that the common-knowledge doctrine does not apply in this case where plaintiff alleges that Okafor deviated from accepted standards of medical care by suturing his laceration without properly cleaning the wound since the panel cannot say that the manner in which a physician should clean a wound before suturing is a matter of common knowledge, and that the affidavit of merit proffered by plaintiff and supplied by a board-certified physician in surgery and who specializes in urgent care met the requirements of N.J.S.A. 2A:53A-27. [Decided Dec. 5, 2012.]
32-2-8338 Reardon v. Peachtree Doors and Windows Inc., App. Div. (per curiam) (9 pp.) Plaintiff appeals from the order granting summary judgment to defendant/third-party plaintiff Peachtree Doors and Windows Inc. and from the denial of his motion for reconsideration. Plaintiff was employed as an in-home sales specialist by Lowe’s Home Centers Inc. In the course of his demonstrations, plaintiff used a sample window that was encased in a strand board display having an attached handle. Plaintiff was allegedly injured when a screw on one end of the handle “popped out” of the strand board display. Plaintiff filed a complaint against Peachtree. Peachtree filed a third-party complaint against DAC Products Inc., which it claimed had designed and manufactured the strand board display and handle and attached it. After the close of discovery, Peachtree filed a motion for summary judgment. The appellate panel finds that, in granting summary judgment to Peachtree, the judge appropriately held that the New Jersey Product Liability Act subsumed plaintiff’s negligence claim, there was no evidence of a design or manufacturing defect, res ipsa loquitur did not apply, and expert evidence was required to prove Peachtree’s liability. The judge also appropriately denied plaintiff’s motion for reconsideration. [Decided Dec. 3, 2012.]
52-3-8365 Bolkin v. Fair Lawn, Law Div. — Bergen Co. (Doyne, A.J.S.C.) (24 pp.) Plaintiff submitted a request seeking documents showing names and addresses of all licensed dog and cat owners in Fair Lawn, including all dog and cat applications or licenses on file, in order to mail literature endorsing animal-friendly legislation and candidates. When the request was denied because of privacy concerns and security concerns that disclosure could make pet owners and non-owners more susceptible to burglaries or pet theft, plaintiff filed a complaint seeking access to the documents pursuant to the Open Public Records Act and the common-law right of access. The court rejects defendant’s argument of reasonable expectation of privacy, finding the intrusion in this matter minimal and that the discomfort in having one’s name and address provided to a political interest group does not outweigh the interests of open disclosure in the political process. It also finds the security concerns minimal or nonexistent. It therefore holds that plaintiff is entitled to access under OPRA and the common law and that plaintiff is entitled to reasonable attorney fees and costs. [Decided Dec. 5, 2012.]
34-2-8366 Gupta v. Leung, App. Div. (per curiam) (25 pp.) Plaintiff-seller appeals from the Law Division’s summary judgment dismissal of his breach-of-contract claim against defendant-buyers for failing to attend a residential real estate closing. Defendants cross-appeal from the subsequent summary judgment dismissal of their counterclaim alleging breach of contract, fraud and violation of the Consumer Fraud Act. The panel affirms the dismissal of plaintiff’s claim, finding that the judge correctly read the sales agreement in a plain and ordinary manner and correctly concluded that it unequivocally provided that because a CO was not issued by the date specified, the right to cancel afforded in the agreement to defendants was triggered and they exercised that right to declare the contract null and void; all the facts that plaintiff claims are disputed, even viewed in his favor, would not require reversal of summary judgment; and plaintiff did not raise a debatable issue that defendants’ conduct breached their covenant of good faith and fair dealing and prevented plaintiff from closing title in a timely fashion. The panel affirms the dismissal of the counterclaim, finding the first judge’s brief comment regarding the withholding of information regarding the easement and deck encroachment was not preclusive of the common law and CFA issues before the second judge and that the latter’s finding that defendants failed to show that plaintiff knowingly concealed the existence of the encroachment is supported by the record and they therefore failed to make a threshold showing for either claim. [Decided Dec. 5, 2012.]
35-5-8308 Beach Creek Marina v. City of North Wildwood, Tax Ct. (DeAlmeida, P.J.T.C.) (15 pp.) Plaintiff challenged the 2006 assessment on its property in a complaint that the case management system indicates was filed on January 18, 2007. The Tax Court judge dismissed the complaint, concluding that the court lacked jurisdiction due to late filing. The Appellate Division affirmed. More than four years after the Tax Court judgment and more than three years after the Appellate Division affirmance, new counsel filed an appearance in the matter and moved pursuant to R. 4:50-1 for relief from the court’s dismissal of the complaint, arguing that filing date upon which the judgment was predicated is erroneous. The court denies the motion, concluding that plaintiff is precluded from relief under sections (a) (mistake) because it could have protected itself from the mistake by reviewing the file before conceding the filing date and by challenging the error on appeal (b) (newly discovered evidence) because the exercise of pre-judgment due diligence would have revealed the documents on which plaintiff bases its request for relief and (c) (fraud, misrepresentation, or other misconduct of an adverse party), (d) void judgment and (e) (judgment has been satisfied, released or discharged) because these provisions are inapplicable or under (f) because there are no exceptional circumstances here. [Decided Nov. 26, 2012.]
35-5-8339 Target Corp. v. Township of Toms River, Tax Ct. (DeAlmeida, P.J.T.C.) (12 pp.) This is the court’s opinion with respect to motions concerning a parcel of real property in Toms River. Plaintiff Target Corp., one of six tenants at the subject property, filed complaints challenging the assessments on the property for tax years 2009 and 2010. Plaintiff SDD Inc., the owner of the subject property, also filed complaints challenging the assessments for those tax years. Target, which is responsible for the payment of taxes associated with the portion of the property that it leases, moved to consolidate the appeals. SDD opposed the motion and cross-moved to intervene in the Target appeals for the purpose of seeking dismissal. SDD argues that as owner of the property it has the right to control the challenge to the assessments. Lowe’s Home Centers Inc., another tenant, moves to intervene. While the motions were pending, SDD submitted to the court a fully executed stipulation of settlement between SDD and the municipality, reducing the assessment on the property for both tax years. Concluding that SDD has the controlling interest in challenging the assessments on the property for tax years 2009 and 2010, the court grants SDD’s motion to intervene in the Target appeals and grants its motion to dismiss those appeals. The court will enter judgments resolving the SDD appeals in accordance with the stipulation of settlement. Target’s motion is dismissed as moot. Lowe’s motion to intervene is denied. [Decided Nov. 29, 2012.]
36-2-8367 Tappel v. Arango, App. Div. (per curiam) (19 pp.) Plaintiff filed this action after suffering serious injuries when the vehicle he was driving was struck from behind by a dump truck driven by defendant Arango, who was employed by LG Trucking, had entered into an agreement with defendant Tilcon New York to deliver road construction materials. Plaintiff appeals the Law Division order granting Tilcon’s summary judgment motion dismissing the claims against it. Concluding that the record before the trial court presented a genuine issue of material fact regarding the issue of agency, particularly as to whether Tilcon had control over its trucking contractors, and that, therefore, the determination of whether an employer-employee relationship existed between Tilcon and Arango should have been decided by a jury, the panel reverses and remands. [Decided Dec. 5, 2012.]
36-2-8340 Alexander v. Mid-Eastern Transportation Inc., App. Div. (per curiam) (12 pp.) Plaintiff, injured when a tire on the tractor-trailer in which he was a passenger blew out causing the truck to veer off the highway, which resulted in an accident and the injury to plaintiff, appeals from the Law Division order granting summary judgment to defendants, the driver, owner/lessor and operator of the truck. The panel affirms, finding that the trial court did not err in excluding plaintiff’s expert’s report on the basis that it is a net opinion where the report contains no support in factual evidence or similar data for its conclusions. The panel also rejects plaintiff’s contention that the expert’s opinion was based on defendants’ violation of certain National Truck Safety Standards and transportation of plaintiff, an unauthorized passenger, commenting that although violation of a statute may sometimes be considered by a jury determining issues of negligence, this rule is subsumed by the overriding principle that the statutory violation, to be evidential, must be causally related to the accident. The panel also rejects plaintiff’s contention that an expert opinion was not necessary since plaintiff has not offered any proof that a repaired tire ordinarily bespeaks negligence. [Decided Dec. 3, 2012.]
36-2-8307 Stickel v. Hurd, App. Div. (per curiam) (6 pp.) In this premises liability matter, plaintiffs Joan and James Stickel appeal from an order granting summary judgment to defendants. Plaintiffs argue that defendants breached a duty of care owed to them by negligently maintaining their driveway. Joan walked her dog along the sidewalks of her street toward defendants’ house. To avoid walking on defendants’ snow-covered sidewalk, Joan walked on defendants’ snow-covered lawn running parallel to the sidewalk. Joan observed that defendants’ driveway had been plowed of snow, and thus decided to walk across the driveway, where she slipped on black ice and sustained an injury. The appellate panel finds the trial judge appropriately applied the common-law principles of premises liability, declared Joan was a trespasser, and held that defendants did not owe her a duty to warn of natural conditions. The panel rejects plaintiffs’ argument that by removing the snow from their driveway but not their sidewalk, defendants implicitly invited Joan to enter their property to walk across the driveway, thereby changing her legal status from trespasser to licensee and therefore defendants owed her a duty of care to warn of known dangerous conditions. [Decided Nov. 29, 2012.]
36-2-8324 Garber v. Haddon Hills Associates, L.L.C., App. Div. (per curiam) (13 pp.) Plaintiff Justine Garber, administratrix of the estate of decedent Leonard Long, appeals from the summary judgment dismissal of decedent’s personal-injury negligence cause of action against defendant Haddon Hills Associates, L.L.C., t/a Haddon Hills Apartments. Decedent was injured when he fell due to a deflection or depression in the floor of his apartment that developed at the foot of the staircase. The motion judge found that defendant had no duty to protect against an obvious defect unless fraudulently concealed; decedent was aware of the defect and took precautions to avoid it by walking over it for almost a year; and decedent failed to provide written notice to defendant regarding the defect. The appellate panel reverses and remands, finding defendant had a duty to maintain the termite-damaged crawl space and floor in a reasonably safe condition. Conversely, the lease imposed no duty on the tenant to inspect for and make necessary structural repairs. Second, the nature of the risk of harm in this case is quite severe. Third, the landlord was in the best position to correct these structural defects. [Decided Nov. 30, 2012.]
38-2-8341 Casagrande v. Casagrande, App. Div. (per curiam) (16 pp.) Frank Casagrande created a trust, apparently intending that certain life insurance policies, including a policy from Sentry Life Insurance Company, be the primary assets of the trust. However, he failed to change the designated beneficiary of the policy, which listed his former wife, Roberta, as the primary beneficiary and their three children as the contingent beneficiaries. After Frank died, his then-wife, Rosemary, filed an order to show cause and a verified complaint on behalf of herself and the trust seeking reformation of the Sentry policy to conform it to the “terms, intent and agreements” of the marital settlement agreement, the trust and the will. Here, defendant Mark Casagrande, Frank’s son, appeals from Chancery Division orders enforcing a settlement agreement, precluding him from raising additional claims against any party named in the underlying litigation and distributing funds and awarding counsel fees. The appellate panel affirms, rejecting Mark’s claims that the settlement agreement was unenforceable because there was no “meeting of the minds” on its terms; it was unconscionable and violated public policy; it was infected with conflicts of interest between counsel and parties; it involved a trust and that plaintiff, a trustee as well as a beneficiary, was in a conflict of interest; and it was the result of a mediation that “veered dramatically” from the order directing the parties to proceed to mediation. [Decided Dec. 3, 2012.]
03-7-8310 Galaxy Towers Condominium Association v. Local 124 I.U.J.A.T., U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff Galaxy Towers Condominium Association filed this action against defendant Local 124 I.U.J.A.T. seeking vacatur of an arbitration award. The union requests that the court confirm the arbitration award. The union acts as the representative to all full-time and part-time Galaxy employees. Galaxy and the union were parties to a collective-bargaining agreement (CBA), which provides that, if a grievance arose, “the Union or the Employer may request that the matter be submitted to arbitration before Elliott Schriftman, Eugene Coughlin or Robert Herzog on a rotating basis.” Here, Galaxy argues that the arbitration award should be vacated because (1) the award was procured by corruption, fraud or undue means; and (2) the arbitrator so imperfectly executed his powers that a mutual, final and definite award cannot be said to have been made. The court rejects both arguments. At no time did the union’s representatives agree to remove Coughlin as a designated arbitrator. Galaxy raised the idea of removing Coughlin, the union side-stepped the issue, and Galaxy failed to raise the issue again in later negotiations. Second, the arbitrator’s just-cause determination was grounded in the record evidence and the CBA. Galaxy’s application to vacate the arbitration award is denied, and the award is confirmed. [Filed Nov. 28, 2012.]
59-7-8353 Marjam Supply Company v. Firestone Building Products Company, U.S. Dist. Ct. (Martini, U.S.D.J.) (14 pp.) Plaintiff Marjam filed suit, asserting antitrust claims against defendants Firestone, Performance, and RSI for violations of §§ 13(a) and (d) of the Robinson-Patman Act (the RPA) (counts one and three), and against defendants Performance, RSI and Allied for violating § 13(f) of the RPA (count two). The RPA prohibits discriminatory pricing of similar goods when such pricing injures competition. Marjam also asserted a claim of breach of fiduciary duty against defendant Charles Golden and a claim of unfair competition against Firestone, Performance, RSI and Allied (count four). Marjam asserted a claim against Golden for breach of his employment agreement and a claim against Firestone, Performance, RSI and Allied for tortiously inducing that breach. Defendants filed three separate motions to dismiss. The court finds that Marjam has sufficiently alleged its § 13(a) and § 13(d) claims against Firestone and denies Firestone’s motion to dismiss counts one and three. However, the court grants Performance and RSI’s motion to dismiss those counts. Because Marjam has also failed to state a § 13(f) claim against Allied, Performance or RSI, those defendants’ motions to dismiss count two are granted. Count four, stemming from Golden’s alleged disclosure of proprietary business information, is dismissed against Firestone, Performance, RSI and Allied, but remains against Golden. [Filed Nov. 30, 2012.]
06-7-8354 JPMorgan Chase Bank N.A. v. Republic Mortgage Ins. Co., U.S. Dist. Ct. (Martini, U.S.D.J.) (7 pp.) In this action alleging that defendant, which insured plaintiff’s mortgage loans from 2001 to 2005, responded in bad faith when defaults on the loans skyrocketed during the 2007-09 financial crisis and repeatedly rescinded coverage in violation of its contractual duties and seeking damages for the rescissions and a declaration interpreting the master contract that governs those policies, defendant moves to enjoin or stay plaintiff from proceeding before the American Arbitration Association with one case focusing on a single insurance policy that was initially included in and then subsequently removed from this litigation. The court finds that Chase waived its right to arbitrate that policy when it brought suit on that same policy in the district court. Arbitration would necessarily resolve issues concerning a policy Chase voluntarily included in the litigation and although the specific policy is no longer before the court, the underlying contract issues would remain in the litigation and allowing the arbitration to proceed would prejudice defendant. Therefore, plaintiff is enjoined from proceeding with the arbitration until further order of the court. [Filed Nov. 30, 2012.]
06-7-8355 JPMorgan Chase Bank N.A. v. Republic Mortgage Ins. Co., U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff is a national banking association that makes mortgage loans. Defendant insured plaintiff’s mortgage loans from 2001 to 2005, as evidenced by its issuance of certificates. The complaint, which alleges defendant improperly rescinded a large number of certificates, specifically discusses eight certificates and generally references more than 175 certificates that are identified in plaintiff’s revised Exhibit A. Of the eight certificates discussed in the complaint, Chase withdrew all claims with respect to two. Of the remaining six, the complaint provides defendant with sufficient notice of plaintiff’s claims and a separate count for each certificate would not promote clarity. The court also denies the motion to dismiss the declaratory count at this time but will revisit declaratory relief, if necessary, after expedited discovery. The court reserves judgment with respect to the additional securities to allow the parties to focus on a manageable subset of the 175-plus contested certificates to consist of the six remaining certificates and no more than six certificates of defendant’s choosing. Thus, defendant’s motion to dismiss is granted in part and denied in part. [Filed Nov. 30, 2012.]
42-6-8327 New York Commercial Bank v. Palmyra Power & Light, L.L.C., U.S. Bank. Ct. (Steckroth, U.S.B.J.) (5 pp.) After the debtor filed a petition for relief under Chapter 7 of the bankruptcy code, the trustee filed an adversary proceeding against several defendants, including Allan Brenner and Stephen Chalk. The trustee now seeks to enforce a settlement allegedly reached between her and Brenner and Chalk against Chalk. Finding that Chalk consented to Brenner’s counsel negotiating on his behalf, that Chalk, through Brenner’s counsel, was involved at all significant steps in the negotiations, including approving proposals and counterproposals made to the trustee on his behalf, and that he was fully aware of the final settlement terms and was copied on a number of communications, at least one of which was filed with the court, representing that the matter was settled and made no objection thereto, the court finds that Chalk agreed to the settlement notwithstanding the absence of a final formally executed document and that the settlement is enforceable against him. [Filed Nov. 28, 2012.]
42-6-8342 In re Berger, U.S. Bank. Ct. (Kaplan, U.S.B.J.) (7 pp.) The debtors have filed a motion to permit payment to Emigrant Mortgage Company Inc. and to grant a first mortgage to John Quigley to effectuate a post-sheriff’s sale redemption of their principal residence. The court denies the motion, finding that by failing to tender the redemption amount within the 60 days afforded to them by 11 U.S.C. § 108(b), the debtors have forfeited the right to redeem the property, there do not exist any exceptional circumstances that would warrant an extension of that time period, and the fact that the debtors’ plan was confirmed without having been consummated has no bearing on whether they are entitled to an extension of the redemption period. [Filed Nov. 29, 2012.]
42-6-8368 In re Alonso, U.S. Bank. Ct. (Lyons, U.S.B.J.) (23 pp.) Plaintiff seeks a judgment denying the debtor a discharge under 11 U.S.C. § 727(a)(2)-(6) primarily because the debtor’s schedules confuse the assets, liabilities, income and expenses of her wholly owned corporation with her personal financial information. The court finds than any errors on the debtor’s schedules and statement of financial affairs were not intentional, that she did not intend to hinder, defraud or delay her creditors or conceal information, that certain erroneous statements were attributable to a mistake by her bankruptcy attorney and that the debtor was not aware of the error until it was pointed out by plaintiff’s attorney, and that her testimony has been truthful. It enters a judgment of no cause to deny discharge in favor of the debtor and an order for discharge. [Filed Dec. 4, 2012.]
07-7-8316 Amen v. New Jersey Motor Vehicle Commission, U.S. Dist. Ct. (Kugler, U.S.D.J.) (3 pp.) In this action alleging that the alleged refusal of defendants, the NJMVC and its chief administrator, to issue plaintiff identification reflecting his “common law name change” violated his constitutional rights under the Ninth and Tenth Amendments, defendants’ motion to vacate the default judgment entered against them is granted because of improper service. Defendants’ motion to dismiss is granted pursuant to Rule 12(b)(6) as the action is barred by the Eleventh Amendment. [Filed Nov. 28 2012.]
46-7-8328 Ingram v. Township of Deptford, U.S. Dist. Ct. (Simandle, U.S.D.J.) (32 pp.) This action arises out of defendant Sgt. Michael Taylor’s alleged use of excessive force on plaintiff in removing her from a municipal court proceeding, allegedly causing injuries. Plaintiff filed this action against defendants Deptford, Deptford Township Police, Sgt. Taylor and John Does 1-50. Before the court is plaintiff’s motion seeking leave to amend her complaint. Plaintiff’s counsel advised the court that plaintiff was discontinuing voluntarily all claims under § 1983 (Monell claims) and against John Doe defendants. Thus, the only issue is whether plaintiff may amend her claims against the township, township police and Sgt. Taylor under the New Jersey Constitution or state tort law. Plaintiff’s proposed amended complaint newly alleges that the township and township police engaged in a pattern or practice of allowing its police officers to act recklessly and to use excess force. The amended complaint also alleges that plaintiff “substantially complied” with the notice requirements of the New Jersey Tort Claims Act. The court denies plaintiff’s motion to amend her complaint, finding the proposed claims would be futile. [Filed Nov. 28, 2012.]
46-7-8343 D’Onofrio v. Borough of Seaside Park, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (11 pp.) In this action alleging that defendants inappropriately engaged in tortious, fraudulent and extortionate conduct that violated plaintiff’s right to control and operate his business in violation of the equal protection and due process clauses of the Fourteenth Amendment, the First Amendment, the Civil Rights Act, the Racketeer Influenced and Corrupt Organizations Act, and N.J.S.A. 2C:41-1 et seq. (New Jersey RICO), plaintiff seeks to amend his complaint to add claims against Thomas G. Gannon, Esq., and the firm of Hiering Gannon & McKenna. Plaintiff’s motion is granted to the extent he seeks to add factual allegations relevant to the currently pending claims that may also be relevant to the proposed amendments as they are not futile and do not appear to be the product of bad faith and there is no evidence that the addition of these allegations will unfairly prejudice defendants. Plaintiff’s motion is denied to the extent he seeks to assert allegations against Gannon or HGM based on Gannon’s role as an alleged policy-maker who usurped the authority of the borough’s agencies and officials because plaintiff fails to assert facts sufficient to support his claim that Gannon acted as a policy-maker for the town. The court holds in abeyance a decision on plaintiff’s motion with respect to allegations concerning Gannon’s alleged misrepresentations regarding the findings of the borough’s expert with respect to the business’ sprinkler system pending the parties’ briefing on and the court’s consideration of defendants’ motion for reconsideration of its decision in which it determined in part that the crime-fraud exception to the attorney-client privilege applied to defendants’ communications concerning the parties’ underlying dispute over the sprinkler system. [Filed Nov. 29, 2012.]
46-7-8329 Mitchell v. Township of Willingboro, U.S. Dist. Ct. (Simandle, U.S.D.J.) (27 pp.) In this 42 U.S.C. § 1983 action arising out of a motor vehicle stop that was based on a dispatch call, in which pro se plaintiff, a black male, alleges that defendants violated his Fourth Amendment rights because the officer lacked reasonable suspicion for the stop and that he was stopped because of racial profiling, and in which most of the claims have been dismissed, defendant-officer moves to dismiss the remaining Fourth Amendment claim against him for failure to state a claim and because he is entitled to qualified immunity and for summary judgment. Plaintiff moves for summary judgment because the officer has failed to respond to discovery requests. The court denies all motions, finding, inter alia, that (1) the court confirms its previous holding that the complaint sufficiently states a Fourth Amendment claim against the officer; (2) qualified immunity is not established on the face of the complaint where plaintiff adequately alleges a violation of his Fourth Amendment rights and those rights were clearly established at the time of the incident; (3) plaintiff has failed to establish many of the necessary factors to warrant the extreme sanction of a default judgment, including prejudice to plaintiff and a history of dilatoriness or that the officer acted willfully or in bad faith; (4) defendant is not entitled to summary judgment because there are sufficient discrepancies between the description of the vehicle in the dispatch call and plaintiff’s vehicle that a rational fact finder could conclude that a reasonable officer under the circumstances would have known that stopping plaintiff’s car was unlawful because reasonable suspicion did not exist. [Filed Nov. 28, 2012.]
09-7-8312 Greene v. BMW of North America, U.S. Dist. Ct. (Martini, U.S.D.J.) (9 pp.) Defendant BMW moves to dismiss this putative class action filed on behalf of owners and lessees of BMW autos equipped with Potenza Run Flat Tires, alleging that the tires develop dangerous sidewall bubbles and asserting claims under the Magnuson-Moss Warranty Act (MMWA), New Jersey common law, and the New Jersey Consumer Fraud Act. The court (1) dismisses the claim for breach of express warranty with prejudice because BMW did not expressly warrant his tires; (2) dismisses without prejudice the claim of breach of implied warranty, finding it implausible since he fails to show that the tires provided anything other than reliable transportation where he was able to drive the car for more than one year, he never contacted the tire manufacturer, and he replaced his tires with the same model tire; (3) dismisses the MMWA claim of beach of express warranty with prejudice and the claim of breach of implied warranty without prejudice in light of the dismissals of corresponding claims under state law; (4) dismisses without prejudice the claim of breach of the implied covenant of good faith and fair dealing because plaintiff never contracted with BMW of North America, only a particular dealership; and (5) dismisses the NJCFA claim because his allegations do not allow the court to draw the reasonable inference that BMW knew that the tires would become defective and unsafe in a short period of time or suggest that discovery will reveal evidence of an intent to deceive. [Filed Nov. 28, 2012.]
09-7-8313 Greene v. BMW of North America, U.S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Defendant Bridgestone Americas Inc. moves to dismiss this putative class action filed on behalf of owners and lessees of BMW autos equipped with Potenza Run Flat Tires manufactured by Bridgestone, alleging that the tires develop dangerous sidewall bubbles and asserting claims under the Magnuson-Moss Warranty Act (MMWA), New Jersey common law, and the New Jersey Consumer Fraud Act. The court (1) declines to enforce the arbitration clause in the limited warranty issued by Bridgestone because there is no indication that plaintiff assented to the arbitration clause; (2) dismisses with prejudice the MMWA claim of breach of express warranty because plaintiff voluntarily withdrew this claim, and even if he had not, he does not allege that he ever brought his tires to an authorized retailer and thus does not allege that Bridgestone failed to satisfy its obligations and does not state a claim for breach of express warranty; (3) dismisses without prejudice the claim of breach of implied warranty, finding it implausible since he fails to show that the tires provided anything other than reliable transportation where he was able to drive the car for more than one year, he never contacted the tire manufacturer, and he replaced his tires with the same model tire; (4) dismisses the MMWA claim of beach of express warranty with prejudice and the claim of breach of implied warranty without prejudice in light of the dismissals of corresponding claims under state law; and (5) dismisses the NJCFA claim because his allegations do not allow the court to draw the reasonable inference that Bridge-stone knew that the tires would become defective and unsafe in a short period of time or suggest that discovery will reveal evidence of an intent to deceive. [Filed Nov. 28, 2012.]
09-7-8314 MB Imports Inc. v. T&M Imports, L.L.C., U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (17 pp.) This case arises out of the alleged false and/or misleading advertising of the nature and contents of a competitor’s lemon and lime juice products, and continued distribution of said products. Plaintiffs MB Imports Inc. and Ronald Marks, its president and owner, and an individual consumer of the competitor’s brand, filed an amended complaint asserting claims for false advertising under the Lanham Act, violation of the Consumer Fraud Act, unfair competition, tortious interference and violation of New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act. Plaintiffs requested relief includes injunctive relief, declaratory judgment, damages, and attorney fees and costs. Before the court is a motion to dismiss filed by defendant TrePunti Corporation. TrePunti is the U.S. brokerage sales agent for Eurofood, S.r.L., the Italian manufacturer of the competitor line of lemon and lemon juices. Here, the factual allegations asserted against TrePunti are clearly laid out in the amended complaint and supported by the electronic communications on which that complaint is based and to which the parties’ briefs in this motion refer — that TrePunti participated in the composition, labeling, importation, distribution and sale of the products in question, in its integral role as the U.S. agent for the Italian manufacturer. Finding plaintiffs have stated sufficient facts to support each cause of action, the court denies the motion to dismiss. [Filed Nov. 28, 2012.]
09-8-8344 Grant v. Turner, Third Cir. (Rendell, U.S.C.J.) (10 pp.) Plaintiffs in this putative class action appeal from the district court’s dismissal of their complaint for failing to meet the heightened pleading requirement under Rule 9(b). Plaintiffs brought suit against various individual and corporate defendants, alleging that defendants were involved in creating and perpetuating fraudulent travel clubs. Plaintiffs’ complaint made claims under RICO, alleging that the predicate “racketeering activity” was mail fraud and wire fraud, as well as various state law claims. The circuit panel affirms the district court’s dismissal as to the defendants Vacation Travel Club and FIA Card Services, and vacates and remands as to the remaining Travel Club defendants. Examining the allegations in the complaint, it is clear that the Travel Club defendants were on notice of the precise misconduct with which they were charged. Particularly in a case like this, where plaintiffs allege that defendants deliberately concealed the identities of salespeople and agents, plaintiffs simply cannot allege who, in particular, made the misrepresentation absent discovery. Given the closeness of this question, and the fact that the remaining Travel Club defendants did not file a brief in response to plaintiffs’ appeal, plaintiffs’ claims should be allowed to proceed against them. [Filed Nov. 27, 2012.]
15-7-8369 Schoenhaar v. PHH Corporation f/k/a Cendant Mortgage, U.S. Dist. Ct. (Martini, U.S.D.J.) (10 pp.) In this pro se action asserting violations of the Fair Debt Collection Practices Act and the Fair Credit Reporting Act and fraud in connection with a mortgage on plaintiff’s residence on which she has defaulted, defendant’s unopposed motion to dismiss under Rule 12(b)(6) is granted. To the extent plaintiff asserts a violation of 15 U.S.C. § 1681s-2(a), her claim is dismissed with prejudice because there is no private right of action for consumers to enforce a creditor’s duty to provide accurate information to reporting agencies. To the extent she asserts a claim under § 1681s-2(b), the claim is dismissed without prejudice because she has not alleged that she disputed the accuracy of allegedly incorrect information that defendant supplied to reporting agencies. The claimed violations of the FDCPA are dismissed because defendant is a creditor, not a debt collector, and is therefore not subject to the FDCPA and because plaintiff has failed to show that the purpose of defendant’s alleged communications was to collect a debt. The court declines to exercise supplemental jurisdiction over plaintiff’s state law claims. [Filed Dec. 3, 2012.]
14-7-8360 Davis v. Hendricks, U.S. Dist. Ct. (Martini, U.S.D.J.) (20 pp.) Osmond Davis, confined at Essex County Jail in New Jersey, filed a petition for a writ of habeas corpus challenging his preremoval period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of the Department of Homeland Security (DHS). The court holds that Davis’s detention is governed by 8 U.S.C. § 1226(a) because DHS did not take him into custody on Dec. 7, 2011, when he was released from criminal incarceration for an offense underlying the removal charges, and grants a writ of habeas corpus directing the immigration judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a) to determine if Davis is a flight risk or danger to the community. [Filed Nov. 30, 2012.]
21-7-8315 City of Newark v. The Newark Ward Commission, U.S. Dist. Ct. (Martini, U.S.D.J.) (9 pp.) Plaintiffs commenced this action in New Jersey Superior Court seeking to nullify the redistricting plan adopted by defendant-commission — which removed two primarily Latin American districts from the Central Ward to the West Ward, allegedly altering the racial makeup of those two wards — alleging that the commission’s actions violated New Jersey’s Open Public Meeting Act, New Jersey’s Civil Rights Act, and the equal protection clause of the Fourteenth and Fifteenth Amendments of the U.S. Constitution and §§ 2 and 5 of the Voting Rights Act. Defendants removed the action to the district court in light of the federal claims asserted and now move to dismiss pursuant to Rule 12(b)(6). The court dismisses the claims under the VRA, finding that Newark is not a covered jurisdiction under § 5 of the VRA and that plaintiffs have failed to plead sufficient facts in support of their claim that the redistricting scheme diluted a minority vote in violation of § 2 under the standard set forth in Gingles. The constitutional claims are dismissed because, as pleaded, it is unclear what the racial composition of any of Newark’s other districts is, nor are there any other facts that suggest the commission considered the racial composition of the transferred districts when it adopted the redistricting plan and, thus, the court cannot reasonably infer that the redistricting plan can only be understood as an effort by the commission to separate voters on the basis of race or was adopted to deprive a racial minority group of the right to vote. The court declines to exercise supplemental jurisdiction over the state law claims. [Filed Nov. 28, 2012.]
22-7-8356 Boyle v. International Brotherhood of Teamsters Local 863, U.S. Dist. Ct. (Chesler, U.S.D.J.) (19 pp.) Plaintiffs filed this action asserting two ERISA claims — denial of benefits and breach of fiduciary duty — arising out of a temporary termination of health benefits to former employees who opted for early retirement. The court holds that plaintiff Boyle’s full and unreserved acceptance of payment has mooted his claim against the fund but that there is still a live controversy as to plaintiff Luongo because his has not accepted the fund’s offer to reimburse him for the costs associated with obtaining alternative insurance during the gap. The court denies plaintiff’s motion to certify a class of the 67 early retirees who were deprived of benefits during the gap period because the complaint does not seek either injunctive or declaratory relief but rather reinstatement of medical benefits (which have been restored) and various forms of monetary relief. Luongo’s motion for summary judgment on his claim for breach of fiduciary duty based on failure to provide accurate information fails because he has made an insufficient showing that he was denied access to information, was personally provided misleading information about his health plan, or that he detrimentally relied on any misrepresentation. His summary judgment motion on his claim of breach of fiduciary duty based on the failure to provide health benefits fails because the court does not regard defendants’ delay in resuming coverage as inconsistent with ERISA’s prudent-man standard. Defendants’ cross-motion for summary judgment is granted. The court holds that ERISA does not permit fee shifting under the catalyst theory and it denies plaintiff’s motion for attorney fees. [Filed Nov. 30, 2012.]
51-7-8330 Morrison v. Elwood, U.S. Dist. Ct. (Sheridan, U.S.D.J.) (11 pp.) Petitioner filed an application seeking a writ of habeas corpus, claiming that he is unlawfully held in custody as a result of respondents’ erroneous interpretation of the mandatory detention provision in the Immigration and Nationality Act (INA). Petitioner does not dispute that the controlled-substance offenses underlying his 2001 and 2007 convictions could trigger mandatory detention pursuant to § 1226(c). Rather, he asserts that § 1226(c) does not apply to him personally because the government failed to detain him immediately on his release from criminal incarceration underlying his current removal proceedings. Since the government did not detain petitioner in connection with his removal proceedings until four years after he was released from penal confinement underlying said removal, the court holds that petitioner cannot be properly classified as an alien detainee held under § 1226(c). His current detention should be reclassified as a detention resulting from operations of § 1226(a). As a § 1226(a) detainee, petitioner should be entitled to an individualized bond hearing before an immigration judge. Petitioner’s application seeking a writ of habeas corpus is granted. [Filed Nov. 29, 2012.]
53-7-8357 Bath & Body Works Brand Management Inc. v. Tri-Coastal Design Group Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (2 pp.) Plaintiff/counterclaim-defendant Bath & Body Works Brand Management Inc. and defendant/counterclaim-plaintiff Tri-Coastal Design Group Inc. each allege that the other has infringed intellectual property rights. After Bath & Body moved to dismiss counterclaim counts I-VI, which sound in trademark infringement, Tri-Coastal amended its pleading, and Bath & Body withdrew its motion. Thus, the court denies the motion to dismiss as moot. Bath and Body also asks the Court to strike 60 of Tri-Coastal’s 84 affirmative defenses, either because they are not properly pleaded, because they do not exist, or because they confuse the issues. The court grants this motion in part and denies it in part. The court disagrees with Bath & Body’s argument that affirmative defenses are subject to plausibility pleading. Because Bath & Body has not demonstrated it will be prejudiced by Tri-Coastal’s affirmative defenses of fraud, laches, acquiescence and estoppel, the court chooses not to strike those defenses. The same goes for the majority of the other affirmative defenses where Bath & Body does not argue prejudice. Finally, the court will exercise its discretion to strike affirmative defenses 20 (no showing of inducement to purchase) and 83 (violation of public policy). These defenses prejudice Bath & Body because they are not recognized affirmative defenses and have no bearing on any issue in this case. [Filed Dec. 3, 2012.]
53-7-8358 Brownstein v. Lindsay, U.S. Dist. Ct. (Pisano, U.S.D.J.) (5 pp.) Plaintiff sued a number of defendants, including defendants in this action, claiming to be an oppressed shareholder. That action settled but before the agreement was entered, he registered two sets of computer programs with the U.S. Copyright Office. In this action, he sought a declaration that he is co-author of work registered by defendant and replevin of copies of the work in defendants’ possession. At trial, defendants’ motion for judgment as a matter of law was granted and plaintiff’s claims were dismissed. Defendants’ counterclaim to invalidate plaintiff’s copyright registrations was severed by the court. The parties have filed cross-motions for summary judgment on the counterclaim. After determining that defendants have standing to bring their claim and that the standards for copyright cancellation in 17 U.S.C. § 411(b) and 37 C.F.R. § 201.7 do not apply, the court rejects plaintiff’s remaining arguments because they are premised on the assumption that he authored and therefore had exclusive rights to the works, which assumption the court previously found to be without merit in light of the fact that the works themselves state they were created for TAP Systems Inc., documents in the record refer to the programs as belonging to TAP and because under the settlement agreement, plaintiff agreed to return all property, including the programs at issue, to defendants. The court grants defendants summary judgment on their counterclaim. [Filed Nov. 30, 2012.]
25-7-8359 Dix v. Total Petrochemicals USA Inc. Pension Plan, U.S. Dist. Ct. (Simandle, U.S.D.J.) (37 pp.) Defendant Total Petrochemicals USA Inc. Pension Plan (the plan) filed a motion for summary judgment in this putative class action arising out of plaintiff Philip Dix’s election and receipt of a lump-sum payment of his pension plan. Dix argues that his lump-sum payment did not include the present value of any cost-of-living adjustments he would have received had he elected payment in the form of a monthly annuity. After filing his administrative claim disputing the lump-sum payment amount on Dec. 7, 2009, plaintiff brought this action, on behalf of himself and all others similarly situated, on June 23, 2010, pursuant to the Employee Retirement Income Security Act (ERISA), arguing that the plan violated ERISA and Internal Revenue Service regulations by failing to include cost-of-living adjustments in his lump-sum pension payment. The parties dispute which statute of limitations applies, as well as the accrual date of plaintiff’s claim. The court concludes that a six-year statute of limitations applies and plaintiff’s cause of action accrued on Nov. 14, 2003, when the plan informed Dix of the final calculation of the disputed lump-sum payment. His claim is time-barred because he did not file his administrative claim within the limitations period. The court grants defendant’s motion for summary judgment and dismisses plaintiff’s complaint. [Filed Nov. 30, 2012.]
25-7-8345 Cordero v. AFI Food Service, L.L.C., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Defendant AFT Food Service, L.L.C., filed a motion for summary judgment in this matter arising from a dispute over the termination of an employee. Defendant contends that it terminated plaintiff’s employment because he made errors as an employee that cost defendant thousands of dollars. Plaintiff, however, argues the termination was in retaliation for taking intermittent leave pursuant to the Family and Medical Leave Act (FMLA). The court grants summary judgment to defendant, finding plaintiff failed to demonstrate a causal relationship between time that he took off from work to take his wife to and from medical appointments and his dismissal. Further, defendant established a legitimate reason for terminating plaintiff’s employment, pointing out a number of mistakes plaintiff committed while employed. Plaintiff failed to establish that defendant’s proffered reason was pretextual. Plaintiff’s own statements indicate that he never specifically asked for FMLA leave, and his mistakes made at work were not made because he wasn’t given time off but because he was not mentally focused. Finally, the court declines to allow plaintiff to advance a claim for interference, which was raised for the first time on appeal. [Filed Nov. 29, 2012.]
27-8-8370 G&S Livingston Realty Inc. v. CVS Pharmacy, Third Cir. (Rendell, U.S.C.J.) (8 pp.) Appellant G&S entered into a lease with lessee Linens ‘N Things for retail space. Linens’ parent signed an unconditional guaranty of the rent that was assumed by defendant CVS, the parent’s successor. The lease included a co-tenancy provision giving Linens an option to pay a reduced rent and then terminate if G&S retained fewer than two co-tenants for 12 months. After Linens defaulted on the lease and declared bankruptcy, G&S and CVS executed a settlement that obligated CVS to pay past due amounts that Linens owed. CVS continued to make payments that were due under the lease throughout 2009. In 2010 CVS exercised Linens’ rights under the co-tenancy provision to terminate the lease and demanded a refund, arguing that it was entitled to pay the lesser alternative rent for the prior period. G&S brought suit alleging that CVS breached the guaranty and was responsible for all accruing payments under the lease. G&S appeals from the district court’s finding that the lease was not breached in 2008 and that CVS was allowed to exercise Linens’ rights under the co-tenancy provision and thereby pay nothing under the guaranty. The Third Circuit finds that the court erred. CVS, which was not a party to the lease between G&S and Linens nor an intended third-party beneficiary of it, has no authority to assert Linens’ rights under the lease, and the guaranty imposes an unconditional obligation on CVS that continues regardless of the status of the lease. [Filed Dec. 4, 2012.]
04-7-8311 Flores v. Predco Services Corp., U.S. Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Almost one year after Flores, represented by Ray Marchan, filed an action in Texas state court based on injuries he suffered while working as a seaman in the Gulf of Mexico, he amended his complaint to add defendants. State Judge Limas denied defendants’ motion to dismiss, finding that the Texas court did not lack personal jurisdiction over defendants. After that decision was reversed on appeal, plaintiff filed this action. Defendants filed a motion to dismiss as time-barred, which was denied on the basis that plaintiff’s reliance on Limas’ decision was reasonable and tolled the running of the limitations period. Defendants now move for reconsideration of that decision, based on their discovery that Limas has pleaded guilty to accepting bribes from attorneys and that Marchan has been convicted for bribing Limas during the period in which Limas ruled in favor of plaintiff on the jurisdiction issue. The court denies the motion, finding that equitable tolling is warranted based on plaintiff’s mistaken filing in Texas because Marchan’s criminal misconduct does not undermine the reasonableness of plaintiff’s conduct in the absence of evidence that he was aware of Marchan’s actions, and because equitable tolling is warranted since plaintiff pursued his rights diligently and Marchan’s criminal misconduct constitutes an extraordinary circumstance. [Filed Nov. 28, 2012.]
04-8-8346 United States v. Jones, Third Cir. (Chagares, U.S.D.J.) (5 pp.) Michael Orozco appeals from the $200 sanction imposed against him by the district court for his tardiness and his failure to notify the court of a potential conflict with another court appearance. Orozco argues that the sanction was improper because his conduct was not egregious, he did not act in bad faith, and he was not afforded due process by the district court. The court notes that Orozco should have informed the district court of a conflicting hearing, particularly where his appearance at the conflicting hearing created the probability that the hearing in this matter would be delayed. However, the conduct was not so egregious as to warrant the sanction imposed. Although Orozco’s tardiness may have slightly hindered the administration of justice due to the delay it caused, there was no apparent pattern of wrongdoing or creation of prejudice to other parties. Most important, the gravity of his wrongdoing was minimal, especially considering the mitigating factors. Though recognizing the deference afforded to the district court’s decision, the circuit panel reverses. [Filed Nov. 29, 2012.]
34-7-8331 Barnes: Bey v. Johnson, U.S. Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) Seeking to quiet title to a piece of real property, plaintiff filed a complaint against defendants and an application to proceed in forma pauperis. The court grants plaintiff’s application but dismisses plaintiff’s complaint without prejudice because plaintiff did not provide a short and plain statement of the claim showing that she is entitled to relief and did not establish subject-matter jurisdiction. [Filed Nov. 29, 2012.]
34-7-8347 Mocco v. Frumento, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) This matter stems from a dispute in the ownership of certain real estate assets held by First Connecticut Holding Group, L.L.C., IV, one of several holding companies created to hold properties owned by plaintiff debtors-in-possession in reorganizations and purchased by James Licata, subject to plaintiffs’ ability to repurchase the properties. Plaintiffs allege that defendants engaged in misconduct by assisting in the transfer of certain real estate assets held by FCHG IV to parties other than plaintiffs. Presently pending in state court are five consolidated cases also involving disputes regarding ownership of certain New Jersey limited liability companies, which include defendants’ participation in assisting Licata in the transfer of certain pieces of real estate. Defendants Frumento and Chicago Title Insurance Co. move to dismiss. Noting that plaintiffs do not disagree that this action stems from the same facts and transactions as the currently pending state action, the court finds that to allow the claims in this action to now proceed would stand in direct contravention of the entire-controversy doctrine and it grants the motion to dismiss with prejudice. [Filed Nov. 29, 2012.]
50-7-8317 Black Mountain Equities Inc. v. Pacific Gold Corp., U.S. Dist. Ct. (McNulty, U.S.D.J.) (18 pp.) Plaintiff Black Mountain Equities Inc. trades in distressed securities and purchased, at a steep discount, a warrant to purchase common stock (the YAG warrant). It brings this action alleging that Pacific Gold Corp. has refused to deliver 44,509,090 shares of its publicly traded common stock pursuant to the YAG warrant. The dispute is over the exercise price under the YAG warrant. According to Black Mountain, the YAG warrant’s price adjustment mechanism was triggered under a “most-favored-nation” arrangement when Pacific Gold issued shares to another investor, Crescent International, at $.0099 per share. Pacific Gold counters that another relevant agreement (the letter agreement) provides that the Crescent transaction would not trigger the most-favored-nation adjustment, because that agreement defines the Crescent securities as “excluded securities.” The section of the letter agreement at issue, however, was carelessly drafted, it does not parse as a proper English sentence, and neither party contends that it can mean precisely what it says. Here, the court denies Black Mountain’s motion for an affirmative preliminary injunction directing Pacific Gold to deliver 44,509,090 shares of stock, finding Black Mountain has not met its burden of showing a likelihood of success on the merits and irreparable harm. [Filed Nov. 27, 2012.]
35-8-8348 United States v. Balice, Third Cir. (per curiam) (9 pp.) Balice, proceeding pro se, appeals from an order of the district court granting the government’s motion for summary judgment in its action to reduce her unpaid tax liabilities for 1992, 1993, 1996 and 2001 to judgment pursuant to 26 U.S.C. § 7402. The court affirms, finding that (1) the government’s action with respect to the 1992 and 1993 taxes was timely, the time for filing having been extended by appellant’s CDP request; (2) because appellant failed to challenge the legitimacy of her CDP request in the district court, she cannot do so before the Third Circuit and because she did not object to the admissibility of the copy of the request submitted by the government in support of its motion for summary judgment, the court reviews for plain error and concludes the government met its burden of authentication under Rule 901 and the requirements of the best evidence under Rule 1003. [Filed Nov. 29, 2012.]

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