Daily Decision Service Alert: Vol. 22, No. 5 – January 8, 2013

New Jersey Law Journal

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STATE COURT CASES
 
ADMINISTRATIVE LAW
01-3-8644 Younger v. Jersey City Housing Authority, Law Div.-Hunterdon Cy. (Sarkisian, J.S.C.) (14 pp.) This case arises out of the termination of plaintiff’s Section 8 voucher by defendant Jersey City Housing Authority (“JCHA”). Plaintiff brought this action in lieu of prerogative writ to challenge the administrative procedure and hearing by which she was dismissed from the program. Plaintiff argues that defendant both failed to comply with the applicable regulations and that defendant’s actions violated her Due Process rights under the federal and New Jersey Constitutions. The appellate panel finds JCHA’s notice advising plaintiff that she violated her lease was insufficient and left her unable to adequately prepare a defense. Further, the sole evidence used against plaintiff in the termination proceeding was a series of letters sent by plaintiff’s landlord to JCHA. There is no evidence in the record that the landlord’s letters were substantiated by any form of competent evidence. The case is remanded to the JCHA for an administrative hearing.
 
ALTERNATIVE DISPUTE RESOLUTION
03-2-8645 Morgan Stanley & Co. Inc. v. Druz, App. Div. (per curiam) (23 pp.)After successfully pursuing a claim for damages against his former employer in an arbitration proceeding (Druz I), appellant unsuccessfully pursued claims against his former employer and several of its employees in a second arbitration proceeding (Druz II). He then petitioned the Law Division to vacate the award while contemporaneously filing a third arbitration demand (Druz III) alleging the same conspiracy, but with different coconspirators, and claiming that the Druz II award had been procured by fraud. Respondents in that proceeding filed a separate action in the Law Division seeking a declaration that Druz III presents a nonarbitrable dispute and an injunction that would preclude Druz from pursuing Druz III or filing any further proceedings relating to Druz II. Druz appeals the denial of his application to vacate the award in Druz II and the confirmation of the award and the determination that Druz III presented a non-arbitrable dispute and the order enjoining him from pursuing Druz II or filing any further proceedings essentially to appeal the award in Druz II. The panel affirms, essentially for the reasons expressed below. It adds that the court did not abuse its discretion in denying appellant a copy of the unofficial transcript paid for by respondents as it was privileged work product and appellant failed to show that he was unable, without undue hardship, to obtain the substantial equivalent of the materials by another means; the panel did not refuse to consider evidence material to the controversy so as to substantially prejudice appellant's rights, nor did it ignore evidence of the fraud appellant asserted in Druz II; nor did the court err in concluding that the Dispute in Druz III was not arbitrable as a challenge to a former final arbitration award on grounds of fraud.  
 
FAMILY LAW
20-2-8646 C.D. v. N.D.M., App. Div. (per curiam) (17 pp.) This matter involves a child custody dispute between the biological mother, defendant N.D.M. (Mother), and her family
members, plaintiffs C.D. (Aunt), A.P. (Grandmother) and D.D. (Grandfather) in which plaintiffs appeal several orders, including that returning the child, Alice, to her mother, from whom she was temporarily removed almost two years earlier. The panel rejects plaintiffs' claim that the aunt is Alice's psychological parent and concludes that the judge correctly determined that Mother's constitutional right to parent Alice demanded a return to her custody without further delay and without a fact-finding hearing, an updated evaluation, or a best interests legal analysis. The panel also affirms the judge's financial decisions, finding that he did not abuse his discretion in denying plaintiffs' request for child support from mother given his determination that plaintiffs' intentionally delayed Alice's return to her mother, or in awarding counsel fees to mother given plaintiffs' superior financial resources and his finding that plaintiffs' were intentionally thwarting Alice's return.
 
FAMILY LAW
20-2-8647 K.R. v. R.E., App. Div. (per curiam) (9 pp.) This case involves plaintiff's unchallenged appeal of the denial of a Final Restraining Order (FRO) that she sought against her husband, defendant, under the Prevention of Domestic Violence Act of l991. Plaintiff challenges the court's failure to give appropriate weight to the extensive history of prior acts of domestic violence, and argues the record supports a finding in her favor. The appellate panel finds that the court’s failure to accord appropriate weight to defendant's past abusive acts in assessing his present conduct was clear error and the record clearly supports plaintiff’s need for protection. The panel reverses and remands for entry of an FRO.
 
LABOR AND EMPLOYMENT — JURISDICTION
25-2-8648 Softpath Systems, Inc. v. Business Intelligence Solutions, Inc., App. Div. (per curiam) (12 pp.) Softpath Systems, Inc. appeals from the summary judgment dismissal of its fee collection action against Business Intelligence Solutions, Inc. (BIS) based on Softpath's failure to comply with the registration requirements of the Private Employment Agency Act. BIS appeals from that portion of the final judgment dismissing Softpath's action without prejudice to refiling its complaint in New York. The parties executed a "Master Services Agreement" (MSA) in New York City and Softpath sent its employees to New Jersey to work for BIS. The relevant provision states that "[t]his MSA shall be governed by and construed in accordance with the laws of the State of New York, U.S.A." This language addresses which State's laws shall apply to issues concerning the "interpretation, execution or enforcement" of the contract, and not whether Softpath failed to abide by a threshold statutory registration requirement. That question does not require an interpretation of the terms but essentially presents a jurisdictional issue that is outside the scope of the MSA's choice-of-law provision. The appellate panel affirms the dismissal of the action and denies BIS's cross-appeal, rejecting its argument that the court should have barred Softpath from thereafter suing in New York.
 
TORTS
36-2-8649 Dabney v. Total Relocation Services, App. Div. (per curiam) (17 pp.) Pro se plaintiff appeals the dismissal of his defamation cause of action on the ground that the Fair Credit Reporting Act entirely preempts his intentional tort action. The panel affirms, finding that because plaintiff's defamation claim is based on alleged injury arising purely from the reporting of credit information by a furnisher of credit, it is preempted by the FCRA.
 
TORTS
36-2-8650 Gourley v.Monroe Twp., App. Div. (per curiam) (16 pp.) In this action arising out of the repeated flooding of plaintiffs' low-lying property by storm water runoff from the street, plaintiffs appeal orders denying their request for a preliminary injunction, granting the township's cross-motion for summary judgment dismissing all counts except that alleging inverse condemnation, and dismissing the inverse condemnation claim. The panel affirms, concluding that the motion judge did not err when she determined that the flooding on the street did not create a nuisance or a dangerous condition that would abrogate the township's immunity under the Tort Claims Act since the water accrues naturally on plaintiffs' property by means of gravity and the township is not affirmatively depositing water on plaintiffs' property and is not liable for water that naturally flows into the street but does not create a dangerous condition, nor have plaintiffs shown how the township created an unreasonable interference with the use and enjoyment of their land. Further, the property has not been taken by the township for use as a public storm water basin and Monroe did not perform an overt act on plaintiffs' property that resulted in a physical occupation and its decision to grant building permits to upstream neighbors is immune from liability.
 
CRIMINAL LAW AND PROCEDURE
14-2-8651 Terry v. New Jersey Department of Corrections, App. Div. (per curiam) (8 pp.) Robert Terry, an inmate, appeals from an adjudication of disciplinary infractions for acts prohibited by N.J.A.C. 10A:4-4.1(a) — .052, making sexual proposals or threats to another and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. The .052 charge was based on a report filed by a corrections officer. Terry identified one witness, an inmate who stated that the allegation was false, the conversation was appropriate and no sexual proposals were mentioned. The hearing officer made no finding on the credibility of either inmate. Instead, the hearing officer resolved the credibility dispute solely on the assumption that corrections officers have no reason to fabricate allegations against inmates. The appellate panel reverses the decision upholding discipline based on the charge that Terry committed prohibited act .052 based on the inadequacy of the evidence. The panel also reverses the hearing officer's decision to convert the *.306 charge to on the spot correction. Neither the hearing officer nor the assistant superintendent identified facts supporting a finding that Terry said or did anything that posed a threat to security or the orderly running of the facility.
 
FEDERAL COURT CASES
 
CIVIL RIGHTS — TORTS
46-7-8652 Katzenmoyer v .Camden Police Department, Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) Plaintiff Ginger Katzenmoyer filed suit on behalf of her deceased son, Brett, against defendants in the law enforcement community of Camden, New Jersey. Brett went to a concert at the Tweeter Center. While in a parking lot, Brett was arrested by defendant Officers Ronald Lattanzio and John McArdle. Brett allegedly sustained serious injuries in the course of his arrest and detention and died a few days later. Plaintiff alleges that defendants violated Brett’s civil rights under color of state law and are liable to his estate under 42 U.S.C. § 1983. Further, Plaintiff seeks recovery under the New Jersey Wrongful Death Act, and the New Jersey Survival Act. Defendants City of Camden and Camden Police Department filed a motion for summary judgment. The Court grants Defendant’s motion on Plaintiff’s federal claim, finding Plaintiff failed to offer evidence sufficient to create a genuine issue for trial regarding Defendant’s liability to Plaintiff under Section 1983. However, Plaintiff has created a disputed issue of material fact as to Defendant’s liability under the New Jersey Wrongful Death and Survival statutes and Defendant’s motion as to those claims is denied. [Filed December 21, 2012]
 
LABOR AND EMPLOYMENT — EMPLOYEE BENEFITS
25-7-8653 Segura v. Dr. Reddy’s Laboratories, Inc., Dist. Ct. (Cooper, U.S.D.J.) (25 pp.) Plaintiff brings this action against Defendant, Dr. Reddy’s Laboratories, Inc., alleging violations of the Employee Retirement Income Security Act (“ERISA”) with respect to Dr. Reddy’s 401(k) Profit Sharing Plan (“the Plan”). Defendant filed a motion to dismiss. Plaintiff alleges that Dr. Reddy’s failure to disburse his funds from the Plan constitutes a violation of 29 U.S.C. §§ 1132(a)(1)(B) and 1132(a)(2. Although styled as a claim for breach of fiduciary duty, Plaintiff has pleaded his claim under the statute pertaining to a wrongful denial of benefits and he has alleged facts that, if true, support such a claim. Therefore the motion is denied as it relates to the failure to disburse the requested funds. The claim under 29 U.S.C. § 1132(c)(1) is dismissed without prejudice for failure to identify the provisions of ERISA that require the information sought to be provided and for failure to specify that a written request was made of Dr. Reddy’s regarding the Summary Plan Description. [Filed December 21, 2012]
 
TAXATION
35-7-8654 United States of America v. Patras, Dist. Ct. (Irenas, U.S.D.J.) (32 pp.) This is a civil federal tax liability suit brought by the United States against Defendant Ruth Patras pursuant to the Uniform Fraudulent Transfer Act (“UFTA”). The United States argues that Defendant Patras’s husband, Dr. Anthony Patras, sought to evade his federal income tax liabilities by fraudulently transferring real property(the Property) to Defendant Patras. The court concludes that Defendant Patras acquired the Property through a fraudulent transfer, that her husband, Dr. Patras, is the true owner, and that he owns the Property subject to federal tax liens. The Court also concludes that Defendant has transferee liability and that the United States is entitled to a personal judgment against her. Accordingly, the Court enters judgment in favor of the United States. [Filed December 20, 2012]
 
 

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