Daily Decision Service Alert: Vol. 22, No. 23 – February 4, 2013

New Jersey Law Journal

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STATE COURT CASES
 
CIVIL PROCEDURE SETTLEMENT
07-2-8905 Biagi v. Hill, App. Div. (per curiam) (8 pp.) After a dispute over payment for merchandise, the parties entered into a settlement agreement whereby defendants would fabricate and install cellar doors no later than November 15, 2011 and pay plaintiff $100. In exchange, plaintiff agreed to dismiss his complaint. The agreement provided that plaintiff could apply for a judgment, without notice, if defendants failed to comply with the agreement. Because defendants did not obtain a permit, the doors were not installed and plaintiff obtained a judgment. On appeal from the court’s denial of defendants’ motion to vacate, defendants argue the agreement did not require them to obtain a building permit, and there was "no meeting of the minds" with regard to the permit issue. The appellate panel reverses and remands, finding the parties should have been allowed to present parole evidence regarding the circumstances and their intentions when they entered into the agreement. An evidentiary hearing is warranted to address defendants' claim that the agreement should be rescinded or reformed (and the judgment vacated), because plaintiff breached his duty to act in good faith and to deal fairly with defendants.
 
FAMILY LAW
20-2-8906 Maeker v. Ross, App. Div. (Sapp-Peterson, J.A.D.) (24 pp.) In this appeal, we reverse the trial court ruling that the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(b), requiring a writing memorializing palimony agreements and the independent advice of counsel for each party in advance of executing the agreement, applies only to palimony agreements entered after the Jan. 18, 2010, effective date of the amendment. We held the amendment is enforcement legislation, which addresses under what circumstances enforcement of palimony agreements may be enforced irrespective of when the purported agreement may have been entered. [Approved for publication.]
 
INSURANCE
23-2-8907 The Prudential Ins. Co. of America v. Reiter, App. Div. (per curiam) (15 pp.) In this action arising out of competing claims for the proceeds of a group term life insurance policy, the court finds that the claim of Cynthia Reiter, who had obtained a Family Part order requiring the deceased to maintain a $150,000 life insurance policy to secure his child support obligation to their son Brandon, is superior to the claim of Leanne Rajkowski, the deceased's finance and the mother of his two older sons, who was named on the policy as beneficiary and who asserted an alleged oral agreement with the deceased pursuant to which he would provide life insurance for the children, finding that the existence of the court order gives priority over a contractual arrangement. The panel affirms the order directing payment of $150,000 to Brandon with the balance of the death benefit going to Rajkowski. It also finds that the judge's order did not impose a constructive trust on the insurance proceeds to benefit Brandon and that laches does not bar relief to Reiter.
 
LABOR AND EMPLOYMENT
25-2-8908 In The Matters Of Bolton, Knoblock And Lubrano, Mercer County, App. Div. (per curiam) (23 pp.) In these back-to-back matters, which are consolidated, Robert Knoblock and Michael Lubrano appeal from a final determination of the Civil Service Commission terminating their employment as correction officers with the County of Mercer on a charge of conduct unbecoming a public employee. Kenneth Bolton, another County correction officer, appeals from the Commission's final decision imposing a twenty-day suspension on a charge of violating rules regarding reporting injuries, abuse, or accidents involving inmates. In so ruling, the Commission adopted the findings of fact and credibility determinations made by the Administrative Law Judge (ALJ). The appellate panel affirms, finding appellants have not demonstrated that the Commission's decision is arbitrary, capricious or unreasonable. The decision is fully supported by the record and appropriately defers to the ALJ's express credibility findings. Further, Knoblock and Lubrano's removal from their public positions as corrections officers as a result of their conduct does not shock the court’s sense of fairness. Similarly, there is no basis to disturb the Commission's decision to impose a twenty-day suspension upon Bolton.
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-8909 Lynx Asset Services LLC v. Hosang, App. Div. (per curiam) (6 pp.) Defendant Marvette Hosang appeals the Chancery Division's January 20, 2012 order denying her motion to vacate the final judgment of foreclosure entered on July 20, 2011. The note and mortgage were acquired by plaintiff Lynx Asset Services LLC (Lynx) in December 2008. The assignment of the mortgage, however, was not recorded until January 25, 2012. Lynx purchased the property at the sheriff's sale on October 13, 2011. On appeal, Hosang argues that the motion judge erred in denying her motion to vacate because she did not receive proper notice of the intention to foreclose and because Lynx did not have standing to seek foreclosure. The record reflects that Lynx had already obtained the note and mortgage when it gave the required notice, although the assignment of the mortgage had not yet been recorded. The notice of intention to foreclose identified Lynx, rather than a servicing agent. And, belatedly, the assignment has now been recorded. The appellate panel affirms the Chancery Division's order.
 
TAXATION — TAX SALES
35-5-8910 City of East Orange v. Township of Livingston, Tax Ct. (Sundar, J.T.C.) (25 pp.) The Tax Court lacked subject-matter jurisdiction to determine the validity of the quantum of local property tax assessments for tax years 2009 and 2010 because plaintiffs failed to file timely challenges to those assessments in the Tax Court. Instead, plaintiffs waited until defendant issued a tax-sale certificate, and then filed a complaint in the Superior Court of New Jersey to void the certificate, Although defendants mailed the 2009 assessment notices to incorrect addresses, plaintiffs received actual notice of the same on receipt of the tax bills but did not file a complaint and seek excusal on equitable grounds of lack of timely notice. For tax year 2010, plaintiffs received timely assessment notices at the correct address yet failed to file a timely challenge in the Tax Court, Plaintiffs’ allegations that the assessments were grossly excessive thus erroneous and unconstitutional, and further that portions of the subject property were statutorily tax-exempt as being used for public purposes, do not waive or toll the statute of limitations. However, the Tax Court will decide the merits of plaintiffs’ allegation that the proposed tax-certificate sale violated the New Jersey Green Acres Land Acquisition and Recreation Opportunities Act, N.J.S.A. 13:8A-35 et seq., because this claim was timely raised in the Superior Court (which transferred the matter to the Tax Court). Until resolution of this issue, the stay and injunction against proceeding with the tax sale will continue. [Decided Jan. 31, 2013.] [Approved for publication.]
 
CRIMINAL LAW
14-2-8911 State v. Robertson, App. Div. (19 pp.) Defendant's convictions for possession of a handgun without a permit and possession of a handgun by a person disqualified by a prior conviction are affirmed. The matter is remanded for resentencing on the possession without a permit charge because at sentencing, the judge imposed a nine-year term of imprisonment with a five-year minimum term, which is inconsistent with N.J.S.A. 2C:43-6c, but the judgment of conviction reflects a nine-year and five-month term with a four-year and six month minimum which would have been a permissible minimum term for a nine-year sentence subject to 2C:43-6c. While the trial court apparently intended to eliminate the illegal minimum term pronounced at sentencing, that does not explain the increase in the nine-year sentence and that discrepancy requires a remand for resentencing.
 
FEDERAL COURT CASES
 
BANKRUPTCY
42-6-8912 In re Taggart, U. S. Bankruptcy Ct. (Ferguson, U.S.B.J.) (10 pp.) Before the court are the trustee's motion to sell 1018 Denton Ave,. New Hyde Park NY and a cross-motion to compel abandonment. The court finds that the uncontroverted facts compel the conclusion that the debtor Raymond Taggert held more than bare legal title to the property, and no court imposed a constructive trust pre-petition. Therefore, the property is property of Raymond's bankruptcy estate. Further, the court declines to impose a post-petition constructive trust on the property in favor of Dennis and Kathleen Taggert, who resided at the property, as they cannot establish unjust enrichment since it is not unjust to consider Raymond the owner of the property when he used his good credit rating to obtain a mortgage, paid the closing costs, and obligated himself on a mortgage. Since there is no basis to impose a constructive trust, the Taggerts have not sustained their burden of establishing that the property should be abandoned and the cross-motion is denied. The motion to sell is granted because there is a proper business purpose for the sale, it is proposed in good faith, the sale is an arms' length transaction, and notice of the motion was proper. [Filed January 31, 2013]
 
CIVIL PROCEDURE
07-7-8913 Sesta v. Bank of America, U. S. Dist. Ct. (Shipp, U.S.M.J.) (5 pp.) In this pro se action, in which the court has already granted defendant BOA's motion to dismiss for failure to state a claim upon which relief could be granted, the court now grants defendant Office of the Comptroller of the Currency's motion to dismiss, finding that plaintiffs have failed to allege the basis of the court's jurisdiction over OCC and that plaintiffs, who appear to be asserting a claim of negligence, fail to allege that they presented an administrative claim to OCC, which the court holds is a governmental agency. [Filed January 31, 2013]
 
CIVIL PROCEDURE JURISDICTION AND SERVICE OF PROCESS
07-7-8914 YA Global Investments, L.P. v. Mandlebaum, Salsburg, Gold, Lazris & Dicenza, P.C., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) Plaintiffs YA Global Investments, L.P. and The Estate of Global Outreach, S.A. filed a motion to remand this case to the Superior Court of New Jersey, Hudson County. Plaintiffs asserted a number of claims against Global Outreach, S.A.’s pre-bankruptcy professionals concerning their alleged involvement in a loan transaction between YA and Global Outreach in connection with Global Outreach’s construction of a resort in Costa Rica. Defendant Wiss & Company, LLP removed the entire case to the Bankruptcy Court. The Court finds the state court action is sufficiently related to the Bankruptcy Proceeding because when it was commenced, it was conceivable that the outcome would affect the administration of the bankruptcy estate and whether monies are available for distribution to Global Outreach’s creditors. Accordingly, the Court finds that it has “related to” subject matter jurisdiction. The Court finds that removal of the state court action was proper. The Court additionally finds that remand is prohibited by the Plan of Reorganization of Global Outreach. The jurisdiction that the Plan of Reorganization confers on the Bankruptcy Court extends to the District Court, based on “related to” subject matter jurisdiction over the state law actions. [Filed January 25, 2013]
 
CIVIL PROCEDURE — STATUTE OF LIMITATIONS
07-7-8915 Shanus v. Robert Edward Auctions LLC, U. S. Dist. Ct. (Cavanaugh, U.S.D.J.) (9 pp.) In this action transferred from the Southern District of New York and alleging a deliberate scheme by defendant-auction house to conceal from plaintiff that items defendants obtained for auction were counterfeit, plaintiff moves to dismiss as time barred defendants' counterclaims alleging tortious interference with contractual relations and with prospective economic advantage and trade libel. Deciding that New York law applies for statute of limitations purposes, the court grants the motion, finding that the tortious interference claim accrued at the time the injury was sustained and that, having been filed more than three years after that date, it is time-barred, and that defendants' claim for trade libel is actually a claim for defamation, it accrued at the time of publication, and that the claim, f iled more than one year after that date, is time barred. [Filed January 30, 2013]
 
CIVIL PROCEDURE — VENUE
07-7-8916 Mobley v. ADP Screening and Selection Services Inc., U. S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Plaintiff, provisionally hired as an insurance adjuster, filed this action after his employment was terminated based on allegedly derogatory and inaccurate information contained in a consumer report provided by defendant ADP Screening and Selection Services Inc. to his employer. Defendants, SASS and its parent, Automatic Data Processing Inc., move to transfer venue to the District of Colorado. The court grants the motion, finding that the events that give rise to this cause of action, including the generation and transmittal of the report, occurred in the District of Colorado, the witnesses with knowledge of SASS' practices and procedures and its files and computer server are in Colorado, and litigation of the case will be less burdensome, more expeditious and less expensive in Colorado. [Filed January 30, 2013]
 
IMMIGRATION
51-7-8917 Balfour v. Shanahan, U. S. Dist. Ct. (Pisano, U.S.D.J.) (11 pp.) Petitioner, a citizen of Jamaica who was admitted to the United States as a lawful permanent resident and who is currently detained at the Monmouth County Correctional Facility, challenges his mandatory detention, alleging it is unlawful because he was not detained "when released" from criminal custody under 8 U.S.C. section 1226(c). Because petitioner was detained nine years after being sentenced to probation - for criminal sale and possession of CDS - and was not incarcerated for his conviction, the court grants the petition for habeas corpus and orders an Immigration Judge to provide him with an individualized bond hearing pursuant to 8 U.S.C. section 1226(a)(2).
 
INTELLECTUAL PROPERTY PATENTS
53-7-8918 Hoffmann-La Roche Inc. v. Apotex Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (8 pp.) Plaintiffs Hoffman-La Roche Inc. and Genentech, Inc. (“Roche”) move for reconsideration of certain aspects of the Court’s opinion in this patent infringement case. Roche does not contend that it made the relevant points in its summary judgment brief. Rather, Roche asserts that the Court erred in its decisions on waiver because Roche had pointed out certain evidence in its L. Civ. R. 56.1 statement of facts. In making its original decision, and again, now, the Court relied on Third Circuit precedent which requires arguments to be actually made in an opening brief to be properly before the Court. Here, Roche does not point to any language in its summary judgment brief that might be considered a reference to the arguments it says the Court should have considered. Thus, Roche has waived the arguments. The Third Circuit does not impose an obligation on the Court to comb through the evidence cited in the 56.1 statements and sort it to ascertain which factual issues are disputed. Parties must identify disputed issues in their briefs. Moreover, even if the Court had considered the arguments and evidence that Plaintiffs now say was overlooked, Plaintiffs have failed to persuade the Court that the conclusion of obviousness was in error. The motion for reconsideration is denied. [Filed January 25, 2013]
 
SECURITIES
50-7-8919 In re Merck & Co. Inc. Securities, Derivative & ERISA Litigation, U. S. Dist. Ct. (Chesler, U.S.D.J.) (32 pp.) In this consolidated securities fraud action arising out of defendants' alleged misrepresentations and omissions with regard to the cardiovascular safety profile of Vioxx, plaintiffs move for class certification pursuant to Rule 23(b)(3). The court finds that plaintiffs easily meet the requirements of numerosity, commonality, typicality and adequacy and and that the claims for relief under the Exchange Act sections 10(b), 20(a), and 20A warrant certification under Rule 23(b)(3) and certifies a class action as to those claims. [Filed January 30, 2013]
 
 

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