March 14 to 20, 2013

Unapproved Opinions

New Jersey Law Journal

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STATE COURT CASES
 
ADMINISTRATIVE LAW
01-2-9337 M.T. v. Division of Medical Assistance and Health Services, App. Div. (per curiam) (9 pp.) The narrow issue presented in this appeal concerns the delay of respondents, the Division of Medical Assistance and Health Services (the division) and the Camden County Board of Social Services, in processing appellant M.T.’s application for benefits under what is known as the Global Options Assisted Living Waiver Program (Global Options). Because she allegedly did not have the resources to pay for the costs of her care during the intervening period before her application was approved, appellant requested a fair hearing before an administrative law judge (ALJ). Appellant contended that respondents had not processed her application with “reasonable promptness” in accordance with a Medicaid regulation, N.J.A.C. 10:49-9.14(c). In particular, she sought a retroactive declaration of eligibility to take into account the unexplained delay in approving her eligibility following the submission of her documents. The ALJ rejected appellant’s claim for retroactive benefits and the division thereafter issued a final agency decision upholding the ALJ’s denial of retroactive benefits. Because the present record is inadequate to evaluate respondents’ attempt to rationalize the processing delay beyond the presumptive 45-day period, the appellate panel remands this matter to the division. [Decided March 20, 2013.]
 
CONTRACTS
11-2-9321 H.H. Hankins & Bro v. Edgewood Properties Inc., App. Div. (per curiam) (17 pp.) Plaintiff filed a breach-of-contract complaint alleging that defendant failed to pay for certain materials delivered for a construction project. Plaintiff also alleged that it was entitled to damages based on the doctrine of promissory estoppel. Defendant appeals from a judgment in favor of plaintiff entered after a bench trial. Plaintiff cross-appeals from an order awarding limited attorneys fees and contends that the judge failed to consider prejudgment interest. The appellate panel affirms the judgment, but remands on the issues of attorney fees and prejudgment interest. [Decided March 18, 2013.]
 
CRIMINAL LAW
14-2-9316 State v. W.L., App. Div. (per curiam) (30 pp.) Following a jury trial, defendant W.L. was convicted of first-degree aggravated assault of S.H. (count one); second-degree sexual assault of S.H. (count two); and second-degree endangering the welfare of S.H. (count three). After merging count two into count one, the judge sentenced defendant to 15 years of imprisonment with an 85 percent period of parole ineligibility pursuant to the No Early Release Act, and imposed a consecutive seven-year term on count three. Here, an essential element of defendant’s conviction for aggravated sexual assault was S.H.’s age. The appellate panel finds that the trial court engaged in “double-counting” in finding aggravating sentencing factor two (the gravity and seriousness of the offense) because her finding was based on elements of the offenses for which defendant was convicted, and failed to consider factors that both support and mitigate against consecutive sentences, requiring a remand for resentencing. [Decided March 15, 2013.]
 
14-2-9324 State v. Pope, App. Div. (per curiam) (13 pp.) Defendant appeals from a conviction for third-degree distribution of a controlled dangerous substance within a school zone. Specifically, defendant challenges the Law Division judge’s decision to deny him admission into Drug Court based on the judge’s determination that defendant was categorically excluded from Drug Court because he committed his offense on school property. The trial court failed to distinguish between ordinary probation, which is not at issue in this case, and special probation under N.J.S.A. 2C:35-14, which is the statutory tool by which school-zone defendants, facing an otherwise “mandatory” state prison term are sentenced instead to Drug Court. Under the plain language of the statute, when there is no juvenile involved, a person convicted of a school-zone offense, even one occurring on school property, is not automatically ineligible for special probation. The appellate panel reverses and vacates defendant’s sentence and remands for resentencing, including consideration of defendant’s Drug Court application on the merits. [Decided March 18, 2013.]
 
FAMILY LAW
20-2-9301 D.G. v. W.G., App. Div. (per curiam) (8 pp.) Defendant W.G. appeals from a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act. Defendant’s former wife, D.G., alleged that on Sept. 26, 2011, defendant drove back and forth past her house six times, then parked his car and walked back and forth past her house, watching her through a window. She alleged that defendant then telephoned her, asked her “if she was packing,” and stated that “he could find her wherever she went.” The complaint also alleged an extensive history of domestic violence. Defendant did not rebut plaintiff’s testimony concerning prior acts of domestic violence. In his appeal, defendant contends that his conduct on Sept. 26 was part of a dispute over marital property and did not rise to the level of harassment but was mere “domestic contretemps” that did not warrant the entry of the FRO. The record supports a finding that defendant’s conduct on Sept. 26 was undertaken for the purpose of alarming or seriously annoying plaintiff, and he succeeded in doing so. Defendant’s phone call, telling plaintiff he would find her wherever she went, was a “communication” made for the purpose of harassment and was made in a “manner likely to cause annoyance or alarm.” The appellate panel finds no error in the judge’s decision to enter the FRO. [Decided March 14, 2013.]
 
20-2-9302 Gentile v. Gentile, App. Div. (per curiam) (15 pp.) Defendant appeals from and challenges certain provisions of the final judgment of divorce. Defendant argues that the trial judge erred by awarding plaintiff permanent alimony of $500 per week. Defendant contends that the judge failed to acknowledge the present economic downturn and its impact on his earning capacity, imputed too much income to him, failed to impute sufficient income to plaintiff, and did not appropriately assess his lifestyle needs. The appellate panel finds the court correctly imputed income of $100,000 per year to defendant based on his history of earnings and earnings capacity. Furthermore, defendant provided no factual basis to impute more than $20,800 per year to plaintiff. In addition, the judge’s assessment of defendant’s monthly budget was based on the record and the court’s evaluation of defendant’s credibility. The panel finds no error in the judge’s award of permanent alimony to plaintiff. Further, the judge’s award of attorney fees to plaintiff was not an abuse of discretion. [Decided March 14, 2013.]
 
20-2-9303 Pope v. Pope, App. Div. (per curiam) (20 pp.) In this postjudgment matrimonial matter, plaintiff (John) appeals from those parts of five Family Part orders, which modified his child-support obligation and awarded child-support arrears and counsel fees to defendant (Debra). John filed a pro se motion, seeking to terminate child support as of May 25, 1999, and certified that he had been incarcerated as of May 25, 1999, terminated from his employment for cause on May 27, 1999, was being evaluated and treated for a mental illness, had applied to the Social Security Administration (SSA) for disability benefits, and voluntarily surrendered his medical license. The court did not terminate child support; instead, the court temporarily reduced child support. John’s incarceration ended in June 2001. On Dec. 9, 2009, Debra filed a motion seeking child-support arrears from June 1999 to December 2009. Because John never filed a motion to continue child support at $413 a month after his incarceration ended based on his income, the trial court correctly found that child support reverted to $355 bi-weekly after John’s incarceration ended. There was no need for a Lepis analysis. The appellate panel finds no error in the judge’s award of child-support arrears but reverses and remands for reconsideration of a $7,441.53 credit. The panel also reverses and remands the award of attorney fees. [Decided March 14, 2013.]
 
20-2-9322 Perri v. Salandra, App. Div. (per curiam) (9 pp.) Defendant appeals from the Family Part order reducing his agreed-on child support due to his reduced income. He argues that, although at the time of his divorce he agreed to waive the New Jersey child-support guidelines and disregard the true shared-parenting arrangement between the parties, when a downward modification was demonstrated, the judge should have applied the guidelines. Here, in the property settlement agreement (PSA), the parties did not agree that their two waivers, of shared-parenting considerations and use of the guidelines, would no longer be applicable on changed circumstances. Plaintiff conceded that the husband had suffered a significant diminution of his income and a modification of child support was appropriate. The primary issue before the court was the legal issue of whether good cause existed not to apply the guidelines’ shared-parenting calculations. The appellate panel finds no abuse of discretion in the judge’s determination not to use the guidelines or in declining to hold a plenary hearing. [Decided March 18, 2013.]
 
20-2-9330 Freeman v. Freeman, App. Div. (per curiam) (9 pp.) The appellate panel reviews an award in favor of defendant William Freeman based on a claim that plaintiff Debra Jones-Freeman failed to reasonably dispose of the former marital home following William’s default in his obligation to buy out Debra’s interest and his failure to make the monthly mortgage payments. The panel affirms the judge’s finding that Debra breached the fiduciary duty she owed William but remands for reconsideration of the amount of the award. Because Debra could not adequately explain why she allegedly walked away from the closing with nothing, the judge correctly found that Debra was careless in the manner in which she handled this transaction. In determining the damages due William, the judge correctly reconstructed what would have been a reasonable arm’s length transaction and arrived at an amount the parties would have received if such a transaction had occurred. It does not appear that William’s share was appropriately reduced as a result of his failure to make the mortgage payments from the time of the judgment of divorce until the closing of title, and it is not clear whether the award took into account any mortgage payments Debra made prior to the sale or other amounts due to Debra from William that remain unpaid. A remand is necessary for the judge’s consideration of these circumstances. [Decided March 19, 2013.]
 
INSURANCE LAW
23-2-9304 Floyd v. High Point Insurance Company, App. Div. (per curiam) (7 pp.) Plaintiff appeals from a judgment following a bench trial, dismissing with prejudice his complaint for personal injury protection (PIP) benefits under an insurance policy issued by defendant High Point Insurance Company. Plaintiff’s New Jersey driver’s license was suspended in 2004. At some point in 2006, plaintiff was issued a license from the “Yamassee Native Americans.” Later in 2006, plaintiff purchased a pickup truck and asked a friend, Christine King, to take title in her name and to obtain insurance coverage. Plaintiff did not live with King; he rented a residential property from her, where he kept the truck. King agreed and the truck was then registered and insured by defendant in her name. She did not list plaintiff as a “licensed operator” of a motor vehicle in her household. Plaintiff was driving the truck when he was injured in an accident. Defendant denied coverage and declined to extend PIP benefits to plaintiff, arguing that he was not an innocent eligible person under the policy. The appellate panel affirms, finding plaintiff did not have a reasonable belief that he was entitled to operate a vehicle on a public highway in New Jersey because he had obtained a tribal driver’s license from the Yamassee Native Americans. [Decided March 14, 2013.]
 
23-2-9305 Lehman v. Reinius, App. Div. (per curiam) (22 pp.) Plaintiff filed a complaint alleging that defendant Edward Reinius, an employee of defendant H.A. DeHart & Son Inc., was negligent in the operation of his vehicle, causing her personal injuries. Plaintiff’s passenger also filed a complaint. The vehicle driven by Reinius was a school van owned by defendant D.L. Peterson Trust and leased through defendant PHH Vehicle Management Services (the trust defendants). PHH leased vehicles to defendant Knowledge Learning Corporation (KLC). After settlements were reached between DeHart and plaintiffs, the court entered a stipulation of dismissal with prejudice. KLC and the trust defendants continued to assert cross-claims against DeHart for contribution, common law and contractual indemnification, and breach of contract. DeHart opposed the motion and cross-moved for summary judgment, contending that it was entitled to a defense and indemnification from KLC and the trust defendants. The court granted KLC’s motion and denied DeHart’s motions. DeHart stipulated to liability for the accident. KLC, therefore, was free from fault. It tendered its defense to DeHart, but DeHart refused the tender. Under common-law principles, and despite the lack of any indemnification agreement between the parties, KLC was entitled to indemnification from DeHart. Therefore, summary judgment was properly granted. [Decided March 14, 2013.]
 
23-2-9331 Zaun v. Franklin Mutual Insurance Company, App. Div. (per curiam) (9 pp.) Plaintiff owns property that is insured by defendant Franklin Mutual Insurance Company (FMI). On July 27, 2010, plaintiff discovered water damage to the premises, alleged in his complaint to be in excess of $75,000, caused by a broken feed line to a toilet. The ensuing claim was denied by FMI because section four of plaintiff’s homeowner’s policy provides that if the insured premises had been vacant for 60 days or more, coverage was “suspended.” Here, plaintiff appeals from the grant of summary judgment to FMI. The appellate panel affirms the grant of summary judgment based on the trial judge’s finding that plaintiff had not filed within the one-year suit limitation period specified in his homeowner’s policy. Plaintiff was told in plain language in a declination letter that it was necessary for him to institute litigation within 12 months and he failed to do so. Plaintiff, by virtue of the language in the policy and the declination letter, was on notice of the relevant time frame and failed to act within it. [Decided March 19, 2013.]
 
LABOR AND EMPLOYMENT
25-3-9332 Hudson County P.B.A. Local 334 v. County of Hudson, Law. Div. — Hudson Co. (Sarkisian, J.S.C.) (16 pp.) Plaintiffs, Hudson County sheriff’s officers, and their union, Hudson County Sheriff Officer’s P.B.A. Local 334, filed this order to show cause seeking preliminary injunctive relief compelling Hudson County to return both officers to Step 5 of the salary scale after being reduced to Step 2 on being rehired following a layoff, and for back pay. Defendant Hudson County opposes the order to show cause, arguing that the dispute is subject to a binding arbitration clause in the governing collectively negotiated agreement (CNA). The county filed a motion to dismiss for lack of subject matter jurisdiction and further contends that even if the court had jurisdiction, a preliminary injunction should be denied on numerous other grounds. The court rejects plaintiff’s argument that the court has jurisdiction because this case involves a question of law as to the interpretation of N.J.S.A. 40A:9-117, which establishes a sheriff’s ability to fix the salaries of his personnel, and its conflict with N.J.S.A. 40A:14-180, which establishes the Rice list. The officers dispute the level of compensation to which they are entitled, which is a matter that clearly falls within the scope of the CNA. The court concludes the dispute is a “grievance” as defined by the CNA and subject to the grievance and arbitration procedure and must be resolved by arbitration. Defendants’ motion to dismiss is granted. [Decided March 15, 2013.]
 
LABOR AND EMPLOYMENT — ARBITRATION
25-2-9306 Somerset County Park Commission v. Teamsters Local Union No. 469, App. Div. (per curiam) (15 pp.) Plaintiff Somerset County Park Commission appeals an order of the Chancery Division referring this labor dispute with defendant Teamsters Local Union No. 469 to arbitration. The union requested the New Jersey Public Employment Relations Commission (PERC) to convene a panel of arbitrators to decide grievances stemming from the park commission’s discharge of two nonprobationary employees represented by the union. A review of the terms of the CNA shows that the agreement does not explicitly and plainly specify whether the discharge of a nonprobationary employee can be the subject of an arbitrable grievance. Both the union and the park commission have offered plausible readings of the CNA in support of their competing positions. Given that ambiguity, the appellate panel finds the trial judge properly deferred the interpretation of the CNA to a PERC arbitrator. [Decided March 14, 2013.]
 
LABOR AND EMPLOYMENT — SEXUAL HARASSMENT
25-2-9338 Aguas v. State of New Jersey, App. Div. (per curiam) (33 pp.) Plaintiff is a senior corrections officer at the Edna Mahan Correctional Facility for Women, where she has been employed by the Department of Corrections (DOC) since 2004. Plaintiff appeals from the summary judgment dismissal of her complaint against defendant, alleging violations of the New Jersey Law Against Discrimination, due to sexual harassment/hostile work environment created by her supervisors. The appellate panel finds summary judgment was properly granted as defendant satisfied its affirmative defense by indisputable proof of its due care in adopting and implementing an effective antisexual harassment policy and, pursuant thereto, investigating plaintiff’s claims within a reasonable time following plaintiff’s reporting to the DOC’s Equal Employment Division (EED). The record is devoid of any proof on which to hold defendant vicariously liable for the offending conduct of any of its employees. There is no evidence on which a jury may reasonably find defendant negligently administered its anti-sexual harassment policy or aided the harassment through the authority it delegated to its offending employees. [Decided March 20, 2013.]
 
TAXATION
35-5-9314 Garlatti Realty, L.L.P. v. City of New Brunswick, Tax Ct. (Sundar, J.T.C.) (12 pp.) Plaintiff taxpayer appealed its property tax assessment for years 2009 and 2010. Before the court is plaintiff’s motion for reconsideration of the court’s orders that dismissed the matters with prejudice because plaintiff failed to seek reinstatement after they had been dismissed with prejudice. Plaintiff seeks reconsideration on the ground that counsel failed to diary the deadline and he should not be penalized for the attorney’s mistake. The court conditionally grants plaintiff’s application; however, the orders shall not be vacated until plaintiff serves its expert’s appraisal report on defendant’s counsel and pays defendant’s counsel reasonable fees and costs in connection with opposing plaintiff’s motion for reconsideration. Plaintiff’s motion for reconsideration will be kept pending until the conditions imposed as sanctions are satisfied. [Decided March 13, 2013.]
 
TORTS — DEFAMATION
36-2-9308 Samost v. Voorhees, App. Div. (per curiam) (18 pp.) Plaintiff Joseph Samost appeals from the summary judgment dismissal of his complaint for defamation against an attorney and several of the homeowners the attorney represented in litigation involving Samost. The defamation action related to comments the attorney made to the press after he successfully moved to enforce his clients’ rights against Samost. Samost also appeals from the judgment requiring him to pay counsel fees to the homeowners under the frivolous litigation statute. Samost presented no evidence that the homeowner defendants authorized or ratified the statement, or that had they done so, he could have made out a prima facie case of defamation as a matter of law. The appellate panel affirms, finding Judge Suter was well within her discretion in concluding that the homeowners were sued to get back at them for their participation and success in the underlying litigation and in awarding counsel fees. It is clear as a matter of law that Samost’s respondeat superior claim was groundless, and deterrence of such claims is the purpose of the frivolous litigation statute. [Decided March 14, 2013.]
 
TORTS — PREMISES LIABILITY
36-2-9323 Holub v. Livingston Board of Education, App. Div. (per curiam) (6 pp.) Plaintiff appeals from the Law Division order dismissing her complaint on summary judgment. She argues that defendant Livingston Board of Education’s negligence in removing snow from school property caused her to fall and be injured. On appeal, plaintiff contends that the snow was negligently removed and, thus, the common-law snow-removal immunity does not apply here. Plaintiff attempts to distinguish between failure to remove snow due to allocation of scarce municipal resources and inadequate removal when the municipality determines to allocate the resources to remove the snow. The latter happened here, according to plaintiff, and gives rise to potential liability under the Tort Claim Act (TCA). The appellate panel disagrees, finding plaintiff’s claim that the board’s snow-removal efforts left some spots untreated and icy does not describe an egregious or exceptional occurrence during routine snow-removal activity. Based on the well-established common-law immunity conferred on public entities in connection with snow removal, the appellate panel affirms. [Decided March 18, 2013.]
 
36-2-9333 Andara v. Wal-Mart Stores East, L.P., App. Div. (per curiam) (5 pp.) Plaintiff commenced this action against defendant Wal-Mart Stores East, L.P., and its manager, alleging she slipped and fell on water in Wal-Mart’s Watchung store. The trial judge granted summary judgment dismissing the complaint. Because the evidence, when viewed in the light most favorable to plaintiff, would support a finding that Wal-Mart had constructive knowledge of the slippery condition, the appellate panel reverses. Viewing the video surveillance tape and sworn statements leads to the conclusion that a rational jury could find the cashier did not inspect the area five minutes before plaintiff’s slip and fall, as she stated, but only walked through without looking and, also, that the slippery condition existed for a considerable period of time — at least an hour — before the fall. Because the location in question, the checkout area near the exit, was an area frequented by customers, a jury would be entitled to conclude from the evidence that Wal-Mart knew or should have known of the dangerous, slippery condition and that it posed a hazardous condition for customers. [Decided March 19, 2013.]
 
36-2-9339 Sanchez v. The Villages Association, App. Div. (per curiam) (17 pp.) The pivotal legal issue in this slip-and-fall case concerns which party bears the burden of proving (or disproving) that a condominium association duly adopted, by a two-thirds vote of unit owners as required by N.J.S.A. 2A:62A-14, a bylaw that restricts its premises liability in accordance with N.J.S.A. 2A:62A-13 to instances of willful, wanton or grossly negligent conduct. The appellate panel holds that where, as here, the bylaw amendment recites that it was approved by the necessary two-thirds vote, and contains on its face other indicia of regularity, plaintiff bears the burden of establishing the provision’s invalidity. Because plaintiff did not meet her burden here to invalidate this bylaw provision, which dates back nearly 15 years, and because plaintiff concedes that her claims of ordinary negligence do not satisfy the heightened liability standard of N.J.S.A. 2A:62A-13, the panel affirms the trial court’s grant of summary judgment to the association. [Decided March 20, 2013.]
 
WORKERS’ COMPENSATION AND OTHER COMPENSATION SYSTEMS
39-2-9309 Adams v. Target Stores Inc., App. Div. (per curiam) (11 pp.) Workers’ compensation respondent Target Stores Inc. appeals from the decision by the workers’ compensation judge denying its application for reimbursement from petitioner Margaret Adams for temporary disability payments paid prior to the determination that petitioner was permanently and totally disabled. Target also seeks a reduction of counsel fees due to this reimbursement, as well as an offset for Social Security Disability (SSD) payments received by petitioner. The appellate panel affirms the decision, rejecting Target’s attempt to argue that in hindsight, petitioner was totally disabled on the date of the accident and thus she was not eligible for temporary total disability benefits, and it should be reimbursed for all temporary disability payments made to petitioner. [Decided March 14, 2013.]
 
39-2-9340 Cottone v. Medical Supply Corp., App. Div. (per curiam) (12 pp.) Intervenor New Jersey Manufacturers Insurance Company (NJM) appeals from a workers’ compensation determination that petitioner Lydia Cottone was not entitled to benefits because her employer, respondent Medical Supply Corp. (MSC), did not control the parking lot where her accident occurred. Donald Bonica was president of MSC, and his wife, Karen Bonica, vice president. At the time of the accident, the Bonicas individually rented the three buildings on the property. MSC leased business space from the Bonicas. The appellate panel finds the judge of compensation did not err in his finding that the Bonicas, not MSC, controlled the parking lot. Nor did he err in finding that the parking lot where Cottone was injured was not within the business premises. MSC was not the lessee, the owner, and did not exclusively control the parking lot. MSC shared the lot with the other unrelated business tenants. The lot was not a portion of the business premises nor had Cottone’s employment continued as she walked through the parking lot. The panel rejects NJM’s argument that the corporate veil should be pierced. The record does not support that claim. [Decided March 20, 2013.]
 
FEDERAL COURT CASES
 
BANKRUPTCY
42-6-9326 In re National Pool Construction Inc., U.S. Bank. Ct. (Ferguson, U.S.B.J.) (4 pp.) The court previously found that payments to defendant did not constitute a preference under 11 U.S.C. § 547, denied summary judgment on that basis and dismissed the complaint. Plaintiff requests that the court rule on the remaining counts of the complaint. The court finds it appropriate to vacate the dismissal and address the remaining counts: Count II, which sought to avoid a postpetition transfer under 11 U.S.C. § 549, Count III, which sought to recover the avoided transfer, and Count IV, which sought to disallow any claim by defendant under 11 U.S.C. § 502(d). Count II alleges that defendant received a transfer of estate property after the filing of the bankruptcy petition, and that such payment was not authorized under the bankruptcy code or by the bankruptcy court. Plaintiff argued that defendant received postpetition transfers from the debtor for payment of prepetition obligations. The undisputed facts are sufficient for the court to find in plaintiff’s favor on Count II. As to Count III, § 550(a)(1) permits recovery from the initial transferee of an avoided transfer. Summary judgment can be granted on Count IV where any amount owed to defendant in the bankruptcy case is disallowed unless and until the postpetition transfer is repaid. [Filed March 7, 2013.]
 
42-6-9341 In re Viola, U.S. Bank. Ct. (Kaplan, U.S.B.J.) (8 pp.) Plaintiff filed a motion for summary judgment, relative to plaintiff’s adversary complaint against Richard Viola (the debtor). Plaintiff’s complaint is premised on a state court arbitration award for damages arising from an alleged tortious assault and battery by the debtor against plaintiff. Plaintiff asserts that the arbitration findings satisfy the willful and malicious standard for nondischargeability set forth in 11 U.S.C. § 523(a)(6). In this case, it is clear that the arbitrator awarded compensatory damages to the plaintiff of $10,000 for pain and suffering stemming from the alleged assault and battery. What is unclear, however, is how that $10,000 award was meant to be apportioned to the respective torts. This issue is significant in determining whether the standards set forth in § 523(a)(6) have been met. The court cannot determine whether the battery resulted in a willful and malicious injury, or to what extent the award is bottomed on the assault count. Similarly, the arbitration award fails to specify the arbitrator’s analysis in determining to award punitive damages. Thus, because the record does not include specific factual findings in the arbitration award, the court finds there remains a genuine dispute of fact as to whether the debtor’s conduct satisfies the standards set forth in 11 U.S.C. § 523(a)(6). Accordingly, the court will deny summary judgment, without prejudice. [Filed March 12, 2013.]
 
CIVIL PROCEDURE
07-7-9311 Nottage v. Superior Court of Cumberland County, New Jersey, U.S. Dist. Ct. (Kugler, U.S.D.J.) (3 pp.) Defendants, the Superior Court of New Jersey and Sun National Bank, move to dismiss plaintiff’s complaint. Plaintiff has not filed any opposition. In the section of the complaint titled “Statement of Claim,” plaintiff only indicates that the events giving rise to the claim occurred in Cumberland County. Plaintiff writes “unknown” when asked what date and approximate time the events giving rise to the claim occurred and leaves the entire “Facts” section blank. Attached to the complaint are papers that plaintiff presumably sent to the Department of Veterans Affairs and filed with the U.S. District Court for the Eastern District of Pennsylvania. None of these papers contain any facts that could be construed to state a claim against either the Superior Court of New Jersey or Sun National Bank. Sun National Bank is not even mentioned in the complaint or any of the attached documents. The court finds the complaint lacks sufficient factual matter to state a claim against either defendants. Defendants’ motions to dismiss are granted. [Filed March 7, 2013.]
 
07-7-9318 O.R. v. Hutner, U.S. Dist. Ct. (Thompson, U.S.D.J.) (4 pp.) In 2004, plaintiff, a minor, was found in possession of a knife at school and initiated several state court actions against the West Windsor-Plainsboro School District and its employees challenging his suspension, alleging the school district treated him in a discriminatory manner. Plaintiff filed a complaint in district court alleging that defendants’ conduct in the litigation violated his constitutional right to access the courts. The court dismissed the complaint and re-opened the case to reflect that plaintiff had served four additional defendants. In the same order, the court denied reconsideration of its ruling on the motion to dismiss and dismissed the complaint as to the additional defendants. Two motions to amend were denied, the final one with prejudice. After imposing sanctions on plaintiff’s counsel, the court denied plaintiff’s motion for reconsideration, motion to set aside judgment, motion for reconsideration or a stay, and motion to stay and/or for additional factual finding. Plaintiff now moves again to set aside the judgment, arguing that defendants’ counsel, Eric Harrison, fraudulently created 12 discipline reports used to support a motion for summary judgment in one of the state court suits. Finding plaintiff has not met his burden to show that Harrison fraudulently created the reports, the court denies plaintiff’s motion to set aside the judgment as well as his motion for discovery. [Filed March 7, 2013.]
 
07-7-9342 Soobzokov v. Attorney General of the United States, U.S. Dist. Ct. (Ambro, U.S.C.J.) (6 pp.) Soobzokov appeals from the denial of his petition for writ of mandamus in which he sought an order compelling the renewal of and an inquiry into the investigation of his father’s murder. Appellant’s father was the victim of a fatal bombing at their home in New Jersey. In response to a request under the Freedom of Information Act, Soobzokov received documents from the FBI, Central Intelligence Agency, and National Archives regarding the investigation. He alleges these documents indicated the FBI and the Department of Justice had not been actively pursuing the investigation of his father’s murder. Soobzokov also asserts the FBI provided the DOJ sufficient evidence to procure search warrants against three suspects, yet the DOJ failed to do so and made no attempts to extradite those individuals, who were residing in Israel. On the basis of these documents, Soobzokov instituted this action. The circuit panel finds the district court properly concluded that Soobzokov had not established an abuse of discretion or usurpation of power on the part of appellees for failing to arrest and prosecute the suspects he believes to be responsible for the murder of his father. The allegations made by Soobzokov, taken as true, are insufficient to establish jurisdiction to provide mandamus relief. [Filed March 12, 2013.]
 
CIVIL RIGHTS
46-7-9319 Catlett v. New Jersey State Police, U.S. Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Plaintiff, pro se, brings this suit alleging constitutional and common-law tort claims against state and municipal police officers, emergency medical technicians, a nurse, a doctor, a medical center, and unidentified individuals. Plaintiff claims she was tortiously and unconstitutionally detained by police and medical professionals and was administered unwanted medical treatment on suspicion that she was suicidal. Defendant Dr. Diorio filed a motion to dismiss, arguing that the complaint fails to plead that Diorio was acting under color of state law, and the constitutional claims against him should be dismissed, and New Jersey law immunizes medical providers from tort liability when they protect or commit emotionally disturbed persons who threaten to harm themselves. Defendants Stavoli and South Jersey Healthcare join in the notice of motion. Diorio’s motion to dismiss all claims against him under § 1983 and the NJCRA is granted. Any claims against defendants Stavoli or South Jersey Healthcare predicated on them acting under color of state law are likewise dismissed. Diorio’s motion to dismiss the tort claims arising under state law is denied without prejudice, as is plaintiff’s motion to amend. The court grants plaintiff leave to file a new motion to amend. [Filed March 11, 2013.]
 
CONSUMER FRAUD
09-8-9334 South Jersey Gas Company v. Mueller Company, Ltd., Third Cir. (McKee, U.S.C.J.) (4 pp.) Following a remand, plaintiff South Jersey Gas Company filed a motion for leave to file an amended complaint (June 2011 motion to amend). The district court denied the motion, explaining that the inclusion of a claim under the New Jersey Consumer Fraud Act (CFA), which is nothing more than a breach-of-warranty claim with a different name, does not become viable simply because plaintiff gave it a new name. New Jersey law is clear that a mere breach of warranty does not equate to a CFA cause of action. Although the district court held that the proposed amended complaint was deficient and denied the June 2011 motion to amend, it granted leave to South Jersey to file another motion. South Jersey did so (the December 2011 motion to amend). The proposed complaint again asserted a claim under the CFA, and it also contained additional allegations based on deposition testimony. The circuit panel affirms the district court’s denial of plaintiff’s motion for leave to file the proposed December 2011 amended complaint essentially for the reasons it previously found the June 2011 proposed amended complaint deficient. [Filed March 11, 2013.]
 
INTELLECTUAL PROPERTY
53-7-9327 Patsy’s Brand Inc. v. Patsy’s Ristorante Corp., U.S. Dist. Ct. (Pisano, U.S.D.J.) (6 pp.) Plaintiffs filed a complaint for trademark infringement and unfair competition against the defendant corporation, Patsy’s Ristorante Corporation, and its sole stockholder, Kenneth Denier. Plaintiffs successfully moved for the clerk’s entry of default and then moved for default judgment. Defendants failed to oppose the motion or otherwise answer, and the court entered a default judgment. Individual defendant Kenneth Denier filed a motion to vacate the default judgment and permanent injunction. The court reserved decision, ordered Denier to file a letter demonstrating a meritorious defense and permitted plaintiffs to respond. Here, the court denies defendant’s motion, finding defendant has not met the standard required to vacate a permanent injunction, contempt order or seizure order. Further, the court agrees with Judge Bongiovanni’s finding that the permanent injunction applied to both defendants Patsy’s Ristorante and Deiner. Thus, as the sole shareholder of Patsy’s in the Park, that corporation remains subject to the permanent injunction. Defendant has not provided any new, previously undiscovered evidence and has not alleged any fraud of misconduct on the part of the plaintiffs. The court declines to consider plaintiffs’ request for attorney fees and costs. [Filed March 8, 2013.]
 
LABOR AND EMPLOYMENT
25-7-9320 Buckley v. Kinder, U.S. Dist. Ct. (Chesler, U.S.D.J.) (3 pp.) Defendants move to dismiss count one in the complaint alleging violation of the Fair Labor Standards Act (FLSA). Defendants argue that count one does not plead sufficient facts to meet the pleading requirements of Ashcroft v. Iqbal. Plaintiff cross-moves for leave to amend the complaint to plead additional facts. Defendants claim that amendment is futile, asserting that plaintiff’s proposed amended FLSA claim must fail because plaintiff falls within two FLSA exemptions, the creative professional exemption and the administrative exemption. The court finds this argument fails because defendants assert an affirmative defense and, as such, they bear the burden of proof. The court cannot at this juncture determine from the face of the proposed amended complaint that plaintiff falls within the scope of either exemption. As such, the court cannot conclude that these affirmative defenses present an insuperable barrier to recovery by plaintiff under the FLSA. Amendment is not futile. The motion for leave to amend is granted, and the proposed amended complaint shall be filed. [Filed March 6, 2013.]
 
LABOR AND EMPLOYMENT — ADMINISTRATIVE LAW
25-7-9328 Kuczewski v. Commissioner of Social Security, U.S. Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) Plaintiff seeks review of the commissioner of the Social Security Administration’s final decision denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act. Plaintiff argues that the administrative law judge erred in concluding that he is not disabled. At step five of the analysis, the commissioner has the burden of proving that jobs exist in significant numbers in the national economy, which the claimant can perform given his medical impairments, age, education, past work experience, and residual functional capacity. Notably, the vocational expert never rendered an opinion on the number of jobs actually available to plaintiff or someone with his combination of impairments. Since the ALJ recognized that plaintiff has both exertional and nonexertional limitations, such vocational evidence was critical to satisfy the commissioner’s burden of proof. In light of this gap in the record, the court remands this matter to the ALJ for further proceedings. Further, the court finds that the onset date recognized by the ALJ seems arbitrary, since nothing significant happened on this date except that plaintiff filed for disability. The Appeals Council has vacated the ALJ’s decision finding plaintiff disabled as of the date in issue and has remanded the case to the ALJ. Accordingly, the court declines to decide this issue because it is not yet ripe. [Filed March 12, 2013.]
 
LAND USE AND PLANNING
26-8-9335 Lanin v. The Borough of Tenafly, Third Cir. (per curiam) (10 pp.) Appellants Scott and Lisa Lanin appeal from an order of the district court denying their motion for a preliminary injunction relating to the adoption of ordinances creating a new traffic scheme affecting their property. The circuit panel affirms on the basis of the district court’s irreparable-harm determination. The district court properly relied on plaintiffs’ two-year delay in seeking a preliminary injunction as sufficient proof that the risk of immediate irreparable harm did not exist. A party seeking a preliminary injunction must ordinarily prove irreparable injury; the Lanins’ case does not warrant an exception to this requirement. The Lanins also argue that they are not required to prove irreparable injury because the borough’s traffic scheme is invalid and ultra vires, citing Office of the Comm’r of Baseball v. Markell. However, Markell reflects a decision about what issues would be reached on appeal; it did not hold that a party seeking a preliminary injunction at the trial court level need not prove irreparable harm. [Filed March 12, 2013.]
 
LEGAL PROFESSION
04-7-9313 United States v. Lacerda, U.S. Dist. Ct. (Hillman, U.S.D.J.) (36 pp.) Defendant Adam Lacerda and his wife Ashley Lacerda are the former co-owners of Vacation Ownership Group (VO Group), a company engaged in the business of buying and selling vacation timeshare properties. The Indictment charges that the Lacerdas and 16 others conspired to commit mail and wire fraud. The government alleges the conspirators devised and executed a scheme to defraud timeshare owners of their money and property. Before the court is the government’s motion to disqualify Adam Lacerda’s counsel of record, Marc Neff. Witnesses recalled the attorney meeting with VO Group employees to alleviate their concerns as to the ongoing investigation of the company and the Lacerdas. According to the government, after the meeting, several employees who had previously considered leaving the company stayed and continued to work for the VO Group, thereby furthering the fraudulent scheme. The court finds that Neff faces, or is likely to face, significant conflicts of interest. The court further finds that these conflicts cannot be waived or cured by remedial measures other than disqualification. Accordingly, the court grants the U.S. motion, and will disqualify Neff from further representation of defendant Adam Lacerda in this matter. [Filed March 7, 2013.]
 
TORTS — JURISDICTION
36-7-9336 Rakoff v. St. Clair, CPAs, P.C., U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (25 pp.) Plaintiff initiated this action against defendants St. Clair, CPAs, P.C.; Jeffrey Harrison, CPA; Michael P. Rudy, CPA; and Michael P. Rudy, CPA & Associates, alleging professional malpractice relating to the preparation of plaintiff’s personal income tax returns. The complaint asserts claims against all parties for negligence, professional negligence, breach of fiduciary duty, and breach of contract. St. Clair and Rudy and the Rudy firm filed motions to dismiss. St. Clair’s motion will be denied. The Rudy defendants’ motion will be granted. The court rejects plaintiff’s argument that the Rudy firm’s website is an “interactive website designed to actively solicit business from New Jersey residents,” giving the court general jurisdiction over the Rudy defendants. Because plaintiff’s cause of action against the Rudy defendants does not arise from any of the Rudy defendants’ contacts with New Jersey, the court lacks specific personal jurisdiction over the Rudy defendants. [Filed March 12, 2013.]
 

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