Daily Decision Service Alert: Vol. 22, No. 53 – March 19, 2013

New Jersey Law Journal

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STATE COURT CASES
 
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION
03-1-9329 Borough of East Rutherford v. East Rutherford PBA Local 275, Sup. Ct. (LaVecchia, J.) (42 pp., including dissent by Patterson, J.) The arbitration award is sustained because it was not procured by undue means, the arbitrator did not exceed her authority, the award was not contrary to existing law or public policy, and the award was a reasonably debatable interpretation of the collective-bargaining agreement.
 
FAMILY LAW
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 arms-length transaction and arrived at an amount the parties would have received if such 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.
 
INSURANCE LAW
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 sixty days or more, coverage was "suspended." Here, plaintiff appeals 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 twelve 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.
 
LABOR AND EMPLOYMENT
25-3-9332 Hudson County P.B.A. Local 334 v. County of Hudson, Law. Div.-Hudson Cy. (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 upon being rehired following a layoff, and for back pay. Defendant County of Hudson 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. 40A9-117, 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.
 
TORTS PREMISES LIABILITY
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.
 
FEDERAL COURT CASES
 
CONSUMER FRAUD
09-8-9334 South Jersey Gas Company v. Mueller Company, Ltd., Third Circuit (McKee, U.S.C.J.) (4 pp.) Following 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]
 
LAND USE AND PLANNING
26-8-9335 Lanin v. The Borough of Tenafly, Third Circuit (per curiam.) (10 pp.) Appellants Scott and Lisa Lanin appeal 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]
 
TORTS JURISDICTION
36-7-9336 Rakoff v. St. Clair, CPAs, P.C., Dist. Ct. (Irenas, 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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