Daily Decision Service Alert: Vol. 22, No. 116 - June 17, 2013

New Jersey Law Journal

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STATE COURT CASES

 

ELECTION AND POLITICAL LAW

21-3-0298 Connelly v. Byrne, Law Div.-Hudson Cy. (Bariso, A.J.S.C.) (8 pp.) Petitioner Sean M. Connelly, as a candidate for councilmen-at-large in the May 14, 2013, City of Jersey City Municipal Election, has filed a verified petition seeking an order compelling respondent, Robert Byrne, in his Capacity as Clerk of the City of Jersey City, to include petitioner’s name on the June 11, 2013 run-off municipal election conducted in accordance with N.J.S.A. 40:45-19. This court previously entered an order permitting candidates Peter M. Brennan and Omar Perez to withdraw from the run-off election. The primary issue in this application is whether N.J.S.A. 40:45-19 should be construed as permitting the candidate with the next highest number of votes to be substituted in the place of the withdrawn candidate. The court finds the instant scenario to be sufficiently analogous to that of a candidate’s death to trigger the same procedure as is provided for by N.J.S.A. 40:45-19. Petitioner’s application to participate in the June 11, 2013 run-off election is granted.

 

FAMILY LAW

20-2-0299 Jones v. Jones, App. Div. (per curiam) (16 pp.)  In this post-judgment matrimonial matter, defendant appeals from the orders denying her motion to extend the term of her limited duration alimony and convert it to permanent alimony, and denying reconsideration, arguing primarily that the decision was not supported by substantial credible evidence and she is entitled to extended alimony, as a matter of equity, because she was married for 18 years. The panel finds that the judge made extensive factual and legal findings which are amply supported by the record and it affirms substantially for the reasons expressed below, including that defendant failed to establish unusual circumstances under N.J.S.A. 2A:34-23(c)or a substantial change in circumstances on the issue of the ability to support herself to justify extending her alimony under the Lepis standard; on reconsideration, defendant is raising issues that would have been raised during the initial motion; nothing in the parties' PSA warranted a plenary hearing as to its meaning; and although defendant was potentially entitled to permanent alimony given the marriage's duration, she chose to accept a PSA that provided for limited duration alimony and she has not shown that the agreement was unconscionable or so inequitable that judicial interference is warranted.  

 

INSURANCE LAW

23-2-0300 In The Matter Of The Liquidation Of Integrity Insurance Company, App. Div. (per curiam) (6 pp.) In this appeal, the appellate panel finds the special master and liquidation court correctly disallowed asbestos-related bodily injury claims made against excess insurance policies issued by Integrity Insurance Company to Congoleum Corporation. Congoleum submitted timely proofs of claim (POCs). Relying on In the Matter of the Liquidation of Integrity Insurance Co., the liquidator issued notices of determination (NODs) disallowing the incurred but not reported claims. As a result of the approval of Congoleum's bankruptcy plan of reorganization, appellant The Congoleum Plan Trust is the successor-in-interest to the policies issued to Congoleum. The Trust filed an objection to the NODs. The liquidator declined to amend his decision and submitted the Trust's objection to the special master, who upheld the liquidator's decision. The Trust appealed and the liquidation court confirmed the special master's determination. The court found that the special master properly determined that Congoleum did not submit absolute claims as defined in the Amended Liquidation Closing Plan and determined in In the Matter of the Liquidation of Integrity Insurance Co. Although some claims may have been identified and processed before the June 30, 2009 bar date, liability and value were not fixed by actual payment before that date because Congoleum was in bankruptcy and the bankruptcy court did not approve Congoleum's reorganization plan, which included the settlements, until July 1, 2010.

 

INSURANCE LAW

23-2-0301 Robinson v. Tishman Construction Corp. of New Jersey, App. Div. (per curiam) (16 pp.) Third-party plaintiffs Paramount Homes at Asbury Urban Renewal, the owner of a construction project, and Tishman, which contracted with Paramount to provide construction management services, appeal from the grant of summary judgment in favor of third-party defendant Harleysville Insurance Company of New Jersey, which had issued an insurance policy with Air Joy Heating and Cooling, which had subcontracted with Tishman to provide HVAC work,  on their claim seeking defense and indemnification in the underlying personal injury action that arose from a construction site accident in which plaintiff fell from a ladder. Construing the terms of the Harleysville policy, the panel affirms substantially for the reasons expressed below, finding that the policy is not ambiguous and that it does not provide coverage for liability resulting from either Tishman's or Paramount's independent acts or omissions - coverage for such claims lies with their own liability insurers.

 

LABOR AND EMPLOYMENT

25-3-0302 New Jersey Education Association v. State of New Jersey, Law Div.-Mercer Cy. (Jacobsen, A.J.S.C.) (52 pp.) Before the court is the motion to dismiss filed by the defendants, State of New Jersey, Chris Christie, as Governor of the State of New Jersey in his official and individual capacities, and Andrew Sidamon-Eristoff, as Treasurer of the State of New Jersey, in his official and individual capacities. Plaintiffs are labor unions, union members, and related organizations. Plaintiffs’ complaint challenged the constitutionality of certain provisions of Chapter 78 of the Laws of 2011. Defendants' motion to dismiss plaintiffs’ complaint is granted. Plaintiffs' federal Contracts Clause and Substantive Due Process claims are barred by sovereign immunity. Plaintiffs’ state constitutional claims, which challenge Chapter 78’s increased pension contribution rates, are dismissed. As to plaintiffs’ Contracts Clause claims, the court finds that N.J.S.A. 43:3C-9.5(b) does not create a contractual right to a fixed pension contribution. Plaintiffs have failed to show that there is no rational basis for the Legislature’s action in passing Chapter 78. As such, plaintiffs’ Substantive Due Process claims also fail. The count challenging the delegation of authority to pension committees by Chapter 78 is dismissed as unripe. The counts challenging increased contributions for medical benefits after retirement are dismissed because plaintiffs failed to show with enough specificity that they have standing to challenge that provision. The count alleging violations of the New Jersey Civil Rights Act is also dismissed.

 

LAND USE AND PLANNING

26-3-0303 Mesa v. Zoning Bd. of Adjustment of Lebanon Twp., Law Div. (Hunterdon County) (Buchsbaum, J.S.C.) (22 pp.) In these cases consolidated for the purpose of an opinion, the court considers the subject of cell towers. In one case, the Milford zoning board denied a use variance and bulk variances to locate a tower in the R-2 residential zone. In the other, the Lebanon board granted a height variance and a use variance for a second principal use on the site for a cell tower in the RC zone where towers are a conditional use. In both cases, the sites were initially selected by the municipality, not the carrier. The court finds that the cooperative process envisioned in Smart SMR broke down in Milford, with the board essentially paying no attention to the municipality's choice of applicant's site, and that Lebanon is being challenged on the ground that it was arbitrary and capricious for it to abjure the kind of uncooperative conduct that the Court discouraged in the Smart SMR case; that the least intrusive site analysis which is relevant to whether an applicant satisfies the variance criteria for particular suitability of a site has its limits; that Milford's using the applicant's failure to investigate a particular site in a residential area after being guided by the municipality to the one it selected was arbitrary and capricious and that no town should have the right to designate a site and then insist that the applicant look elsewhere. It therefore reverses the Milford board's finding of lack of suitability due primarily to failure to investigate another site and affirms the Lebanon board's finding. Analyzing the positive and negative criteria and the board's resolution regarding the Milford site, the court concludes that plaintiff satisfied the positive criteria that the site is particularly suited for the use in question, there are insufficient showings of aesthetic or other impacts, and that on balance, the board's decision must be overturned.  

 

PUBLIC RECORDS

52-2-0304 Paff v. Borough of Gibbsboro, App. Div. (per curiam) (23 pp.) In this appeal, the appellate panel addresses the interplay between the Open Public Records Act (OPRA) and the expungement statute. Pursuant to OPRA, plaintiff sought release of various documents that were the subject of a pending expungement petition. Record custodians in two municipalities denied the OPRA requests, albeit for reasons unrelated to the expungement request. Plaintiff filed suit. Before the Civil Part decided the OPRA complaint, the Criminal Part granted the expungement order. The Civil Part then concluded that the expungement order barred release of the requested documents. Plaintiff argues that the custodians' denials of his document requests were wrongful when rendered, and the court should have granted him retroactive relief, notwithstanding the intervening expungement order. The appellate panel finds the expungement order in this case overrides the plaintiff's right to access under OPRA and affirms the trial court's order.

 

RESIDENTIAL AND COMMERCIAL REAL ESTATE

34-2-0305 Stahl v. Township of Montclair, App. Div. (per curiam) (9 pp.) Plaintiffs filed a complaint in lieu of prerogative writs alleging that defendants had violated the New Jersey Foreclosure Fairness Act (the Act). The Act was designed to protect neighboring property owners when a foreclosed property fell into disrepair. It requires a creditor initiating a foreclosure proceeding to notify the municipality that a summons and complaint has been filed against the subject property. Plaintiffs appeal from an order that granted summary judgment to defendants Township of Montclair, Alan Trembulak, Kenneth Strait, Robert McLoughlin and Patrick Ciancitto, and from an order that granted the motion to dismiss plaintiffs' complaint against defendant Emigrant Mortgage Company, Inc. Defendants argue that plaintiffs lack standing to assert a claim under the Act and further, that their action in lieu of prerogative writs was untimely. The appellate panel finds these are meritorious arguments. Plaintiffs concede that it was their obligation to correct code violations on their property but contend that the Act provides a basis for the liability of defendants for the costs plaintiffs incurred during the period when the repairs were made and they were homeless. The panel finds no support in the language of the statute, the public policy underlying the legislation, or in common sense for the creation of a cause of action by defaulting mortgagors who have let their home become uninhabitable against the mortgagee and the municipality for allegedly violating the Act.

 

RESIDENTIAL AND COMMERCIAL REAL ESTATE

34-2-0306 U.S. Bank National Association v. Lopez, App. Div. (per curiam) (6 pp.) Defendants appeal from an order denying as untimely their motion to vacate a final judgment of foreclosure entered in favor of plaintiff U.S. Bank National Association. In denying the motion, Judge Carroll found that defendants had not filed it within a reasonable time after entry of the final judgment for foreclosure. The judge further found that defendants produced no proof of exceptional circumstances for their failure to file a timely answer to the complaint or for the delay in filing their motion. Finally, he found that defendants' argument that plaintiff did not have standing, even if timely, was without merit. On appeal, defendants argue that plaintiff lacked standing to bring the foreclosure action as it is not the legitimate holder of the note. They maintain the judgment of foreclosure is void. Also, defendants contend that extraordinary circumstances to vacate the judgment exist due to plaintiff’s lack of standing and its failure to provide certain statutory notices. The record shows that defendants were aware of the foreclosure proceedings and had ample opportunity to present any defenses in the three years since they were served with the foreclosure complaint. The appellate panel finds no abuse of discretion in Judge Carroll's determination that defendants were not entitled to vacate the judgment, given defendants' unexcused, years-long delay in asserting any defense or claim.

 

TORTS

36-2-0307 Tenzer v. Wakefern Food Corp., App. Div. (per curiam) (8 pp.) In this personal injury action filed after plaintiff fell on uneven flooring at the ShopRite store in Parsippany and alleging negligence in the installation and maintenance of the flooring, defendants Wakefern Food Corporation and Sunrise Supermarkets, Inc., trading as Shop-Rite of Parsippany #355, appeal from an order barring the trial testimony of a liability expert and granting summary judgment to the other flooring codefendants, and from the denial of reconsideration. The panel finds that where ShopRite had sought to bar the expert's opinion as a net opinion and the trial judge concluded that her opinions were inadmissible regarding the flooring defendants but allowed her opinions as against ShopRite, and ShopRite then settled with plaintiffs, ShopRite cannot now, while it presses for indemnity and contribution from the flooring defendants, argue that the trial court erred in treating her expert criticisms of the flooring defendants as improper net opinion and that its cross-claim against them should not have been extinguished on summary judgment. The panel dismisses the appeal for lack of jurisdiction because ShopRite did not preserve a right to appeal by reducing the trial court's ultimate disposition to final judgment - the stipulation of dismissal that was filed is insufficient to create an appealable final judgment. Also, ShopRite should not be permitted to take inconsistent positions in the litigation concerning the admissibility of the expert testimony  - because the motion judge adopted the position which had been advocated both by ShopRite and the other defendants as to the expert's opinions on installation, ShopRite is estopped from now taking a contrary position.

 

TORTS — CIVIL RIGHTS

36-2-0308 Cardoso v. Shore Orthopedic Group, App. Div. (per curiam) (9 pp.) Plaintiff appeals from the grant of summary judgment to defendant-doctor and medical practice on her complaint alleging sexual harassment in violation of the Law Against Discrimination and the torts of battery and invasion of privacy. The panel affirms, holding that the conduct alleged by plaintiff is insufficient to meet the severe and pervasive test of Lehman for sexual harassment and that, in the context of a doctor's appointment, a reasonable patient would expect the doctor to conduct a physical examination consistent with the patient's complaints and a reasonable jury could not find the doctor's conduct constituted a battery or an invasion of privacy. 

 

TORTS — MEDICAL MALPRACTICE - EXPERTS

36-3-0309 Austin v. Deitch, Law Div. (Essex County) (Vena, J.S.C.) (10 pp.) Finding that plaintiff's expert, a board-certified physician in internal medicine and cardiology, is not qualified to testify as to the standard of care owed by a general surgeon to a patient in post-operative care after surgery for a bowel obstruction, and that, therefore, plaintiffs are left without an expert witness and cannot meet their burden of proof in proving medical malpractice against the doctor and, vicariously, UMDNJ, the court dismisses the complaint with prejudice. [Filed May 14, 2013]

 

TORTS PERSONAL INJURY

36-2-0310 Osman v. Watson, App. Div. (per curiam) (25 pp.) Plaintiff appeals from the dismissal of his claims for noneconomic damages against defendants Eugene Watson and Watson's employer, the Township of North Bergen, arising out of a 2007 motor vehicle accident. On appeal, plaintiff argues the trial court erred in concluding he failed to satisfy the requirements of the New Jersey Tort Claims Act, and in granting defendants' motion for involuntary dismissal on that basis. The appellate panel affirms, rejecting plaintiff’s arguments that the trial court applied the wrong legal standard and failed to give all reasonable inferences to plaintiff. The panel also rejects defendants' cross-appeal challenging the jury instructions. Watson acknowledged the accident was entirely his fault, and no evidence was offered evincing negligence on the part of plaintiff. Accordingly, instructing the jury as to comparative negligence would not have been justified.

 

TORTS PERSONAL INJURY

36-2-0311 Vecchiola v. Bloom, App. Div. (per curiam) (10 pp.) Plaintiff appeals from the no cause verdict entered in favor of defendants in this personal injury matter involving a motor vehicle accident. Plaintiff sustained personal injuries for which she received treatment from a chiropractor, who also testified as an expert. Following the verdict, the court received a letter from one of the deliberating jurors, Juror #2. The letter expressed the juror's concerns about the trial, including the juror's belief that one of the other deliberating jurors, Juror #4, exhibited bias towards chiropractors: Based upon this correspondence, plaintiff filed a motion for a new trial. The appellate panel finds no error in the court's decision to conduct an interview of Juror #2 before ruling on the new trial motion. However the court erred by limiting its inquiry to Juror #2. Once the court determined it would conduct further inquiry, all of the deliberating jurors should have been interviewed to satisfy the court that Juror #4 had not expressed predetermined or biased views about chiropractors to other jurors, or that if those views were expressed, the jurors had not been influenced by those views. Because the post-trial inquiry by the court into juror misconduct was not sufficiently probing to ensure the verdict reached was not the product of bias, the panel reverses and remands for a new trial.

 

CRIMINAL LAW

14-2-0312 State v. Reevey, App. Div. (per curiam) (10 pp.) Defendant's convictions for assault and petty disorderly persons harassment, and violation of a domestic violence restraining order are affirmed. However, in imposing a six-month term on the harassment conviction, the court erred and the matter is remanded for resentencing to comply with N.J.S.A. 2C:43-8, stating the maximum term is 30 days.

 

CRIMINAL LAW

14-2-0313 State v. Frederick, App. Div. (per curiam) (6 pp.) Defendant appeals the denial of his motion to correct an illegal sentence. The panel concludes that, where defendant argues that the trial judge should have merged his conviction for first-degree robbery with first-degree carjacking as the same facts were used to prove both offenses, and thus that his sentence would have been lower because the Graves Act did not include carjacking as an offense on which an extended term can be imposed, the trial court erred in denying defendant's pro se motion without ascertaining the State's position or addressing defendant's arguments. The matter is remanded for the judge to determine, after ascertaining the State's position, whether the two convictions should have merged, and if so, for resentencing.

 

FEDERAL COURT CASES

 

INSURANCE LAW

23-2-0314 Selective Insurance Company v. Food Marketing Merchandising, Inc., Dist. Ct. (Cavanaugh, U.S.D.J.) (13 pp.) Defendant Food Marketing Merchandising, Inc. (FMMI) filed a motion to dismiss Plaintiff Selective Insurance Company’s amended complaint for declaratory judgment due to lack of ripeness. Alternatively, Defendant seeks to transfer venue to the District Court of Minnesota, on the grounds that the District of New Jersey is an improper forum and/or based on the convenience of the parties, witnesses, and the interests of justice. This action was instituted by Selective against FMMI to resolve an insurance coverage dispute. Selective asserts that it has no duty to defend or indemnify FMMI because the underlying action is a knowing trademark infringement dispute. Conversely, FMMI contends that the underlying suit is a marketing dispute, not a trademark infringement action. The claims alleged in the complaint, not the characterizations of those claims, are considered in making required coverage determinations. Selective is entitled to adjudication to determine whether it is obligated to defend and indemnify FMMI. The action is thus ripe. The record does not demonstrate show that either party will be more seriously inconvenienced as a result of the venue. Thus, Plaintiffs’ choice of forum should be honored. Defendant’s motion is denied. [Filed May 16, 2013]

 

LABOR AND EMPLOYMENT

25-7-0315 Aboud v. The City Of Wildwood, Dist. Ct. (Schneider, U.S.M.J.) (19 pp.) Plaintiffs Elias Aboud, Richard Adair, Christopher Fox, Kenneth Phillips and Paul Zielinski, current or former Wildwood police officers, filed a complaint against the City of Wildwood. On behalf of themselves and those similarly situated, Plaintiffs seek to redress Wildwood’s alleged violations of the Fair Labor Standards Act (“FLSA”), and seek to conditionally certify a class. The essence of plaintiffs’ claim is that Wildwood failed to pay them for wages and overtime compensation mandated by the FLSA. Plaintiffs’ motion is granted in part and denied in part. The Court grants conditional certification of Plaintiffs’ collective action and approves their proposed notice/consent to join form with two additions. The Court denies plaintiffs’ request that their notice be posted at work and that a follow-up postcard be sent. [Filed May 17, 2013]

 

LABOR AND EMPLOYMENT

25-7-0316 Birla v. New Jersey Board Of Nursing, Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) Defendants New Jersey Board of Nursing and its Executive Director George J. Herbert filed a motion to dismiss Plaintiff’s complaint.  The complaint alleges that Defendants performed a criminal history background check on Plaintiff for the purposes of determining whether Plaintiff was employable as a home health aide or certified nurse’s aide. The complaint alleges the background check relied on inaccurate records more than 15 years old and resulted in Plaintiff being wrongfully barred from employment. Plaintiff alleges that Defendants engaged in racial discrimination by “weeding-out Plaintiff with the inaccurate criminal record information” and by wrongfully denying Plaintiff licensure as a home health aide. The Court regards the complaint as asserting that Defendants denied Plaintiff equal protection of the law in violation of the Fourteenth Amendment. The complaint sufficient factual allegations required to show a plausible entitlement to relief. As such, the § 1983 claim is dismissed without prejudice. The Court also notes the complaint may be read as asserting claims for money damages against the Board and Herbert in his official capacity. Such claims must be dismissed with prejudice, because neither a state agency nor state officials sued in their official capacities qualify as “persons” subject to suit under § 1983. [Filed May 17, 2013]

 

TORTS — ADMIRALTY

36-8-0317 Wolf v. Tico Travel, Third Cir. (Barry, C.J.) (7 pp.) Following a boating accident off Costa Rica during a fishing trip, plaintiffs filed suit asserting claims of negligence, wrongful death, and survivorship against Tico Travel, a travel agency that provided air travel arrangements and organized the fishing trip, Piscatory Ins. d/b/a Bob Marriott's Fly Fishing Store, a booking agency that arranged the accommodations for the fishing trip at the Casa Mar Lodge, and others. Appellants appeal the District Court's grant of summary judgment in favor of Bob Marriott's and Tico Travel on all claims and the denial of their motion for reconsideration. Bob Marriott's cross-appeals that part of the order that found appellants' claims to be actionable under the Death on the High Seas Act. The court affirms, agreeing with the District Court that there are no facts of record to indicate, or to draw reasonable inferences therefrom, that Tico Travel or Bob Marriott's knew or should have known of the dangerous conditions of the water on the date of the incident, the allegedly unsafe conditions of the boat, or of the captain's alleged deficiencies and no evidence raising a genuine issue of fact that either Tico Travel or Bob Marriott's owned or exercised any form of control over the Casa Mar Lodge. [Filed May 30, 2013]

 

TORTS — FALSE CLAIMS ACT

36-7-0318 United States of America v. Boston Scientific Neuromodulation Corp., U. S. Dist. Ct. (Wigenton, U.S.D.J.) (17 pp.) In this action filed on behalf of the United States and the qui tam states alleging that defendant, which markets and sells a spinal cord stimulation system approved by the FDA for the management of intractable back pain, which consists of implanted and external parts, submitted false claims for replacement external parts to Medicare in violation of the federal false claims act and its state counterparts, concealed defective equipment, engaged in a program of kickbacks, , and unlawfully retaliated against plaintiffs for protected activity such as internal reporting and investigation  of these practices. Defendant has filed motions to dismiss the complaint, to strike confidential information, and to disqualify counsel pursuant to the New Jersey Rules of Professional Conduct.  The court denies the motions, finding that the relators have alleged specific facts to support their claims that defendant did not bill in compliance with Medicare guidelines and that could show that they engaged in protected activities; there is no basis on which to disqualify plaintiffs' counsel since even if defendant were to be correct that he may become a necessary witness at trial, this does not preclude him under RPC 3.7 from representing them during this pre-trial stage; and the amended complaint does not disclose patient information and defendant's assertion that such information could be determined by cross-referencing treating physicians, dates of service and locations are not persuaive. [Filed May 31, 2013]

 

TORTS — FALSE CLAIMS ACT

36-7-0319 United States of America v. Johnson & Johnson, U. S. Dist. Ct. (Pisano, U.S.D.J.) (12 pp.) In this qui tam action, plaintiff alleges that defendants violated the False Claims Act by promoting an ocular antibiotic to doctors for uses not approved by the FDA and by paying kickbacks to induce them to issue prescriptions that were paid for by government healthcare programs. Defendants move to dismiss pursuant to Rules 9(b) and 12(b)(6).Plaintiff seeks to amend the complaint.  The court denies plaintiff's cross-motion to amend and grants defendant's motion to dismiss, finding that plaintiff has failed, in both the complaint and the proposed amended complaint, to meet the heightened pleading standard applicable to her false claim allegations since her allegations are vague and conclusory and she provides no factual support for them where she does not identify a single doctor that prescribed the drug for an off-label use, much less one who submitted a claim for reimbursement to the government. Similarly, her conspiracy claim fails since she has failed to allege any meeting of the minds between defendants and the doctors who prescribed their drugs. [Filed May 31, 2013]

 

TORTS — MEDICAL MALPRACTICE

36-8-0320 Melber v. United States of America, Third Cir. (Ambro, C.J.) (6 pp.) Plaintiff, who lost the sight in one eye after being operated on at the U.S.Veteran's Administration Hospital in East Orange, appeals the District Court's dismissal of his medical malpractice action for failure to comply with the New Jersey Tort Claims Act as to the operating doctors, who were employees of the State through the University of Medicine and Dentistry of New Jersey.  The court affirms, finding that although plaintiff filed notice of his federal claim, he never filed the notice required by the New Jersey Act. The court notes that a letter from the VA should have alerted plaintiff to the possibility of the doctors being state employees, thus inviting further inquiry, and that there is no compelling support for plaintiff's claim that his federal tort claims notice should suffice to provide the notice required by the NJTCA. [Filed May 31,2013]

 

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