Unpublished Opinions

July 3 to July 10, 2013

New Jersey Law Journal

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STATE COURT CASES

ADMINISTRATIVE LAW — CIVIL SERVICE COMMISSION

01-2-0588 In the Matter of Cooper, App. Div. (per curiam) (12 pp.) Appellant, a police officer for the Department of Human Services, appeals from the final decision of the Civil Service Commission finding him in violation of N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee, and several administrative orders and imposing a 40-day suspension. The panel affirms, finding that the disciplinary violations — including the selling of a diet drink while on duty without permission — were supported by sufficient credible evidence and the seriousness of his offenses — including his repeated belittling and offensive behavior toward a co-worker meant to intimidate her into purchasing his product — and the higher standard of conduct required of police officers warranted the sanction imposed. [Decided July 10, 2013.]

ADMINISTRATIVE LAW — UNEMPLOYMENT COMPENSATION BENEFITS

01-2-0516 Ortiz v. Board of Review, App. Div. (per curiam) (6 pp.) Ortiz appeals from the final decision of the Board of Review affirming the Appeals Tribunal’s decision finding him ineligible for unemployment benefits because he was terminated from his job for severe misconduct. The finding of severe misconduct was based on his having accumulated 24 points for failing to contact his employer prior to his shift to report absences, as required. Finding that the tribunal failed to consider whether Ortiz’s actions were intentional, deliberate or malicious, the first prong of the two-pronged standard of Silver v. Board of Review, the panel reverses and remands for consideration of whether the grounds for Ortiz’s termination constitute severe misconduct under the Silver standard. [Decided July 3, 2013.]

01-2-0531 Barnett v. Board of Review, App. Div. (per curiam) (7 pp.) Barnett appeals from the decision of the Board of Review affirming the decision of the Appeal Tribunal that she was ineligible for unemployment compensation because she left her full- and part-time positions voluntarily, she then became a full-time student and was not available to work while a student, and there was a period of time when she was not able to work and was not seeking employment. The panel affirms, finding, inter alia, that her claim of hostile work environment at her full-time employment was not supported by the record and leaving work to attend school is considered a voluntary separation from employment. [Decided July 5, 2013.]

ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION

03-2-0551 Accentia Healthcare Service Inc. v. Abraham, App. Div. (per curiam) (8 pp.) This dispute arises out of a business organization agreement that dealt with the marketing, certification, development and sale of a medical billing and record-keeping software named Instakare. Defendants appeal the order of the Law Division compelling arbitration of a dispute that arose when plaintiffs claimed defendants breached the terms of the agreement in not completing the development of Instakare within the designated time frame and for the cost established within the agreement. The trial court found that the arbitration clause, construed as a whole, displays the intent of the parties to use arbitration as the forum for dispute resolution. The appellate panel rejects defendants’ argument that the wording of the clause — “both parties may resort to arbitration” — required both parties to agree to arbitrate before it could be ordered, and affirms. [Decided July 8, 2013.]

CIVIL PROCEDURE

07-2-0517 MNR Clat LLC v. Montclair Township, App. Div. (per curiam) (6 pp.) MNR, the owner of the Wellmont Theatre in Montclair, filed a complaint in lieu of prerogative writs challenging the decision of the Essex County Construction Board of Appeals affirming the notice of violation and order to terminate issued by the township’s construction official after he found that the placement of seating in part of the theater violated the State Uniform Construction Code. MNR appeals from the denial of its motion for summary judgment. The panel dismisses the appeal as interlocutory because the order from which plaintiff appeals does not dispose of all issues between the parties and plaintiff has neither sought nor been granted leave to appeal pursuant to Rule 2:2-4. [Decided July 3, 2013.]

07-2-0518 Ripley v. Sears Roebuck & Co., App. Div. (per curiam) (7 pp.) In this action alleging that defendant negligently installed a refrigerator in plaintiff’s condominium, resulting in a water leak that caused substantial damage to the condo, plaintiff appeals from the $2,492.40 judgment in her favor. The panel reverses and remands for a new trial as to damages only, finding that the trial judge should have allowed the pro se plaintiff a brief adjournment to present testimony to substantiate the written estimate of damage to her home that she had not yet repaired because, in suggesting to plaintiff before trial that she would need an expert to testify that defendant had caused the damages, the judge may have led her to believe that she required only one expert and because the judge repeatedly said at trial that he would revisit the issue of whether she would be able to bring in a damage expert at a later date. [Decided July 3, 2013.]

CIVIL RIGHTS

46-2-0552 Mota v. Lynch, App. Div. (per curiam) (16 pp.) Defendants, two police officers employed by Bayonne, appeal from post-trial orders awarding plaintiff $106,945.52 in attorney fees and related expenses in this civil rights action, arguing that the jury verdict of $1 in nominal damages, awarded to only one of the two plaintiffs, did not justify such an award. The panel affirms in part and reverses in part, finding that although the trial court did not err in determining that plaintiff was entitled to recover attorney fees and expenses under 42 U.S.C. § 1988, and the court did not abuse its discretion in reviewing the attorney’s certification of services in detail and making findings as to the services that were properly rendered, the matter must be remanded for further consideration of the appropriate amount of the fee award because the court did not give adequate consideration to the limited degree of success achieved by plaintiff and did not distinguish between those services that led to a successful result and those that did not. [Decided July 8, 2013.]

CONTRACTS

11-2-0571 Israel Design Group v. Chabad of the Shore, App. Div. (per curiam) (6 pp.) Defendant Chabad of the Shore appeals from the determination of the Special Civil Part awarding a $15,000 judgment to plaintiff Israel Design Group in connection with architectural services. Defendant is a storefront synagogue, located adjacent to an abandoned theater and several storefronts in Long Branch, under the leadership of Rabbi Schapiro. The parties discussed the synagogue’s plans to purchase the adjoining theater with the goal of converting it into a synagogue but never agreed on the terms of compensation for plaintiff’s services. Plaintiff presented a proposal for work to be performed through to the project’s completion. However, defendant decided to use the services of a different architect. Thereafter, plaintiff submitted a $17,000 invoice to cover his preliminary work and defendant refused to pay. The appellate panel affirms Judge McGann’s determination, following a bench trial, that although there was no written contract, there had been a quasi-contract for which plaintiff was entitled to payment. The panel rejects defendant’s argument that plaintiff’s services were of no value to defendant and, therefore, there was no unjust enrichment. [Decided July 9, 2013.]

11-2-0589 Sunkavally v. Komminent, App. Div. (per curiam) (21 pp.) This breach-of-contract case arose from disputes over the construction of two houses and the conduct of two construction companies. Defendants appeal from a portion of a final judgment, granting plaintiff $246,759 in damages, following a bench trial and from an order denying their reconsideration motion. Plaintiff Sunkavally, together with third-party defendants Venu Marri and VMS Construction (VMS), cross-appeal from a provision of the final judgment dismissing all remaining claims. The appellate panel concludes that, except for the calculation of Sunkavally’s damage award, the trial judge’s decision is supported by sufficient credible evidence and is consistent with applicable law. Although the trial judge miscalculated Sunkavally’s damages, the correct sum can be readily calculated from the record evidence. Accordingly, the panel modifies the judgment in favor of Sunkavally by reducing it from $246,000 to $104,000 and affirms the judgment as modified. [Decided July 10, 2013.]

CONTRACTS — PUBLIC BIDDING

11-2-0590 In the Matter of the Protest of Scheduled Award of Term Contract T2813 FRP 12-X-22361, App. Div. (per curiam) (28 pp.) Appellant HFL Sport Science Inc. appeals from the final agency decision of the director of the Division of Purchase and Property in the Department of the Treasury rescinding the award of a state contract to perform equine drug testing on racehorses to HFL and re-awarding the contract to Truesdail Laboratories Inc., based on its finding that HFL’s failure to provide complete disclosure of all levels of its ownership structure on its ownership disclosure form at the time its proposal was submitted rendered the proposal incurably nonresponsive to the FRP and ineligible for a contract award, notwithstanding HFL’s response to the agency’s request for clarification. The panel affirms, finding, inter alia, that N.J.S.A. 52:25-24.2 requires disclosure of corporate or entity ownership, not only of individuals who hold a 10 percent or greater interest in the bidder; the information provided in HFL’s bid did not substantially comply with N.J.S.A. 52:25-24.2 — the bid was facially invalid and the defect in the ownership information provided was material and incurable through postbid clarification; the award of the bid was not the result of favoritism toward Truesdail and there was no impropriety in the director having raised the issue of HFL’s statutory compliance sua sponte. [Decided July 10, 2013.]

CRIMINAL LAW — EVIDENCE

14-2-0579 State in the Interests of K.S., App. Div. (per curiam) (8 pp.) K.S., 11 years old at the time of the incident, was adjudicated delinquent for child abuse, N.J.S.A. 9:6-3. He appeals, arguing that the trial judge erred by admitting the testimony of L.E., the victim’s mother, as to certain statements made to her by the victim. Agreeing with K.S. that the statements did not meet the requirements for admission under N.J.R.E. 803(c)(27), which permits the introduction of statements made by a child about a sexual offense under certain circumstances, the panel reverses and remands for a new trial. Because the trial judge expressed his opinion on the issue of K.S.’s culpability on a record found to be improper, the remand trial is to take place before a different judge. [Decided July 9, 2013.]

EDUCATION

16-2-0553 In re Newark QSAC Appeal, App. Div. (per curiam) (17 pp.) The Newark Public Schools Advisory Board (NPSAB) and the Coalition for Effective Newark Public Schools (CENPS) appeal from a final determination of the commissioner of the Department of Education refusing to recommend partial withdrawal of the state’s intervention in the Newark school district in the areas of fiscal management, personnel and governance. The panel dismisses as moot appellants’ challenge to the commissioner’s refusal to recommend withdrawal in the area of fiscal management in light of the state’s change in position. It affirms the refusal to recommend withdrawal in the areas of personnel and governance, finding that N.J.S.A. 18A:7A-15(d) does not require the commissioner to recommend withdrawal merely because a district may have achieved a score of 80 percent or greater in a key area of effectiveness in a three-year comprehensive review but that the commissioner retains broad discretion in determining if the district has successfully implemented the improvement plan, has made sufficient progress in meeting the relevant quality performance indicators, and has in place programs, policies and personnel to sustain that progress, and here, there is sufficient credible evidence to support the commissioner’s refusal to recommend return to local control in the challenged areas based on the district’s fluctuating scores and other deficiencies. [Decided July 8, 2013.]

ENVIRONMENTAL LAW

17-2-0520 New Jersey Department of Environmental Protection v. Ench, App. Div. (per curiam) (41 pp.) Appellant Bench Realty appeals from a final decision of the commissioner of the Department of Environmental Protection (DEP) approving the DEP’s assessment of penalties pursuant to an administrative order and notice of civil administrative penalty assessment (AONOCAPA) for violations of the Freshwater Wetlands Protection Act (FWPA). At issue are activities conducted on a 219-acre tract of undeveloped land in Upper Deerfield Township, Cumberland County, which was owned by Bench Realty from 1986 to March 2006, when Bench sold it to Westrum Upper Deerfield. The property is part of an 8,000-acre tract. The activities that are the subject of the AONOCAPA occurred within two distinct areas of the property: the Cornwell Run Corridor and the fill pile area, which the DEP claims contain wetlands and transition areas. The appellate panel upholds the commissioner’s determinations finding Bench Realty liable for the regulatory violations charged and imposing $489,000 in civil administrative penalties for such conduct. [Decided July 3, 2013.]

FAMILY LAW

20-2-0572 J.M. v. L.W., App. Div. (per curiam) (9 pp.) Defendant L.W. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act. The trial court’s decision was based on a domestic-violence complaint filed by plaintiff J.M., alleging harassment as the predicate offense for the relief sought. The appellate panel rejects defendant’s challenges to both the trial judge’s findings of a predicate act and the need for a final restraining order and affirms. [Decided July 9, 2013.]

20-2-0573 Shuster v. Shuster, App. Div. (per curiam) (7 pp.) Defendant, a veterinarian, appeals from the denial of his motion to modify his alimony obligation and for a plenary hearing to determine the financial situation of plaintiff. The panel affirms, finding that defendant has failed to make a prima facie case of changed circumstances that would warrant discovery of plaintiff’s finances where, inter alia, while his income may have declined from what he was earning in 2008, it is still substantially higher than what it was at the time of the divorce, he failed to submit a detailed certification explaining his claimed inability to perform surgery, and he may be capable of earning income by performing other services, notwithstanding his claimed inability to perform surgery. [Decided July 9, 2013.]

20-2-0592 New Jersey Division of Youth and Family Services v. M.T., App. Div. (per curiam) (14 pp.) Defendant M.T. Sr. appeals from the order, following a fact-finding hearing, determining he medically neglected his obese 16-year-old son M.T. (Max) by failing to follow up with medical referrals. He challenges the trial court’s finding that the Division of Youth and Family Services proved abuse or neglect. Although the law guardian supported the division’s application before the trial court, it now supports appellant’s position. The appellate panel reverses, finding there was no harm and insufficient evidence that Max was at risk of imminent harm. The division failed to demonstrate by a preponderance of the competent evidence that the appellant’s conduct was sufficient under law to constitute medical neglect. [Decided July 10, 2013.]

20-2-0593 Bennett v. Bennett, App. Div. (per curiam) (4 pp.) Defendant appeals from the order denying portions of her postjudgment matrimonial motion. She argues that the court erred in (1) denying her request for financial discovery based on changed circumstances; (2) denying her request for a hearing to determine college allocations for the parties’ two children; (3) denying her request for reimbursement of certain of the children’s medical expenses; (4) retroactively modifying plaintiff’s percentage responsibility from 75 percent to 64.70 percent; and (5) denying her request for an increase in life insurance. The appellate panel affirms substantially for the reasons stated by Judge Wright in his written statement of reasons. Judge Wright found that defendant failed to present a prima facie showing of changed circumstances that would trigger financial disclosure. Defendant’s primary argument is that the 2010 order “established the child support based upon the parties’ financial circumstances and the children’s needs in 2004.” Although the 2010 order was made retroactive to 2004, the order established plaintiff’s child-support obligation, and the parties’ respective share of income, as of the date of the 2010 order. To make a prima facie showing to obtain discovery, defendant was required to show a change of circumstances from the entry of the 2010 order, not the 2004 order, which she failed to do. [Decided July 10, 2013.]

20-2-0594 Bell v. Bell, App. Div. (per curiam) (10 pp.) Plaintiff appeals from various aspects of postjudgment orders of the Family Part. The panel concludes that the court correctly excluded defendant’s Temporary Assistance to Needy Families benefits from his gross income under the child-support guidelines but in suspending his payment obligation completely because of his TANF eligibility, the court overlooked the possibility that the ability to earn additional income may be imputed to a parent who is the recipient of TANF or other means-tested government benefits. Because the judge did not make the necessary findings regarding defendant’s ability to earn additional income, the panel remands for a retrospective assessment of whether any income should have been imputed to him during the period he was receiving TANF benefits. As to the remaining issues, which fundamentally pertain to custody and visitation, because the panel finds that the matrimonial settlement agreement, which plaintiff seeks to enforce, and the psychologist’s expert recommendations have become stale with the passage of time, it remands for reconsideration by the Family Part, in anticipation that the court arrange, if it is financially feasible, for an updated expert evaluation of the child. [Decided July 10, 2013.]

HEALTH LAW

22-2-0554 Warren Hospital v. New Jersey Department of Health and Senior Services, App. Div. (per curiam) (28 pp.) Warren Hospital appeals from a final agency decision of the New Jersey Department of Health and Senior Services, imposing sanctions under N.J.A.C. 8:43G-2.4(c) for conducting emergency primary angioplasty services on two patients in 2006 and 2007 without having a license to perform those procedures. Warren contends that the sanctions are pre-empted by a federal statute, which Warren construes to authorize the emergency procedures, despite state-imposed restrictions, in a situation where a patient faces imminent death, the hospital cannot stabilize the patient, and the medical risks of attempting to transfer the patient outweigh the potential benefits. Warren also contends that the department’s action conflicts with the professional duties of its staff physicians in their practice of medicine. The appellate panel remands this matter to the department to develop the factual record and re-evaluate whether the transfer risks involved were substantially self-created by the hospital’s own action and inactions and, if so, whether such self-created risks negate asserted justifications for performing the angioplasties. The department is not foreclosed from filing a new administrative action seeking prospective measures against Warren for lacking sufficient patient transfer capability. [Decided July 8, 2013.]

23-2-0555 In the Matter of the Commitment of G.F., App. Div. (per curiam) (9 pp.) G.F. appeals from an order continuing his involuntary civil commitment, arguing that the state failed to prove by clear and convincing evidence that he was in continued need of involuntary commitment. The appellate panel agrees and reverses. G.F. was involuntarily committed with a detainer after shooting out two outdoor lights belonging to his next-door neighbor with a BB gun. G.F. had been committed for 14 months at the time of the review hearing. G.F. testified to his awareness of the need to continue on medication and his intention to do so. Because the state failed to prove that G.F. was suffering from a current mental illness, a finding of dangerousness alone would have been insufficient to justify continuing his commitment — the risk of dangerousness must be relatively immediate. Because the state did not meet its burden of proving G.F.’s continued need for involuntary commitment on this record, the judge mistakenly exercised his discretion in continuing G.F.’s commitment. [Decided July 8, 2013.]

LABOR AND EMPLOYMENT

25-2-0521 Johnson v. State of New Jersey, App. Div. (per curiam) (9 pp.) Plaintiff appeals from the order granting summary judgment to defendants and dismissing plaintiff’s complaint alleging a hostile work environment, disparate treatment, and discrimination in violation of the New Jersey Law Against Discrimination (LAD), and the New Jersey Constitution. As to plaintiff’s claim of hostile work environment, the trial judge determined that most of the acts alleged occurred in the late 1980s and early 1990s, well beyond the statute of limitations. The judge then found that the state provided legitimate, nondiscriminatory reasons for any delay in plaintiff’s promotions, including the numerous disciplinary investigations that precluded his promotion during their pendency, and that other candidates for promotion were ranked higher on the promotional ladder. The judge further found that plaintiff had failed to establish the pretextual nature of the reasons given by defendants. The appellate panel affirms, rejecting plaintiff’s argument that his LAD claims are valid and the “discrete acts” of discrimination trigger the continuing-violation doctrine and are not barred by the statute of limitations. [Decided July 3, 2013.]

25-2-0536 In the Matter of Debow, App. Div. (per curiam) (32 pp.) Debow appeals from the final administrative action of the Civil Service Commission (CSC), accepting and adopting the decision of the administrative law judge. The CSC sustained Debow’s removal as a corrections officer because the results of a urinalysis, conducted pursuant to the random drug testing policy of the Atlantic County Department of Public Safety, revealed the presence of oxycodone and its metabolite, oxymorphone. Debow was prescribed medication while being treated for dental issues. Debow challenges the ALJ’s decision as arbitrary and capricious, arguing the ALJ failed to properly consider evidence of the invalidity of the drug test based on an ambiguous, unexplained notation suggesting testing errors. Debow also argues the ALJ erred in excluding scholarly articles purportedly documenting the frequency of pharmacy error in filling prescriptions. The appellate panel rejects these arguments and affirms. The test results confirmed that Debow used oxycodone, which metabolized to oxymorphone. The ALJ appropriately concluded the test results were reliable. The department presented sufficient evidence to support Debow’s termination based on unlawful drug use. [Decided July 5, 2013.]

25-2-0556 Ruiz v. Board of Education of the Borough of Fort Lee, App. Div. (per curiam) (9 pp.) Ruiz appeals from a decision of the commissioner of the Department of Education affirming the decision of the Board of Education of the borough of Fort Lee to terminate Ruiz’s employment as part of a reduction in force (RIF). Ruiz claims that he achieved tenure as a substance awareness coordinator (SAC) and because he possessed a standard school psychologist endorsement to an educational services certificate, his tenure allowed him “bumping rights” to two school psychologist positions held by nontenured employees. The commissioner adopted the administrative law judge’s initial decision that Ruiz had not earned tenure at the time of the RIF, and thus could not “bump” non-tenured employees from the positions. The appellate panel finds there is sufficient credible evidence in the record to support the commissioner’s decision that Ruiz had not become tenured in the SAC position. Ruiz failed to complete the academic requirements necessary for a standard SAC endorsement, an issue that was fully litigated in a separate proceeding. His inability to qualify for a standard SAC endorsement while employed under a provisional certificate meant that he did not achieve tenure in his SAC position. [Decided July 8, 2013.]

25-2-0595 Hodavance v. Board of Trustees, Police and Firemen’s Retirement System, App. Div. (per curiam) (9 pp.) Hodavance was hired by Hillside as a police officer in 1995. He appeals from a decision of the board of trustees of the Public Employees’ Retirement System, which found he did not qualify for an accidental disability pension. The appellate panel affirms the board’s decision. In this case, the administrative law judge appropriately determined that Hodavance was not entitled to an accidental disability pension because there was no threat of danger to his personal safety when he arrived at a murder scene, and he did not experience a traumatic event. In addition, Hodavance’s disability did not result from his regular or assigned duties because he was not scheduled to work on the day the event occurred, he was not ordered to work that day, and he was not paid for his work that day. [Decided July 10, 2013.]

LABOR AND EMPLOYMENT — WHISTLEBLOWERS

25-2-0574 Marrero v. Wimalawansa, App. Div. (per curiam) (27 pp.) Plaintiff, a radiologic technician employed by defendant UMDNJ, asserted claims for, inter alia, violation of the Conscientious Employee Protection Act, libel and intentional infliction of emotional distress arising out of the conduct of the former chief of the Endocrinology Division and her former supervisor. The judge dismissed the CEPA claims and the jury returned a verdict in favor of Wimalawansa on the claims of intentional infliction and tortious interference and in favor of plaintiff on the libel claim but failed to award her damages. The panel affirms the court’s grant of defendants’ motion for an involuntary dismissal of the CEPA claims, finding that because there were two discrete period of employment, plaintiff cannot use the continuing-violation doctrine to preserve her claims from the earlier period and those claims were untimely, and, because Wimalawansa was not plaintiff’s supervisor during the second period of employment and she was not aware of most of his efforts to have her terminated at the time they were taking place, her actual work environment, albeit unpleasant in many respects, was not sufficiently hostile and abusive to support a CEPA claim. The panel finds no reversible error with respect to the judge’s evidentiary rulings and sees no basis to order a new trial on the issue of compensatory damages, and consequently affirms the denial of the motion for a new trial on that issue. However, it remands for an award of $100 in nominal damages. [Decided July 9, 2013.]

LAND USE AND PLANNING — CIVIL PROCEDURE

26-2-0537 Mitchell v. Leonia Mayor, App. Div. (per curiam) (6 pp.) After a timely appeal to the mayor and council of the Board of Adjustment’s grant of use and bulk variances and for preliminary and final site-plan approval to permit demolition and construction of a commercial building in a residential zone was withdrawn based on an amicable resolution of the matter among those parties, plaintiff Mitchell, also a Leonia resident, filed this action against the mayor, the council, and the board, in which she sought permission to continue the prior timely appeal. The Law Division dismissed that action as untimely. Mitchell did not appeal. However, defendants mayor and council filed a notice of appeal, apparently seeking to assert plaintiff’s procedural rights. The panel affirms, substantially for the reasons expressed below: that the mayor and council have made no showing that the interests of justice warrant an expansion of the 45-day period in which to file an appeal. [Decided July 5, 2013.]

LANDLORD/TENANT LAW

27-2-0522 LIG Insurance Co., Ltd. v. Bonanno Real Estate Group II, L.P., App. Div. (per curiam) (14 pp.) Plaintiff LIG Insurance Co. appeals from the dismissal of its subrogation action arising out of payments it made to its insured, Triple Seven Inc., for water damage to its inventory. LIG claims that the negligent failure of defendant-landlord Bonanno Real Estate Group II, L.P., to repair a public bathroom above Triple Seven’s commercial premises was the cause of the damages. The Law Division dismissed the subrogation action on the ground that the terms of the lease between Bonanno and Triple Seven bar recovery for such damages. The lease expressly required that each party obtain its own insurance coverage for property damage, without the right of subrogation, and it waived all such claims between the lessor and lessee. The appellate panel agrees with the Law Division’s understanding of the lease and affirms its judgment dismissing LIG’s complaint. [Decided July 3, 2013.]

27-2-0558 Vineland MHC v. Ferretti, App. Div. (per curiam) (18 pp.) Defendant, a tenant in a mobile home park operated by plaintiff, appeals from a default judgment granting summary dispossession to plaintiff, and from the Law Division’s two orders denying his motions to vacate the judgment, arguing that the presuit notices served by the landlord were insufficiently detailed and thus deficient, thereby depriving the trial court of subject-matter jurisdiction to dispossess him. The panel affirms, concluding that plaintiff complied with the requirements of the Anti-Eviction Act. The notice to quit was sufficiently specific given the language of the lease, which was referred to in the notice and which the court may consider, defendant had sufficient time to seek clarification from the landlord if he was confused, the notice’s reference to “unauthorized occupants” was not insufficient as defendant knew who was living with him in violation of the lease and the landlord could not name them since defendant refused to identify or register them, as required by the lease. Additionally, the notice gave defendant the option to register the unauthorized occupants to avoid eviction, which he refused to do. [Decided July 8, 2013.]

27-2-0596 Ejdys v. Estate of Herrsche, App. Div. (per curiam) (6 pp.) In this action alleging that the estate of John Herrsche unlawfully withheld $1,295 of plaintiff’s $1,600 security deposit at the conclusion of a residential lease, which resulted in a default judgment against the estate after its administrator failed to appear at the rescheduled trial, defendant appeals the denial of its motion to vacate the default judgment and its motion for reconsideration. The panel reverses, finding that the judge abused his discretion in denying defendant’s timely motion to vacate here, where defendant’s bona fide efforts to address plaintiff’s complaint are amply demonstrated by her timely, initial request for an adjournment of the trial date, and by her prompt retention of counsel, who then timely filed the motion to vacate. The panel says the record provides no basis to challenge defendant’s certification that she did not receive notice of the new trial date. [Decided July 10, 2013.]

LEGAL PROFESSION

04-2-0538 McCabe v. Wallace and Legome, App. Div. (per curiam) (9 pp.) Plaintiff is a chiropractor who retained defendants to prosecute personal injury protection (PIP) suits on behalf of his practices that had previously been filed by another law firm. Plaintiff appeals from an order dismissing his complaint with prejudice for failure to comply with the Affidavit of Merit Statute. Plaintiff acknowledges his failure to file the affidavit, but contends the common-knowledge exception applies. The appellate panel disagrees and affirms. A health-care professional’s contract right to seek PIP reimbursement against an insurance carrier by assignment of benefits from a patient is subject to a complex regulatory scheme. Contrary to plaintiff’s argument, he is not merely claiming that defendants failed to file a particular identified claim within the applicable statute of limitations. He charges that defendants mishandled hundreds of claims entrusted to them, many of which were already in suit. The standard of care for an attorney charged with the evaluation and maintenance of PIP claims on behalf of a health-care provider against its patients’ automobile insurers is not within the ken of the average juror. [Decided July 5, 2013.]

LEGAL PROFESSION — LEGAL MALPRACTICE

04-2-0559 Granata v. Broderick, App. Div. (per curiam) (27 pp.) Defendant-attorney and his law firm filed an action in Superior Court against Prudential, asserting a claim under CEPA and for defamation on behalf of plaintiff-insurance broker after his termination. The court denied Prudential’s motion to compel arbitration, but the Appellate Division reversed, concluding that the claims had to be heard by NASD. The arbitrators awarded plaintiff only $28,000 and assessed costs and fees against him. Defendants appeal from the jury verdict entered in favor of plaintiff in this legal-malpractice action asserting that defendants deviated from the accepted standards of legal practice by failing to properly pursue pretermination damages and lost-renewal commissions in their representation of him in the arbitration. The panel reverses and remands for a new trial, finding that (1) although plaintiff’s expert’s opinion regarding defendant-attorney’s failure to allege a FAIRA claim was not a net opinion, his report and testimony that defendant failed to properly present plaintiff’s claim for lost renewal commissions at the arbitration was a net opinion that should not have been admitted; and (2) while the judge was correct in refusing to give the abuse-of-discretion charge on the FAIRA aspect of plaintiff’s case with regard to the commencement of an action in Superior Court, the exercise-of-discretion charge should have been given with respect to the FAIRA claim before the NASD panel and the renewal commissions damages claim. [Decided July 8, 2013.]

PUBLIC RECORDS

52-3-0523 Foregger v. Township of Berkeley Heights, Law Div. — Union Co. (Caulfield, J.S.C.) (23 pp.) Before the court is plaintiff Thomas Foregger’s action, under New Jersey’s Open Public Records Act (OPRA), through an order to show cause and verified complaint, seeking a copy of a report generated by McEnerney, Brady & Company (MBC) for Berkeley Heights. In the report, MBC evaluated the township’s internal controls over its financial functions. In the alternative, plaintiff argues that he is entitled to defendants’ records under the common-law right of access. The court finds that the MBC report was not prepared in connection with a grievance and, as such, is not exempt from disclosure under OPRA. Release of the report to plaintiff is consistent with OPRA’s core concern of transparency in government. The court also finds that the MBC report must be disclosed to plaintiff under the common-law right of access. [Decided June 14, 2013.]

52-4-0597 62-64 Main Street v. The City of Hackensack, Ch. Div. — Bergen Co. (Doyne, A.J.S.C.) (14 pp.) Plaintiffs sought a judgment declaring defendant, the city of Hackensack, in violation of the Open Public Records Act (OPRA). Plaintiffs sought records related to the rehabilitation plan adopted by the city council. The appellate panel concludes that the baseless denial of plaintiffs’ OPRA request compels a finding in their favor. Not only was the request clear and unambiguous, defendant and its counsel were aware of the specific records being sought. Even if an ambiguity existed, defendant failed to provide invoices for records clearly sought. In addition to defendant’s counsel also representing defendant in the pending rehabilitation challenge, the provision of some invoices suggests an awareness of the material plaintiffs requested. Defendant shall promptly provide all the requested invoices and records in plaintiffs’ OPRA request. Defendant shall not be subjected to sanctions. Finally, as the records were improperly withheld, plaintiffs are entitled to reasonable attorney fees and costs as they relate to the production of these documents. [Decided July 10, 2013.]

RESIDENTIAL AND COMMERICAL REAL ESTATE

34-2-0524 Columbia Bank v. Hamilton Properties Associates, L.P., App. Div. (per curiam) (15 pp.) Plaintiff Columbia Bank appeals from an order that required the bank to pay $387,199.11 to defendants. The appellate panel reverses. In 2005, the bank loaned Hamilton Properties Associates, L.P. (HPA) $5.3 million. In 2006, the bank loaned HPA an additional $750,000. The loans were made in connection with defendants’ refinancing and refurbishment of a shopping center. Both loans were secured by mortgages. To further secure repayment, HPA executed and delivered to the bank an assignment of leases and rents from the mortgaged property. The individual defendants unconditionally guaranteed payment of HPA’s obligations under the loan agreements. HPA defaulted on the loans and the bank filed a complaint seeking the monies due, along with late fees, interest, prepayment premiums, attorney fees and costs of suit. The bank also commenced an action to foreclose on the mortgages. The parties agreed to settle the bank’s claims for $6.125 million. At the closing, the bank agreed to accept less than that amount in order to resolve its claims. The judge erred by ordering the bank to return $387,199.11 to defendants; where the terms of the agreement are clear, the court is obligated to enforce those terms. [Decided July 3, 2013.]

RESIDENTIAL AND COMMERICAL REAL ESTATE — MORTGAGE FORECLOSURE

34-2-0539 Dignazio v. Wachovia Bank N.A., App. Div. (per curiam) (5 pp.) Plaintiff mortgaged her home to secure a loan that was eventually assigned to Wachovia. After she defaulted, defendant filed a foreclosure complaint. While that matter was pending, plaintiff entered into three forbearance agreements but eventually defaulted. Wachovia foreclosed on the property and plaintiff was evicted. Plaintiff then filed a motion to vacate the final foreclosure judgment and to permit her to file an answer, which was denied, as was her motion for reconsideration. She then filed this action asserting consumer fraud, common-law fraud, negligence and breach of contract based on Wachovia employees allegedly having made false statements to induce her to make substantial payments under the forbearance agreements despite intending to foreclose on the mortgage. She appeals from the trial judge’s grant of defendant’s motion for summary judgment dismissing the action based on the entire-controversy doctrine. The panel affirms, substantially for the reasons set forth below. [Decided July 5, 2013.]

TAXATION

35-2-0525 Omega Self Storage of N.J. v. Lawrence Twp., App. Div. (per curiam) (12 pp.) Plaintiff appeals from the Tax Court judgment dismissing its complaint with prejudice for want of jurisdiction, finding that as a contract purchaser of the property at the time the appeal was filed, plaintiff was not a taxpayer aggrieved by the assessed valuation of the property under N.J.S.A. 54:3-21. Finding that plaintiff’s interest in the property became known when it executed the purchase contract, which was well before the April 1 filing deadline, that although plaintiff had no obligation to pay property taxes as of the filing deadline for 2012, it was responsible for taxes assessed to the property for the lion’s share of the tax year and, if its challenge proved true, would have suffered the injury of being unfairly and inappropriately assessed, and that it is not dispositive of the standing question that plaintiff’s interest in the property at the time of the filing deadline was contingent and inchoate, the panel concludes that under the facts here, plaintiff had a substantial interest in the property at the time the complaint was filed sufficient to qualify as an aggrieved taxpayer under 54:3-21, and it reverses and remands. [Decided July 3, 2013.]

35-5-0560 Torsiello Constr. & Mgmt. Co. v. Township of Edison, Tax Ct. (Sundar, J.T.C.) (12 pp.) This is the court’s opinion with respect to plaintiff’s motion to compel defendant, the township of Edison, to pay a refund of taxes for tax year 2012 based on a stipulation of settlement executed between the parties and a judgment entered by the Tax Court. The township opposed the motion because the settlement was not authorized by a resolution of the township’s governing body and therefore its counsel’s mistaken execution of the stipulation was unauthorized and invalid. The township did not file a cross-motion to vacate the 2012 judgment, instead providing additional certification of counsel requesting that the court vacate the judgment. Since such request is procedurally improper and does not permit plaintiff to adequately oppose the request, the court will require the township to file a cross-motion. [Decided July 2, 2013.]

TORTS — PERSONAL INJURY

36-2-0540 Pote v. Pine Hill Municipal Utilities Association, App. Div. (per curiam) (6 pp.) When plaintiff went to defendant Pine Hill Municipal Utilities Association to pay her water bill, she slipped on ice in the parking lot and sustained injuries to her back, incurring more than $83,000 in medical bills. Plaintiff initiated this premises liability action. She appeals from the trial court’s denial of her motion to enforce the settlement, the denial of reconsideration and the judgment of no cause. The appellate panel affirms. In the context of municipal entities, municipalities can ordinarily act only by adoption of an ordinance or resolution at a public meeting. That did not occur. A settlement contract, like any enforceable contract, requires a meeting of the minds. No such meeting of the minds occurred here. Plaintiff failed to satisfy her burden of demonstrating that the parties entered into a settlement. [Decided July 5, 2013.]

36-2-0576 Carman v. Estate of Dunkel, App. Div. (per curiam) (13 pp.) In this personal-injury action, plaintiff alleges that she tripped and fell while walking to attend a private estate sale conducted by Buy-Gone Trading, as the agents for the estate of George and Helen Dunkel. Plaintiff sued Buy-Gone Trading, the estate of Dunkel, and the borough of Tenafly. After more than one year of discovery, the parties entered into a formal stipulation dismissing all claims against Tenafly. Subsequently, the estate received a report from an engineering firm retained to ascertain the exact location where plaintiff fell, which concluded that plaintiff fell on the right-of-way of the street, placing the site of the accident on property owned and controlled by Tenafly. Based on this information, the trial court granted Buy-Gone Trading and the estate’s summary judgment motions and dismissed plaintiff’s complaint. The trial court denied plaintiff’s motions to reinstate her complaint against the borough and to extend the time for discovery. Plaintiff appeals and the appellate panel affirms. Counsel for plaintiff made a knowing and voluntary decision to dismiss all claims against the municipality months before the discovery end date. That this decision may have been made without ascertaining the borough’s potential liability vis-à-vis the location of the accident does not constitute good cause. [Decided July 9, 2013.]

36-2-0577 Sipos v. Maurice-Calles, App. Div. (per curiam) (7 pp.) Plaintiff appeals from an order denying his motion to restore his automobile negligence complaint against defendant. This action arises out of an automobile accident that occurred on June 4, 2006. The complaint was ultimately served on defendant by plaintiff’s new counsel on Aug. 9, 2012. Plaintiff’s counsel also filed a motion to restore the complaint almost four years after its dismissal for want of prosecution. With the motion was the certification of the previous counsel, alleging as “good cause” a fire at his law office that occurred three years after the dismissal of plaintiff’s complaint. The appellate panel finds no basis to conclude that the trial court abused its discretion in denying plaintiffs’ motion to restore a complaint that was dormant for more than 42 months after it was administratively dismissed. There is no excuse for the failure to act on the dismissal in the three-and-one-half years prior to the fire, especially in the face of defendant’s counsel’s reminders and assistance. Plaintiff failed to establish “good cause” for restoration of his complaint. [Decided July 9, 2013.]

WORKERS’ COMPENSATION

39-2-0578 Carrelli v. Hamilton Mall, App. Div. (per curiam) (8 pp.) Hamilton Mall seeks to overturn the workers’ compensation court’s award of benefits to petitioner, a security guard employed by Hamilton. Noting the deference given to the expertise of the compensation court and the judge’s firsthand opportunity to see and hear the witnesses, the panel affirms, finding that his conclusion that petitioner suffered an injury to his left knee in a work-related incident and a derivative injury to his right knee could reasonably have been reached on the basis of sufficient credible evidence in the entirety of the record, despite, inter alia, disagreement between the two treating physicians regarding causation and petitioner’s varying accounts of exactly how he was injured. [Decided July 9, 2013.]

WRONGFUL DEATH

40-2-0561 Joyner v. Ortiz, App. Div. (per curiam) (9 pp.) Plaintiff, individually and as administrator of the estate of Wanda Pennington, on behalf of the estate’s minors, timely filed a wrongful death/survival action against three doctors. Two years later plaintiff filed a first amended complaint adding an insurance company as a defendant and two months thereafter plaintiff was granted leave to file a second amended complaint to add Phoenix Physicians LLC and Trinitas Emergency Solutions PC. The following month plaintiff was granted leave to add Trinitas Regional Medical Center based on a theory of apparent authority over the individual doctors. Trinitas filed a motion to dismiss the complaint as time-barred, which was denied, and was granted leave to appeal that denial. The panel affirms, finding that under LaFage, the wrongful death statute is tolled for minors. [Decided July 8, 2013.]

FEDERAL COURT CASES

ADMINISTRATIVE LAW — SOCIAL SECURITY

01-7-0580 Cardona v. Astrue, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (14 pp.) This matter comes before the court on the appeal of Pedro Cardona from the final decision of the commissioner of the Social Security Administration denying claimant’s claims for a period of disability and disability insurance benefits under Title II of the Social Security Act, his application for supplemental security income under Title XVI of the act, and on the decisions of Administrative Law Judge Krappa after a first remand and ALJ Olarsch after a second remand. The court reverses in part the final decision by ALJ Olarsch that plaintiff was entitled to benefits as of Sept. 1, 2009, but not before, concluding that there is no substantial medical evidence to support the step three conclusion that plaintiff did not exhibit any significant symptoms of liver disease prior to that date, and remands so that the ALJ can determine if plaintiff had a severe mental impairment prior to Sept. 1, 2009, by reviewing Dr. Clark’s testimony in conjunction with plaintiff’s medical records, and if evaluation moves to step five, to evaluate plaintiff’s residual functional capacity and obtain a new vocational expert testimony. [Filed June 20, 2013.]

ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION

03-8-0581 FlagHouse Inc. v. ProSource Development Inc., Third Cir. (Sloviter, U.S.C.J.) (6 pp.) FlagHouse Inc. and ProSource Development Inc. entered into a master services agreement. ProSource’s CEO, Rick Zipf, made representations about ProSource’s capabilities at FlagHouse’s place of business in New Jersey. The date certain for completion of the project passed. ProSource discontinued work, leaving the project unfinished. Seeking to recover the balance of the contract price, ProSource issued a demand for arbitration pursuant to the arbitration clause in the agreement. FlagHouse then filed a complaint alleging that ProSource and Zipf intentionally misrepresented ProSource’s experience, expertise and ability to complete the project in a timely manner. The district court dismissed the claims against Zipf for lack of personal jurisdiction, and found the remaining claims subject to arbitration and dismissed them. The circuit panel vacates the dismissal of the claims against Zipf, finding FlagHouse has alleged sufficient contact between Zipf and New Jersey to warrant personal jurisdiction over him. The panel vacates the order to submit the New Jersey Consumer Fraud Act claim to arbitration. Because the arbitration clause does not mention statutory claims, the district court erred in finding “clear and unambiguous” intent to subject that claim to arbitration. [Filed June 7, 2013.]

BANKRUPTCY

42-6-0526 In re Tarragon Corporation, U.S. Bank. Ct. (Steckroth, U.S.B.J.) (19 pp.) Plaintiffs filed a motion to file a fourth amended complaint to add claims against Beth Fisher and William Friedman for violations of the New Jersey Planned Real Estate Development Full Disclosure Act (PREDFDA). Plaintiffs allege that Fisher and Friedman are former corporate executives of the debtor, and seek to hold them personally liable as control persons under PREDFDA due to their alleged involvement in marketing of the Upper Grand Condominiums in Hoboken. Fisher and Friedman argue that the proposed amendment is futile where the allegations fail to establish a prima facie violation under PREDFDA and the statute of limitations has run. Defendant Robert Rohdie filed a cross-motion to dismiss the claims against him as time-barred. Plaintiffs’ motion is granted insofar as it seeks to add a PREDFDA claim against Friedman because he has not demonstrated bad faith, undue delay or substantial prejudice. Plaintiffs’ motion is denied insofar as it seeks to add a PREDFDA claim against Fisher, where, unlike Friedman, Fisher is not a party to the adversary proceeding. The claims against her were dismissed in 2009 and she would be prejudiced if forced to defend against a new claim. Rohdie’s motion to dismiss is denied because he was named as a defendant in the timely filed second amended complaint, and plaintiffs’ motion to add a new claim against him relates back. [Filed May 16, 2013.]

42-6-0562 In re Bartoline, U.S. Bank. Ct. (Kaplan, U.S.B.J.) (14 pp.) Plaintiff, the New Jersey Department of Labor, Division of Unemployment and Disability Insurance, filed an adversary proceeding seeking to establish the nondischargeability of statutory assessments against the defendant-debtor. The debtor received unemployment compensation benefits during 2005 and 2007. Ultimately, the department concluded that defendant had been overpaid and demanded reimbursement and assessed penalties. The department obtained a judgment against the debtor on April 23, 2009. On March 6, 2011, the debtor filed a voluntary petition for relief under Chapter 7. The department alleges that the debt owed should be deemed nondischargeable because the debtor obtained the benefits by means of willful misrepresentation. The debtor filed a motion seeking to exclude certain exhibits as inadmissible hearsay. The debtor contends that the department seeks to use computer-generated reports to prove his alleged material misrepresentations. The debtor argues that the reports are hearsay and do not meet the standards for admissibility of business records as an exception to the rule against hearsay. The court finds that the challenged documents are admissible either because they are not hearsay or because they fall within a hearsay exception. The debtor’s motion is denied. [Filed June 7, 2013.]

CIVIL PROCEDURE

07-7-0582 Dunbar v. National Railroad Passenger Corp., d/b/a Amtrak, U.S. Dist. Ct. (Cooper, U.S.D.J.) (4 pp.) Plaintiffs brought this action against defendants NBK Holdings, Willow No Inc., National Railroad Passenger Corp., d/b/a Amtrak, and Frederick Hill (the Amtrak defendants) and the fictitious defendants. The second amended complaint was not accompanied by a certificate of service, and no certificate of service was later filed. Plaintiffs have thus prevented the court from ascertaining whether the second amended complaint was served on NBK and Willow. The court will thus dismiss the second amended complaint insofar as it was brought against NBK and Willow unless the plaintiffs take steps to prosecute the action against NBK and Willow. Because the plaintiffs have failed to name the fictitious defendants, the court will dismiss those defendants from the action. [Filed June 11, 2013.]

07-7-0599 Rappa v. Delos Insurance Company, U.S. Dist. Ct. (Chesler, U.S.D.J.) (4 pp.) Defendant Delos Insurance Company filed a motion for reconsideration of the opinion and order that denied its motion for partial summary judgment. Delos contends that the court erred when it asserted that neither party had submitted the statements of material fact required by L. Civ. R. 56.1. Delos and plaintiff had, in fact, timely filed the Rule 56.1 statements. Delos faults the court for overlooking the statements that neither party’s brief cited. Also, Delos failed to comply with the rule by submitting its statement of facts as part of its opening brief. Delos is correct that the court did not see the Rule 56.1 statements filed by the parties. This is, however, harmless error. In any event, unresolved material factual disputes precluded the entry of judgment as a matter of law. Delos argued, in reply on its original motion and now on reconsideration, that evidence was obtained through discovery that was not before Judge Chrystal. Yet Delos fails to demonstrate, through citation to evidence of record and supporting analysis, how the particular factual disputes found unresolved by Judge Chrystal have now been resolved. The Rule 56.1 statements, now carefully examined, fully support the court’s denial of the motion for partial summary judgment. Defendant’s motion for reconsideration is denied. [Filed June 10, 2013.]

CIVIL PROCEDURE — CIVIL FORFEITURE

07-7-0583 United States v. $7,599,358.09, U.S. Dist. Ct. (Chesler, U.S.D.J.) (23 pp.) This is a civil forfeiture action involving money seized by the United States from three bank accounts that had been held in the name of Leading Edge Group Holdings, a company owned by Allen Hilly. After this action was initiated by the government, various claims were filed by claimants asserting ownership over portions of defendant. The sole remaining claimant is the director of insurance for Illinois, acting in his capacity as liquidator of two now-bankrupt Illinois companies, Administrative Employers Group (AEG) and Employers Consortium Inc. (ECI), also owned by Hilly. The government and the liquidator cross-move for summary judgment on the liquidator’s claim. The court concludes that the liquidator has not established the affirmative defense provided by the federal civil forfeiture statute, the innocent-owner defense. Nor has he established that this action is time-barred or precluded by the McCarran-Ferguson Act. Accordingly, the court denies his motion for summary judgment. Based on the government’s adequate showing of its entitlement to forfeiture under 18 U.S.C. § 981, the court grants summary judgment in its favor and enters a final order of forfeiture. [Filed June 18, 2013.]

CIVIL PROCEDURE — MOTIONS FOR RECONSIDERATION

07-7-0584 Anderson v. Thermo Fisher Scientific, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (4 pp.) Finding that (1) there has been no intervening change in controlling law; (2) plaintiff has not presented new evidence that was not available for the court to consider; and (3) there has been no clear error of law or fact or manifest injustice, the court denies plaintiff’s motion for reconsideration of its grant of summary judgment in favor of defendant. [Filed June 20, 2013.]

CIVIL RIGHTS

46-8-0527 Smart v. Borough of Bellmawr, Third Cir. (per curiam) (6 pp.) Pro se plaintiff appeals from the district court’s grant of defendants’ motion for summary judgment in this 42 U.S.C. § 1983 action alleging that a police sergeant unlawfully entered his motel room without consent or a warrant and that the chief of police and the borough failed to properly train the sergeant. The court affirms the grant of summary judgment as to the police chief and the borough since liability under § 1983 for failure to train or supervise requires a showing that the failure amounts to deliberate indifference to the rights of persons with whom the employee will come into contact and plaintiff has alleged no facts supporting such claims or facts that the chief had personal involvement in the search of the motel room. The grant of summary judgment is vacated with respect to the sergeant to the extent that it was granted on the basis of qualified immunity because the record does not show that the warrantless entry was justified by a concern about domestic violence. [Filed June 17, 2013.]

46-7-0541 Estate of Lagano v. Bergen County Prosecutor’s Office, U.S. Dist. Ct. (Hochberg, U.S.D.J.) (8 pp.) In this action alleging that defendant was shot and killed as a result of defendant’s employees’ disclosures to alleged members of traditional organized-crime families that Lagano was a confidential informant for the Division of Criminal Justice, and the BCPO personnel converted to their own benefit property seized from a search of Lagano’s home, and asserting claims for violation of civil rights pursuant to 42 U.S.C. §§ 1983 and 1985, and the New Jersey Civil Rights Act, the court grants the motion of defendant Michael Mordaga, BCPO chief of detectives, to dismiss the complaint against him, finding that the property claims are barred by the statute of limitations; he is entitled to qualified immunity because a confidential informant’s constitutional right to nondisclosure, pursuant to the state-created danger exception, is not clearly established; defendant was acting as a state official in his official capacity in connection with the allegations made by the estate and is not a “person” amendable to suit under §§ 1983 and 1985; and defendant is not a “person” amenable to suit under the NJCRA with respect to the state-created danger claim. [Filed June 19, 2013.]

46-7-0542 Mancini v. New Jersey Transit Corp., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (6 pp.) Plaintiffs bought tickets at the Secaucus Junction station to take the NJ Transit train to Newark and at the Newark station for their return trip. When plaintiffs arrived at Secaucus Junction, they were unable to exit the turnstiles and were told that to exit they needed their original ticket or they had to purchase a new ticket. Instead, plaintiffs exited through a handicap exit and were detained, arrested and charged with theft of services. Plaintiffs filed a complaint alleging civil rights claims and unconscionable commercial practice. Defendants New Jersey Transit Corporation and New Jersey Transit Police Department move to dismiss. The court finds that neither NJ Transit nor its police department is considered a “person” under § 1983 or the New Jersey Civil Rights Act and cannot be subject to suit under either. The court also finds that NJ Transit cannot be held vicariously liable under a civil rights theory for the acts of its employee. As to defendants’ argument that NJ Transit is not subject to suit under the New Jersey Consumer Fraud Act (NJCFA), there is no reported case on that issue and the court declines to dismiss the NJCFA claims. [Filed June 5, 2013.]

46-7-0563 Hahn v. U.S. Department of Commerce, U.S. Dist. Ct. (Salas, U.S.D.J.) (12 pp.) In this 42 U.S.C. § 1983 action arising out of plaintiff’s temporary psychiatric commitment to the Bergen County Regional Medical Center and the litigation that ensued in which plaintiff alleges that he was denied his right to counsel, the attorney and law firm who filed and argued motions seeking dismissal of plaintiff’s state court complaint and the municipality that oversees the police department that engaged a mental health screening facility seek dismissal of the federal action. The court grants the motion of the attorney and law firm, finding that they were performing their traditional functions as advocates before courts of competent jurisdiction and therefore are not state actors, and because a violation under § 1983 requires state action, plaintiff’s claims against these defendants fail as a matter of law. Moreover, these defendants are immune from suit under New Jersey’s litigation privilege. The municipal motion to dismiss is granted because res judicata bars the claims against the borough, the claims are barred by the relevant statute of limitations, and the complaint fails to comply with the pleading requirements imposed by Iqbal since plaintiff’s assertions of alleged wrongdoing are mere conclusory statements. [Filed June 17, 2013.]

CIVIL RIGHTS — FAMILY LAW

46-7-0543 Exel v. Govan, U.S. Dist. Ct. (Kugler, U.S.D.J.) (13 pp.) Defendants, the Division of Youth and Family Services and various state employees, move to dismiss the complaint alleging that defendants violated plaintiffs’ constitutional rights by unlawfully removing the minor children from their mother’s care. The court dismiss the claims against DYFS and the state officials in their official capacity because plaintiffs have filed suit against DYFS, a state agency, and several state officials in their official capacities for money damages and New Jersey has not consented to suit nor waived its immunity and, therefore, the court lacks subject-matter jurisdiction to hear those claims. The motion is denied with respect to the claim against defendant Govan in her personal capacity because the court cannot find that she is entitled to qualified immunity since she has not answered plaintiffs’ allegations that she lied under oath to make it appear that the mother had abused her children. The court also finds that defendants have not established that Rooker-Feldman bars plaintiffs’ federal claims and requires plaintiffs to replead their complaint or to clearly comply with Rule 8(a). [Filed June 18, 2013.]

CIVIL RIGHTS — NEGLIGENCE

46-7-0600 Troy D. v. Mickens, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (10 pp.) In this action brought under 42 U.S.C. § 198, N.J.S.A. 10:6-2 and general theories of negligence, plaintiffs seek compensatory and punitive damages and declaratory and injunctive relief for injuries they suffered when held for significant periods of time in isolation while in the custody of the New Jersey Juvenile Justice Commission. Pending is a motion to dismiss with prejudice and without costs plaintiffs’ negligence claims against defendants Ellen Zupkus, Ph.D., Jason Fleming, Psy.D., Tara Lally, Ph.D., Angela Clack, Psy.D., Keli Drew-Lockhart, Psy.D., and Susanna Carew, Psy.D., because of the failure to file affidavits of merit as required by N.J.S.A. 2A:63A-26 to -29. The court denies the mental health defendants’ motion, finding that the Affidavit of Merit statute does not apply because psychologists are not included in the list of licensed persons under N.J.S.A. 2A:53A-26. Therefore, no affidavit of merit is required. [Filed June 20, 2013.]

CONSUMER PROTECTION

09-7-0601 Hoffman v. Nutraceutical Corp., U.S. Dist. Ct. (Salas, U.S.D.J.) (8 pp.) Plaintiff, individually and on behalf of those similarly situated, filed a complaint against defendant Nutraceutical Corp., alleging that defendant advertised its product as “pure, unadulterated and of the highest quality” yet defendant’s product was contaminated by lead. Plaintiff claims that he and other members of the putative class relied on the express representations with respect to purity of the product and made the purchase of the product in reliance thereof. Defendant moves to dismiss. Plaintiff’s CFA claims are dismissed because plaintiff fails to show damages in connection thereto. Plaintiff similarly failed to identify the resulting damages to properly plead common-law fraud. Plaintiff does not even allege that the product that he personally purchased, and used, contained lead. Plaintiff’s allegations also fail to support the claim of unjust enrichment. Plaintiff fails to make the necessary showing of damages required for both claims of a breach of express warranty and an implied warranty of merchantability. The court grants defendant’s motion to dismiss without prejudice. [Filed June 10, 2103.]

09-7-0602 Crisdon v. Bank of America, U.S. Dist. Ct. (Hillman, U.S.D.J.) (7 pp.) The court grants plaintiff’s in forma pauperis application and proceeds to review plaintiff’s complaint. In his complaint, plaintiff claims that defendant, Bank of America, breached its fiduciary duty to plaintiff and committed fraud on plaintiff by failing to pay him $2.8 million in trust fund monies due to him. Plaintiff claims that Bank of America abused its position when it informed plaintiff that the trust fund approval order documents were fake, and it did not allow the transfer of funds into his bank account. As a threshold matter, plaintiff’s complaint must be dismissed for lack of subject-matter jurisdiction. As to diversity of citizenship, plaintiff has failed to properly plead the citizenship of himself and Bank of America. Next, with regard to jurisdiction based on a federal question, plaintiff cites to a provision of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA only applies to employee benefit plans and it is not applicable to the alleged trust described by plaintiff. Even if plaintiff were to properly establish subject-matter jurisdiction, with regard to plaintiff’s claims of fraud, he has failed to plead fraud with the required particularity. In addition, plaintiff has not demonstrated that he is entitled to any relief. Plaintiff’s complaint is dismissed without prejudice. [Filed June 10, 2013.]

CONTRACTS

11-7-0603 Pro v. Hertz Equipment Rental Corp., U.S. Dist. Ct. (Cavannaugh, U.S.D.J.) (13 pp.) This matter is before the court on application for final approval of the class action settlement in this suit alleging that HERC’s loss and damage waiver was unconscionable in that it provided illusory coverage for a premium price and that the environmental recovery fee HERC charged did not reflect any actual additional fees or expenses related to protection of the environment. The settlement provides customers who are members of the class with the option of either obtaining a cash refund of a portion of the premiums they paid HERC or credits on future rentals of HERC equipment. Finding that the settlement satisfies Rule 23(e) because the relief it provides the class is fair, adequate and reasonable, the court grants the application for final approval, including attorney fees of $11.5 million. [Filed June 20, 2013.]

CONTRACTS — CONSUMER FRAUD

11-7-0544 Hoffman v. Time Warner Cable Inc., U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (16 pp.) Hoffman, an attorney, raises this class claim on behalf of himself and 14 million customers against Time Warner Cable Inc. (TWC) for the failure to provide certain sports programming during a 49-day period, allegedly resulting in breach of contract, unjust enrichment and consumer fraud pursuant to the New Jersey Consumer Fraud Act (NJCFA). TWC filed a motion to dismiss. The central issue here is that Hoffman argues that he expected two specific sports channels to be offered as a part of a bundled package of programming that he purchased from TWC. It is dispositive that the sports channels are not line-item a la carte orders, but are part of a larger package of programming. Hoffman’s allegations do not meet the pleading requirements to assert that a promise was made by TWC, by phone or by written instrument, that the specific sports channels were to be fixed as a part of the programming. The written agreement does not list which channels are to be offered, and clearly indicates the flexible nature of the bundled package over time. The court grants TWC’s motion to dismiss. [Filed June 6, 2013.]

CREDITORS’ AND DEBTORS’ RIGHTS

15-7-0604 Venneman v. BMW Financial Services NA, U.S. Dist. Ct. (Mannion, U.S.M.J.) (10 pp.) This action concerns capitalized cost-reduction payments in the context of automobile leases and whether such payments constitute rent paid in advance for the purposes of the Service Members Civil Relief Act. Plaintiffs, military service members who were mobilized for deployment, contend that the capitalized cost-reduction payments are rent paid in advance under the act and are subject to pro-rata reimbursement under the terms of the act. At issue is a dispute concerning discovery of the respective income and allowances plaintiffs received before, during and after mobilization. The parties submitted a stipulation addressing the scope of the issue discovery, which was endorsed and filed by Judge Dickson. Thereafter, Judge Waldor issued a verbal order expanding the scope of discovery during an unrecorded telephone conference. Plaintiffs seek a protective order. The court denies the motion because the underlying verbal order is arguably unenforceable because it was not reduced to writing. [Filed June 21, 2013.]

ENVIRONMENTAL LAW

17-7-0528 International Paper Company v. Rexam, U.S. Dist. Ct. (Arpert, U.S.M.J.) (14 pp.) This litigation concerns liability for costs incurred to investigate and remediate waste material at a landfill operated by the Riegel Paper Corporation. In a 1971 reorganization plan, Old Riegel allocated its assets and liabilities between the Paper Group and the Packaging Group. Through a series of mergers and acquisitions, plaintiffs are the successors in interest to the Paper Group; defendants are the successors in interest to the Packaging Group. The central issue is whether, and to what extent, the 1971 agreement allocated liability among the parties’ predecessors and defendants have moved to compel discovery regarding extrinsic evidence of post-1971 conduct by the parties’ predecessors. The court finds that each instance of extrinsic conduct cited by defendants is, under Rule 26, relevant to interpretation of the 1971 agreement and that they should also be permitted to explore other instances of extrinsic conduct to support their claims. Because the court has yet to make any determination regarding ambiguity, plaintiffs’ objections on account of admissibility are premature. However, plaintiffs’ objections based on undue burden have some merit. Therefore, defendants are directed to refine and resubmit their discovery requests. The court denies defendants’ request for sanctions. [Filed June 17, 2013.]

HEALTH LAW — ERISA

22-7-0545 Prospect Medical P.C. v. Cigna Corp., U.S. Dist. Ct. (Chesler, U.S.D.J.) (19 pp.) In this action alleging that defendants routinely deny provider claims for manipulation under anesthesia on the basis of a blanket policy rather than on individualized assessments of the patients’ medical needs in violation of ERISA, the court grants defendants’ motion to dismiss, finding that plaintiffs have not sufficiently alleged that the MUA was medically necessary and not experimental/investigational/unproven and therefore covered by the patient-insureds’ policies. [Filed June 19, 2013.]

INTELLECTUAL PROPERTY

53-7-0564 Noven Pharmaceuticals Inc. v. Watson Laboratories Inc., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) At the request of plaintiff/counterclaim defendant Noven Pharmaceuticals Inc. and defendant/counterclaim plaintiffs Watson Laboratories Inc. and Watson Pharmaceuticals Inc., a Markman hearing was held. The parties sought the court’s interpretation of four disputed terms in the patents-in-suit. Here, the court denies Noven’s motion for reconsideration of a portion of the court’s Markman opinion and amended opinion. [Filed June 6, 2013.]

53-7-0585 StrikeForce Technologies Inc. v. WhiteSky Inc., U.S. Dist. Ct. (Chesler, U.S.D.J.) (11 pp.) StrikeForce, based in New Jersey, is a leading provider of anti-keylogging software intended to protect personal computer users from fraud perpetrated through surveillance spyware. StrikeForce licensed to WhiteSky, a California software company, its GuardedID software, as customized for integration into WhiteSky’s products, in exchange for royalties. Royalty issues and disputes persisted. WhiteSky then contracted with another vendor of anti-keylogging software, Zemana. StrikeForce believes that WhiteSky is sharing confidential information about StrikeForce’s intellectual property with Zemana. StrikeForce filed this lawsuit against WhiteSky asserting claims for breach of contract and a claim for violation of the New Jersey Trade Secrets Act. StrikeForce moves for a preliminary injunction requiring WhiteSky to cease using or disclosing its trade secrets to third parties. The Court denies StrikeForce’s motion, finding that StrikeForce has not proffered evidence to demonstrate misappropriation of trade secrets. Without evidence of actual misappropriation or, at least, an imminent threat of such unlawful use or disclosure, the court cannot find that plaintiff is likely to succeed on the merits of its trade-secrets claims. Further, there is insufficient evidence that StrikeForce faces irreparable harm if WhiteSky is not enjoined from disclosing StrikeForce’s trade secrets. [Filed June 11, 2103.]

LABOR AND EMPLOYMENT

25-7-0529 Hillenbrand v. Hoboken Board of Education, U.S. Dist. Ct. (Chesler, U.S.D.J.) (7 pp.) This lawsuit arises out of plaintiff’s termination as an employee of the Hoboken Board of Education. After Superintendent Toback decided not to renew plaintiff’s employment contract, plaintiff brought suit against the board, Toback, the Hoboken Education Association (HEA), a teacher’s union party to a collective-bargaining agreement with the board, and its president, Gary Enrico. Plaintiff alleges violations of 42 U.S.C. § 1983 and the New Jersey Law Against Discrimination and also asserts claims for wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, and tortious interference with contract. Before the court is the motion by the HEA and Enrico (the association defendants) to dismiss all claims against them. Plaintiff has conceded that her § 1983 claims against the association defendants should be dismissed. Here, the court grants the association defendants’ motion to dismiss the remaining claims against them. [Filed June 3, 2013.]

25-7-0530 Stover v. Freedom Health Care, U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Defendant Freedom Home Healthcare Inc. filed a motion to dismiss plaintiff’s complaint. In her one-page pleading, plaintiff, an at-home health aide, claims that on May 2, 2012, she began experiencing excruciating pain during the course of her shift, and requested that defendant send another at-home health aide to replace her so that she could seek medical help. Plaintiff asserts that because defendant failed to send a replacement in a timely manner, plaintiff’s “condition worsened which resulted in [her] hospitalization” and additional mental anguish. Plaintiff’s pleading fails to satisfy the required threshold showing that she has stated a claim for relief that is “plausible on its face.” Plaintiff’s factual allegations standing alone are insufficient for her pleading to survive dismissal. Defendant’s motion to dismiss is granted without prejudice. [Filed June 3, 2013.]

25-8-0546 Kim v. Dongbu Tour & Travel Inc., Third Cir. (Greenberg U.S.C.J.) (13 pp.) Plaintiffs, who describe themselves as employees of defendant, allege that they were not paid in full for the tour guide services they rendered to defendant, in violation of the Fair Labor Standards Act and the New Jersey Wage and Hour Law. Defendant appeals from the orders of the district court temporarily enjoining it from communicating directly with any member of the putative collective action about this case until class certification issues are resolved and denying its motion for arbitration. The Third Circuit dismisses the appeal regarding communication, finding that it does not have jurisdiction over the appeal as it is strictly a case management order that does not address any aspect of the relief plaintiffs seek in the complaint. The order denying the motion for arbitration is affirmed because defendant has failed to produce any agreement that plaintiff Tae In Kim signed containing an arbitration clause and there is no provision in the agreement that plaintiff David Kim signed with Guide USA that could be deemed as having granted third-party beneficiary rights to defendant to enforce any provision in that agreement. Moreover, the court finds that defendant waived any right that it might have had to seek arbitration when it moved to dismiss the complaint without mentioning arbitration and did not raise the issue until the hearing on plaintiffs’ application for a preliminary injunction. [Filed June 19, 2013.]

25-7-0565 Wilkerson v. Nissan North America Inc., U.S. Dist. Ct. (Pisano, U.S.D.J.) (6 pp.) Plaintiff, who is black, brings this action alleging that his former employer, Nissan North America Inc., discriminated against him on the basis of his race and disability in violation of New Jersey’s Law Against Discrimination. Nissan moves to stay the matter and compel arbitration. The court grants the motion, finding that the mutual agreement to arbitrate claims that plaintiff signed as a condition of his employment does not give plaintiff discretion to file against Nissan in court rather than proceeding to arbitration and that plaintiff has failed to show a likelihood that arbitration would be prohibitively expensive, and further that the present dispute falls within the scope of the agreement. [Filed June 18, 2013.]

LABOR AND EMPLOYMENT — DISCRIMINATION

25-7-0586 Klus v. Archdiocese of Newark, U.S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) Plaintiff filed an action in state court alleging that she was terminated from her employment as a cook at the Church of the Immaculate Conception because of her age and nationality in violation of the Fourteenth Amendment of the U.S. Constitution. She fails to cite any other statutory or constitutional provision as a basis for relief. Defendants removed the action, asserting that the complaint purports to set forth claims under 42 U.S.C. § 2000e and the Age Discrimination and Employment Act. The court grants defendants’ motion for summary judgment, holding that the Fourteenth Amendment does not support plaintiff’s claims since defendants are private parties who in no way engaged in discriminatory conduct that can be attributed to the state, and, assuming that defendants’ characterization of plaintiff’s pleading is correct, plaintiff failed to comply with the requirement under Title VII and the ADEA that she submit a sworn charge of discrimination to the EEOC no later than 300 days after the alleged unlawful practice as a prerequisite to bringing suit. [Filed June 18, 2013]

LEGAL PROFESSION

04-8-0566 Scott v. Calpin, Third Cir. (per curiam) (7 pp.) In this legal-malpractice action, Scott appeals pro se from an order of the district court granting summary judgment in favor of Calpin, the attorney who represented Scott in divorce proceedings. Scott’s complaint alleges that, as a result of Calpin’s deficient representation, he did not receive an equitable share in the proceeds from the sale of the marital house. In support of his claim, Scott submitted an affidavit of a family law attorney admitted to practice in Pennsylvania. Scott argues that the district court erred in effectively holding that the affidavit of merit was insufficient to defeat Calpin’s motion for summary judgment. The affidavit of merit was the only evidence submitted by Scott regarding the applicable standard of care. In that affidavit, the attorney failed to describe that standard of care or explain Calpin’s relevant duty under it. Because Scott failed to create a factual dispute as to the applicable standard of care, the district court properly granted Calpin’s motion for summary judgment. [Filed June 10, 2013.]

PRODUCT LIABILITY

32-7-0547 Estate of Popolizio v. Ford Motor Co., U.S. Dist. Ct. (Salas, U.S.D.J.) (7 pp.) Before the court is a product liability action brought by the executor of decedent’s estate. Defendants Ford Motor Co. and Setina Manufacturing Co. Inc. move for summary judgment. Plaintiff’s decedent, Tommaso Popolizio, while on duty as a Newark police officer, was involved in a motor vehicle stop. The occupant was arrested and placed in the back seat of a police vehicle, where he was able to “maneuver through the partition window in the marked police vehicle, [take] control of the vehicle and [flee] the scene.” Popolizio chased the stolen police vehicle until there was an accident, causing Popolizio’s vehicle to roll over and resulting in his death. Plaintiff alleges that Ford negligently designed the police vehicle and Setina, the manufacturer, negligently designed the partition. The court agrees with defendants that because plaintiff is barred from producing expert testimony due to noncompliance with a court order to produce the experts by a certain date, plaintiff cannot sustain this action as a matter of law. The court grants defendants’ motion for summary judgment. [Filed June 5, 2013.]

SECURITIES

50-7-0567 Rescue Mission of El Paso Inc. v. K-Sea Transportation Partners LP, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (47 pp.) Plaintiffs, purchasers of K-Sea Transportation’s publicly traded securities, filed this class action alleging violations of § 10(b) of the Securities Exchange Act of 1934, Rule 10b-5, and § 20(a) of the Securities Exchange Act. The K-Sea defendants move to dismiss the case pursuant to the Private Securities Reform Act and Rules 9(b) and 12(b)(6). The director defendants move separately to dismiss pursuant to the PSLRA, Rules 9(b) and 12(b)(6) and they argue that the claims against director Friedman should be dismissed pursuant to Rules 4(e), 4(m) and 12(b)(5). K-Sea defendants’ motion to dismiss is granted and plaintiffs’ claims are dismissed in part with prejudice, in part without prejudice. Director defendants’ motion to dismiss is granted and plaintiffs’ claims against them are dismissed with prejudice. [Filed June 16, 2013.]

TORTS — JURISDICTION

36-7-0549 Davis v. Bristol-Myers Squibb Co., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (6 pp.) Plaintiffs, and many others, filed actions in state court seeking medical monitoring and property damage due to alleged exposure to toxic and hazardous environmental contamination at a property owned by defendant in New Brunswick. The cases have been consolidated as a mass tort action. After plaintiffs allegedly manifested actual illnesses stemming from the exposure, they sought to assert new claims and after consultation with the judge, filed new complaints under new docket numbers. Defendants removed plaintiffs’ cases, construing plaintiffs’ filing of the complaints as new civil actions independent and separate from the group-monitoring complaint. Plaintiffs seek to remand them. The court denies plaintiffs’ motion, finding that plaintiffs’ complaints should be considered as initial pleadings under the removal statute. [Filed June 19, 2013.]

36-7-0568 Thomasson v. Air & Liquid Systems Corp., U.S. Dist. Ct. (Simandle, U.S.D.J.) (12 pp.) In this action arising out of plaintiff’s exposure to asbestos from a variety of products manufactured by various corporations, originally filed in state court, plaintiff seeks to remand the matter, alleging the defendants’ notice of removal, filed pursuant to 28 U.S.C. § 1442, was untimely. The court denies the motion, finding that here, where plaintiff’s complaint disclaimed any claims arising out of his work in the Navy, plaintiff’s indication on the initial fact sheet that he had served in the Navy was insufficient to put defendants on notice of a possible federal contractor defense. Defendants did not have notice that plaintiff was claiming exposure to asbestos during his service until he served his answers to interrogatories, which directly contradicted the prior disclaimer in the complaint. The 30-day period to remove the action was not triggered until defendants received the interrogatory answers that provided the basis for federal jurisdiction and the notice of removal therefore was timely. [Filed June 17, 2013.]

TORTS — PERSONAL INJURY

36-7-0550 McCluney v. City of Newark, U.S. Dist. Ct. (Mannion, U.S.M.J.) (4 pp.) Plaintiff alleges that she was injured when she fell into a hole on City Dock Street in Newark. Defendants include Newark, Consolidated Rail Corporation (Conrail), National Railroad Passenger Corporation (Amtrak), New Jersey Transit Corporation, New Jersey, Matrix/Newark City Dock, L.L.C., and the Public Service Electric and Gas Company (PSE&G). Plaintiff claims that her injuries were caused by defendants’ negligent failure to maintain the property. Amtrak moves for leave to amend its answer to assert cross-claims against Conrail and New Jersey Transit, and to add additional cross-claims for contractual indemnification against the other co-defendants. Defendant has not submitted a copy of a proposed amended answer with its motion to amend. Without a proposed pleading, the parties and the court cannot evaluate whether the pleading would be futile or suffer any other deficiency. Accordingly, defendant’s request to amend is denied. [Filed June 7, 2013.]

TORTS — PROFESSIONAL MALPRACTICE

36-7-0587 JPC Merger Sub v. Baker Engineering and Risk Consultants Inc., U.S. Dist. Ct. (Arpert, U.S.M.J.) (10 pp.) Plaintiff, which contracted with SEW Construction to fabricate and delivery precast concrete wall panels, asserts claims for professional negligence, breach of contract and breach of express and implied warranties against Baker Engineering, which it retained to provide blast engineering services for certain panels, after cracks developed on the exterior of the panels. Defendant moves to compel discovery of the SGH report (prepared on behalf of SEW regarding the cause of the cracks), the Weidlinger report (retained by SEW to become engineer of record), and written communications with engineers that JPC did not retain as experts and between JPC and SEW. The court grants the motion with respect to the SGH report, finding that it is not protected by the work-product doctrine; it denies the motion with respect to the Weidlinger report, concluding that Weidlinger was acting as a consulting expert for JPC and that the report is protected attorney work product; denies the motion with respect to the engineers consulted but not retained, finding that the communications are protected by the consulting expert privilege in Rule 26(b)(4)(D); denies the motion regarding JPC’s communications with SEW, finding they are protected by the attorney-client privilege and common-interest doctrines. [Filed June 18, 2013.]


 

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