Daily Decision Service Alert: Vol. 22, No. 139 – July 19, 2013

New Jersey Law Journal

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STATE COURT CASES

 

BUSINESS ENTITIES — PARTNERSHIPS

12-2-0710 American Imaging Of Jersey City, Inc. v. Baldonado, M.D., App. Div. (per curiam) (19 pp.) This is the second action arising from the demise of a professional relationship. Defendant Ricardo Baldonado, M.D., a radiologist, was an equal partner with third-party defendant Alan Wasserman in a diagnostic and radiology company, DIA of Jersey City (DIA). He appeals from two orders: one granting summary judgment to plaintiffs and entering judgment against him personally for a judgment against DIA, and the second, which dismissed his complaint against Wasserman for contribution. The appellate panel affirms the entry of summary judgment to plaintiffs and reverses the dismissal of Baldonado's third-party complaint against Wasserman. The allegations plainly pleaded a claim for contribution based upon the joint and several liability of Baldonado and Wasserman as equal partners in DIA. The motion judge based the dismissal of the third-party complaint upon Baldonado's non-compliance with Rule 4:5-1(b)(2), his failure to join Wasserman pursuant to Rule 4:28-1, and the application of both the entire controversy doctrine and laches. However, none of these rules or doctrines provide for the sanction of dismissal simply based upon non-compliance.

 

CONTRACTS — RESIDENTIAL AND COMMERCIAL REAL ESTATE

11-2-0711 Blvd. L.L.C. v. West NY Suites, L.L.C., App. Div. (per curiam) (28 pp.) Defendant West NY Suites, L.L.C. appeals from the judgment finding it liable on a breach of contract claim brought by plaintiff 5907 Boulevard, L.L.C., and awarding damages and attorney's fees. The parties entered into a contract for the sale of an apartment building from plaintiff to defendant with the intention that the property be converted to condominiums. After plaintiff did all it could to effectuate registration of the property with the State as condominiums, defendant refused to cooperate in producing required documents and allowing transfer of the deed into its name. Defendant took the position that the contract required plaintiff to obtain the registration before the closing, even though this was impossible given the structure of the deal. Defendant also claimed that plaintiff failed to prove that all the rents being charged for the apartments were lawful, thus excusing defendant's obligation to purchase the property. The trial court ruled for plaintiff on its breach of contract claim and awarded liquidated damages and attorney's fees in accordance with the contract. The appellate panel affirms, finding that defendant's failure to cooperate by nominating an escrow agent and assisting in obtaining the condominium registration was a breach of its obligations under the contract, and it was not excused by any material breach of the contract by plaintiff pertaining to the rents.

 

LABOR AND EMPLOYMENT

25-2-0712 Canale v.s. State Of New Jersey, App. Div. (per curiam) (23 pp.) Plaintiff, a white male and an employee of the State Department of Health and Human Services, alleged that defendants State of New Jersey and his supervisor committed retaliation under the New Jersey Law Against Discrimination (LAD). On defendants' motion for summary judgment, the trial court dismissed plaintiff's complaint. The appellate panel affirms, finding none of the claims identified by plaintiff support his allegation that he suffered an adverse employment action. Plaintiff neither was denied a promotion nor suffered any type of a loss of remuneration of benefits. In particular, the panel notes that certain language attributed to plaintiff’s supervisors is both inappropriate and offensive, but in and of itself does not demonstrate an adverse employment action against plaintiff. Further, plaintiff's lateral transfer to Trenton was voluntary, not retaliatory and his satisfaction with his current position obviates a finding the transfer was a retaliatory one. Also, defendants presented a non-pretextual, legitimate business reason to decline plaintiff's consideration for an open position at Ancora, because of deficiencies in plaintiff's qualifications, and because of plaintiff's poor past performance.

 

LABOR AND EMPLOYMENT

25-2-0713 IFuturistics, Inc. v. Avacorp, LLC, App. Div. (per curiam) (13 pp.) Plaintiff IFuturistics appeals from a summary judgment order entered on behalf of defendant Avacorp, LLC. IFuturistics filed a complaint against Avacorp for payment of services. Avacorp filed an answer along with affirmative defenses. Avacorp asserted it had no obligation to pay a commission because IFuturistics failed to comply with the registration and licensure requirements of the Private Employment Agency Act (Act), which prohibits the maintenance of “an action in any court of [New Jersey] for the collection of a fee, charge or commission for the performance of any of the activities regulated by this act” absent appropriate proof of licensure and registration. The motion judge entered summary judgment for Avacorp based on IFuturistics' failure to be registered as an employment agency or temporary staffing company. IFuturistics argues that the judge erred in finding that the Act applied to its activities. The appellate panel finds the motion judge correctly concluded that in view of the professional services agreement and relevant facts, IFuturistics fit within the definition of an employment agency. IFuturistics cannot enforce the contract in the face of its failure to operate with the mandated registration.

 

LABOR AND EMPLOYMENT

25-2-0714 In The Matter Of Monica Miller Northern State Prison Department Of Corrections, App. Div. (per curiam) (11 pp.) Miller, a Senior Corrections Officer at Northern State Prison (NSP), appeals from a final decision of the Civil Service Commission (CSC) finding she had committed: conduct unbecoming a public employee; failure or excessive delay in carrying out an order; insubordination; intentional disobedience or refusal to accept an order; resisting authority; and disrespectful use of insulting or abusive language to a supervisor; and imposing a fifteen-day suspension without pay. The appellate panel affirms. The ALJ assessed the credibility of the witnesses and found the testimony and evidence presented by the NSP to be more credible than that of Miller. The evidence he found credible provides a sufficient basis for his conclusion that Miller committed the infractions found. The panel rejects Miller’s argument that the ALJ's decision was tainted by his bias against her.

 

LABOR AND EMPLOYMENT

25-2-0715 Ruiz v. South Jersey Painting Co., Inc, App. Div. (per curiam) (8 pp.) Plaintiffs filed claim forms with the Department of Labor (DOL), in which they alleged they had been employed to paint houses and that unpaid wages were due to them. The ensuing investigation revealed that defendant South Jersey Painting Co., Inc. had subcontracted the work to Ramazan Acikel Painting. South Jersey produced records that showed it had paid Acikel for the work performed. The DOL entered a final order, determining that Acikel (and Ramazan Acikel, individually) owed wages of $7806.78 to plaintiffs, and assessing an administrative fee and penalty of $3780.68. Thereafter, plaintiffs requested a formal wage hearing for the same unpaid wage claim against South Jersey, Burton Spitzer, and Eric Spitzer, the President and Operations Manager of South Jersey, respectively (the SJP defendants). Plaintiffs argued that the SJP defendants should be liable for the unpaid wages as joint employers. The DOL referee dismissed the claims against the SJP defendants. The Law Division judge affirmed. The appellate panel declines to adopt the standard urged by plaintiffs to apply the definition of "employer" in the Fair Labor Standards Act to characterize the SJP defendants as their employer and hold them liable for their unpaid wages. The panel affirms the determination that the SJP defendants were not liable for the payment of the wages claimed by plaintiffs.

 

LAND USE

25-2-0716 Laborim v. Mehnert, App. Div. (per curiam) (15 pp.) Plaintiffs appeal the dismissal of their action in lieu of prerogative writs against defendants Frances Mehnert and the Bradley Beach Board of Adjustment. Mehnert owns a lot with a two-family residence in the Residential Beachfront Zone. The lot is irregularly shaped and undersized. Mehnert sought permission from the Board to demolish the existing residence and construct a single-family house. She also sought the necessary bulk variances. The Board approved the application. Plaintiffs appealed and following two remands, the Board approved a resolution memorializing its decision. Because there was no due process violation or other fundamental unfairness, the appellate panel defers to the trial judge's conclusion that, although perhaps flawed, the conduct of the final remand hearing was not so inconsistent with his directions that the results should be invalidated. The panel rejects plaintiffs' argument that the Board's actions were arbitrary, capricious, and unreasonable because the members who voted in favor of approval did not specifically voice the reasons reflected in the resolution. The panel affirms the dismissal of plaintiffs' action.

 

PRODUCT LIABILITY

32-2-0717 Mohr v. Yamaha Motor Company, LTD., App. Div. (per curiam) (25 pp.) Defendants appeal from an amended judgment for approximately $2.5 million in favor of plaintiff. Plaintiff suffered the loss of his right leg, after he lifted up the back of his friend's Yamaha snowmobile to attempt a repair and the snowmobile's track broke, partially severing plaintiff's leg. Plaintiff filed a product liability suit against Yamaha, claiming the snowmobile had a design defect and Yamaha had failed to provide an adequate warning against lifting the machine while it was running. The jury found no cause on the design defect claim but found liability on the issue of failure to warn. The parties stipulated to $507,000 in medical expenses. The jury returned a verdict of $500,000 for lost wages and $100,000 for pain and suffering. On plaintiff's motion, the judge ordered a $900,000 additur or a new trial on damages for pain and suffering. Defendants rejected the additur. A second jury trial, limited to the pain and suffering issue, resulted in a verdict of $1.5 million. The appellate panel finds no abuse of the judge's discretion in granting the additur motion. Plaintiff lost a limb, was rendered unemployed and disabled, and will suffer lifelong pain that renders him dependent on narcotic painkillers; $100,000 was a shockingly inadequate award for his pain and suffering. Also, a new trial on damages-only was appropriate.

 

TORTS — MOTOR VEHICLES

36-2-0718 Segal v.County Of Hudson, App. Div. (per curiam) (20 pp.) Rabbi Zev Segal was driving along Duncan Avenue in Jersey City when his vehicle reached the road's terminus and plunged into the Hackensack River. Rabbi Segal died. Plaintiff Esther Segal, Rabbi Segal's wife, filed a survival and wrongful death action individually and on behalf of Rabbi Segal's Estate, against six defendants. Plaintiff appeals from two orders entered by the Law Division: the order dismissing plaintiff's complaint against defendant Dee-Jay Depot, Inc.; and the order granting summary judgment to defendant Hudson County. Plaintiff's theory is that the vehicle struck the guardrail and careened onto Dee-Jay's property before plunging into the river. The appellate panel affirms the two orders, concluding the Law Division correctly found Dee-Jay owed no duty to decedent because there was no foreseeability for the sequence of events leading to decedent's death. Further, Hudson County did not own or control the road or the adjacent property where this incident occurred.

 

TORTS — MOTOR VEHICLES

36-2-0719 Vogel v. Fernandes, App. Div. (per curiam) (34 pp.) This case arises from an accident that occurred while Melissa Vogel was driving a two-door, soft-top Geo Tracker. Her husband, Eric, and their children, Laurana and Gregory, were passengers. Plaintiff Daniel Vogel, Administrator ad Prosequendum of the Estates of Eric Vogel and Laurana Vogel, and Guardian Ad Litem for Gregory Vogel, filed a complaint against Melissa Vogel, Joseph Fernandes, and GM, asserting a negligence claim against Melissa and Fernandes and a products liability claim against GM. Melissa filed a separate complaint against Fernandes and GM. Daniel agreed to accept Melissa's $30,000 automobile insurance policy. All plaintiffs voluntarily dismissed their claims against Fernandes. The jury returned the no cause verdict as to GM. Plaintiffs' motion for a new trial was denied. The appellate panel affirms the jury’s verdict. The jury was presented with substantial expert testimony that the alternative design put forth would not have effectively altered the outcome of the accident because of the nature of the collision. Plaintiffs' burden was not to present an alternate design that would have made the Tracker marginally safer in some generic side-impact collision, but rather to present an alternate design that would have reduced or prevented the harm in this accident. The jury accepted GM's defense that it was a collision outside the range reasonably expected in the design of the vehicle.

 

CRIMINAL LAW

14-2-0720 State v. Garcia, App. Div. (per curiam) (12 pp.) Defendant appeals from the judgment of conviction of robbery and hindering his own apprehension by giving false information to the police. Because of errors in the charge to the jury, the appellate panel reverses and remands for a new trial. The judge not only refused to charge self-defense, but he added language to the model jury instruction for robbery that was objected to by defense counsel and undercut the defense argument to the jury that defendant was guilty of shoplifting and not robbery because defendant did not engage in a knowing use of force. As a whole, the charge unfairly deprived defendant of a fair opportunity to convince the jury of his defense.

 

FEDERAL COURT CASES

 

ADMINISTRATIVE LAW

01-7-0721 Jennings v. Astrue, Dist Ct. (Kugler, U.S.D.J.) (11 pp.) Plaintiff appeals for the review of a final determination of the Commissioner of Social Security, denying her application for Social Security Disability and Supplemental Security benefits under Title XVI of the Social Security Act. The Court vacates the Commissioner’s decision and remands, finding the ALJ failed to take into account certain potentially influential medical evidence from Plaintiff’s primary care physician. [Filed June 24, 2013]

 

LABOR AND EMPLOYMENT

25-7-0722 Besko v. State of New Jersey Juvenile Justice Commission, Dist. Ct. (Cooper, U.S.D.J.) (14 pp.) Edward Besko brings the action against his employer, the State of New Jersey Juvenile Justice Commission (“the JJC”). Besko alleges that he applied for a position as an “Administrator, Employee Relations” in the JJC Office of Human Resources, and that his application was rejected because he is male. He raises two claims of unlawful discrimination against the JJC, one under Title VII and the other under the New Jersey Law Against Discrimination (“NJLAD”). The JJC now moves for summary judgment. The Court concludes that Besko cannot establish a prima facie case of reverse discrimination because he cannot demonstrate that the JJC treated Besko less favorably because of his gender. Although the JJC rejected Besko’s application for the job, it: (1) interviewed four applicants, three of whom were male; (2) elected not to award the job to any applicant; and (3) ultimately assigned at least some of the responsibilities associated with the job to a male state employee. Under these circumstances, the Court grants summary judgment in the JJC’s favor and against Besko on the Title VII claim. The NJLAD claim is dismissed without prejudice, and Besko may recommence that part of the action in an appropriate state court. [Filed June 21, 2103]

 

LABOR AND EMPLOYMENT

25-8-0723 Ugorji v. New Jersey Environmental Infrastructure Trust, Third Circuit (Rosenthal, U.S.C.J.) (14 pp.) Ugorji, an African-American from Nigeria, sued his employer, the New Jersey Environmental Infrastructure Trust (NJEIT), alleging race and national origin discrimination under Title VII. Ugorji also sued the chair of the NJEIT board of trustees, the executive director, and the chief operating officer under Section 1983. On Ugorji’s appeal, the circuit panel affirms the District Court’s grant of summary judgment for defendants. Ugorji argues that the 15-employee statutory requirement does not apply to public employers and, alternatively, that the NJEIT and DEP should be considered a single entity. However, Title VII’s 15-employee requirement does not distinguish between public and private employers. Further, Ugorji did not point to evidence giving rise to a genuine factual dispute material to determining whether the NJEIT and DEP should be viewed as a single entity for Title VII purposes. The NJEIT and DEP are separate entities under state law; while the DEP may provide some services to the NJEIT, that is insufficient for substantive consolidation. Also, the individuals Ugorji identified as comparators held different jobs than his and the promotion or reclassification of one employee but not another, when those employees have different job responsibilities, qualifications, and experience, does not support an inference of discrimination. [Filed June 18, 2013]

 

LEGAL PROFESSION

04-7-0724 Surgical Orthomedics, Inc. v. Brown Rudnick LLP, Dist. Ct. (Salas, U.S.D.J.) (10 pp.) Plaintiffs filed suit against Defendant law firm and a partner of the law firm for breach of duty of care in rendering legal services which resulted in an unfavorable arbitration award against Plaintiffs. Defendants refute the allegations and highlight the forum selection clause agreed to by Plaintiffs. Previously, a Texas court granted an identical motion to dismiss pursuant to a forum selection clause, relating to the same parties and issues. The Court finds that Plaintiffs are collaterally estopped from bringing this action in New Jersey. The agreed-upon New York forum selection clause also prevents Plaintiffs from bringing the instant action in New Jersey. To defeat a motion to dismiss pursuant to a forum selection clause, Plaintiffs must prove the clause is unenforceable. Plaintiffs have failed to make such a showing. Defendants’ motion to dismiss is granted. [Filed June 21, 2013]

 

RESIDENTIAL AND COMMERCIAL REAL ESTATE

34-7-0725 Mount Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly, Dist. Ct. (Schneider, U.S.M.J.) (12 pp.) This case involves the proposed redevelopment of Mount Holly Gardens (the “Gardens”), an ethnically diverse, predominately low income neighborhood. Plaintiffs brought suit alleging Mount Holly’s redevelopment plan for the Gardens violates the Fair Housing Act (“FHA”), the Civil Rights Act of 1866, the Equal Protection and Due Process clauses of the Fourteenth Amendment, the Equal Protection Clause of the New Jersey Constitution, and New Jersey statutes. Plaintiffs allege the redevelopment plan has a disparate impact on the minority community in that affordable residential homes would be destroyed and replaced with new housing that is unaffordable for Gardens residents. The Mount Holly defendants’ filed a letter brief application regarding language in the parties’ proposed Discovery Confidentiality Order (DCO). Mount Holly requests that the DCO include language that would not require it to produce information in its relocation files, which would enable plaintiffs to identify and locate witnesses who were relocated. The Court denies Mount Holly’s application. Mount Holly may not withhold from discovery relevant non-privileged information that permits plaintiffs to identify and locate relevant witnesses.  [Filed June 24, 2013]

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