Aug. 8 to 14, 2013

Unapproved Opinions

New Jersey Law Journal

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Aug. 8 to 14, 2013
STATE COURT CASES
 
ADMINISTRATIVE LAW
01-2-0934 In the Matter of Nichols, App. Div. (per curiam) (6 pp.) Stanley Nichols, t/a All About Paving and Seal Contracting, appeals from a final decision of the Division of Consumer Affairs, which denied an application for renewal of his registration as a home-improvement contractor. The agency’s determination was based on Nichols’ conviction for third-degree theft by deception, false impression, resulting from Nichols’ participation in a scheme to defraud an elderly man out of thousands of dollars by demanding the advance of monies for unnecessary home repairs. The Contractors Registration Act governs the registration of home-improvement contractors. Based on the evidence presented at the evidentiary hearing, the acting director concluded that Nichols had not made the requisite showing of rehabilitation. The acting director discussed the offense committed by Nichols and the evidence of rehabilitation he presented in light of each of the eight factors set forth in the statute. Nichols has failed to make a clear showing that the acting director’s decision to deny the application for renewal of his registration as a home-improvement contractor is “arbitrary, capricious, or unreasonable, or lacks fair support in the record.” Therefore, the appellate panel affirms. [Decided Aug. 8, 2013.]
 
ADMINISTRATIVE LAW — UNEMPLOYMENT COMPENSATION BENEFITS
01-2-0955 Bravo v Board of Review, App. Div. (per curiam) (6 pp.) Appellant appeals from the final decision of the Board of Review, which affirmed the decision of the Appeal Tribunal that she must refund $20,160 in unemployment benefits, is disqualified from receiving benefits for one year for making false or fraudulent representations, and must pay a fine. The panel affirms, finding that the record supports the Appeal Tribunal’s determination that while collecting unemployment benefits after termination of her full-time employment, appellant earned wages from her part-time employment that she knowingly failed to disclose, there is no evidence that she received incorrect advice about her obligation to report her part-time earnings and the Internet, which she used to make her weekly claims, provided instructions for the reporting of wages from such employment, and that she was repeatedly asked if she had worked during the weeks in question and she answered no each time even though she was working part time. [Decided Aug. 9, 2013.]
 
CIVIL PROCEDURE
35-2-0956 Winberry Realty Partnership v. Borough of Rutherford, App. Div. (per curiam) (12 pp.) Plaintiffs filed a complaint against defendant Rutherford, its tax collector, and the assistant chief of the state’s Office of Foreclosure. Plaintiffs alleged that defendants had unlawfully obstructed their efforts to redeem a tax certificate the borough filed after plaintiffs stopped paying taxes on property they owned; that a final judgment of foreclosure was entered, but subsequently vacated, at considerable cost to plaintiffs; and that they suffered severe emotional distress. The first three counts of the complaint alleged that defendants violated plaintiffs’ civil rights under the U.S. and N.J. constitutions. The fourth count alleged that the borough negligently trained its tax collectors, the fifth count that the borough breached a duty to exercise reasonable care and good faith in the administration of its duties, and the sixth count alleged a cause of action for intentional infliction of emotional distress. Plaintiffs appeal from the order that dismissed their complaint with prejudice pursuant to Rule 4:23-5(a)(2) for failure to make discovery. Because the court took no steps to enforce the notice provisions of Rule 4:23-5, the appellate panel reverses and remands. The court apparently did not realize, because the attorneys did not make it clear, that the deposition of plaintiff John Winberry was the only outstanding discovery item that was the subject of the court’s previous order. Had plaintiffs’ counsel complied with the notice provisions of Rule 4:23-5, Winberry may well have understood that completion of his deposition had to take place if he wanted his case to proceed. [Decided Aug. 9, 2013.]
 
CONTRACTS
11-2-0935 Martiak v. Molnar, App. Div. (per curiam) (4 pp.) This is the second appeal from an order enforcing a settlement filed by defendant Trans-County Title Agency Inc. On the prior appeal, because the judge enforced the purported settlement agreement without conducting an evidentiary hearing to resolve the factual dispute presented by the parties’ competing certifications, the Appellate Division vacated the order under review and remanded. The trial court conducted an evidentiary hearing as directed and issued a letter opinion setting forth its findings and reasons for enforcing the settlement. The appellate panel affirms the trial judge’s order on remand because it is based on his assessment of the witnesses’ credibility and on findings of fact that are adequately supported by the record. [Decided Aug. 8, 2013.]
 
11-2-0936 Metropolitan Foods Inc. v. Authentic Mexican Inc., App. Div. (per curiam) (28 pp.) This multiparty commercial dispute started as a book account claim in which plaintiff sought to recover more than $500,000 owed for goods sold and delivered to defendant. While the suit was pending, defendant entered into a corporate transaction to form a holding company to own defendant and M&S Fine Foods, both of which later filed for bankruptcy. Plaintiff amended its complaint to add additional claims and to name the holding company, its shareholders and an M&S officer. Plaintiff appeals the dismissal with prejudice of the claims for tortious interference with contract and prospective economic advantage; the claim against the corporate officer for lack of personal jurisdiction; and without prejudice of the claims of fraudulent conveyance and successor liability as stayed by the bankruptcy court. Defendants appeal from the denial of attorney fees. The panel affirms, finding, inter alia, that Metropolitan never clearly articulates defendants’ allegedly wrongful behavior that interfered with Metropolitan’s contract with Authentic, and Metropolitan’s prospective economic advantage; the only record evidence of the officer’s contacts with New Jersey is her participation in a brief meeting in New Jersey in her role as an officer of M&S, which falls short of establishing minimum contacts with New Jersey and that maintaining the suit will not offend traditional notions of fair play and substantial justice; the court did not abuse its discretion in not extending the already closed discovery and defendants’ motions were not premature as Metropolitan had ample time to conduct discovery and never sought relief from the court to compel discovery, nor has it established that there were critical facts peculiarly within defendants’ knowledge that rendered their motion premature; Metropolitan’s claims lacked merit but they were not frivolous and this suit was not brought in bad faith to harass, delay or maliciously injure. [Decided Aug. 8, 2013.]
 
11-2-0957 Aspen Landscaping Contracting Inc. v. A. Juliano & Sons Contractors Inc., App. Div. (per curiam) (17 pp.) Defendant was the successful bidder on a public contract for excavation, demolition and construction work needed to establish a public park in Clark. In the context of consolidated lawsuits filed by Juliano’s subcontractors seeking payment from Juliano and the county, Juliano filed a cross-claim against the county for payment on six change orders. The trial court granted the county summary judgment on Juliano’s claim for $631,895.27 allegedly due on the sixth change order for the cost of borrow excavation material, and denied Juliano’s timely motion for reconsideration. On Juliano’s appeal, the panel affirms, finding that the trial court correctly concluded there was a patent ambiguity in the bid documents regarding the borrow excavation materials that Juliano did not bring to the attention of the county as required by the specifications, and because its change order for borrow excavation material was based on its unilateral resolution of that patent ambiguity, the relief it sought is barred by the patent ambiguity doctrine. [Decided Aug. 9, 2013.]
 
11-2-0958 Harbor Creek Associates G.P. v. Atlanticare Health Services Inc., App. Div. (per curiam) (15 pp.) The parties entered into two leases pursuant to which plaintiff leased commercial properties with three buildings to defendant. The leases contained an option to buy and identical provisions establishing a procedure for fixing the purchase price of the properties should defendant decide to exercise its option. However, the parties differed in their interpretations of the appraisal process to which they agreed, with plaintiff contending it should receive more than defendant believed it should pay. The judge accepted defendant’s interpretation and plaintiff appeals. Finding that the judge’s interpretation is consistent with the plain meaning of the agreement and effectuates the parties’ intention, the panel affirms. [Decided Aug. 9, 2013.]
 
11-2-0959 Occhifinto v. Olivo Construction Co., App. Div. (per curiam) (19 pp.) Robert Occhifinto and NVE Inc. filed suit against defendants, claiming improper design and negligent construction of an addition to a warehouse. Mercer Mutual Insurance Company of New Jersey, the insurer of the masonry contractor, defendant Keppler, provided Keppler with a defense pursuant to a reservation of rights. Mercer filed a declaratory judgment (DJ) action, asking the court to declare it had no duty to defend and indemnify Keppler. Plaintiff filed an answer and counterclaim seeking a declaration that Mercer was obligated to provide a defense and indemnification to Keppler. On cross-motions for summary judgment, the judge ordered that Mercer had “a duty to indemnify [Keppler] ... to the extent that it is found liable for damages ... caused ... to the property of others.” Ultimately, he jury found, inter alia, that Keppler was negligent, but its negligence was not a proximate cause of plaintiff’s damages. Judgment in favor of Keppler was entered. Plaintiff moved for counsel fees against Mercer in the DJ action, which the judge denied. The appellate panel affirms. Mercer was defending Keppler under a reservation of rights; the existence of the policy was not in dispute, and plaintiff was not a “successful claimant” in securing a defense for Keppler. The judge did not abuse his discretion in refusing to award plaintiff counsel fees. [Decided Aug. 9, 2013.]
 
CREDITORS’ AND DEBTORS’ RIGHTS
15-2-0937 Steudtner v. Pecoraro, App. Div. (per curiam) (10 pp.) Plaintiff appeals from the denial of her motion for reconsideration of a Law Division judge’s order that canceled and discharged her judgment lien against defendant’s residence under N.J.S.A. 2A:16-49.1. That statute authorizes the cancellation and discharge of a judgment lien that was discharged or dischargeable in bankruptcy proceedings. The Law Division judge had earlier determined that the parties’ dispute about whether the judgment lien was dischargeable in defendant’s bankruptcy proceedings should have been addressed by plaintiff during those proceedings. When the judge made that determination, he failed to appreciate the significance of plaintiff’s evidence that the judgment lien had not been discharged, and was not dischargeable, during the bankruptcy proceedings. Consequently, plaintiff’s motion for reconsideration should have been granted and the appellate panel reverses the order denying that motion. [Decided Aug. 8, 2013.]
 
CRIMINAL LAW
14-2-0964 State v. Dow, App. Div. (per curiam) (28 pp.) Defendant appeals from her conviction for murder and possessing a firearm with the purpose to use it unlawfully against the person or property of another. The panel reverses because of (1) errors in the prosecutor’s opening and closing statements, including mischaracterization of the DNA evidence, which did not show that defendant’s DNA was mixed with the blood at the scene but that she could not be excluded as a contributor of the DNA stain based on her DNA profile and the implication that he had special knowledge about the science and about what the experts did and did not say; and (2) admission of defendant’s suicide note without adequate evaluation of the evidence suggesting reasons for attempted suicide other than consciousness of guilt or an effort to avoid prosecution and the failure to give jurors instructions on consideration of the attempted suicide as mandated by Mann. [Decided Aug. 9, 2013.]
 
14-2-0977 State v. Lawrence, App. Div. (per curiam) (31 pp.) The panel affirms defendant’s conviction for murder, two weapons offenses and hindering his own prosecution but remands for correction of the judgment of conviction to reflect appropriate jail credits, finding that he should have received credit for the time he was incarcerated in Florida after police removed him from a flight to Jamaica and held him for questioning by New Jersey police officers. [Decided Aug. 12, 2013.]
 
14-2-0978 State v. Lee, App. Div. (per curiam) (38 pp.) Defendants appeal from their convictions, after a jury trial, of eight counts of first-degree armed robbery, two counts of second-degree possession of a weapon for an unlawful purpose, two counts of third-degree unlawful possession of a shotgun without a firearms purchaser identification card, and two counts of third-degree unlawful possession of a loaded shotgun, and two counts of third-degree unlawful possession of a sawed-off shotgun. They were also convicted of being certain persons not to possess firearms, a second-degree offense. The convictions arose out of three robberies occurring on one morning, each involving multiple victims. The court sentenced defendants to 15-year terms for each robbery count. The sentences were concurrent as they related to multiple victims in the same incident, but consecutive as they related to each of the three incidents. Consequently, defendants were sentenced to aggregate terms of 45 years, subject to the No Early Release Act. Concurrent terms were imposed for the remaining counts that were not merged into the robbery counts. The appellate panel affirms defendants’ convictions but remands for resentencing, finding the court did not adequately explain its reasoning for imposing three consecutive terms. [Decided Aug. 12, 2013.]
 
14-2-0993 State v. Gresham, App. Div. (per curiam) (11 pp.) Defendant, who after the denial of his motion to suppress pleaded guilty to possession of CDS and unlawful possession of a handgun charged in Indictment I, and to attempted murder charged in Indictment II, and who was sentenced to eight years’ imprisonment with an 85 percent parole disqualifier under the No Early Release Act for his attempted murder conviction, and concurrent sentences of six years’ imprisonment with three years of parole ineligibility on the weapons conviction and four years on the possession with intent to distribute, and who received 974 days of jail credit to be applied only to his Indictment I conviction, appeals the denial of his motion to suppress and the award of jail credits. The panel affirms the convictions but remands to the trial judge for calculation of the correct number of jail credits to be credited to the Indictment II conviction, which the state concedes the judge improperly credited solely to the Indictment I conviction. [Decided Aug. 13, 2013.]
 
EDUCATION
16-2-0987 Clark v. New Jersey Higher Education Student Assistance Authority, App. Div. (per curiam) (3 pp.) Plaintiff, who obtained a student loan that was guaranteed by defendant, to attend the Essex College of Business, and who later defaulted on the payments and had a default judgment entered against her, appeals from the dismissal of this action in which she alleges that defendant was negligent in guaranteeing her loan because it didn’t investigate the ECB admission process to determine if it ensured that she had the qualifications for admission to the program before agreeing to guarantee the loan. The panel affirms, finding that respondent played no role in reviewing plaintiff’s loan application or in lending her money and its function was to buy the loan after it went into default and then collect on the debt. It was the school’s responsibility to determine a student’s eligibility for a loan. [Decided Aug. 13, 2013.]
 
FAMILY LAW
20-2-0938 A.H.O. v. B.T.O., App. Div. (per curiam) (14 pp.) Defendant appeals from a final restraining order entered against him pursuant to the Prevention of Domestic Violence Act. The judge noted the extensive testimony offered by plaintiff regarding the course of conduct between the parties over the last two years. The court credited plaintiff’s testimony and noted that defendant admitted substantial parts of it, most significantly, the incident in which he smashed her car window with a rock. The judge found that incident alarming and noted that it gave him great concern for plaintiff’s safety. The judge noted that defendant had repeatedly followed his wife and had appeared at her workplace uninvited. The judge’s findings were reinforced by his observation of defendant’s demeanor during the trial. Considering all of the proofs, the court was satisfied that plaintiff had proved a predicate act of harassment and that in light of the history between the parties, a restraining order was necessary to prevent future acts of domestic violence. The appellate panel finds no basis to upset the trial court’s findings or legal conclusions. [Decided Aug. 8, 2013.]
 
20-2-0939 Brown v. Giovanelli-Brown, App. Div. (per curiam) (8 pp.) On appeal from certain provisions of the dual final judgment of divorce, defendant argues that the trial judge erred in awarding plaintiff a share of defendant’s pension benefits, because under the doctrine of laches, the 10-year hiatus between the parties’ separation in 1998 and the filing for divorce in 2009 bars plaintiff from pursuing such a claim. The delay did not increase plaintiff’s share of defendant’s pension because the judge found, for purposes of equitable distribution, that the marriage ended in 1999. However, defendant claims she was harmed by the delay because she is now obligated to pay plaintiff a lump sum instead of the more manageable monthly payments that would have been awarded had plaintiff filed the complaint earlier. The appellate panel rejects defendant’s laches claim because she has not demonstrated she was harmed by plaintiff’s inaction. Defendant’s pension benefits were subject to equitable distribution and there is no indication in this record that plaintiff led defendant to believe that he had abandoned that right. Further, application of the doctrine would “sponsor an inequitable result” because plaintiff is entitled to a share of the pension earned during the marriage. [Decided Aug. 8, 2013.]
 
20-2-0940 Elgart v. Elgart, App. Div. (per curiam) (16 pp.) In this postjudgment matrimonial action, plaintiff appeals from the order that, inter alia, denied amending the parties’ property-settlement agreement. The panel affirms, noting the practical difficulties facing Family Part judges who preside over emotionally charged cases involving self-represented litigants. It finds that the judge correctly found that certain provisions struck from the PSA sought an extraneous level of specificity; that the requested provision regarding emancipation of the children who are both under the age of 12 can be resolved on that occurrence; and that the judge’s actions with respect to the provision regarding the parties’ children’s expenses — directing the parties to cooperate and not rescind once agreement was reached or return to court if they cannot agree — was reasonable and appropriate given the parties’ demonstrated relationship. [Decided Aug. 8, 2013.]
 
20-2-0960 Gilford v. Gray-Gilford, App. Div. (per curiam) (22 pp.) The final judgment of divorce (JOD) entered after trial in this matter included three provisions challenged on appeal by plaintiff. Although real estate previously owned by plaintiff alone was the source of the down payment on the home, defendant’s efforts at both properties were significant, and the homes were the result of the parties’ joint enterprise. It was not a mistaken exercise of the judge’s discretion to award defendant 50 percent of the proceeds from the sale of the home. Given the judge’s conclusion that plaintiff planned the diminution in his income, it was not a mistaken exercise of discretion for the judge to choose an amount of imputed income other than the arithmetic mean of the last five years. As to attorney fees, the judge found that plaintiff’s positions with respect to alimony, equitable distribution, imputation of income, and defendant’s continued residence with her disabled family members, while caring for the parties’ two special-needs children, were “absolute[ly]
 unreasonable” and demonstrated “plaintiff’s position ... that defendant deserves no quality of life whatsoever.” Based on these findings, it was not an abuse of the judge’s discretion to award defendant counsel fees. [Decided Aug. 9, 2013.]
 
20-2-0988 Newkirk-Sanchez v. Newkirk, App. Div. (per curiam) (9 pp.) In this postdivorce matter, defendant-husband appeals from the Family Part’s orders denying his motion to reduce his child-support obligation and sanctioning him $2,000 in reimbursement of plaintiff-wife’s attorney fees. The Family Part declined, without prejudice, to order the wife to produce financial information to verify her income less than two years after the divorce judgment had been entered with an agreement on child support. The Family Part did not abuse its discretion in declining to order the wife to produce financial information relevant to child support so soon after the parties’ divorce and voluntary agreement. Having been denied that relief once, another motion only five months later was also too soon for the court to reconsider the parties’ financial circumstances. Because the court had recently ruled on the husband’s similar applications to modify parenting time and reduce child support, it viewed another motion requesting the same relief to be frivolous and harassing to the wife. It was not an abuse of the Family Part’s discretionary authority to award attorney fees as a sanction against the husband. [Decided Aug. 13, 2013.]
 
20-2-1001 Lanzaro v. Lanzaro, App. Div. (per curiam) (12 pp.) Defendant appeals from a final judgment of divorce by default. The panel affirms, finding that the court did not err in denying defendant’s oral request to vacate default since he did not comply with the prerequisites of Rule 4:43-3 where he filed no written motion, and did not even present one to the court at the proof hearing, his failure to comply with previous court orders was contumacious, and he failed to present a proposed answer or any other filing to show a meritorious defense to plaintiff’s equitable distribution claims. The panel also finds no error in the court’s handling of the default hearing as there was no inappropriate questioning by the court, defense counsel was permitted to cross-examine plaintiff regarding her proposed equitable distribution of assets, subject to appropriate limitations for a default hearing, and defendant had no right to testify and present affirmative evidence at the hearing. [Decided Aug. 14, 2013.]
 
20-2-1002 New Jersey Division of Youth and Family Services v. M.A., App. Div. (per curiam) (22 pp.) In these consolidated appeals, defendants M.A. and I.B. appeal from a Family Part determination that they abused and neglected their 17-year-old daughter, M.B. The judge found M.B. was harmed as the result of repeated acts of sexual assault by I.B. that M.A. should have known were occurring but did not prevent, and by M.A.’s alleged threats to report M.B. to federal immigration authorities if she did not recant her accusations. The panel affirms the findings against I.B., finding that it was supported by the record that includes I.B.’s admission of sexual contact with M.B. and his subsequent conviction for those offenses. The panel reverses and remands as to M.A., concluding that the evidence presented against her was insufficient to support the finding of abuse and neglect and improperly focuses on the child’s uncorroborated inferences of M.A.’s knowledge of I.B.’s wrongdoing and allegations of her threats against M.B. [Decided Aug. 14, 2013.]
 
INSURANCE LAW
23-2-1003 Woodcliff Lake Board of Education v. Zurich American Ins. Co., App. Div. (per curiam) (15 pp.) Plaintiff appeals from the trial court’s grant of summary judgment in favor of defendant on its complaint seeking a declaration of coverage under the commercial insurance policy issued by Zurich for the costs of asbestos cleanup and removal after asbestos was found scattered around a school site under renovation. Zurich had denied coverage on the basis of the pollution exclusion in the policy. Plaintiff argues that the pollution exclusion was inapplicable because the disturbance of the asbestos had resulted from vandalism, one of the specified causes of loss that are exceptions to the exclusion under the policy. The panel finds that under the clear and unambiguous language of the exclusion, the loss was caused by the disturbance of an acknowledged pollutant; that, applying a dictionary definition, vandalism as used in the policy exceptions is damage that is caused intentionally, with malice or, at least, with reckless or wanton disregard for the rights of others; that the available evidence fails to show that the disturbance was the result of any malicious act, whether by a contractor or anyone else; and, therefore, the pollution exclusion applied and barred coverage. [Decided Aug. 14, 2013.]
 
LABOR AND EMPLOYMENT
25-2-0990 In the Matter of the Tenure Charges Against Chaki, App. Div. (per curiam) (9 pp.) Chaki appeals from a final decision of the acting commissioner of the Department of Education terminating her from her tenured teaching position with the Franklin Township school district for conduct unbecoming a teacher. Chaki was hired by the Franklin Township Board of Education in 2006 and received tenure in 2009. The charges against her arose out of a classroom incident; in an attempt to illustrate a chemistry concept, Chaki made inappropriate comments about whites, Hispanics, Asians and blacks. The ALJ recommended suspension without pay, forfeiture of increments and remedial training as the penalty. The commissioner accepted the ALJ’s factual findings and concluded the tenure charges were supported by the evidence but rejected the ALJ’s proposed penalty. The commissioner upheld the tenure charges and the penalty of termination sought by the board. The sole issue on appeal is whether the penalty of removal is too extreme. The appellate panel finds it is not and affirms. The commissioner’s determination that Chaki’s conduct during her chemistry class was unbecoming conduct is adequately supported by substantial credible evidence. Moreover, Chaki’s behavior, albeit a single incident, was sufficiently egregious to warrant termination. Chaki consciously introduced racial stereotyping into her lesson plan, which was negatively perceived by her students. [Decided Aug. 13, 2013.]
 
25-2-1004 In the Matter of Barnwell, App. Div. (per curiam) (9 pp.) Barnwell, a corrections sergeant at the Burlington County Jail, appeals from a final decision of the Civil Service Commission. The commission upheld the Burlington County Jail’s decision to demote Barnwell to his current position, following his failure to properly perform his duties as a corrections lieutenant. Barnwell did not inform the shift commander or file a report of an incident involving an inmate who claimed he was assaulted by several officers and who reported to the clinic for examination. The appellate panel finds the record fully supports the ALJ’s findings and conclusions, which were adopted by the commission, and the penalty imposed is entirely appropriate in light of Barnwell’s misconduct. [Decided Aug. 14, 2013.]
 
LANDLORD/TENANT LAW
27-3-0942 Dayna Commons v. Sterling, Law Div., Special Civil Part — Essex Co. (Fast, J.S.C., retired and temporarily assigned on recall) (9 pp.) Plaintiff filed an action seeking to evict defendant for nonpayment of rent. It did not pursue a judgment in that action because the rent was paid to, and accepted by, plaintiff the same day as the scheduled trial. Three weeks later, plaintiff filed this action seeking to evict defendant on the basis of habitual late payment of rent. The court finds that the two sequential complaints, the first have been filed with knowledge of the existence of the second ground for eviction, violates the entire-controversy doctrine and was also subject to equitable estoppel because the sequential filing denied the promotion of conclusive determinations, party fairness, and judicial economy and efficiency and denied defendant the effective use of the rent that she paid to quell the prior case. [Decided Aug. 7, 2013.]
 
LEGAL PROFESSION
04-2-0961 Beatty v. Haney, App. Div. (per curiam) (5 pp.) Plaintiff appeals from dismissal of his complaint for failure to state a claim on which relief can be granted. Plaintiff is an attorney. In 2008, his license to practice law in New Jersey was suspended by the Supreme Court for three months based on plaintiff’s plea of guilty to a fourth-degree charge of stalking. Plaintiff filed a handwritten complaint in the Law Division against defendants Gail Grunditz Haney, deputy clerk of the Supreme Court; Louis Pashman, chairman of the Supreme Court’s Disciplinary Review Board; Julianne DeCore, chief counsel of the DRB; Richard Englehardt, former counsel to the director of the Office of Attorney Ethics; and Michael Sweeney, first assistant ethics counsel of the OAE. The Law Division cited Rule 1:20-1 and Art. 6, § 2, ¶ 3 of the New Jersey Constitution as establishing that “any matter regarding discipline of persons admitted to the practice of law is within the sole jurisdiction of the Supreme Court” and, therefore, plaintiff’s complaint fails to state a claim. The appellate panel affirms where the New Jersey Constitution gives exclusive jurisdiction and authority to the Supreme Court over the admission and discipline of attorneys in this state. Plaintiff has no cause of action in the Superior Court for damages arising out of the alleged unauthorized actions of defendants. [Decided Aug. 9, 2013.]
 
MEDICAL MALPRACTICE
29-2-0943 Edwards v. Newark Beth Israel Medical Center, App. Div. (per curiam) (7 pp.) In this medical-malpractice action alleging that defendants’ professional negligence caused Edwards to deliver a stillborn baby girl, the panel affirms the Law Division’s grant of summary judgment dismissing that action because plaintiffs did not present competent expert testimony establishing a causal link between the alleged negligence and the baby’s death. [Decided Aug. 8, 2013.]
 
PUBLIC RECORDS
52-3-0944 Grossman v. Office of the County Prosecutor of the County of Ocean, Law Div. — Ocean Co. (Grasso, A.J.S.C.) (21 pp.) This case involves the applicability of the criminal investigatory records exemption of the Open Public Records Act (OPRA) to government records used in a completed criminal trial and whether these records lose their otherwise exempt status because they fall within New Jersey Division of Archives and Records Management (DARM) records retention schedule. The court finds that the criminal investigatory records exemption remains in effect despite the fact that the criminal trial has been concluded. The court also finds that DARM’s records retention schedule does not operate as the force of law mandating the records sought in this case to be “made, maintained or kept on file” so as to remove them from the criminal investigatory records exemption of OPRA. This finding, however, does not foreclose plaintiff’s right to access these documents pursuant to the common-law right of access. The court finds that a number of documents sought in this case should be disclosed under the common law, limited however to those documents used at the criminal trial and/or released to the criminal defendant in accordance with the discovery standards set forth by the Rules Governing Criminal Practice and subject to privacy rights. [Decided July 26, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-0945 Magna Fabrics Inc. v. New York Art & Shipping, App. Div. (per curiam) (21 pp.) Defendant Juil Pang appeals from a judgment for $821,079 entered against him and in favor of plaintiff Magna Fabrics Inc. on an alleged oral guaranty of a lease between plaintiff and defendant New York Art & Shipping (NY Art). The jury found that defendant did not guarantee the lease in writing, but that he verbally guaranteed the lease. Further, although the jury was instructed not to proceed to the issue of piercing the corporate veil if it found a written or verbal guaranty to exist, it did so and found defendant liable on that theory of liability, as well. On appeal, defendant claims there was no evidence supporting the alleged “oral” guaranty and thus the issue should not have been submitted to the jury, and that a new trial is warranted on the cause of action to pierce the corporate veil because of errors in the jury instructions. The appellate panel agrees and vacates the judgment and remands for a new trial on the issue of whether defendant personally used NY Art to commit a fraud or injustice, and thereby should be held personally accountable for the corporation’s obligations under the lease with plaintiff. [Decided Aug. 8, 2013.]
 
34-2-0975 Wells Fargo Bank, N.A. v. Vanderhall, App. Div. (per curiam) (7 pp.) Defendant appeals from the Chancery Division’s denying her motion to vacate a Dec. 10, 2009, final judgment of foreclosure entered against her with respect to her property in Willingboro. No answer to the complaint for foreclosure was filed and default was entered on Dec. 21, 2007. The assignment of the note and mortgage to plaintiff, dated April 1, 2005, was recorded on Oct. 3, 2008, and final judgment of foreclosure was entered on Dec. 10, 2009. A sheriff’s sale of the property was scheduled for Dec. 1, 2011, and on Nov. 29, 2011, defendant filed a motion to vacate the judgment of foreclosure. Defendant argues that the judge erred in denying her motion because “plaintiff had no standing to file the complaint.” The appellate panel disagrees and affirms, finding plaintiff had standing to foreclose the mortgage on defendant’s property. It is undisputed defendant defaulted on the underlying loan. Plaintiff obtained a valid assignment of the loan and the security and had the authority to proceed at the time of the filing of the foreclosure complaint. The record amply supports the finding by the motion judge that defendant failed to demonstrate excusable neglect. In fact, defendant makes no argument to the contrary. The panel is also satisfied defendant has not established a meritorious defense by her standing challenge. [Decided Aug. 12, 2013.]
 
TAXATION
35-5-0946 Alon v. Director, Division of Taxation, Tax Ct. (Andresini, J.T.C.) (10 pp.) This is the court’s opinion with respect to plaintiff’s complaint challenging defendant’s final determination letter. Plaintiff contends that defendant wrongfully denied a request for a tax refund from tax years 2003 to 2008. Defendant contends that plaintiff is not entitled to a tax refund for tax years 2003 to 2008 because he failed to file a tax return for those years, making his requests untimely. The failure to file a tax refund by the statutory deadline of each respective year prevents plaintiff from recovering a refund. Plaintiff’s alleged hardships do not excuse him from having to file a tax return. Even if the late filing of plaintiff’s tax returns were timely, plaintiff would not be entitled to a refund because he failed to make any payments in the three years immediately preceding the time of filing. The court dismisses plaintiff’s complaint and affirms defendant’s final determination. [Decided Aug. 6, 2013.]
 
35-2-0962 Shree Ram Investments Inc. v. Director, Division of Taxation, App. Div. (per curiam) (19 pp.) Shree Ram Investments Inc. (SRI) appeals from an order of the Tax Court denying its motion for summary judgment and granting summary judgment to the director of the Division of Taxation. The appellate panel affirms for different reasons. The judgment was entered on SRI’s complaint challenging the director’s denial of its claim for a refund of corporate business tax paid in response to the division’s notice of deficiency and demand. The deficiency assessment was based on the division’s determination that SRI paid taxes at the rate appropriate for an S corporation, without filing the requisite election to be taxed as an S corporation. Since there was no regulation at that time directly authorizing the retroactive S corporation election, the director’s denial of the refund was appropriate. SRI’s arguments on appeal are based on N.J.A.C. 18:7-20.3, a regulation providing for retroactive S corporation election that was adopted while this case was pending. The Tax Court addressed SRI’s claimed entitlement to relief under the newly promulgated regulation. Where the court decided it lacked jurisdiction to resolve SRI’s other objections to the denial of its request to make a retroactive S corporation election, the court’s discussion of the applicability of N.J.A.C. 18:7-20.3 was dicta. The court lacked the authority to determine, in the first instance, whether SRI was entitled to a benefit available pursuant to a newly adopted regulation before SRI sought that benefit in the division. [Decided Aug. 9, 2013.]
 
35-5-0976 Cohen v. Director, Division of Taxation, Tax Ct. (Andresini, J.T.C.) (6 pp.) Plaintiff, a 25 percent shareholder in a corporation that became an S corporation in 1995, seeks reconsideration of the director’s determination that the distribution plaintiff received in tax year 2003 was taxable. The court denies the motion, finding that plaintiff is attempting to re-argue the arguments presented to the court and has presented no additional allegations of fact or any new evidence not within their prior submissions; he was given every opportunity to explain the discrepancies in the NJ AAA reporting; and his argument that Koch was the facilitating factor in the change was adequately addressed and properly rejected. The court correctly declined to extend Koch to the facts here because when analyzing the effects of the AAA distribution from the S corporation, plaintiff is required to initially explain why the NJ AAA balance at the end of 1997 does not match the balance at the start of the next tax year. [Filed July 12, 2013.]
 
35-5-0991 Tomorrow 35 Davidson v. Township of Franklin, Tax Ct. (DeAlmeida, J.T.C.) (20 pp.) This is the court’s opinion after trial regarding a challenge to the assessments on plaintiffs’ real property for tax years 2009, 2010 and 2011. The court finds that plaintiffs produced sufficient evidence to overcome the presumption of validity attached to the assessments. If taken as true, the opinion of plaintiffs’ expert and the facts on which he relied, create a debatable question regarding the correctness of the assessments in each tax year sufficient to allow the court to make an independent determination of the value of plaintiffs’ property. The court finds that the income capitalization approach is the best method for determining the value of the subject property, which is an income-producing office building. The court finds credible the economic rents opined by plaintiffs’ expert for each tax year and will use them to determine the true market value of the subject property. Accepting as credible the vacancy and collection rate, and the income, expenses and capitalization rate offered by plaintiffs’ expert, the court will enter judgment reducing the assessments. [Decided Aug. 8, 2013.]
 
35-5-1006 Toranco Assocs., L.L.C. v. Township of Edison, Tax Ct. (Sundar, J.T.C.) (20 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 for tax years 2010 and 2011. Alternatively, plaintiff maintains that it is entitled to relief under the Freeze Act because there is a final judgment for tax year 2011, and asks the court to issue a judgment, with statutory interest, on the refunds due for tax year 2012. The township opposes the motion compelling a refund on grounds that the stipulation specifically crossed out the proposed settlement of the assessment for tax year 2012, there was no approval from the governing body authorizing the proposed 2012 settlement, and there was no Tax Court judgment for 2012. The township opposes plaintiff’s request under the Freeze Act where the parties have a settlement, and disputes plaintiff’s entitlement to statutory interest. The court finds that in the absence of authority to settle, it cannot compel the township to issue a refund based on a proposed agreement for tax year 2012. Plaintiff’s motion in this regard is denied. However, plaintiff is entitled to the benefit of the Freeze Act for tax year 2012 based on the Tax Court judgment issued for tax year 2011. Plaintiff is entitled to statutory interest but the court will not issue a judgment compelling such refund plus interest because the statute provides a 60-day period from the date of judgment for the township to make payments and it has not expired. [Decided Aug. 9, 2013.]
 
TORTS
36-2-0947 Gordon v. Township of Toms River, App. Div. (per curiam) (10 pp.) Plaintiff, who was bitten several times by a K-9 officer, appeals from the dismissal of his complaint against the township, the police department and several officers that asserted claims for negligent and careless handling of the canine officer. The panel affirms, agreeing with the trial judge that an expert was required in this case to provide the critical insights necessary for the jury to determine if the K-9 was used appropriately in the search for a trespasser and that the jury could not have fairly assessed the reasonableness of defendants’ conduct in the absence of expert testimony on police canine training and procedure. [Decided Aug. 8, 2013.]
 
36-2-0963 Christen v. Wyka, App. Div. (per curiam) (10 pp.) Plaintiff, who claims to have been startled when defendants’ dogs ran to the front of the property, barking, and stood up against the fence to peer over it, and that she consequently stepped to the right into a depression in the grass next to the sidewalk and fell, injuring herself, appeals the trial court’s grant of defendants’ motion for summary judgment dismissing the complaint. Noting that plaintiff was never on defendants’ property, that defendants are residential landowners, that there is no evidence that the dogs had any vicious propensities, that defendants had posted a beware-of-dogs sign on the fence, and that the dogs never left the fenced yard, the panel declines to find that defendants owed plaintiff a duty of care and affirms the dismissal. [Decided Aug. 9, 2013.]
 
36-2-1007 Veliz-Sanchez v. Bonola-Silva, App. Div. (per curiam) (8 pp.) Defendants Bonola-Silva and A1 Taxi Express Inc. appeal from the entry of judgment following a jury trial in favor of plaintiff Veliz-Sanchez. A vehicle driven by defendant Bonola-Silva struck a vehicle driven by plaintiff. Plaintiff filed a personal-injury complaint against Bonola-Silva and A1 Taxi, the owner of the vehicle Bonola-Silva was operating. At trial, defendants’ attorney stipulated to liability and acknowledged Bonola-Silva’s responsibility for causing the accident. The trial continued on the issue of damages. After three days of trial and the close of all evidence, defendants’ attorney claimed, for the first time, that the stipulation of liability was limited to Bonola-Silva and did not extend to A1 Taxi. The trial court denied A1 Taxi’s motion for a directed verdict and the jury returned a verdict in plaintiff’s favor against both defendants. On appeal, Bonola-Silva claims his stipulation was limited to his individual liability and he did not concede liability as to A1 Taxi. Also, appellants claim the trial court erred in not permitting a defense expert to testify regarding plaintiff’s “symptom magnification.” The appellate panel rejects both arguments and affirms. The record reflects the stipulation of liability was not limited to Bonola-Silva but applied to both defendants; there was no statement suggesting A1 Taxi was not covered. Further, the trial court did not abuse its discretion in barring the expert from presenting opinion testimony, which was a comment on plaintiff’s credibility. [Decided Aug. 14, 2013.]
 
TORTS — ALTERNATIVE DISPUTE RESOLUTION
36-2-1008 Moore v. Woman To Woman Obstetrics & Gynecology, L.L.C., App. Div. (per curiam) (21 pp.) Defendants Carlos Fernandez, M.D., and Premier Perinatal, L.L.C., appeal from the order that denied their motion to compel arbitration of plaintiffs Monica and Kevin Moore and their daughter Koral Moore’s medical-malpractice complaint. Monica’s doctor, defendant Lisa Vernon, practicing with defendant Woman to Woman Obstetrics, L.L.C., referred Monica to defendants Fernandez and Premier Perinatal due to her high-risk pregnancy based on her age. On her first visit, Monica signed an arbitration agreement on behalf of herself and her spouse and unborn child, which covered all past and future claims for medical diagnosis and treatment. Subsequently, plaintiffs filed a complaint against all four defendants alleging medical malpractice due to Koral being born with Down syndrome. The order denying defendants’ motion to compel arbitration for plaintiffs’ medical-malpractice claims is reversed as to Monica and Koral. The panel affirms the denial of defendants’ motion to compel Kevin to arbitrate his individual claims where nothing in the record demonstrates that Kevin appointed Monica his agent or gave her the authority to waive his right to a jury trial and bind him to the arbitration agreement. Instead, the record reflects that Kevin did not read, sign or even know about the arbitration agreement, and had no knowledge of the right to rescind that agreement. [Decided Aug. 14, 2013.]
 
TRUSTS AND ESTATES
38-2-0948 In the Matter of the Estate of Ferretti, App.Div. (per curiam) (12 pp.) Plaintiff Elaine Vescovi, niece of decedent Ferretti, appeals from the denial of her motion to invalidate the last will and testament of decedent. A judgment entered the same day dismissed her complaint with prejudice and declared the last will and testament valid and enforceable. The panel affirms, finding that plaintiff, who resides in California, had notice of her sister’s complaint challenging the will and her right to participate in that matter but she waited 18 months before taking legal action and thus failed to challenge the will within a reasonable time. Moreover, her inability to retain counsel is not such an extraordinary circumstance as to require relief from a judgment under Rule 4:50-1. [Decided Aug. 8, 2013.]
 
WORKERS’ COMPENSATION
39-2-0949 Wilson v. Studio I Inc., App. Div. (per curiam) (5 pp.) Petitioner appeals from a determination by the Division of Workers’ Compensation denying her motion for medical and temporary disability benefits filed after she dropped a heavy frame on her foot while working for respondent. Finding that the claimed benefits were for a past period of eligibility and was contested, and that an incorrect determination of past temporary benefits can be remedied by a retroactive award of benefits, the panel affirms, finding that the motion was interlocutory. [Decided Aug. 8, 2013.]
 
WORKERS’ COMPENSATION — TORTS
39-2-0950 Araujo v. DaSilva, App. Div. (per curiam) (18 pp.) Plaintiff, the administratrix of the estate of her late husband, Mario Goncalves, appeals from the orders dismissing her complaint against defendants DaSilva and Kelmar Construction Company Inc. The action arises out of a gas explosion in a house built by Kelmar that occurred hours before the scheduled closing with DaSilva. The explosion occurred one minute after the decedent, who worked for Kelmar and who had been sent to the house to inspect for damage after a report of a break-in, entered the home. Applying the test of Millison and Laidlow, and viewing the facts in the light most favorable to plaintiff, and therefore assuming that Kelmar’s owner had been informed of a gas leak at the house, the panel finds that sending an employee to check on a report of a gas leak at a newly constructed house, without more, cannot be seen as a deliberate intent to injure and plaintiff therefore did not establish the conduct prong of the substantial certainty test, and that going to the site to check a problem was not outside the scope of decedent’s employment and therefore the context prong is not satisfied. Thus, the panel concludes that the trial court correctly found that plaintiff had not presented evidence to allow a reasonable jury to find that defendant had acted in a manner that would invoke the intentional-wrong exception to the workers’ compensation bar. Further, the panel finds that where the deed was transferred and put into escrow pending closing, DaSilva was not the owner at the time of the explosion and he owed no duty to decedent based on his status as a contract vendee. [Decided Aug. 8, 2013.]
 
FEDERAL COURT CASES
 
ADMINISTRATIVE LAW
01-7-0965 Andino v. Commissioner of the Social Security Administration, U.S. Dist. Ct. (Simandle, U.S.D.J.) (22 pp.) The court reviews the final decision of the commissioner of the Social Security Administration denying plaintiff’s application for disability insurance benefits under Title II of the Social Security Act. Plaintiff alleges that the administrative law judge erred in determining that the work she performed under “special conditions” constituted “substantial gainful employment.” The court finds that the ALJ’s decision should not be given deference, as the ALJ failed to support his findings with substantial evidence. The court agrees with plaintiff that the ALJ’s analysis is incomplete because he did not evaluate whether plaintiff performed work under special conditions. Further, the ALJ assumed facts that were not in the record, namely, whether plaintiff was provided with unique accommodations in her place of employment and whether plaintiff received such accommodations at her other place of employment. Lastly, the ALJ failed to account for the fact that plaintiff left work early on some days yet still received pay, thereby potentially contributing to an inflated income level. The court vacates the decision and remands. [Filed July 3, 2013.]
 
ADMINISTRATIVE LAW — SOCIAL SECURITY BENEFITS
01-7-0995 Szaroleta v. Astrue, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (27 pp.) Plaintiff, who claims that she is disabled because of various conditions, including depression, panic disorder, back and neck pain, and asthma, appeals from the final decision of the commissioner of the Social Security Administration denying her benefits under the Social Security Act, arguing that the ALJ erred in determining that she was not totally disabled and could perform certain jobs. The court finds, inter alia, that nothing in the record supports the ALJ’s determination that plaintiff maintains the ability to turn her head side to side by 20 degrees, there is no indication that the ALJ considered the opinion of plaintiff’s treating physician with regard to plaintiff’s asthma, the ALJ fails to point to any specific medical evidence to support the conclusion that plaintiff’s asthma is controlled by medications, the ALJ’s determination that plaintiff requires only one one-hour unscheduled break a month due to possible panic attacks during work hours is not supported by the substantial evidence of the record, and that the ALJ’s questioning of the vocational expert was not based on an RFC that accurately portrayed plaintiff’s limitations — and concludes that the ALJ’s decision is not supported by substantial evidence of record and reverses the denial and remands for further proceedings. [Filed July 17, 2013.]
 
ALTERNATIVE DISPUTE RESOLUTION
03-7-1009 Fraternal Order of Police Penn-Jersey Lodge 30 v. Delaware River Port Authority, U.S. Dist. Ct. (Simandle, U.S.D.J.) (20 pp.) Having previously ordered that defendant participate in binding interest arbitration with plaintiff regarding the terms and conditions of FOP members’ employment, the court responds to the parties’ request to resolve certain disputes regarding the interest arbitration procedure. The court decides substantive questions regarding which issues should be submitted to arbitration and declines to decide procedural questions that the arbitrator can determine. It holds (1) the parties must arbitrate the terms of FOP members’ employment, including wages and health-care premium contributions; (2) the court will not impose a cap on wage increases or a restriction on comparators for the arbitrator to consider, as those are issues for the parties to argue to the arbitrator; (3) the issues of any cap on arbitrator fees or the deadline for the arbitrator to issue a decision are in the hands of the parties to agree on, and in the absence of agreement, these are to be arbitrated; (4) DRPA may include language specifying that it does not consent to interest arbitration and reserves the right to contest on appeal the imposition of interest arbitration; and (5) the requirement to arbitrate benefit contributions and wages extends to the collective-bargaining agreement presently at issue, that is, the successor agreement to the CBA that expired in 2009. [Filed July 18, 2013.]
 
CIVIL PROCEDURE
07-7-0967 Speth v. Goode, U.S. Dist. Ct. (Simandle, U.S.D.J.) (18 pp.) This action arises out of plaintiff’s tenure as a county medical examiner and his suspension. Plaintiff then began working in the private sector and served as an expert witness for defendants in criminal trials. Consequently, plaintiff still examined bodies at the State Medical Examiner’s Office. In 1993, a morgue attendant allegedly observed plaintiff tampering with evidence. This led to a criminal investigation culminating in an indictment. Plaintiff filed this action against defendants, alleging violations of his constitutional rights, tortious interference and abuse of office for personal benefit. Plaintiff sought discovery of several documents from two previous criminal cases, arguing these documents were relevant to establishing his claims. Plaintiff asserts that he was wrongfully convicted of witness tampering and wrongfully indicted for evidence tampering. Plaintiff’s accusations, however, lack a sufficient factual basis to permit a fishing expedition into privileged attorney-client communications in search of evidence that another person committed the crime of which he was accused. The court affirms the denial of plaintiff’s motion for an in camera review of several documents defendants refused to produce. Magistrate Judge Donio appropriately concluded that these documents were protected by the attorney-client privilege and plaintiff had not met his burden to pierce the protection of that privilege. [Filed July 3, 2013.]
 
07-7-0979 National Casualty Company v. Hertz Equipment Rental Corp., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (4 pp.) This matter comes before the court on plaintiff’s motion to alter or amend a judgment under Rule 59(e) or for relief from judgment or order under Rule 60(b), seeking reconsideration of the court’s order granting defendant’s motion to dismiss. Much of the parties’ briefs on plaintiff’s motion for reconsideration rehash the parties’ arguments in their motion to dismiss briefs. In its motion for reconsideration, plaintiff claims that the court overlooked several factors in ruling on the motion to dismiss: the stay of the Wisconsin lawsuit, the “very real” possibility that the Wisconsin lawsuit will be dismissed when reinstated, that this case involved the interpretation of a federal law attendant to ruling on the state law declaratory judgment claim, and declining jurisdiction at this stage of the case would create duplicative litigation and manifest injustice. The court denies plaintiff’s motion, finding (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. [Filed July 8, 2013.]
 
CRIMINAL LAW
14-7-0971 United States v. Durante, U.S. Dist. Ct. (Chesler, U.S.D.J.) (5 pp.) After a jury held that only $54,837 of the $291,690 seized from defendant’s residence was forfeitable under 21 U.S.C. § 853 after his conviction for oxycodone distribution, the United States moves for an order of forfeiture pursuant to Federal Rule of Criminal Procedure 32.2 consisting of a personal money judgment against defendant for $658,821, representing the proceeds allegedly traceable to the conspiracy offense and seeks to restrain the portion of the seized currency that the jury did not find forfeitable, i.e., $236,853, on the grounds that the property constitutes a forfeitable substitute asset under 21 U.S.C. § 853(p). Finding that the government fails to indicate any authority in the governing statute that would allow the court to continue to restrain the funds in contemplation of a potential judgment against defendant, and that the All Writs Act does not function to expand the authority expressly and narrowly conferred by § 853, the court denies the government’s motion for continued restraint of the seized funds and orders them returned. [Filed July 15, 2013.]
 
14-7-0986 United States v. Smith, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (3 pp.) Plaintiff, who pleaded guilty to conspiracy to possess cocaine base, moves for termination of the remainder of his supervised release under 18 U.S.C. § 3583(e)(1). The court grants the unopposed motion, finding that it is appropriate where Smith completed his period of incarceration without incident and nearly seven years of supervised release with success; has not reoffended; has been in compliance with his probation requirements, has abstained from drug use, and has built a productive and stable life; and is employed, married, and has given his time to start a charitable endeavor. [Filed July 16, 2013.]
 
14-7-1014 United States v. Tejada, U.S. Dist. Ct. (Linares, U.S.D.J.) (14 pp.) Defendant, indicted for conspiracy to distribute and possession with intent to distribute 5 kilograms or more of cocaine, has filed an omnibus motion that is denied in part and granted in part. His request to dismiss the indictment due to a violation of the Speedy Trial Act is denied because every continuance order has been prompted by a motion filed jointly by the government and defendant’s counsel. Because the case is likely to involve a large amount of interrelated testimony, the court allows the government to offer the statements of alleged co-conspirators so long as it establishes the existence of a conspiracy by the end of trial and denies defendant’s motion for a pretrial hearing to determine the existence of a conspiracy. His request for pretrial disclosure of Jenks Act material and Giglio material is denied as he is not legally entitled to such disclosure. His motion for trial disclosure of the government’s intent to offer evidence of prior bad acts 30 days before trial is denied in light of the order directing the government to indicate its intent not less than 10 days before trial. Defendant’s request for an order requiring law enforcement officers to retain rough notes, writings and recordings is denied as moot, as is his request for an order directing the government to comply with Federal Rule of Criminal Procedure 12(b)(4)(B). In light of the government’s representation that there are no informants in this case, defendant’s request that this court order the disclosure of information concerning informants is denied as moot. Defendant’s request for leave to file additional motions is granted only insofar as such a need arises from any future disclosures that the government makes pursuant to its continuing obligations. The government’s request for discovery pursuant to Rule 16(b) is granted. [Filed July 17, 2013.]
 
EDUCATION
16-8-0980 Mehta v. Fairleigh Dickinson University, Third Cir. (Vanaskie, U.S.C.J.) (16 pp.) Plaintiff appeals from the district court’s order granting summary judgment in favor of defendants FDU and Dr. McGrath on her claims of discrimination, breach of contract, defamation and negligence arising from defendants’ remedial response to her purportedly inadequate performance in FDU’s doctoral clinical psychology program. The Third Circuit vacates the grant of summary judgment on the discrimination claim, finding that while the statements attributed to defendants did not constitute direct evidence of discrimination sufficient to shift the burden to defendants under Price Waterhouse, her certification that three comparators were not members of a racial minority group, combined with patients’ clinical records showing that they also did not complete their cases within the eight-week time frame specified in the clinic’s procedures but that they were not subject to remediation plans, were sufficient to establish a prima facie case of discrimination. Summary judgment is affirmed on the breach-of-contract claim because the program procedures, not the student code, provide the procedures that apply to her case and plaintiff has not shown that defendants failed to adhere to the program procedures; on the defamation claim because the statements by McGrath on which it is based constituted pure opinion and are not susceptible to a defamation action; and on the negligence claim because one of the statutes on which it is based was designed to benefit patients not psychology students and the other creates no duty of care for supervisors vis-a-vis students. [Filed July 15, 2013.]
 
HEALTH LAW — ERISA
22-7-0981 Reed v. Citigroup Inc., U.S. Dist. Ct. (Arpert, U.S.M.J.) (5 pp.) In this action appealing the discontinuation of plaintiff’s long-term disability benefits, plaintiff seeks additional discovery beyond the administrative record of his claim, including all retainer agreements, contracts or employment agreements between Metlife and any health-care provider who reviewed his claim; all facts and documents that defendants claim support the termination of his benefits or evidence any improvement in his medical condition after he was initially granted benefits; and leave to depose Dr. Taylor, an independent physician consultant who performed medical reviews during plaintiff’s appeal of his claim. The court denies the motion because here, where the plan administrator had discretional authority to determine plaintiff’s eligibility for benefits, the court is generally limited to reviewing the record that was before the administrator at the time of denial, and although discovery may be extended, plaintiff does not present any evidence of a structural conflict of interest or procedural irregularities warranting an extension beyond the administrative record; defendants have agreed to produce some of the requested documents, rendering part of the motion moot; and plaintiff fails to show any connection between Dr. Taylor and the relevant information he may possess. [Filed July 16, 2013.]
 
INTELLECTUAL PROPERTY
53-7-0996 Patrick Collins Inc. v. John Does 1-13, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (8 pp.) This is an action for copyright infringement brought against 13 individuals who are identifiable to plaintiff only by their Internet Protocol addresses. Plaintiff moved to issue subpoenas on the Internet Service Providers for the IP addresses. Plaintiff voluntarily dismissed all John Does except John Doe No. 2, who filed a motion to quash, claiming the requested information is confidential and he has personal and proprietary interests in it. The court finds this assertion is sufficient to establish standing and turns to whether the information sought by the subpoena is privileged or protected material. Defendant has voluntarily disclosed his personal information to his service provider to set up his Internet account. Thus, defendant cannot now claim that information is privileged or confidential to quash a subpoena. A party does not generally have standing to challenge a third-party subpoena based on undue burden because the subpoena is directed at the ISP and not the defendant. Defendant claims that an undue burden exists because the information sought is not relevant and that plaintiff is engaging in a “fishing expedition” to elicit settlements through coercive litigation. These arguments fail. Also, the court agrees with plaintiff’s argument that there is no other way to ascertain the identity of infringers. The court finds that the subpoena is not unreasonable or oppressive and does not impose an undue burden. Defendant’s motion to quash is denied. [Filed July 10, 2013.]
 
53-7-1010 Homedica Osteonics Corp. v. Depuy Orthopaedics Inc., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (52 pp.) Before the court is the parties’ request for a patent claim construction. The court held a Markman hearing regarding patent claims regarding two patents involving surgical implants used in hip-replacement procedures. The parties dispute the meanings of 23 claim terms or phrases with respect to the two patents. The court herein construes the claim terms in dispute. [Filed July 9, 2013.]
 
INTELLECTUAL PROPERTY — PATENTS
53-7-0953 Nippon Steel v. Posco, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) This action is part of a global intellectual property dispute between plaintiff Nippon Steel & Sumitomo Metal Corporation and POSCO, related to grain-oriented electrical steel (GOES). The claims are for patent infringement, false advertising and unfair competition. There are also other proceedings involving the parties pending in foreign jurisdictions. The overarching issue is Nippon’s contention that POSCO has engaged in a multiyear program of corporate espionage, including theft and bribery, directed toward Nippon’s GOES technology, and that POSCO has incorporated Nippon’s GOES technology into its own GOES manufacturing process. POSCO filed a motion to dismiss several counts of the complaint, asserting that no cause of action exists under § 43(a) of the Lanham Act or under the parallel New Jersey statute and common-law unfair-competition claims. Nippon has alleged that POSCO has made false statements pertaining to the “physical or functional attributes” of its products. Nippon’s Lanham Act claim against POSCO will stand. Because the analysis is the same for the New Jersey Fair Trade Act and common-law claims, POSCO’s motion to dismiss those counts is also denied. [Filed June 27, 2013.]
 
53-7-0997 Cephalon Inc. v. Sun Pharmaceutical Industries, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (9 pp.) In this patent infringement action, defendants have appealed the letter order of the magistrate judge, denying defendants’ request to bifurcate the case on the issues of liability and damages for discovery and trial purposes. Relying on the decision in Princeton Biochemicals Inc. v. Beckman Instruments Inc. Defendants contended that bifurcation was necessary because of the complexity of the case, the threat of prejudice due to jury confusion, and considerations of judicial economy. The magistrate judge’s letter order could be read as denying bifurcation as to both the discovery and trial portions of this case. Such a determination regarding trial proceedings is premature, and, accordingly, to the extent that the letter order denied bifurcation at trial, it is vacated. Further, the magistrate judge did not abuse his discretion in deciding not to bifurcate discovery relating to liability and damage issues. Defendants’ reliance on Princeton is misplaced. The issue of bifurcation in Princeton concerned the trial, not discovery, and the complexity issue in Princeton related to a concern of jury confusion, which is not implicated in discovery proceedings. Moreover, even assuming arguendo that the rationale in Princeton should be extended to discovery, bifurcation is still not mandated. [Filed July 8, 2013.]
 
LABOR AND EMPLOYMENT
25-7-0954 Zas v. Canada Dry Bottling Company of New York, U.S. Dist. Ct. (Waldor, U.S.M.J.) (18 pp.) Plaintiffs, a group of current and former drivers (delivery persons or distributors) for defendant CDNY, allege that they were improperly classified as independent contractors rather than nonexempt employees of CDNY and, as such, are owed overtime pay and other benefits under the FLSA, NJWHL and ERISA. After commencement of this action, the parties proceeded to mediation, which proved unsuccessful. Following mediation, CDNY reclassified its South Plainfield distributors, including those plaintiffs who were still affiliated with CDNY, as nonexempt employees. Before the court is plaintiffs’ motion for leave to file an amended complaint and to add parties. Plaintiffs’ motion to amend to add certain named plaintiffs is granted. Plaintiffs’ motion to amend to allege non-ERISA non-payment of benefits against certain new named defendants is granted. Plaintiffs’ motion to amend to allege failure to pay overtime and impermissible wage deductions against certain new named defendants is denied without prejudice. Plaintiffs’ motion to amend to allege a claim for retaliation against CDNY and certain named individual defendants is denied without prejudice. Plaintiff’s motion to amend to add additional fictitious defendants is denied. [Filed June 27, 2013.]
 
25-7-0968 Muhammad v. Sills Cummis & Gross, U.S. Dist. Ct. (Hammer, U.S.M.J.) (4 pp.) Plaintiff has filed an application for pro bono counsel in this action against his former employer alleging age discrimination. Applying the Tabron test, the court finds that plaintiff has not shown that he will be unable to present his case, his cogent submissions indicate that he can request relief and he provides no explanation as to why he would be unable to present his case, his claims do not involve complex legal issues, there is no indication that he lacks the ability to conduct a factual investigation without the assistance of counsel, it is premature to conclude that the case will turn on credibility determinations, there is no indication that the case will require expert testimony, and plaintiff has not described his attempts to obtain counsel or whether he can obtain and afford an attorney. The court therefore denies the request for appointment of pro bono counsel. [Filed July 15, 2013.]
 
25-7-0983 Diallo v. ALO Enterprises Corp., U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (8 pp.) Plaintiff, whose complaint alleges overtime and minimum wage claim violations of the Fair Labor Standards Act, moves to amend his complaint to add state common-law breach-of-contract claims. The court grants the motion, finding that defendants have failed to show that the proposed amendments result from bad faith since they have not identified any extrinsic evidence of bad faith other than plaintiff’s delay in bringing the breach-of-contract claims despite knowing of the facts alleged to underlie the claims at the time of filing, which does not equate to bad faith; the breach-of-contract claims are not clearly futile since they are not duplicative of plaintiff’s FLSA claims because plaintiff could theoretically lose on the FLSA claims if he is unable to establish that he was an employee of defendants, but still win on the breach-of-contract claims based on his alleged independent contractor status; and there is no evidence that the addition of the proposed claims would unfairly prejudice defendants or that they are the product of undue delay. [Filed July 17, 2013.]
 
25-7-0998 Scull v. The Wackenhut Corp., U.S. Dist. Ct. (Bumb, U.S.D.J.) (15 pp.) In this action asserting claims against plaintiff’s former employer for age discrimination in violation of the New Jersey Law Against Discrimination and unlawful retaliation in violation of the New Jersey Conscientious Employee Protection Act, in which the court granted summary judgment on the LAD claim but allowed the CEPA claim to proceed to trial, and the jury returned a verdict in favor of plaintiff and awarded plaintiff back pay but not front pay, the court affirms its ruling from the bench granting defendant’s motion for judgment as a matter of law dismissing plaintiff’s request for punitive damages, finding that plaintiff cannot demonstrate through clear and convincing evidence that defendant acted in a malicious, wanton or willful manner. [Filed July 17, 2013.]
 
25-7-0999 Spearman v. Donahoe, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (18 pp.) Plaintiff, a 62-year-old mail handler for the U.S. Postal Service, filed this action pursuant to the Age Discrimination in Employment Act, alleging that his shift at the post office was abolished, forcing him to work on a less desirable shift, as a result of his age. The court grants defendant’s motion for summary judgment because (1) plaintiff cannot make out a prima facie case under the ADEA since he cannot show that he was subjected to an adverse employment action where he admits that the shift realignment did not affect his seniority, opportunity for overtime, opportunity for promotion or materially change his responsibilities in a way that set back his career and he cannot show that he was replaced by someone significantly younger, and (2) even if plaintiff could make out a prima facie case of age discrimination, he cannot show that defendant’s stated nondiscriminatory reasons for the realignment — to match mail handler hours to workload, increase efficiencies and reduce high overtime use — were a pretext for age discrimination. [Filed July 17, 2013.]
 
25-7-1011 Beery v. Quest Diagnostics Inc., U.S. Dist. Ct. (McNulty, U.S.D.J.) (7 pp.) The Fair Labor Standards Act of 1938 provides that an employee may bring an action to recover damages for specified violations on the act on behalf of herself and other “similarly situated” employees. In this case, three named plaintiffs filed a putative collective action claim under the provisions of the Fair Labor Standards Act, as amended by the Equal Pay Act. After defendants moved to dismiss based on arbitration clauses in plaintiffs’ employment agreements, four individuals filed “consent to join” statements in which they sought to opt in to the Equal Pay Act collective action as plaintiffs. The court dismissed the claims of the three named plaintiffs based on the contractual arbitration clauses. Whether this case remains justiciable, then, depends on the status of the four individuals who filed consent-to-join forms. The court finds that, in the absence of conditional certification by the court, the mere filing of consent-to-join forms does not confer party-plaintiff status. Thus, following the dismissal of all claims of the three named plaintiffs, the court does not retain jurisdiction over the Equal Pay Act claim. The case is dismissed. [Filed July 8, 2013.]
 
25-8-1012 Doe v. Sizewise Rentals Inc., Third Cir. (per curiam) (8 pp.) Pro se appellants John Doe, a self-described “Egyptian Muslim,” and John Doe-1, a Muslim from Turkey, filed suit against appellee Sizewise Rentals Inc. and 11 of its employees, as well as its customer Arbor Glen Center, and its employee Natalie Bryson, alleging discriminatory discharge, hostile work environment, and retaliation under 42 U.S.C. §§ 1981, 1985 and 1986. They appeal the district court’s dismissal of all but one claim pursuant to Rule 12(b)(6) and its grant of summary judgment on the remaining claim. The Third Circuit affirms, finding, inter alia, that the complaint is devoid of factual allegations indicating that Sizewise defendants acted with any racially discriminatory animus against appellants; appellants fail to show that similarly qualified persons filled their positions; the factual allegations indicate that Doe-1’s four accidents and the sexual misconduct complaint against Doe were the likely bases for their dismissals; there were no facts that would plausibly support the claim that they were discharged on the basis of race; and the district court properly granted summary judgment on Doe’s retaliation claim because his accusations were based on religious, rather than racial, discrimination and were therefore noncognizable under § 1981 and he failed to show a causal connection between his complaint of discrimination and his termination. Moreover, even if Doe had established a prima facie case, it is clear that Sizewise put forth legitimate, nonretaliatory reasons for his termination, which he has failed to rebut. [Filed July 18, 2013.]
 
LABOR AND EMPLOYMENT — ALTERNATIVE DISPUTE RESOLUTION
25-7-1013 Caruso v. Occhiogrosso, U.S. Dist. Ct. (Falk, U.S.M.J.) (7 pp) Plaintiff Suzanne Caruso was an associate with defendant Viridian Network and recruited defendant Joseph Occhiogrosso into her network. Plaintiff alleges that prior to her termination, Occhiogrosso and several other associates and Viridian employees tortiously interfered with her contractual relationship with Viridian by removing Occhiogrosso from her network. Plaintiff initiated an arbitration proceeding against Viridian. An arbitrator entered an award in favor of Viridian. Plaintiff appealed to the N.Y. Supreme Court, where the award was vacated. Viridian appealed the state court’s decision and it remains pending. Plaintiff initiated this litigation, alleging Occhiogrosso and several other Viridian associates and employees tortiously interfered with her contractual relationship with Viridian. Plaintiff filed a motion for the entry of a default judgment against Occhiogrosso. Occhiogrosso filed a cross-motion to vacate default and to stay the case. Because the relevant factors weigh in favor of setting aside default, Occhiogrosso’s motion to vacate default is granted. Plaintiff’s motion for the entry of default judgment is denied. Occhiogrosso is not a party to the arbitration proceeding between Viridian and plaintiff. Occhiogrosso believes Viridian will prevail in state court and that will have res judicata and/or collateral estoppel effect here. But that is nothing more than Occhiogrosso’s litigation position, which is inadequate to stay the entire case. The motion to stay is denied. [Filed July 9, 2013.]
 
LABOR AND EMPLOYMENT — DISABILITY DISCRIMINATION
25-7-0984 Scott v. Poerio, U.S. Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Pro se plaintiff filed this employment discrimination action against defendants. This matter arises out of plaintiff’s allegations that employees of Scotch Plains and other individuals discriminated against him in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Defendants Poerio, LaCosta, Lacina and Giannaci are current employees of Scotch Plains. Defendant Nachwalter was plaintiff’s physician. Defendant Odgers is a registered nurse. Defendant Fresco is a workers’ compensation adjuster. Scotch Plains is not named as a defendant. All seven defendants move to dismiss the complaint. The court finds that the motions should be granted. Plaintiff cannot state an employment discrimination claim against any of the defendants because neither Title VII nor the ADA provides for individual liability. In addition, defendants Nachwalter and Odgers cannot be held liable for employment discrimination because they are medical professionals who never employed plaintiff. Accordingly, the motions to dismiss are granted. Granting leave to amend would be futile because there is no set of factual allegations that would permit plaintiff to state a valid claim for relief against any of these defendants under Title VII or the ADA. Accordingly, the complaint is dismissed with prejudice. [Filed July 8, 2013.]
 
PRODUCTS LIABILITY
32-7-0969 Schraeder v. Demilec (USA) L.L.C., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (12 pp.) In this putative class action alleging that due to the defective nature of defendant’s design and manufacture of spray polyurethane foam insulation, the nature of its training of distributers/installers, and the defective nature of its warnings, labeling and training material, plaintiffs and their properties have been exposed to the harmful effects of the gases that the SPF emits after installation, the court denies defendant’s motion to dismiss pursuant to Rule 12(b)(1) and grants plaintiffs’ cross-motion to amend the complaint to plead the citizenship of defendant’s members. The court grants defendant’s motion to dismiss pursuant to Rule 12(b)(6) as to plaintiff’s New Jersey Consumer Fraud Act and unjust-enrichment claims since they are subsumed within the New Jersey Product Liability Act claim, and as to the claim for injunctive relief and medical monitoring because remedies are not causes of actions by themselves but accompany causes of action. It denies the motion as to the claim for breach of express warranty because the complaint provides the specific language and source of the alleged warranty. [Filed July 12, 2013.]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-7-1000 Gage v. Wells Fargo Bank, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (15 pp.) This is another one of many cases brought by pro se plaintiff Thomas Gage related to a state court judgment of foreclosure on his former home. In this matter, defendants Wells Fargo Bank and Luke Andersen and Helena Andersen, subsequent owners of the property, move separately to dismiss the complaint against them. In addition, the Andersens move to discharge the lis pendens filed by Gage on their property, and request the court to issue an injunction to enjoin Gage from using the Andersens’ address as his own. The court grants both defendants’ motions to dismiss, grants the Andersens’ motion to discharge lis pendens, which has prevented the Andersens from refinancing their home, and grants the Andersens’ request for an injunction. Moreover, the court enjoins Gage from filing any further related claims as a pro se litigant without leave of the court. [Filed July 9, 2013.]
 
TORTS
36-7-0970 Baker v. United States, U.S. Dist. Ct. (Simandle, U.S.D.J.) (20 pp.) In this action asserting claims under the Federal Tort Claims Act, negligence and conspiracy, arising out of the actions of U.S. marshals during a fugitive search, the United States moves to dismiss the second amended complaint for lack of jurisdiction pursuant to Rules 12(b)(1) and 12(h)(3). The court holds that it lacks jurisdiction over the FTCA claims here, where plaintiffs failed to present an administrative tort claim for money damages in a certain sum, the federal agency notified plaintiffs’ counsel of the defect, counsel took no corrective action, the agency denied the claim, and counsel initiated this suit, all before sending “amended” administrative claims with a certain sum to the agency. Plaintiff Tattyana Baker’s tort claims are dismissed as barred by the six-month provision in 28 U.S.C. § 2401(b). [Filed July 15, 2013.]
 
TORTS — FRAUD
36-7-0985 Swift v. Pandey, U.S. Dist. Ct. (Linares, U.S.D.J.) (10 pp.) Plaintiff alleges that he purchased all the rights, title and interest to all assets of Xechem International Inc. and Xechem Inc. at auction. This action stems from the alleged wrongful conduct of defendants in connection with Xechem and Xechem India. Plaintiff’s complaint asserts 12 causes of action. Defendants Ramesh Pandey and Bhuwan Pandey filed a motion to dismiss. Defendants argue that plaintiff lacks standing to pursue its conversion and fraud claims because “the purported assignment of them from Xechem’s bankruptcy trustee to Swift was void as against New Jersey’s public policy.” All parties agree that New Jersey law applies to plaintiff’s tort claims. Plaintiff does not dispute that he asserts the tort claims of fraud and conversion only as an assignee of Xechem’s rights, title and interest. Thus, plaintiff has failed to state a claim of conversion or fraud that is plausible on its face where, under New Jersey law, causes of action arising out of tort are not assignable prior to judgment. As amendment would be futile, plaintiff’s fraud and conversion claims are dismissed with prejudice. Plaintiff’s remaining claims are dismissed without prejudice where they fail to meet the requirements of Rule 8(a); these claims do not put the defendants on notice of the basis of the allegations against them. [Filed July 1, 2013.]
 
 

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