Daily Decision Service Alert: Vol. 23, No. 59 - March 27, 2014

New Jersey Law Journal

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STATE COURT CASES
 
FAMILY LAW
20-2-3277 New Jersey Division of Child Protection and Permanency v. C.W., App. Div. (Lihotz, J.A.D.) (21 pp.) We address the requisite procedures Family Part judges must follow to protect a defendant's due process rights when a child's testimony is sought in a protective services action. We hold that in any proceeding filed pursuant to N.J.S.A.9:6-8.21(c), when a defendant objects to utilizing an alternative to the child's in-court testimony, the judge must adhere to the statutory procedures outlined in N.J.S.A.2A:84A-32.4, prior to allowing in camera testimony of a child-witness. [Approved for publication.]
 
FAMILY LAW | IMMIGRATION LAW
20-2-3278 H.S.P. v. J.K., App. Div. (Leone, J.S.C., temporarily assigned) (32 pp.) A petitioner asking the Family Part to make the findings in 8 U.S.C.A.§ 1101(a)(27)(J) to enable a juvenile to apply for special immigrant juvenile status must show that reunification is viable with neither of the juvenile's parents due to abuse, neglect, or abandonment. It is insufficient to show only that one parent abused, neglected, or abandoned the juvenile. The mother, who raised the juvenile, did not willfully neglect him merely because she was financially unable to provide better care. The mother did not abandon the juvenile, given that she arranged for him to enter the United States to live with a relative, and remains in contact with him. By contrast, the father, whose whereabouts are unknown, willfully abandoned the juvenile, because he left the family before the juvenile was born, never met the teenaged juvenile, and provided no support. Because one parent had not abused, neglected, or abandoned the juvenile, the Family Part did not err in declining to find whether it was in the juvenile's best interest to be returned to his home country. [Approved for publication.]
 
INSURANCE LAW
23-2-3279 Artwell v. Sea Scape Landscaping LLC, App. Div. (per curiam) (18 pp.) Farm Family Casualty Insurance Company appeals from orders entered by the Law Division denying summary judgment, dismissing the cross-claim for PIP reimbursement brought against it by Metropolitan Direct Property and Casualty Insurance Company, and granting Metropolitan's cross-motion for summary judgment against Farm Family. Metropolitan cross-appeals from the denial of its request for counsel fees. On December 25, 2009, Monica Artwell was a passenger in a parked car that was struck by a commercial vehicle driven by Louis Chevere and owned by Sea Scape Landscaping, LLC. Artwell was injured by the collision and submitted a PIP claim to Metropolitan, the insurance carrier for the car in which she had been seated at the time of the accident. Metropolitan wrote to Farm Family, the insurance carrier for the Sea Scape vehicle, inquiring about the status of its "subrogation claim." Farm Family denied Metropolitan's claim. Artwell filed a complaint against Sea Scape, Chevere, Metropolitan, and Farm Family. The complaint asserted a claim for personal injury against Sea Scape and Chevere, as well as bad faith claims and a claim for uninsured motorist benefits against Metropolitan, and a claim for a declaratory judgment for coverage against Farm Family. The issue here is whether an insurance carrier entitled to seek from another insurance carrier reimbursement of the personal injury protection (PIP) benefits it paid pursuant to N.J.S.A. 39:6A-9.1, but which failed to formally pursue its right of reimbursement within two years of its insured's filing of a claim, may nonetheless enforce its subrogation right under either the principle of "relation back" or equitable tolling of the limitations period. The appellate panel holds that under the circumstances of this case, the carrier is barred from enforcing its reimbursement right and reverses the order of the Law Division holding otherwise. The cross-appeal for fees is denied as moot.
 
PUBLIC RECORDS
52-3-3280 297 Palisades Avenue Urban Renewal Company LLC v. Borough of Bogota, Law Div. (Bergen County) (Doyne, A.J.S.C.) (20 pp.) In these consolidated actions, plaintiff has filed verified complaints and orders to show cause seeking judgments that the borough, Councilman Nunez and the municipal clerk have violated the Open Public Records Act and the common law right of access. It seeks an order directing defendants to immediately produce the records sought in its OPRA requests, reasonable attorney fees and costs, and a fine against Nunez.  The litigation arises from a redevelopment project currently held “in default” by Bogota for which plaintiff was the approved builder. Nunez has been a vocal opponent of the project. The court notes the contentious history between the parties which apparently continues and finds that neither party has acted with utmost circumspection. It holds that to the extent plaintiff seeks all emails from both government and private emails addresses between Nunez and Councilman Burdiez from July 1 , 2013 to the present, the request is overbroad and orders production limited to emails containing enumerated terms in plaintiff’s request. The court finds that not every email sent from a government email address necessarily is within the purview of OPRA, the use of a private computer does not insulate emails for the purpose of OPRA, and that the investigation exemption applies to investigation by a public agency, not an individual elected official. The court finds that Nunez’s statement that no responsive documents existed was fallacious and it imposes a fine, which it suspends since no borough attorney was available to advise Nunez at the time. The court declines to review the voluminous documents submitted to it by defendants and it directs counsel to confer regarding the documents and orders defendants to turn over the documents unless a specific exemption applies. It orders defendants’ counsel to provide a sounder basis to withhold documents under the investigation exemption, noting that another action may be pursued if resolution cannot be obtained with a more refined Vaughn Index. The court declines to privately inspect and/or review defendants’ cellular phones for text messages.  Counsel are encourage to agree upon a reasonable fee award as documents were improperly withheld. [Filed March 26, 2014]
 
RESIDENTIAL AND COMMERCIAL REAL ESTATE | LANDLORD/TENANT LAW
34-2-3281 Lakowitz v. Brown, App. Div. (per curiam) (11 pp.) In these consolidated matters, the appellate panel reviews the terms of an agreement between the parties regarding the use and occupancy of certain real estate in Hillsborough Township (the property). Plaintiff Joseph Lakowitz, Jr. is the half-brother of defendant Susan Brown, who is married to defendant Steven Brown. Plaintiff also has a sister, Jennifer Lakowitz. Fern Katzman married plaintiff in 2007. Eva Marie Lakowitz and Joseph Lakowitz (the Lakowitzes) are plaintiff and Susan Brown's parents. The Lakowitzes sold the property to defendant in 1990. The Lakowitzes’ children, plaintiff and Jennifer, remained on the property. The Lakowitzes and defendant executed an addendum to the mortgage note, which acknowledged plaintiff and Jennifer's residence and set forth their agreement to each pay defendant rent. Neither plaintiff nor Jennifer executed the addendum or any other document in the real estate transaction between the Lakowitzes and defendant. Plaintiff filed an action alleging anticipatory breach of the agreement and defendant filed a separate action seeking eviction of plaintiff and his wife. The trial judge denied plaintiff's motion for summary judgment, granted defendant's motion for summary judgment, dismissed plaintiff's complaint with prejudice, transferred the rent escrow to defendant and dismissed defendant's eviction complaint. The appellate panel finds plaintiff was not the intended beneficiary of the addendum, which Plaintiff suggests grants him a long-term lease until the stated end date of the mortgage. The Statute of Frauds requires a long-term lease to be in writing. The addendum alone is insufficient to prove by "clear and convincing evidence" the terms of a purported long-term lease. Plaintiff's assertion that the lease runs the length of the mortgage term because the lease payments matched the mortgage obligation is mere speculation. The appellate panel concludes that the statute of frauds precludes the relief sought by plaintiff.
 
TORTS
36-2-3282 Elliot v. Mister Mold  LLC, App.Div. (per curiam) (15 pp.) Plaintiff appeals from several orders, including the grant of summary judgment for defendants, entered in this action for damage to her home and property due to flooding from the upland adjacent property and the adjacent road. The panel affirms. It finds no abuse of discretion in the judge’s denial of plaintiff’s motion seeking discovery of the reports produced by experts retained by the township, finding that the township anticipated litigation and its communications with the experts was protected by the attorney-client privilege. The claim against the township regarding the road fails because, even if plaintiff could prove that the drainage problems on the road caused flooding on her property, she would still have to prove that the township’s actions in attempting to mitigate the problem were palpably unreasonable which she failed to do where, inter alia, she rebuffed the township’s proposal that she donate an easement for the installation of catch basins on her property and she failed to produce proof that the township’s accommodating the upland owners’ request for a shallower, wide swale in front of their driveway was unreasonable. Moreover, plaintiff presented no evidence that the mold and other damage allegedly caused by the flooding from the upland property occurred within the six-year limitations period applicable to the upland owners or the two-year period applicable to the township under the Tort Claims Act. Even if plaintiff were granted an equitable extension of the time limit back to 2003 when the township began attempting to resolve plaintiff’s issues, she failed to apportion damages pre- and post-2003. 
 
TORTS | PERSONAL INJURY | LABOR AND EMPLOYMENT
36-2-3283 Hackett v Somerset Executive Square, App. Div. (per curiam) (5 pp.) Plaintiff Thomas Hackett appeals from the grant of summary judgment to defendants Somerset Executive Square, Denholtz Associates and Steven Denholtz, as well as the order denying reconsideration. Plaintiff's complaint alleged that he suffered injuries when he hit his head on the ceiling when climbing a ladder to a water tower on the roof of a commercial building to repair the air conditioning. At the time of the accident, plaintiff was a technician working for Statewide Conditioning Inc., which had a contract with defendants to perform HVAC repair work. Because she determined that the dangerous condition, a small cut-out in the ceiling allowing access to the roof, was open and obvious, the motion judge determined that defendants had no duty to warn a business invitee such as plaintiff. The appellate panel affirms, agreeing with the motion judge that the dangerous condition was apparent to plaintiff.
 
CRIMINAL LAW
14-2-3284 Trent v. NJ Dep’t of Corrections, App. Div. (per curiam) (7 pp.) Appellant-inmate appeals from the Department of Corrections “disposition of disciplinary appeal” which found him guilty of committing prohibited act *.205, misuse of authorized medication. The panel reverses and remands for further proceedings, finding that the hearing officer mistakenly exercised her discretion and failed to honor Trent’s limited due process rights when she refused to permit him to confront the nurse to whom he claimed he had given his medication on the basis that she was not a DOC employee. The panel finds no reason why the witness sought, who may be in possession of relevant information, cannot be produced where the record strongly suggests that, while arguably not a DOC employee, she was likely employed by a state-contract vendor that provides medical services to inmates under the supervision of prison authorities and is on site at the prison on a regular basis.
 
FEDERAL COURT CASES
 
CIVIL RIGHTS
46-7-3285 Alston v. Monmouth County Prosecutor’s Office, Dist. Ct. (Wolfson, U.S.D.J.) (19 pp.) Plaintiff, the former Chief of Police of Matawan Township, filed this action alleging violations of his procedural due process rights pursuant to 42 U.S.C. § 1983; N.J.S.A. 2C:58-3; and the New Jersey Law Against Discrimination arising out of an investigation of him after a civilian complaint | which resulted in no charges being filed - during which his state-issued and personal weapons were confiscated without a court order and were not returned. He also asserted a replevin claim. Defendants move for summary judgment on all claims except that for replevin. The court grants defendants’ motion, finding that (1) plaintiff’s due process claim cannot survive summary judgment because the  guns were confiscated without a pre-deprivation procedure because the MCPO believed in good faith that he posed a danger to the public and further, he voluntarily surrendered his guns, and because the state provided an adequate post-deprivation remedy (replevin); (2) the N.J.S.A. 2C:58-3 claim fails because the MCPO confidscated his gunds, not his firearms purchaser identification care, and because the statute  does not contain a private right of action;  and (3) the LAD claims cannot survive because there is no employer/employee relationship between plaintiff and defendants and plaintiff has not established that the MCPO denied him of any advantages, facilities or privileges that it otherwise provides to the public. [Filed March 19, 2014]
 
CIVIL RIGHTS
46-7-3286 Canales v. Township of Toms River, Dist. Ct. (Cooper, U.S.D.J.) (86 pp.) Officer Christopher Matlosz of the Lakewood Police Department was killed in the line of duty on January 14, 2011. Law enforcement obtained information that the suspect was lodged at the Howard Johnson’s Hotel (the “Hotel”) in Toms River, New Jersey. A sub-station and a command post for law enforcement were set up near the Hotel. Plaintiffs Delovi Canales, Alex Valcourt, and Terrance Williams went to Christopher’s Pub (the“Pub”), which is part of the Hotel. On their way home, Plaintiffs were stopped by law enforcement. These stops are the basis of Plaintiffs’ claims. Based on the Canales/Valcourt stop and the Williams stop, the complaint asserts several causes of action, including: (1) claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution; (2) claims under 42 U.S.C. § 1983 based on the alleged failure to train, supervise, discipline, and control the individual defendants, thereby demonstrating a “policy of misconduct;” (3) claims under 42 U.S.C. § 1985 for conspiracy to deprive Plaintiffs of their constitutional rights by using unlawful and excessive force; and (4) state law claims for assault, malicious prosecution, false arrest, and negligence. Before the Court are two separate motions for summary judgment by the “Township Defendants” and the State Police. The motion by the State Police is granted in its entirety. The motion by the Township Defendants is granted in part and denied in part without prejudice with respect to the excessive force claims by Canales against Sgt. Kenny and Officer Jacques under section 1983. [Filed February 20, 2014]
 
CIVIL RIGHTS
46-7-3287 Mitchell v. Vincente, Dist. Ct. (Wolfson, U.S.D.J.) (14 pp.)  Plaintiff, who is African-American, filed this action asserting federal and state constitutional violations against two state troopers and the Colonel of the State Police after a motor vehicle stop that resulted in citations against him for speeding and reckless driving on which he was found guilty. On appeal, the speeding conviction was affirmed (although the speed was lowered) and the reckless driving conviction was dismissed. Defendants move to dismiss the amended complaint arguing that plaintiff’s equal protection claims based on race are barred by collateral estoppel.  The court grants defendants’ motion, finding that the claims are barred by collateral estoppel since, where plaintiff raised a claim in both the Law Division and Appellate Division that he was impermissibly stopped because of his race, which was rejected by both courts,  the issue to be precluded is identical to the issue decided in the prior proceeding, it was actually litigated in the prior proceeding, the court in the prior proceeding issued a final judgment on the merits, the party against whom collateral estoppel is being asserted was a party in the previous action, and the determination of the issue was essential to the prior judgment. The court also holds that, having found no viable claim for an equal protection violation based on racial bias, it must dismiss the remaining claims based on a racial profiling claim: conspiracy to violate civil rights under § 1985(3), failure to intervene under § 1986, and violation of the New Jersey Civil Rights Act. [Filed March 18, 2014]
 
CONTRACTS
11-7-3288 Advanced Drainage Systems Inc. v. Siteco Materials Inc., Dist. Ct. (Pisano, U.S.D.J.) (8 pp.) Fourth-party defendant Advanced Drainage Systems (AD) moves to dismiss the fourth party complaint filed against it by Caruso Excavating Inc. Caruso had contracted with the owner of property to perform certain site work in connection with a planned development of a hotel, commercial and retail complex, including the construction of a storm water drainage system under portions of the rear parking lot. Caruso purchased the system, which was manufactured by AD, from SiteCo Materials. After the system failed, Caruso alleged that the implied warranties of merchantability and fitness for a particular purpose extended to it as an installer and the failure of the system constituted a breach of these warranties. It also alleged that ADS made an express warranty directly to it and by way of representations made to the public which was breached by the system’s failure. The court grants ADS’ motion to dismiss. The court dismisses the claims for breach of the implied warranty of merchantability and fitness for a particular purpose, finding that ADS properly disclaimed these warranties in its terms and conditions of sale. The court dismisses the breach of express warranty claim because Caruso’s Fourth Party Complaint contains no allegations of a promise or affirmation made by ADS sufficient to constitute an express warranty, and, even assuming that Caruso has properly plead the existence of an express warranty, ADS’ disclaimer properly excludes any breach of warranty claim outside the scope of the limited warranty contained in ADS’ terms and conditions. The court dismisses the breach of express and/or implied contract claims because Caruso concedes that there was no offer, acceptance, or business relationship formed with ADS.  [Filed March 18, 2014]
 
INSURANCE LAW
23-7-3289 Amethyst International, Inc. v. Duchess, Dist. Ct. (Wolfson, U.S.D.J.) (22 pp.) This case concerns the disputed ownership of flood insurance proceeds which were to be distributed after a property in Point Pleasant Beach (the “Property”) was damaged during Hurricane Sandy in October 2012. Plaintiff Amethyst International, Inc. owned the Property and insured it against flood damage with a Standard Flood Insurance Policy purchased from Selective Insurance Company of America. After Hurricane Sandy, Plaintiff notified Selective of its claim for flood damage on or about November 2, 2012. Shortly thereafter, Defendant Judith Duchess contacted Selective and provided documentation evidencing her status as a mortgagee on the Property. Jean Fernicola, the mother of both Plaintiff’s primary stockholder and of Duchess, was the original mortgagee on the Property. When Jean Fernicola died on March 26, 2006, Duchess, as the personal representative of her mother’s estate became the new mortgagee of Plaintiff’s property. It was thus in her capacity as a representative of the Estate that Duchess contacted Selective and asserted her rights as a mortgagee after Plaintiff’s insurance claim. Before the Court is Selective’s motion to interplead the disputed flood insurance proceeds and dismiss all claims against Selective in the Amended Complaint. In a separate motion to dismiss, Duchesss contends that litigation concerning ownership of the proceeds is already pending before the state Circuit Court of Florida. Here, the Court (i) grants Selective’s motion to interplead funds, (ii) dismisses all claims against Selective with prejudice, and (iii) remands this action to the Superior Court of New Jersey, Ocean County, Chancery Division. The interpleaded funds shall be deposited with the Court and held until after the legal ownership of the proceeds is determined by either the New Jersey or Florida state court. [Filed February 20, 2014]
 
LABOR AND EMPLOYMENT | DISCRIMINATION | EMPLOYMENT CONTRACTS
25-7-3290 A&M Wholesale Hardware Co., Inc. v. Circor Instrumentation Technologies, Inc., Dist. Ct. (Wigenton, U.S.D.J.) (20 pp.) Defendants filed separate motions to dismiss the amended complaint of Plaintiff A. & M. Wholesale Hardware Co., Inc., d/b/a A&M Industrial. One motion was filed by Defendants Circor Instrumentation Technologies, Inc., d/b/a Hoke, Robert Taylor, Richard Noha, and Michael Terrell (the “Hoke Defendants”). The other motion was filed by Del Val Controls, Inc. and Stephen Green (the “Del Val Defendants”). A&M entered into a Domestic Distributor Agreement with Hoke whereby A&M became a distributor of Hoke products in a specified territory. Pursuant to the Agreement, A&M retained a “Hoke Product Specialist” who developed an expertise in, and was almost exclusively dedicated to, the sale and promotion of the Hoke line of products.” The salesperson hired for this position was Ram Hashemi. On August 1, 2011, Hashemi entered into a Confidentiality/Non-Competition Agreement with A&M. The Amended Complaint alleges that in 2012, Hoke and its employees Taylor, Noha, and Terrell, conspired with the Del Val Defendants to poach Hashemi from A&M and obtain A&M’s proprietary and confidential information to expedite Del Val becoming the new distributor of the Hoke product line in A&M’s territory. Hoke terminated the Agreement by letter; the termination was to take effect 30 days later. According to A&M, during the thirty-day period after notice but before the termination became effective, Hoke breached the Agreement by failing to timely supply orders and as a result, A&M lost business and good will. The complaint alleges violations of the New Jersey Law Against Discrimination, a violation of Section 1981, breach of contract and breach of implied covenant of good faith and fair dealing, tortious interference with contract and tortious interference with prospective economic advantage, and civil conspiracy. The Court first determines that the choice of law provision here is not sufficiently broad to preclude A&M’s statutory claims. The Court then denies the Hoke Defendants’ and the Del Val Defendants’ motions to dismiss. [Filed February 24, 2014]
 
LABOR AND EMPLOYMENT | SEXUAL HARASSMENT
25-8-3291 Estabrook v. Safety And Ecology Corporation, Third Circuit (Barry, U.S.C.J.) (12 pp.) Appellant Marissia Estabrook appeals the District Court’s decision granting Appellee Safety and Ecology Corporation’s (“SEC”) motion for judgment on the pleadings. Estabrook argues that the Court erred in dismissing her claims against SEC, her former employer, for sexual harassment, retaliatory harassment, and retaliation, because the Court failed to accept as true the factual allegations in her complaint and applied an overly stringent pleading standard. For purposes of its motion, SEC challenged only Estabrook’s basis for employer liability. The District Court recognized that SEC could be liable on the theory that, prior to Estabrook’s complaint regarding a co-worker, Marcus Chase, SEC had knowledge that Chase had harassed other female employees and failed to take adequate steps to stop the harassment. However, the Court erroneously concluded that Estabrook failed to plead sufficient facts to support her claim. The Court based its dismissal of Estabrook’s claim on her failure to allege “dates or times on which alleged harassment of other wom[e]n employed by SEC occurred” and failure to plead specific facts to support her allegation that SEC was aware of these incidents. This level of specificity is not required under Rule 8 and the standards set forth by the Supreme Court in Iqbal and Twombly. Because the District Court failed to apply the correct pleading standard in evaluating Estabrook’s complaint, the circuit panel vacates the District Court’s order dismissing her claims, and remands for further proceedings. [Filed February 25, 2014]
 
TORTS
36-7-3292 Smith v. Kroesen, Dist. Ct. (Hillman, U.S.D.J.) (15 pp.) Plaintiff filed this action when, while playing in a rugby match, he was injured when he was kicked in the face by defendant Kroesen, a member of the opposing team which is coached by defendant Cooley. Plaintiff claims that Kroesen’s conduct was intentional assault and battery or, at a minimum, grossly negligent, and that Cooley was grossly negligent in his coaching of the team. Default was entered against Kroesen; Cooley moves for summary judgment. The court grants Cooley’s motion, finding that plaintiff has failed to establish facts from which a jury could conclude that Cooley was grossly negligent in his coaching duties since none of the evidence demonstrates that Cooley acted indifferently, willfully, or wantonly in his coaching of Kroesen such that he should be held legally responsible for the injuries plaintiff sustained when Kroesen kicked him. Absent evidence that Cooley directed Kroesen specifically, or his team in general, to inflict violence on opposing team players as part of the game, Cooley cannot be held liable for plaintiff’s injuries. Also, any of Cooley’s alleged failings as a coach as articulated by plaintiff’s expert cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did. [Filed March 25, 2014]
 
TORTS | PERSONAL INJURY | LABOR AND EMPLOYMENT
36-7-3293 Johnson v. New Jersey Door Works, Inc., Dist. Ct. (Cooper, U.S.D.J.) (5 pp.) Plaintiff Allen Johnson brought this action against defendants New Jersey Door Works, Inc., United States of America, Department of Veterans Affairs (“VA”), and John Doe to recover damages for personal injuries. Johnson was working at a job site located at the VA in Lyons, New Jersey when he was struck by a garage door motor, causing him severe personal injuries. Johnson filed a complaint on July 13, 2012, naming the VA and New Jersey Door Works as defendants and alleging defendants’ negligence caused his injuries. On June 3, 2013, Johnson filed a Second Amended Complaint. The VA now moves to dismiss the Second Amended Complaint, insofar as it is asserted against the VA, for lack of subject-matter jurisdiction. The VA argues the claims against it are barred by the Federal Tort Claims Act (“FTCA”). In order to satisfy the presentment requirement under the FCTA, Johnson must demonstrate the VA actually received his SF-95 form by July 15, 2012, which is two years after he suffered his injuries. Johnson’s attorney hired a courier to hand deliver the SF-95 to the VA. The courier certifies that he hand delivered Johnson’s SF-95 to an unidentified clerk in an unidentified building on the VA’s campus. Although actual proof of receipt is not the sole method of establishing presentment, the proof here is not strong enough to establish that the VA actually received the claim by July 15, 2012. The Court finds that Johnson has failed to offer proof of actual receipt of the SF-95 by the VA, or strong evidence from which receipt can be inferred. Because Johnson fails to satisfy the presentment requirement, the Court lacks subject-matter jurisdiction over the claims brought against the VA, and grants the motion to dismiss. [Filed February 14, 2014]
 
 

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