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Friday, February 26, 2010

New Jersey Division of Youth and Family Services v. L.L. (A-68-08)

New Jersey Division of Youth and Family Services v.
L.L. (A-68-08) 2-24-10
Pursuant to N.J.S.A. 3B:12A-6(f), the parent seeking
to terminate the kinship legal guardianship has the
burden of proving by clear and convincing evidence
both that the parent has overcome the incapacity or
inability to care for the child that led to the
original guardianship proceedings, and that
termination of kinship legal guardianship is in the
best interest of the child.

COUNTY OF BERGEN EMPLOYEE BENEFIT PLAN AND THE COUNTY OF BERGEN VS. HORIZON BLUE CROSS AND BLUE SHIELD OF NEW JERSEY, ET AL. A-0616-09T1

COUNTY OF BERGEN EMPLOYEE BENEFIT PLAN AND
THE COUNTY OF BERGEN VS. HORIZON BLUE CROSS
AND BLUE SHIELD OF NEW JERSEY, ET AL.
A-0616-09T1 02-24-10
Under the Collateral Source Rule, N.J.S.A. 2A:15-97, a
county with a self-insured benefits plan for its employees is
not entitled to pursue a subrogation action to recover medical
expenses the Plan paid to its insured, a county employee who
brought personal injury claims against third-party tortfeasors.

JOSEPH A. DONELSON AND JOHN SEDDON VS. DUPONT CHAMBERS WORKS AND PAUL KAISER A-2028-08T1

JOSEPH A. DONELSON AND JOHN SEDDON VS.
DUPONT CHAMBERS WORKS AND PAUL KAISER
A-2028-08T1 02-24-10
We extend to a CEPA cause of action the same requirement
that already applies to a plaintiff seeking economic damages
under the LAD, namely a requirement that the plaintiff prove a
constructive discharge or an actual termination of employment
before being entitled to an award of back and front pay.
Because the trial judge erroneously accepted plaintiff's
argument that the jury need not be instructed on constructive
discharge or required to so find, we vacated the $724,000
economic loss award and the $500,000 punitive damages award and
remanded for the entry of judgment in favor of defendant.

CITY OF WILDWOOD V. GARY DEMARZO A-5250-08T1

CITY OF WILDWOOD V. GARY DEMARZO
A-5250-08T1 02-22-10
This appeal concerns the application of the common law
doctrine of incompatibility. The City of Wildwood, a
municipality organized under the Walsh Act, appeals from the
order of the trial court permitting defendant to serve as one of
three elected commissioners comprising the City's governing
body, while on an unpaid leave of absence from his other
municipal position as a Wildwood police officer.
We hold that the trial court erred in permitting defendant
to continue to hold two incompatible public offices in the same
municipality. The court's attempts at counteracting the myriad
of conflicts arising from such incompatibility by restricting
defendant's conduct as a city commissioner impermissibly limited
the statutory authority conferred upon such office by the
Legislature under the Walsh Act.

Alternative Procedure for Dispute Resolution Act FORT LEE SURGERY CENTER, INC. v. PROFORMANCE INSURANCE COMPANY A-1192-08T2

Alternative Procedure for Dispute Resolution Act FORT LEE SURGERY CENTER, INC. v. PROFORMANCE INSURANCE
COMPANY A-1192-08T2 02-22-10
The Alternative Procedure for Dispute Resolution Act
(APDRA), N.J.S.A. 2A:23A-1 to -30, declares that, following a
trial court's judgment, confirming, modifying or correcting an
award, "[t]here shall be no further appeal or review," N.J.S.A.
2A:23A-18(b). Notwithstanding, it has been recognized that
appellate courts retain supervisory jurisdiction to ensure that
trial courts limit their review of arbitration awards to the
circumstances authorized by N.J.S.A. 2A:23A-13. Here, the court
held that so long as a trial court rationally articulates that
correction of an award is required by one of the grounds set
forth in N.J.S.A. 2A:23A-13, appellate courts are not free to
intervene even when believing the trial court was mistaken in
correcting the award. Any broader view of appellate
jurisdiction would eviscerate N.J.S.A. 2A:23A-18(b) and conflict
with the Legislature's expressed desire, in enacting APDRA, to
eliminate appellate review.

Defamation JOHN BERKERY, SR. V. ESTATE OF LYLE STUART, ET. AL. A-5105-07T1

Defamation JOHN BERKERY, SR. V. ESTATE OF LYLE STUART, ET. AL.
A-5105-07T1 02-19-10
In Berkery v. Kinney, 397 N.J. Super. 222 (App. Div. 2007),
certif. denied, 194 N.J. 445 (2008), the court held that plaintiff
failed to establish that statements made by a journalist and her
publisher in newspaper articles about plaintiff's involvement
with the K&A Gang and a book on the subject entitled Confessions
of a Second Story Man: Junior Kripplebauer and the K&A Gang were
made with actual malice.
On this appeal, the court addressed the application of the same
standards to the author and distributors of the same book and
conclude that the actual malice standard applies to the author
and distributors. We further conclude that plaintiff failed to
meet his burden on defendants' motion for summary judgment, and
the motion judge did not err in dismissing the complaint.

NJ SCHOOLS CONSTRUCTION CORP., ET AL. V. DAVID LOPEZ, ET ALS A-4732-07T2 02-19-10

NJ SCHOOLS CONSTRUCTION CORP., ET AL. V. DAVID LOPEZ,
ET ALS A-4732-07T2 02-19-10
In this condemnation action instituted by the former New
Jersey Schools Construction Corporation (now New Jersey Schools
Development Authority), we hold that the value of improvements
to the property, made after the defendant owner received a
"Notice of Interest" (NOI) letter from the agency, are included
in setting just compensation, where there was no proof that
these improvements were constructed for the sole purpose of
enhancing the condemnation award. Also, absent any indicia of
imminent condemnation, the owner who failed to disclose his
receipt of the NOI letter to the local zoning board, before
which variance approvals were pending, did not engage in bad
faith.
As a threshold issue, we held that a consent order of
settlement that expressly reserves the right to appeal an
interlocutory order and provide that the judgment would be
vacated if the interlocutory order were reversed on appeal is
appealable under Rule 2:2-3.

CATHY C. CARDILLO, ESQ. V. BLOOMFIELD 206 CORP., JAMES STATHIS AND STEVEN SILVERMAN A-4020-08T3 02-18-10

The court concluded that RPC 5.6(b) is violated when an attorney
simultaneously negotiates with the same party a settlement of
litigation on behalf of her clients and a related agreement on
her own behalf to restrict her practice of law. Rule of
Professional Conduct (RPC) 5.6(b) prohibits an attorney from
agreeing to restrict the attorney's practice as "part of the
settlement of a controversy between private parties." Attorneys
may not circumvent the import of RPC 5.6(b) by stating that the
settlement of litigation is separate from the agreement to
restrict the practice of law, where the agreements were
negotiated contemporaneously and are interconnected.

parental rights to a minor child were terminated NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. J.C. NEW JERSEY DIVISION OF YOUTH AND FAMILY SE

parental rights to a minor
child were terminated NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES
V. J.C.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES
V. T.S.L., IN THE MATTER OF THE GUARDIANSHIP OF
J.D.L.C.
A-1683-09T4, A-1684-09T4 02-11-10
Following a trial, defendants' parental rights to a minor
child were terminated. They timely indicated their desire to
appeal, but the Office of Parental Representation failed to file
timely appeals and did not move for leave to file notices of
appeal out of time until nearly sixteen months after entry of
the the trial court's judgment and more than four months after the
child's adoption. Although such motions are treated with great
liberality, the court denied defendants' motions due to both the
extraordinary delay in seeking relief and the intervening
nonrelative adoption.

full Opinion Vivian Crespo v. Anibal Crespo (A-28-09) __ NJ __ 2-18-10 The Prevention of Domestic Violence Act is constitutional

full Opinion Vivian Crespo v. Anibal Crespo (A-28-09) __ NJ __ 2-18-10
The Prevention of Domestic Violence Act is constitutional

Vivian Crespo v. Anibal Crespo (A-28-09)
(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment of the
Appellate Division is based substantially on the reasons expressed in Judge Fisher’s opinion below.)
Argued January 6, 2010 -- Decided February 18, 2010
PER CURIAM
On this appeal, the Court addresses the constitutionality of the Prevention of Domestic Violence Act (act),
N.J.S.A. 2C:25-17 to -35.
Vivian and Anibal Crespo were married in 1984 and divorced in 2001. Despite their divorce, the parties
continued to live in the same two-family house; defendant Anibal Crespo lived on the second floor with his parents
while plaintiff Vivian Crespo lived with the Crespo children on the first floor. In 2004, after a dispute over child
support, plaintiff filed a domestic violence complaint alleging present and past verbal and physical abuse. An ex
parte temporary restraining order (TRO), which restricted defendant from communicating with or contacting
plaintiff, was immediately entered. Defendant was served with the complaint and TRO and, after a two-day trial, a
final restraining order (FRO) was entered in Vivian’s favor. Defendant appealed and the Appellate Division
affirmed that decision on June 6, 2006.
On June 15, 2007, defendant moved before a different judge to vacate the FRO, asserting that the Act is
unconstitutional. Defendant argued that the Act essentially converted what should be a criminal prosecution into a
civil proceeding, thereby depriving the parties of their right to a jury trial. In addition, he argued that the Act denied
him due process by failing to provide sufficient notice prior to the final hearing, by applying a preponderance-ofthe-
evidence standard instead of a clear-and-convincing standard, and by failing to permit discovery or a right to
counsel. The trial court found for the defendant, determining that the Act’s “practice and procedure” components
violate the separation of powers doctrine and that the Act’s preponderance standard of proof violates due process
principles.
On appeal, the Appellate Division reversed, finding the Act constitutional. The panel reasoned that the
Supreme Court, rather than viewing the Act’s procedural components as usurping its exclusive authority over
practices and procedures utilized in the courts, has embraced and enhanced the Act’s procedural components by
adopting Rule 5:7A and by participating with the Attorney General in the creation of the Domestic Violence Manual
that incorporates the procedures contained in the Act. Accordingly, the panel found without merit defendant’s
argument that the various procedural aspects of the Act violate the New Jersey Constitution.
In addition, the Appellate Division held that the previously determined case of Roe v. Roe bound the trial
judge and required that he reject defendant’s arguments in respect of the constitutional sufficiency of the
preponderance standard in an action brought pursuant to the Act and, as such, the judge erred in refusing to follow
Roe. In conformity with its holding in Roe, and because the interests at stake and the fact-finding required of
Family Part judges in domestic violence matters is not at all similar to those matters in which courts have compelled
application of the clear-and-convincing standard, the panel concluded that a standard of proof more demanding than
the preponderance standard would undermine the social purposes of the Act.
The Appellate Division also rejected defendant’s argument that the Act permits a deprivation of an
individual’s Second Amendment right to bear arms because it allows for the seizure of a defendant’s firearms upon a
finding of domestic violence. The appellate panel found nothing in the U.S. Supreme Court decision in District of
Columbia v. Heller that suggests a limitation on a state’s right to bar persons who have been found to have
committed acts of domestic violence from possessing firearms. The Appellate Division determined that, absent a
- 2 -
clear and binding announcement from the United States Supreme Court to the contrary, the Act’s prohibition on the
possession of firearms by a person found to have committed domestic violence is a valid, appropriate, and sensible
limitation on an individual’s Second Amendment rights.
The Appellate Division addressed defendant’s additional arguments regarding the ten-day hearing
requirement, the ability to take discovery, the right to counsel and the right to a jury trial and found them to be
without merit.
The Supreme Court granted defendant’s motion for leave to appeal.
HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in the thorough
opinion of Judge Fisher. The Prevention of Domestic Violence Act is constitutional.
1. The appellate panel correctly held that: a) defendant’s argument that the various procedural aspects of the Act
violates the NJ Constitution, Article VI, Section 2, Paragraph 3 is without merit; b) that Roe v. Roe required the
rejection of defendant’s arguments in respect of the constitutional sufficiency of the preponderance standard brought
pursuant to the Act; c) that the preponderance standard, as applied in domestic violence matters, conforms with due
process requirements; d) that defendant’s argument that by allowing the seizure of his firearms upon a finding of
domestic violence, the Act permits a deprivation of a person’s second Amendment right to bear arms must be
rejected; e) that defendant’s claim that the Act’s requirement that a final hearing be held within ten days of the
complaint deprived him of due process lacked merit; and f) the right to trial by jury does not attach when the alleged
victim of domestic violence chiefly seeks a restraining order, even if other ancillary relief, such as damages, are
sought. (Pp. 2-3)
2. To the extent that defendant raised whether the Second Amendment’s right to bear arms applies to the states, the
Court notes that the issue of “[w]hether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses” presently is
before the Supreme Court of the United States and therefore, this Court need not reach that point because the right to
possess firearms clearly may be subject to reasonable limitations.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERASOTO,
and HOENS join in this opinion.
SUPREME COURT OF NEW JERSEY
A-28 September Term 2009
VIVIAN CRESPO,
Plaintiff,
v.
ANIBAL CRESPO,
Defendant-Appellant,
and
STATE OF NEW JERSEY,
Intervener-Respondent.
Argued January 6, 2010 – Decided February 18, 2010
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 408
N.J. Super. 25 (2009).
David N. Heleniak argued the cause for
appellant (O’Donnell, McCord & DeMarzo,
attorneys).
Melissa H. Raksa, Assistant Attorney
General, argued the cause for respondent
(Anne Milgram, Attorney General of New
Jersey, attorney; V. Nicole Langfitt, Deputy
Attorney General, on the briefs).
Lawrence S. Lustberg submitted a brief on
behalf of amicus curiae New Jersey Coalition
For Battered Women (Gibbons, attorneys; Mr.
Lustberg and Eileen M. Connor, a member of
the New York and California bars, on the
brief).
- 2 -
Andrew L. Schlafly submitted a brief on
behalf of amicus curiae Eagle Forum
Education & Legal Defense Fund.
PER CURIAM
The judgment of the Appellate Division is affirmed
substantially for the reasons expressed in the thorough opinion
by Judge Fisher. Crespo v. Crespo, 408 N.J. Super. 25 (App.
Div. 2009).
The panel correctly determined that the Prevention of
Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, was
constitutional. Specifically, the panel properly concluded (1)
that defendant’s “argument that the various procedural aspects
of the Act violate N.J. Const. art. VI, § 2, ¶ 3, [was] utterly
without merit[,]” id. at 34; (2) that Roe v. Roe, 253 N.J.
Super. 418 (App. Div. 1992), required the rejection of
“defendant’s arguments regarding the constitutional sufficiency
of the preponderance standard in actions brought pursuant to the
Act,” id. at 37; (3) that “the preponderance standard, as
applied in domestic violence matters, conforms with the
requirements of due process[,]” ibid.; (4) that “defendant’s
argument that by allowing the seizure of a defendant’s firearms
upon a finding of domestic violence, the Act permits a
deprivation of an individual’s Second Amendment right to bear
arms” also must be rejected, id. at 41; (5) that defendant’s
claim that “the Act’s requirement that a final hearing be held
- 3 -
within ten days of the filing of the complaint, see N.J.S.A.
2C:25-29(a), deprived him of due process” lacked merit, id. at
43; and (6) that “when the alleged victim of domestic violence .
. . chiefly seeks a restraining order -- even if other ancillary
relief, such as damages, is also sought -- the right to trial by
jury does not attach[,]” id. at 46-47. We add only the
following.
To the extent defendant raised whether the Second
Amendment’s right to bear arms, U.S. Const. amend. II, applies
to the states, id. at 41-43, we note that the issue of
“[w]hether the Second Amendment right to keep and bear arms is
incorporated as against the States by the Fourteenth Amendment’s
Privileges or Immunities or Due Process Clauses” presently is
pending before the Supreme Court of the United States. McDonald
v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted,
___ U.S. ___, 130 S.Ct. 48, 174 L. Ed. 2d 632 (2009). We need
not reach that point because the right to possess firearms
clearly may be subject to reasonable limitations. See District
of Columbia v. Heller, ___ U.S. ___, ___, 128 S. Ct. 2783, 2816-
17, 171 L. Ed. 2d 637, 678 (2008) (holding that “[l]ike most
rights, the right secured by the Second Amendment is not
unlimited” and endorsing “longstanding prohibitions on the
possession of firearms”).
The judgment of the Appellate Division is affirmed.
- 4 -
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN,
WALLACE, RIVERA-SOTO, and HOENS join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-28 SEPTEMBER TERM 2009
ON APPEAL FROM Appellate Division, Superior Court
VIVIAN CRESPO,
Plaintiff,
v.
ANIBAL CRESPO,
Defendant-Appellant,
And
STATE OF NEW JERSEY,
Intervener-Respondent.
DECIDED February 18, 2010
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7

Vivian Crespo v. Anibal Crespo (A-28-09) __ NJ __ 2-18-10 The Prevention of Domestic Violence Act is constitutional

Vivian Crespo v. Anibal Crespo (A-28-09) __ NJ __ 2-18-10
The Prevention of Domestic Violence Act is constitutional. The appellate panel correctly held that: a) defendant’s argument that the various procedural aspects of the Act violates the NJ Constitution, Article VI, Section 2, Paragraph 3 is without merit; b) that Roe v. Roe required the rejection of defendant’s arguments in respect of the constitutional sufficiency of the preponderance standard brought pursuant to the Act; c) that the preponderance standard, as applied in domestic violence matters, conforms with due process requirements; d) that defendant’s argument that by allowing the seizure of his firearms upon a finding of
domestic violence, the Act permits a deprivation of a person’s second Amendment right to bear arms must be
rejected; e) that defendant’s claim that the Act’s requirement that a final hearing be held within ten days of the
complaint deprived him of due process lacked merit; and f) the right to trial by jury does not attach when the alleged
victim of domestic violence chiefly seeks a restraining order, even if other ancillary relief, such as damages, are
sought.Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the thorough opinion of Judge Fisher.

Sunday, February 14, 2010

Uniform Enforcement of Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to SHRENIK BAVISHI v. SAM ALADABBAGH d/b/a DIAMOND INN MOTEL

Uniform Enforcement of Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to

SHRENIK BAVISHI
v.

SAM ALADABBAGH d/b/a

DIAMOND INN MOTEL,

Defendant-Respondent.


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0945-08T20945-08T2

Submitted October 26, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DJ-163099-08.

Shrenik Bavishi, appellant pro se.

Margolis Edelstein, attorneys for respondent (Colleen M. Ready, on the brief).

PER CURIAM

Plaintiff Shrenik Bavishi appeals from the entry of a judgment for $41,451.48 in taxed costs and attorney's fees entered by the District Court in Clark County, Nevada on November 24, 2004. The judgment was domesticated in New Jersey pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to -33. We reverse.

Plaintiff sued defendant Sam Aladabbagh, doing business as Diamond Inn Motel, in Nevada for personal injury and property damages incurred while plaintiff was staying at defendant's premises. Plaintiff alleged that on December 1, 1999, he was attacked, stabbed and robbed of thousands of dollars worth of jewelry. For reasons not contained in this record, plaintiff's personal injury attorney withdrew from representation and plaintiff has never secured the services of another attorney in Nevada.

Shortly before the personal injury case was listed for trial, defendant filed an application for summary judgment. Plaintiff was, by then, pro se and disputes that he was properly served with the summary judgment papers. The case minutes from the District Court, dated September 27, 2004, indicate that the court did not receive opposition to defendant's motion for summary judgment. The "District Case Inquiry - Minutes" state:

Plaintiff faxed the Law Clerk this morning advising he would not be present as he had to care for his son today. Court previously granted [plaintiff's counsel's] Motion to Withdraw. As opposition received late, the Court reconsidered the Motion. . . . Motion GRANTED . . . . As plaintiff requested additional time to submit further opposition for the Motion for Summary Judgment, COURT ORDERED, matter CONTINUED. . . . TO: 9/29/04 9:00 AM . . . .

Although plaintiff presumably was noticed of the new September 29, 2004 date, there is no documentation in the record that this occurred. It must be reiterated that plaintiff was at that point pro se and continued to live in New Jersey.

The only other relevant document provided to us is a November 24, 2004 Nevada District Court order. It states:

This matter having come regular for hearing on November 15, 2004, in chambers, and the Court having considered all relevant facts, testimony and proof offered by the respective parties and the cause having been submitted to the Court for decision, the Court being fully advised in the premises, finds as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion Requesting Reconsideration is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Tax Costs is granted in the amount of $11,373.98.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion for Attorney's Fees is hereby granted in the amount of $30,077.50.

IT IS SO ORDERED.

The order makes no reference to the extent of plaintiff's participation in that proceeding; furthermore, there is no proof he was noticed of the initial November 15 proceeding. It is not clear from the order whether hearing the matter "in chambers" is a reference to a decision being made on the papers or a literal reference to an in-chambers meeting with counsel. Since plaintiff by then was pro se, it is unlikely that an in-chambers discussion would have included him.

It is also unclear from our review of the order whether the motion for summary judgment that plaintiff asked to have reconsidered included reconsideration of defendant's request for $11,373.58 in taxed costs and $30,077.50 in attorney's fees or only the dismissal of the complaint. We cannot determine from our review of this record when attorney's fees and costs were first requested. Plaintiff provides us with copies of Federal Express tracking documents purporting to establish that the September application for summary judgment was delivered to someone other than himself at an address other than his own. He contends on appeal, as he did before the trial judge, that the Federal Express tracking record establishes defendant's failure to serve him with the motion papers prior to the entry of summary judgment. But we cannot determine whether those papers included a request for counsel fees and costs.

Neither can we determine, nor does defendant contend, that plaintiff had notice of any proceeding after September 27, 2004. We do not know from this scant record if plaintiff understood that in addition to dismissing his complaint, that defendant's counsel was seeking a judgment for substantial costs and attorney's fees.

Plaintiff appeared in the New Jersey trial court on August 29, 2008 for his motion to vacate the foreign judgment that defendant was seeking to domesticate. Plaintiff essentially asserted to the trial judge, as he does to us, that the summary judgment papers were sent to the wrong apartment. At the hearing for the motion to vacate the foreign judgment, the court advised defendant that he needed to challenge service in Nevada, the rendering state, and that the court in New Jersey had no basis for vacating the entry of the judgment against him. In fact, plaintiff appears to have taken an appeal of the Nevada judgment to the United States Supreme Court, but it is not clear what issues he has raised, or even if his appeal will be entertained at this late date.

In assessing claims of violations of due process in the context of judgments domesticated in New Jersey pursuant to the UEFJA:

[T]he Constitutional requirements of the Full Faith and Credit Clause are predicated upon the judgment debtor having been accorded due process in the forum state.

. . . A denial of due process occurs when the rendering state 1) lacked personal jurisdiction over the judgment debtor, 2) lacked subject matter jurisdiction, [or] 3) failed to provide the judgment debtor adequate notice and an opportunity to be heard.

[Maine v. SeKap, S.A. Greek Coop. Cigarette Mfg., S.A., 392 N.J. Super. 227, 235 (App. Div. 2007) (internal citations and quotations omitted).]

Plaintiff does not dispute personal jurisdiction or subject matter jurisdiction. His complaint is that he was not properly served and did not have an adequate opportunity to challenge service prior to the entry of judgment. No proof was presented by defendant establishing notice prior to the entry of the disputed order for costs and attorney's fees.

Absent a due process claim, we will give sister states' judgments "the same effect as would be provided in the state that rendered the judgment." Sonntag Reporting Serv., Ltd. v. Ciccarelli, 374 N.J. Super. 533, 537 (App. Div. 2005) (citing Durfee v. Duke, 375 U.S. 106, 109-11, 84 S. Ct. 242, 244-45, 11 L. Ed.2d 186, 190-91 (1963)). It is impossible to determine from the record before us, however, whether this judgment debtor was provided with adequate "'notice plus an opportunity to be heard.'" Simmerman v. Dryvit Systems, Inc., 196 N.J. 316, 330 (2008) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 105 S. Ct. 2965, 2974, 86 L. Ed.2d 628, 641-42 (1985)). Certainly, it is an unusual outcome for a plaintiff in a personal injury action to have such substantial attorney's fees and costs entered against him.

The District Court record from September 27, referring to the motion for summary judgment, establishes that defendant was aware of that proceeding. That record does not mention any request for attorney's fees and costs. There is no equivalent documentation supplied to us establishing that, prior to the November 24, 2004 hearing, plaintiff had been noticed of the forthcoming proceeding in any fashion whatsoever. Nothing in the body of the order was helpful; it stated in general terms that the court considered "all relevant facts, testimony and proofs offered by the respective parties," but did not name them. That plaintiff's request for reconsideration was denied is clearly stated, but what that request included is not described.

Because we are not certain that due process considerations were satisfied or that plaintiff was given notice of the application and an opportunity to respond, we cannot conclude that the notice requirement implicit in the UEFJA has been met. We simply have no record upon which to fairly assess the issue of notice.

Because we are not satisfied that due process requirements and the constitutional prerequisites have been met, we reverse the court's order domesticating the Nevada judgment.


Reversed.

(continued)

(continued)

2

A-0945-08T2

December 31, 2009

Tuesday, February 9, 2010

Robert Nicastro, et al. v. McIntyre Machinery America, Ltd. (A-29-08)

Robert Nicastro, et al. v. McIntyre Machinery America,
Ltd. (A-29-08)
2-2-10

This Court reaffirms the reasoning of its decision in
Charles Gendler & Co. v. Telecom Equipment Corp., 102
N.J. 460 (1986), and holds that a foreign manufacturer
that places a defective product in the stream of
commerce through a distribution scheme that targets a
national market, which includes New Jersey, may be
subject to the in personam jurisdiction of a New
Jersey court in a product-liability action.

KENT MOTOR CARS, INC. AND ROBERT BURT V. REYNOLDS AND REYNOLDS CO., AND UNIVERSAL UNDERWRITERS GROUP A-5246-07T3

KENT MOTOR CARS, INC. AND ROBERT BURT V.
REYNOLDS AND REYNOLDS CO., AND UNIVERSAL
UNDERWRITERS GROUP
A-5246-07T3 02-09-10

The trial court erred in granting dismissal of a
"successive action" under Rule 4:5-1(b)(1) because the party
whose name was not disclosed in a prior action in accordance
with this rule failed to show that it had been "substantially
prejudiced" by this non-disclosure.

GRIFFIN V. BURLINGTON VOLKSWAGEN, INC., and AUGUSTINE STAINO, A-2727-08T1

GRIFFIN V. BURLINGTON VOLKSWAGEN, INC., and
AUGUSTINE STAINO,
A-2727-08T1 02-08-10

Under the broad form of arbitration clause in a motor
vehicle retail order form, which required parties to arbitrate
"any claim . . . that may arise out of or relat[e] to the
purchase" of the car and "the financing thereof[,]" the pur-
chaser is required to arbitrate his claims of false arrest,
false imprisonment and malicious prosecution, based on the
seller reporting the car stolen when purchaser retained car
despite seller's demand for its return after financing could not
be obtained.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.M. A-1843-08T3

NEW JERSEY DIVISION OF YOUTH AND FAMILY
SERVICES v. R.M.
A-1843-08T3 02-05-10

This appeal required determination of (1) the criteria for
application of the "suspended judgment" provision of N.J.S.A.
9:6-8.51(a)(1); and (2) whether successful completion of a
period of suspended judgment necessarily leads to the removal of
the underlying finding of abuse or neglect from the central
registry maintained by the Division pursuant to N.J.S.A. 9:6-
8.11.

The opinion concludes that (1) the suspended judgment
provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable
when a Family Part judge has held a dispositional hearing and is
not prepared to enter a final order returning the child to the
parent or placing the child with the Division, but instead
proposes to give the parent an opportunity to maintain the
family unit based upon adherence to the particular remedial
requirements established pursuant to N.J.S.A. 9:6-8.52(a); and
(2) successful completion of a period of suspended judgment
does not result in expungement of the underlying finding of
abuse or neglect.

Because there is no basis to conclude that the Legislature
intended the suspended judgment provision of N.J.S.A. 9:6-
8.51(a)(1) to provide the equivalent of Pretrial Intervention in
abuse and neglect cases, New Jersey Division of Youth & Family
Services v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006) is
overruled.

VIRGINIA COCKERLINE, as General Administratrix and Administratrix of the ESTATE OF MARK COCKERLINE v. ERIKA MENEDEZ, et al A-4635-07T1

VIRGINIA COCKERLINE, as General Administratrix and
Administratrix of the ESTATE OF MARK COCKERLINE v.
ERIKA MENEDEZ, et al
A-4635-07T1 02-04-10

Res ipsa loquitur permits a jury to infer a defendant was
negligent; it does not permit inference of proximate cause.
Amounts received as social security survivor and death benefits
and as PIP death benefits must be deducted from a jury's verdict
under the collateral source statute, N.J.S.A. 2A:15-97

PARISH V. PARISH A-1837-08T2

PARISH V. PARISH
A-1837-08T2 02-03-10

We reviewed a Family Part order dismissing "as moot" a
post-judgment motion to enforce litigant's rights. The motion
judge did not review the merits of plaintiff's application and
directed the parties to present their disputes to the parenting
coordinator designated in the Dual Final Judgment of Divorce.
Additionally, the judge conditioned the filing of all future
motions on the requirement that the parties and their attorneys
first conduct a four-way settlement conference to resolve the
disputes and certify that these efforts proved unsuccessful.
Finally, the court imposed an award of counsel fees.

We reversed the order due to the motion judge's failure to
substantively address plaintiff's ELR motion, as the issues
presented were not moot and ripe for disposition. The parties
had previously sought review by, and received the
recommendations of, the parenting coordinator. More
importantly, we reversed the mandated restriction on the
parties' exercise of the right to file post-judgment ELR motions
in the absence of a specific finding of the need to control
frivolous litigation. Finally, because the counsel fee award
was based on a determination we reversed, it too was reversed.

Judge Ashrafi concurred with that portion of the opinion
reversing the dismissal of plaintiff's motion because the
requested relief was not moot, and the award of counsel fees.
Judge Ashrafi dissented from that portion of the opinion
reversing the pre-filing condition imposed on future motions.

GONZALEZ v. WILSHIRE CREDIT CORPORATION A-2634-08T2

GONZALEZ v. WILSHIRE CREDIT CORPORATION
A-2634-08T2 02-01-10

We hold that a series of standardized agreements to cure
default between a non-debtor mortgagor and the mortgage servicer
are covered by the Consumer Fraud Act, even when executed post-
foreclosure.

LAKE VALLEY ASSOCIATES, LLC, T/A UNIVERSITY PARK APARTMENTS V. TOWNSHIP OF PEMBERTON A-4040-07T2

LAKE VALLEY ASSOCIATES, LLC, T/A UNIVERSITY PARK
APARTMENTS V. TOWNSHIP OF PEMBERTON
A-4040-07T2 02-01-10

Plaintiff, the owner of a large apartment complex in
Pemberton Township, 2brought an action in lieu of prerogative
writs facially challenging the constitutionality and statutory
validity of Ordinance No. 5-2006, adopted by the Township in May
2006. The ordinance imposes certain registration obligations
and other regulatory requirements on landlords within the
Township. Among other things, plaintiff argued that the
ordinance is not for a valid public purpose; violates due
process and separation-of-powers principles of the United States
Constitution and the New Jersey Constitution; and is preempted
by the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -
28, and by other state statutes.

We affirm the Law Division's dismissal of plaintiff's
claims, substantially for the cogent reasons expressed by
Assignment Judge John A. Sweeney in his written opinion of
February 13, 2008, from which we quote at length in this
published opinion.