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Saturday, April 30, 2011

ESTATE OF NANCY Z. PALEY VS. BANK OF AMERICA (f/k/a FLEET BANK, f/k/a FIRST JERSEY BANK, f/k/a WESTMINSTER BANK, f/k/a SUMMIT BANK), ET AL. A-4391-07T

ESTATE OF NANCY Z. PALEY VS. BANK OF AMERICA (f/k/a

FLEET BANK, f/k/a FIRST JERSEY BANK, f/k/a WESTMINSTER

BANK, f/k/a SUMMIT BANK), ET AL.

A-4391-07T3, A-5519-07T3, A-5864-07T3 (CONSOLIDATED)

We held that the Consumer Fraud Act (CFA) does not apply to

a claim by a bank depositor for payment by the bank of multiple

checks presented to and paid by it to the depositor's medical

aide. We held that the CFA provides no remedy to the depositor

when a bank adopts a check presentation and clearance procedure

consistent with the Uniform Commercial Code (UCC),

specifically Articles 3 and 4 of the UCC, N.J.S.A. 12A:3-101 to

-605 and 4-101 to -504, has acted in conformity with those

procedures, and does not have an agreement with the depositor

that creates a special relationship with duties beyond those

imposed by the UCC. 04-29-11

THERESA MEIER, ET AL. VS. PASQUALE D'AMBOSE A-2555-09T1

THERESA MEIER, ET AL. VS. PASQUALE D'AMBOSE

A-2555-09T1

In the absence of a lease provision to the contrary,

defendant-landlord had a duty to the lessee of a single-family

dwelling to maintain the furnace and to inspect periodically for

defects in order to prevent a hazardous condition leading to a

fire and the lessee's death. Although the lease was for the

entirety of the premises, the controlling law is that expressed

in Restatement (Second) of Torts § 358, rather than the holdings

of Patton v. Texas Co., 13 N.J. Super. 42 (App. Div.), certif.

denied, 7 N.J. 348 (1951), and Szeles v. Vena, 321 N.J. Super.

601 (App. Div.), certif. denied, 162 N.J. 129 (1999). 04-28-11

JEFFREY McDANIEL, ET AL. VS. MAN WAI LEE, ET AL. A-5900-09T1

JEFFREY McDANIEL, ET AL. VS. MAN WAI LEE, ET AL.

A-5900-09T1

In this multi-vehicle auto negligence action, we conclude

N.J.S.A. 34:15-8, the fellow-servant provision of the Workers'

Compensation Act, N.J.S.A. 34:15-1 to -128, bars a third-party

tortfeasor's action against the co-worker seeking

indemnification and contribution. 04-27-11

STEVEN ORNER, ET AL. VS. GUANG LIU, ET AL. A-6185-09T4

STEVEN ORNER, ET AL. VS. GUANG LIU, ET AL.

A-6185-09T4

This action, which concerned disputes about plaintiffs'

sale of certain rental properties to defendants, was settled and

dismissed on June 8, 2009. The parties' settlement agreement

provided for the execution of new contracts within three days

and a closing no later September 15, 2009, after which -- if the

closing did not occur -- the parties would have no further

obligations. The parties failed to agree on the form and

content of new contracts, and plaintiffs sold the properties to

others.

Defendants filed a motion for relief, pursuant to Rule

4:50-1, on June 7, 2010, one day short of a year from the order

in question. The trial judge denied the motion and the court

affirmed, concluding among other things that the motion was

untimely. In affirming, the court emphasized that Rule 4:50-2

requires that all motions for relief pursuant to Rule 4:50-1

must be filed within "a reasonable time." Rule 4:50-2's

declaration that motions based on subsections (a), (b), or (c)

of Rule 4:50-1 may not be filed more than one year from the

order in question represents only an outer limit; such motions

must still be filed within "a reasonable time," which may be

less than one year. 04-26-11

IN THE MATTER OF THE STATE BOARD OF EDUCATION'S DENIAL OF PETITION TO ADOPT REGULATIONS IMPLEMENTING THE NEW JERSEY HIGH SCHOOL VOTER REGISTRATION LAW

IN THE MATTER OF THE STATE BOARD OF EDUCATION'S

DENIAL OF PETITION TO ADOPT REGULATIONS

IMPLEMENTING THE NEW JERSEY HIGH SCHOOL VOTER

REGISTRATION LAW

A-5681-09T3

We construe N.J.S.A. 18A:36-28, which prescribes that the

Commissioner of Education "shall adopt pursuant to the

'Administrative Procedure Act' . . . rules and regulations

necessary to implement the provisions" of the High School Voter

Registration Law (the "HSVRL"), N.J.S.A. 18A:36-27, to impose a

mandatory, not a directory, obligation upon the Commissioner to

adopt regulations implementing the statute.

We affirm the denial of appellants' petition for rulemaking

because respondents have enacted regulations under N.J.A.C.

6A:30, Appendix A and B, to monitor compliance with the HSVRL by

public school districts. Although appellants contend that those

regulations are insufficient, we do not find respondents' chosen

method to implement the statute with respect to public schools

to be arbitrary or capricious. However, we reverse the denial

of appellants' petition with respect to nonpublic schools

because N.J.S.A. 18A:36-27 explicitly applies to both public and

nonpublic schools, and respondents have not adopted any

regulations to implement the HSVRL as to nonpublic schools. 04-25-11

DEAN SMITH VS. HUDSON COUNTY REGISTER, ET AL. JEFF ZEIGER VS. HUDSON COUNTY REGISTER, ET AL. A-4113-09T3, A-4114-09T3, (CONSOLIDATED)

DEAN SMITH VS. HUDSON COUNTY REGISTER, ET AL.

JEFF ZEIGER VS. HUDSON COUNTY REGISTER, ET AL.

A-4113-09T3, A-4114-09T3, (CONSOLIDATED)

A requestor who is charged an excessive amount to obtain copies

of public records under the Open Public Records Act ("OPRA"),

N.J.S.A. 47:1A-1 to -13, who then prevails in an OPRA action

against the public entity that engaged in the overcharging, or

whose OPRA action acts as a catalyst to a change in the public

entity's practices, is entitled to receive reasonable attorney's

fees pursuant to N.J.S.A. 47:1A-6. The requirement within the

fee-shifting provision, N.J.S.A. 47:1A-6, that the requestor be

"denied access" to the records is not restricted to instances

where physical access has been denied, but also encompasses

instances where a requestor has been forced to pay excessive

copying charges to obtain the records at rates above those

prescribed by OPRA in N.J.S.A. 47:1A-5(b). Applying these

standards, we hold that plaintiff Dean Smith, who was a

prevailing party in Smith v. Hudson County Register, 411 N.J.

Super. 538 (App. Div. 2010), which produced a change in

defendants' practices, is entitled to an award of reasonable

trial and appellate counsel fees. 04-25-11

BARBARA A BOTIS VS. ESTATE OF GARY G KUDRICK VS. WELLS FARGO BANK A-5562-09T4

BARBARA A BOTIS VS. ESTATE OF GARY G KUDRICK VS. WELLS

FARGO BANK

A-5562-09T4

Effective January 18, 2009, the statute of frauds, N.J.S.A.

25:1-5 to -16, was amended to include palimony agreements among

the types of "agreements or promises" that must be in writing

and signed by the parties in order to be enforceable. N.J.S.A.

25:1-5(h); L. 2009, c. 311, § 1. This case requires us to

determine whether to accord the amendment retroactive effect in

a case filed against the deceased promisor's Estate prior to the

effective date of the amendment on an alleged palimony agreement

enforceable when the complaint was filed. We conclude that the

amendment applies prospectively and affirm the June 9, 2010

order denying the Estate's motion to dismiss the complaint,

which is before us on leave granted. 04-21-11

DOVER-CHESTER ASSOCIATES, ETC. VS. RANDOLPH TOWNSHIP AND RANDOLPH TOWN CENTER ASSOCIATES, L.P. ET AL. VS. RANDOLPH TOWNSHIP (CONSOLIDATED) A-3445-09T3

DOVER-CHESTER ASSOCIATES, ETC. VS. RANDOLPH TOWNSHIP

AND RANDOLPH TOWN CENTER ASSOCIATES, L.P. ET AL. VS.

RANDOLPH TOWNSHIP (CONSOLIDATED)

A-3445-09T3, A-3446-09T3

These appeals from the judgment of a county board of

taxation to the Tax Court are governed by N.J.S.A. 54:51A-1(b),

which requires that all taxes due for the year for which review

is sought must have been paid "[a]t the time that a complaint

has been filed with the Tax Court[.]" In contrast, direct

appeals to the Tax Court and initial appeals to a county board

of taxation are governed by N.J.S.A. 54:3-27, which requires the

appealing taxpayer to pay all taxes due, up to and including the

first quarter of the taxes assessed against him for the current

tax year. However, because N.J.S.A. 54:3-27 does not specify

when such payment must be made, we have found the requirement

satisfied when payment is made by the return date of a motion to

dismiss the appeal. The Legislature amended the statutes in

1999, adding provisions that permitted the relaxation of the tax

payment requirements in the "interests of justice" but did not

define that term. As we have not previously considered the

application of that provision and a conflict has arisen in

decisions in the Tax Court, we address the question whether

relaxation is required in the "interests of justice" under

N.J.S.A. 54:51A-1(b) if the tax obligation is satisfied before

the return date of a motion to dismiss its complaint. We

conclude that it is not. 04-20-11

REZEM FAMILY ASSOCIATES, LP VS. THE BOROUGH OF MILLSTONE, ET AL. A-2290-09T2

REZEM FAMILY ASSOCIATES, LP VS. THE BOROUGH OF

MILLSTONE, ET AL.

A-2290-09T2

The primary issue on appeal is whether a plaintiff must

exhaust administrative and judicial remedies, and obtain a final

ruling on its land use claims, before it can pursue a cause of

action for alleged violation of its substantive due process

rights. We hold that a substantive due process claim in a land

use dispute requires both governmental misconduct that "shocks

the conscience" and exhaustion of remedies available under our

land use law. 04-15-11

SEAN WOOD, L.L.C. VS. HEGARTY GROUP, INC., ET AL. A-1134-09T2

SEAN WOOD, L.L.C. VS. HEGARTY GROUP, INC., ET AL.

A-1134-09T2 04-12-11

In a Special Civil Part action, Sean Wood, L.L.C., sought

payment in the amount of $14,583.25 from the Hegarty Group, Inc.

and Kenneth Hegarty, individually, that it alleged was owed on

two contracts for rigging out, loading and delivering industrial

machinery and tanks to two of the Hegarty Group's customers.

The Hegarty Group counterclaimed, alleging lost profits as the

result of a breach of contract by Wood, resulting in the Hegarty

Group's inability to completely satisfy a purchase order by its

customer, Perry Videx Company.

CHASE BANK USA, N.A. VS. JENNIFER STAFFENBERG A-4488-09T3

CHASE BANK USA, N.A. VS. JENNIFER STAFFENBERG

A-4488-09T3 04-11-11

Credit card companies and banks are entitled to recover

statutory counsel fees from a debtor in the Special Civil Part,

pursuant to N.J.S.A. 22A:2-42, in the amount of five percent of

the first $500 recovered and two percent of the excess above

$500, even where they utilize the services of in-house attorneys

in procuring the judgment. The prohibitions in the Retail

Installment Sales Act of 1960, N.J.S.A. 17:16C-42(d), and in the

Market Rate Consumer Loan Act of 1996, N.J.S.A. 17:3B-40, on the

recovery of contract-based attorney's fees where in-house

counsel and salaried employees are utilized do not expressly or

impliedly repeal or nullify a plaintiff's entitlement to the

modest fees awarded in the Special Civil Part as taxed costs

under N.J.S.A. 22A:2-42.

MARY HYLAND VS. TOWNSHIP OF LEBANON A-4139-09T2


This dispute over the Township's decision to eliminate

further payments of the tax collector's vacation, sick and leave

days was not a matter within the exclusive jurisdiction of the

Public Employee Relations Commission; and the elimination of

further payments for the tax collector's vacation, sick and

leave time violated N.J.S.A. 40A:9-165 because it reduced the

amount of "salary" the Township had previously agreed to pay the

tax collector. 04-07-11

NUTLEY POLICEMEN'S BENEVOLENT ASSOCIATION LOCAL # 33, ET AL. VS. TOWNSHIP OF NUTLEY, ET AL. A-3730-09T2

NUTLEY POLICEMEN'S BENEVOLENT ASSOCIATION LOCAL # 33,

ET AL. VS. TOWNSHIP OF NUTLEY, ET AL.

A-3730-09T2

The Fair Labor Standards Act, 29 U.S.C.S. §§ 201-219,

requires a public employer to allow an employee awarded

compensatory time off in lieu of overtime pay "to use such time

within a reasonable period after making [a] request if the use

of the compensatory time does not unduly disrupt the operations

of the public agency." 29 U.S.C.S. § 207(o)(5). This appeal

required us to consider whether an employer who denies

permission to use compensatory time on the date requested but

permits use within the "reasonable period" defined in its

agreement with its employees must also show that a grant would

"unduly disrupt" operations. 29 C.F.R. § 553.25(c)(2), (d). We

concluded that the employer need not do so and affirmed 4-01-11

GERALDINE MURRAY, ET AL. VS. PLAINFIELD RESQUE SQUAD, ET AL. A-2906-08T1

GERALDINE MURRAY, ET AL. VS. PLAINFIELD RESQUE SQUAD,

ET AL.

A-2906-08T1 03-30-11

Although members of a municipal rescue squad who responded

to a shooting were not entitled to immunity under N.J.S.A.

2A:62A-1, the Good Samaritan Act, because they had a duty to

respond, they were entitled to immunity under N.J.S.A. 26:2K-29

because plaintiffs failed to establish the members either did

not act in an objectively reasonable manner or lacked subjective

good faith.

Plaintiffs also failed to present a prima facie case

against the owner and operator of a mobile intensive care unit

dispatched to the scene. Plaintiffs' expert report with

respect to causation contained only a net opinion, and

plaintiffs' expert with respect to negligence expressed no

opinion regarding the mobile intensive care unit.

The trial court correctly granted summary judgment and

dismissed the complaint.

IMO Anthony Stallworth, Camden County Municipal Utilities Authority (A-6-10)

IMO Anthony Stallworth, Camden County Municipal

Utilities Authority (A-6-10) 4-12-11

In imposing discipline, the Civil Service Commission

did not adequately consider the public employee’s

entire record of misconduct and disregarded its

obligation to state with particularity its reasons for

rejecting the Administrative Law Judge’s findings and

conclusion. The matter is remanded to the Commission

for reconsideration and a more thorough explanation of

the Commission’s ultimate decision.

Amin Yousef, et al. v. General Dynamics Corporation, et al. (A-88-09)

Amin Yousef, et al. v. General Dynamics Corporation,

et al. (A-88-09)

The trial court properly weighed the public-interest

factors in finding that defendants failed to carry

their burden of demonstrating that New Jersey is a

“demonstrably inappropriate” forum. Therefore, the

trial court did not abuse its discretion in denying

the forum non conveniens motion. 4-11-11

Policemen’s Benevolent Association, Local No. 11 v. City of Trenton (A-116-09)

Policemen’s Benevolent Association, Local No. 11 v.

City of Trenton (A-116-09)

The language of the collective bargaining agreement

between the City of Trenton and the Policemen’s

Benevolent Association plainly supports the

arbitrator’s interpretation that payment of straighttime

compensation was contemplated for the ten-minute

muster period that the City required employees to work

prior to their scheduled start time. The arbitrator’s

interpretation of the agreement is plausible and,

thus, survives 3-29-11

GMAC v. Rosanna Pittella v. Pine Belt Enterprises, Inc. (A-15-10)

GMAC v. Rosanna Pittella v. Pine Belt Enterprises,

Inc. (A-15-10)

Any order that compels or denies arbitration shall be

considered final for purposes of appeal, but the trial

court retains jurisdiction to address other issues

pending the appeal. 3-23-11

Sunday, April 10, 2011

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Owner of building is local attorney, Kenneth Vercammen who handles Criminal /Municipal Court, Personal Injury, Elder Law, and Probate Law.

Available April 15

Friday, April 8, 2011

Maffucci v. The State of New Jersey APPELLATE DIVISION DOCKET NO. A-4369-09T3 tort claims act tca

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

KAREN MAFFUCCI and DAVID MAFFUCCI,

Plaintiffs-Appellants,

v.

THE STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS, DEPARTMENT OF HUMAN SERVICES, DEPARTMENT OF MENTAL HEALTH SERVICES AND INTENSIVE TREATMENT CENTER OF THE LINCOLN COMPLEX OF THE TRENTON PSYCHIATRIC HOSPITAL OF

NEW JERSEY; and DAVID ELIASON and IFEYINWA EZEUKWU,

Defendants-Respondents. ______________________________________________________

Submitted February 22, 2011 - Decided April 7, 2011

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-935-08.

Advokat & Rosenberg, attorneys for appellants (Jeffrey M. Advokat, on the brief).

Paula T. Dow, Attorney General, attorney for respondents State of New Jersey, David Eliason and Ifeyinwa Ezeukwu (Robert Lougy,

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4369-09T3

Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

PER CURIAM Plaintiffs, Karen Maffucci and David Maffucci, appeal from

an order granting defendants' motion for summary judgment. On the entry of the order, the complaint was dismissed. We affirm.

The complaint alleges eleven causes of action, all arising from the escape of Edgar Del Cid-Perez from the Trenton State Psychiatric Hospital and the effects of that occurrence on the plaintiffs because of their prior encounter with him. The escape occurred on August 7, 2006, and Del Cid-Perez was apprehended in Irvington either the following day or the day after that.1

Del Cid-Perez had been in custody on criminal charges arising from the abduction of plaintiff Karen Maffucci from her home on November 30, 2005.2 He had been transported from the

1

There may be a difference between the parties regarding the date of Del Cid-Perez's apprehension following his escape. Plaintiffs alleged in the complaint that the capture occurred on August 9, 2006, two days after the escape. Defendants assert in their brief on appeal that the re-arrest occurred a day earlier, on August 8, 2006, the day following the escape. For the purposes of this motion for summary judgment, such factual difference is of no consequence given the issues of immunity and State amenability to suit that inform the matter.

2 According to the complaint, the inmate ultimately, on February 16, 2007, pled guilty to an indictment charging him with two (continued)

2

A-4369-09T3

Somerset County Jail to the State psychiatric facility for an in-depth medical evaluation to determine his competency to stand trial.

We take the details of plaintiffs' prior encounter with Del Cid-Perez as they were set out in the complaint. Shortly after her husband left their residence in the morning, Karen Maffucci was taken by Del Cid-Perez, armed with a handgun and a knife, from her Bernardsville home, in her own automobile, to a storage shed in a horse stable, and bound with duct tape. After several hours, she escaped and flagged down a passerby. At about 12:25 p.m., the police responded to a call for assistance. While plaintiffs were at police headquarters, shortly after 2:00 p.m., Mr. Maffucci received a call on his cell phone from his wife's stolen cell phone. The caller threatened to kill Ms. Maffucci if his demand for a ransom of one million dollars was not satisfied. Del Cid-Perez was apprehended by the police later that day, in the evening, leading to his incarceration, his eventual presence at the State psychiatric facility, and his escape from custody there.

(continued) counts of first-degree kidnapping; two counts of weapons possession, second-degree and third-degree; and one count of second-degree burglary. He was sentenced to a term of imprisonment for twenty years with parole ineligibility for seventeen years.

3

A-4369-09T3

Plaintiffs alleged in the complaint that they were traumatized by the news that Del Cid-Perez was at liberty. They

feared for their safety. They felt in 'shock'. David Maffucci sat in his truck on the family's driveway and said he would not leave his home. . . . [A]t this time the plaintiffs have the fear that security will never be sufficient, since the system has already failed them, in that, Del Cid-Perez has already escaped once.

They assert in their brief on appeal that, "[a]s to Karen Maffucci herself, . . . the knowledge and fear of an actual escape has had, and will have, lasting, direct injurious

effects. injuries The rejected

. . . [S]he has experienced psychiatric/physical as a direct result of the escape . . . ."

trial court, on the motion for summary judgment,

plaintiffs efforts to characterize their claim as inherently different from other tort claims that have been barred by the doctrine of sovereign immunity and the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. See N.J.S.A. 59:1-2; Marcinczyk v. State of N.J. Police Training Comm'n, 203 N.J. 586, 594-95 (2010); Polzo v. County of Essex, 196 N.J. 569 (2008); Vincitore v. Sports & Exposition Auth., 169 N.J. 119 (2001).

The judge delivered an oral opinion in which he held that "the facts of this case fall within the immunity provisions of" N.J.S.A. 59:5-2b. He disagreed with plaintiffs that a

4

A-4369-09T3

distinguishing element was to be found because of "the injury being caused by somebody other than the escapee." He opined:

The judge

The embodied

It was the act of escaping and his not being confined that led to the alleged injury [of plaintiffs]. I think whenever there's an escape there's an assumption or there could be an argument that there is always negligence by the State or whatever law enforcement is in charge of keeping the inmate confined. So I feel like it clearly falls within the statute.

continued:

And then given the strong language in Tice[v. Cramer, 133 N.J. 347 (1993),] I also feel constrained . . . that essentially what Tice is saying is that the statute is very, very broad and they say it would plainly violate the legislative intent if particular words of the statute were given such technical meanings that a case fell between the cracks of the immunity. . . . [T]he negligence counts would fall within my previous rationale or whether it's a failure to pro[t]ect that would fall within immunity under [N.J.S.A.] 59:5-4. The [§]1983 [Fourteenth] Amendment claims . . . also fail because I ha[ve]n't seen a constitutional statutory right that was violated. In any event[,] it's clear that this is a straight negligence claim.

judge also disallowed a breach of contract claim

in the complaint, a ruling in respect of which plaintiffs make no argument on appeal. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2011) (issues not argued on appeal are deemed abandoned).

5

A-4369-09T3

We, too, reject plaintiffs' creative effort to place the facts of this case in a special category among those in which courts have not applied the concept of immunity, by characterizing this matter as different in kind – "unique" – and propounding an approach that suggests allowing recovery would have a very limited application. Plaintiffs argue:

First, the plaintiff Karen Maffucci was horribly victimized by the escapee before he was initially incarcerated. Second, the defendant Trenton State Hospital engaged in clearly negligent actions and inactions which directly led to the escapee's unauthorized escape. Third, after the escapee left the Hospital he did not directly engage in any additional act that directly caused injury to Karen Maffucci. (For instance, no "super[s]eding, intervening" act such as an escaping auto accident, that would remove liability from the State.)

As to Karen Maffucci only, as opposed to the general public at large, the negligence of allowing the escape itself is the cause for liability. As to Karen Maffucci herself, the only pre-escape victim, the knowledge and fear of an actual escape has had, and will have, lasting, direct injurious effects.

This litigation is based upon the negligence of the State and not any subsequent act of the escapee. Unlike all other cases, this case is not one where the escapee causes injury himself, after his escape, against the plaintiff. Just the negligence of the State itself (i.e., causing the escape to happen) has caused the damages to the plaintiff. For the rest of her life, Karen Maffucci must live with the

6

A-4369-09T3

arguments

on appeal: POINT I

THE STATE DEFENDANTS ARE NOT ENTITLED TO ABSOLUTE IMMUNITY UNDER THE [TCA].

POINT II

PLAINTIFFS' CLAIMS ARE NOT BARRED BY THE [TCA]'S POLICE PROTECTION IMMUNITY.

POINT III

DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT BASED ON PLAINTIFFS' CLAIM FOR EMOTIONAL INJURY UNDER THE [TCA].

POINT IV

PLAINTIFFS' CONSTITUTIONAL CLAIMS ARE NOT BARRED IN THIS CASE BASED UPON THE FACTS INVOLVED.

POINT V

THE DEFENDANTS IN THIS CASE INCLUDE THOSE AGAINST WHOM FEDERAL CLAIMS CAN BE MADE.

thought that Del Cid-Perez may escape, since we know he has already done so. This could only happen to Ms. Maffucci since she was personally victimized by the escapee before his arrest; she has experienced psychiatric/physical injuries as a direct result of the escape; and the escapee has done no further act after his escape that led to further injuries. It has just been the negligence of the State itself.

With this as qualifying background, plaintiffs advance five

Reflecting upon the record in the light of the arguments advanced by the parties, and applying the same summary judgment

7

A-4369-09T3

standards as the trial court, see Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), we conclude that defendants – the State and its employees – were entitled to immunity under the provisions of N.J.S.A. 59:5-2b, which provides immunity from liability for any injury caused by an escape or escaping person, and N.J.S.A. 59:6-7a, which provides immunity for "an injury caused by an escaping or escaped person who has been confined for mental illness . . . ." Both eventualities are governed by the principle that liability theories yield to the concept of immunity and common law defenses. See Manna v. State, 129 N.J. 341, 347 (1992); Weiss v. New Jersey Transit, 128 N.J. 376, 381-82 (1992). The absence of any direct contact by the escaped person after the escape does not furnish a basis for holding otherwise. And, to the extent plaintiffs contend they were not properly protected from the escape and its consequences, the N.J.S.A. 59:5-4 immunity for police protection services also applies to insulate defendants from liability. Construing an exception for negligent performance of duties, as plaintiffs argue we should, especially in this case involving allegations of emotional injury, see Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324,

8

A-4369-09T3

332 (2003), would abrogate the legislative policies embodied in various immunity provisions.

With regard to any federal constitutional claims under 42 U.S.C.A. § 1983, the State or agents acting for the state are not "persons" under that section, subject to liability. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 (1989); Fuchilla v. Layman, 109 N.J. 319, 325, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). See also Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S. Ct. 598, 604, 46 L. Ed. 2d 561, 570-71 (1976) (barring § 1983 claims on the theory of respondeat superior). The federal Constitution reposes no affirmative duty on the State to protect its citizens from harm by another citizen. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 768-69, 125 S. Ct. 2796, 2810, 162 L. Ed. 2d 658, 676-77 (2005); DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 195- 202, 109 S. Ct. 998, 1002-07, 103 L. Ed. 2d 249, 258-64 (1989).

The order of the Law Division granting defendants' motion for summary judgment is affirmed.

9

A-4369-09T3


Thursday, April 7, 2011

Oyala v. Elaine's Restaurant sidewalk fall

AWILDA OYALA, Plaintiff-Appellant,

v.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

ELAINE'S RESTAURANT, L.L.C.; CITY OF JERSEY CITY; 755-757 BERGEN AVENUE CORP.; and MONTGOMERY CHECK CASHING,

Defendants,

and

POWER CONCRETE CO., INC.; and ASSUNCAO BROS., INC.,

Defendants-Respondents. _______________________________________________

Submitted January 31, 2011 - Decided April 6, 2011

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2997-08.

Kenneth M. Sunberg, attorney for appellant.

Respondents have not filed a brief. PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5145-09T3

Plaintiff, Awilda Oyala, appeals from orders denying her latest motion to amend the complaint and her motion for reconsideration. Because of other orders that had been entered in the matter, the result of the challenged orders was to leave plaintiff without a defendant against which to proceed. We affirm.

The initial complaint, in four counts, was filed on June 12, 2008. It alleged personal injury to plaintiff when, "on or about December 31, 2006, . . . [as] a pedestrian", she fell on a public sidewalk at 755 Montgomery Street in Jersey City. Plaintiff alleged, further, that the sidewalk had been negligently maintained or lacked a proper warning of a hazardous condition.

The first count of the complaint named as a defendant Elaine's Restaurant,1 apparently a commercial establishment at that address. The second count named the City of Jersey City (the City) as a defendant. The third count named fictitious defendants, "ABC Companies 1-10 . . . the owner, contractor, lessee or otherwise [which] had control over the sidewalk in question." The fourth count named another fictitious defendant, "XYZ Maintenance Co. [which] through its agents, servants,

1 According to the list of parties in the notice of appeal, this defendant was "never served[,] so is not a party to the action."

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and/or employees was the owner, operator, lessee or otherwise [and] had control over the sidewalk in question."

After the City's motion to dismiss was denied,2 it filed an answer and a third-party complaint naming Power Concrete Co, Inc. (Power Concrete) and Assuncao Bros. Inc. (Assuncao) as third-party defendants. Plaintiff then, on March 20, 2009, filed an amended complaint naming those entities as direct defendants. The latter entities eventually joined issue as direct defendants. The City also filed an answer to the amended complaint.

There had already been some discovery in the matter when, on September 17, 2009, plaintiff's deposition revealed that the incident that resulted in her injury had occurred on the sidewalk at 755 Bergen Avenue, not at the address initially alleged in the complaint and throughout the discovery process that had occurred to date. Plaintiff's attorney learned from the City that the owner of 755 Bergen Avenue was 755-57 Bergen Avenue Corporation, and that the tenant of the premises was Montgomery Check Cashing (Montgomery).

2 Some of the procedural background we recount is taken directly from the procedural history in plaintiff's brief on appeal. The appendix to her brief omits some of the supporting documents. As none of the respondents has filed a brief, we have no other recounting of the factual setting and procedural history of the case other than that provided by plaintiff.

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On October 15, 2009, plaintiff filed a motion for leave to amend the complaint to add the newly discovered owner and tenant. The motion was granted and a further amended complaint was filed on November 18, 2009, and served on all parties.

Also on November 18, 2009, the City filed a motion for summary judgment in lieu of answer seeking a dismissal of the amended complaint as to it. Nevertheless, on December 8, 2009, the City filed an answer to the newly amended complaint. Plaintiff opposed the City's motion for summary judgment and the motion was denied in an order entered on December 18, 2009. The City moved for reconsideration and that motion was granted; an order entered on February 5, 2010 dismissed the complaint against the City with prejudice. By that time the other original defendants and the newly identified defendants had filed answers to the most recently amended complaint.

On February 8, 2010, an attorney representing the City informed plaintiff's attorney that the City had a contract with Manhattan Signs and Banners of NJ, Inc. (Manhattan Signs). Plaintiff represents on appeal with no documentary support that that contract was for work to be performed in front of 755-57 Bergen Avenue. After receiving the communication from counsel for the City, plaintiff moved for leave to file another amended complaint to add Manhattan Signs as a defendant. The motion was

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returnable on April 1, 2010. An order denying the motion was entered on April 16, 2010. The reason for the denial stated in the order was that the "moving papers fail to set forth a factual basis to implead Manhattan Signs . . . . Fax cover sheet dated 2/8/10 provides no info as to a party's involvement."

In the interim, defendant Montgomery had moved for dismissal of the complaint on Statute of Limitations grounds. That motion was granted on April 1, 2010. Defendant 755-757 Bergen Avenue Corporation had also moved for dismissal on the same grounds; and that motion was granted in an order entered on May 14, 2010. Apparently, plaintiff has not appealed from either of the latter orders. Defendants Power Concrete and Assuncao moved for summary judgment on March 25, 2010 and April 6, 2010, respectively. Those motions were granted on May 14, 2010, on the basis that those defendants had no relationship to the actual site of plaintiff's injury.

On April 29, 2010, plaintiff moved for reconsideration of the order denying the last motion for leave to amend the complaint. The April 29 motion was returnable on May 14, 2010. The order denying that motion was entered on May 28, 2010, stating "There is no pending matter. All defendants have been dismissed from case by court orders."

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This appeal is from the April 16, 2010 order denying leave to amend the complaint and from the May 28, 2010 order denying reconsideration.

We discern no misapplication of discretion in the trial court's denial of the two motions. The court's statement of the reason for denying the motion for leave to amend the complaint once again, accurately reflected the state of the record. No factual basis had been provided in the papers before the court for adding Manhattan Signs as a defendant, The certification in support of the motion gave as the reason for amending:

The attorney for the City of Jersey City indicated in a letter dated 2/8/10, that the City of Jersey City was contracted with Manhattan Signs & Banners of NJ, Inc. and thereby should be named as an additional defendant in this matter. (See letter from Priti Vakharia, Esq., dated 2/8/10, attached).

The attachment referred to was, apparently a "fax transmittal cover sheet" that stated: "Attached please see the judge's order granting the City of Jersey City's motion for reconsideration and the City of Jersey City's contract with Manhattan Signs and Banners of NJ Inc." Apparently, aside from that cover sheet, and counsel's certification as set out above, no further documentation was provided in support of the April 2010 motion to amend the complaint. We note that the fax cover sheet from counsel for the City does not state what the contract

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with Manhattan Signs entailed, and the contract itself was not provided in support of the motion to amend the complaint.

The trial court's decision to deny the motions reflected a record in which several amended complaints had already been filed, and two newer defendants had succeeded in their motions to dismiss on Statute of Limitations grounds because the event giving rise to the complaint occurred more than two years before the complaints against them had been filed. A high likelihood, if not an inevitability, existed that Manhattan Signs would raise the same defense and succeed, as others had, in obtaining a summary judgment dismissal. Plaintiff's error in initially designating the incorrect address for the location of her injury was the precipitating factor in the late claims made against several defendants, including Manhattan Signs. Thus, we not only discern a lack of error or misapplication of discretion on the part of the trial court in entering the orders giving rise to this appeal, we also conclude, in the light of the fact that no defendant other than Manhattan Signs (only potentially) remains, that there is no reasonable likelihood of plaintiff's success on the merits.

The orders appealed from are affirmed.

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personal injury Garry v. University of Medicine and Dentistry

DEMETRIA GARRY as Guardian ad Litem for JAZIYAH GARRY, a minor, and DEMETRIA GARRY, Individually,

Plaintiffs-Appellants, v.

UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY HOSPITAL, UNIVERSITY HOSPITAL EMERGENCY MEDICAL SERVICES,

Defendants-Respondents,

and NEWARK BETH ISRAEL HOSPITAL,

Defendant,

and

UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY HOSPITAL, UNIVERSITY HOSPITAL EMERGENCY MEDICAL SERVICES,

Third-Party Plaintiffs, v.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3255-09T4

ELENA KOSHKARELLA, R.N., and LOVING CARE AGENCY, INC.,

Third-Party Defendants. ________________________________________

Telephonically argued January 13, 2011 - Decided - April 6, 2011

Before Judges Fuentes, Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5854-08.

Joseph M. Wenzel argued the cause for appellants.

Nancy Crosta Landale argued the cause for respondents (Farkas & Donohue, LLC, attorneys; David C. Donohue, of counsel; Ms. Crosta Landale, on the brief).

PER CURIAM Plaintiff, Jaziyah Garry, a minor by her Guardian ad Litem

Demetria Garry, and Demetria Garry, individually, appeal from the January 8, 2010 order that granted summary judgment to defendants University of Medicine and Dentistry of New Jersey (UMDNJ), University Hospital, and University Hospital Emergency Medical Services (collectively, the University Hospital defendants).1 We affirm.

1

We were advised by plaintiffs' counsel that Jaziyah Garry died during the pendency of the action. Because Demetria Garry and her daughter Jaziyah Garry have identical surnames, for the purpose of this opinion and without disrespect to the parties,

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(continued) A-3255-09T4

Viewed most favorably for plaintiffs, the motion record reveals the following. Jaziyah, born in August 2005, resided at home with Demetria in Newark. The child suffered from a congenital condition that required her to be maintained via a home ventilator with oxygen, a suction machine, and a feeding tube device in place. Demetria received in-home assistance in caring for her daughter from private-duty nurses through the Loving Care Agency, Inc. Elena Koshkarella, R.N., is a private duty nurse employed by the agency.

On June 2, 2007, Demetria requested emergency medical services for her daughter from the UMDNJ. The UMDNJ's ambulance and mobile intensive care unit (MICU) paramedics responded to the Garry home to transfer the child to Newark Beth Israel Medical Center.2 The paramedics first exited the home, followed by Demetria who carried her daughter. Koshkarella next exited the home carrying the oxygen tank and ventilator equipment. Once outside the home, Demetria handed her daughter to one of the paramedics to place the child on a stretcher and then into

(continued) we shall hereinafter, where appropriate, refer to them

individually "plaintiffs."

by their first names, or collectively as

2 Israel Hospital.

Incorrectly designated in the amended complaint as Newark Beth

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the ambulance. Koshkarella handed the oxygen tank to another paramedic who placed the oxygen tank and ventilator onto the stretcher. Demetria and Koshkarella then entered the ambulance and accompanied the child to Newark Beth Israel Medical Center. En route to the hospital, the paramedics heard the oxygen tank hiss. Because the tank contained liquid oxygen and had been placed on or near the child's leg, Jaziyah suffered second- degree burns to her thigh and buttocks.

On July 27, 2009, plaintiffs filed an amended complaint against the University Hospital defendants and Newark Beth Israel Medical Center.3 Plaintiffs asserted negligence against the University Hospital defendants for, among other things, failing to properly secure the oxygen tank during transport. Demetria also asserted a claim for emotional distress against the University Hospital defendants pursuant to Portee v. Jaffee, 84 N.J. 88 (1980). Lastly, plaintiffs asserted negligence against Newark Beth Israel Medical Center for failing to properly treat4 Jaziyah.

3

Plaintiffs previously filed a complaint in August 2008. The complaint was dismissed for lack of prosecution pursuant to Rule 1:13-7(a). On July 17, 2009, the court entered an order restoring the action to the active trial list.

4

In October 2009, the University Hospital defendants filed a counterclaim against Demetria, a cross-claim against Newark Beth Israel Medical Center, and a third-party complaint against

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On October 30, 2009, the University Hospital defendants filed a motion for summary judgment asserting qualified immunity pursuant to N.J.S.A. 26:2K-14. Plaintiffs opposed the motion asserting that they had not commenced discovery in the action, and that there was an issue of material fact as to whom placed the oxygen tank on or near the child's leg. On January 8, 2010, Judge Claude Coleman granted the motion determining that future discovery would not change the undisputed facts. The judge concluded that the paramedics had rendered advance life support services during transport in good faith and, therefore, were entitled to qualified immunity, pursuant to N.J.S.A. 26:2K-14. The court entered a memorializing order the same day.5

On appeal, plaintiffs argue that the trial court erroneously: 1) granted summary judgment to the University

facts in close of Hospital

Hospital defendants because dispute; 2) granted summary discovery; and 3) concluded defendants were entitled to immunity.

there were material judgment before the

that the University

(continued) Koshkarella and the Loving Care Agency, seeking contribution and/or indemnification from those parties.

5

Following entry of the order granting summary judgment, plaintiffs voluntarily dismissed the complaint as to Newark Beth Israel Medical Center with prejudice.

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A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

In Point I of plaintiffs' brief, they argue that the trial court erroneously granted the motion for summary judgment, contending that there were material issues of fact in dispute as to whom had placed Jaziyah on the stretcher and who bore

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responsibility for reviewing the status of the oxygen equipment during transport to the hospital. Plaintiffs contend that contrary to the aforementioned facts, the University Hospital defendants had averred in their moving papers that Demetria had placed her daughter on the stretcher and had checked the placement of the oxygen tank while en route to Newark Beth Israel Medical Center. We disagree that such averments raise genuine issues of material fact requiring denial of the motion.

The University Hospital defendants conceded at oral argument that, for the purpose of the motion, the court should deem the facts as stated earlier in this opinion as true. The trial court did. Accordingly, no dispute of material fact existed requiring the denial of the motion.

Plaintiffs argue next that the trial court erroneously granted the motion prematurely as they had not yet commenced discovery. The trial court disagreed, determining that further discovery would not change the material facts cited. Because plaintiffs have failed to show how additional discovery would have affected the outcome of the motion, we concur. Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003). Simply stated, where "[a] party [opposes] summary judgment on the ground that more discovery is needed[,] [he or she] must specify what further

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discovery is required, rather than simply [assert] a generic contention that discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). Here, plaintiffs not only failed to satisfy that obligation, but also candidly acknowledged that they had not served any discovery on the University Hospital defendants as of the time of the motion.

Lastly, plaintiffs argue that the trial court improperly granted summary judgment to the University Hospital defendants under the statute. Not so.

N.J.S.A. 26:2K-14 is one of several statutes that provides qualified immunity to individuals providing medical assistance to others. Frields v. St. Joseph's Hosp. &. Med. Ctr., 305 N.J. Super. 244, 247 (App. Div. 1997). That statute provides good faith immunity to MICU paramedics when providing "advanced life support services" to third parties:

No mobile intensive care paramedic, licensed physician, hospital or its board of trustees, officers and members of the medical staff, nurses or other employees of the hospital, first aid, ambulance or rescue squad, or officers and members of a rescue squad shall be liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of advanced life support services in good faith and in accordance with this act.

[N.J.S.A. 26:2K-14.]

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The term "advanced life support services" is defined in the Act as meaning:

[A]n advanced level of pre-hospital, inter-

hospital, and which includes functions, cardiac defibrillation, electrocardiography, administration of anti- arrhythmic agents, intravenous therapy, administration of specific medications, drugs and solutions, use of adjunctive ventilation devices, trauma care and other techniques and procedures authorized in writing by the commissioner[.]

emergency basic

service care life support monitoring, telemetered

cardiac

[N.J.S.A. 26:2K-7a.] Although plaintiffs acknowledged at the time of oral

argument that the paramedics' actions in administering oxygen to Jaziyah during transport fell within the definition of advanced life support services under the statute, plaintiffs maintain that the University Hospital defendants had failed to establish that such services were provided in "good faith" as that term is

used in the statute. The trial judge disagreed, and so

Good faith has been defined as honesty of purpose and integrity of conduct without knowledge, either actual or sufficient to demand inquiry, that the conduct is wrong. The issue of whether a person acted in good faith is often a question of fact which should be decided at a plenary hearing. Summary judgment, however, is appropriate when the employee demonstrates that his/her actions were objectively reasonable or that [he] performed them with subjective good faith. This test recognizes that even a person who acted negligently is entitled to

do we.

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a qualified immunity, if he acted in an objectively reasonable manner.

[Frields, supra, 305 N.J. Super. at 248 (internal quotations and citations omitted).]

We have considered plaintiffs' last argument against the aforementioned legal principles and conclude, as in Frields, that although plaintiffs may have stated a claim for paramedic negligence, that negligence does not strip the paramedics of their statutory immunity. Ibid. Accordingly, we affirm.

Affirmed.

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