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Wednesday, June 22, 2011

Fu v. Shoprite of Ewing A-1652-10T3

06-15-11
The record on appeal does not contain a transcript of the September 27 proceeding. Thus, we are unable to determine whether the parties were given oral notice that the court intended to revisit the issue of sanctions at the time of trial. Based upon the above statement by the court, it does appear that the court was poised to revisit the issue. While we find no abuse of the court's discretion in revisiting the issue at the time of trial, plaintiff was not afforded a fair opportunity to respond. Doe v. Portiz, 142 N.J. 1, 106 (1995) ("[D]ue process requires an opportunity to be heard at a meaningful time and in a meaningful manner."); Matter of Doe, 294 N.J. Super. 108, 122 (Law Div. 1996), aff'd, 302 N.J. Super. 255 (App. Div.), certif. denied, 151 N.J. 468 (1997), cert. denied, 523 U.S. 1096, 118 S. Ct. 1580, 140 L. Ed.2d 795 (1998). Given the court's indulgence towards plaintiff during the course of the trial, we are certain the court's failure to afford plaintiff an opportunity to address defense counsel's behavior was inadvertent. Nonetheless, we are constrained to vacate the counsel fee award and remand for new proceedings on the question of sanctions. The proceedings should be held as to both parties since plaintiff attempted to address defense counsel's conduct during the course of the proceedings but was precipitously cut off.

Allen v. LA Fitness International LLC A-5791-09T1

06-15-11

The subsequent discussion makes it clear that this was not an objection to defense counsel's plan to make a motion for dismissal at the close of Allen's case. The discussion was about the scope of defense counsel's cross-examination. On defense counsel's representation that he would not question Allen about the contract if there was a stipulation as to her signature because the question was a legal one, Allen's attorney agreed to the stipulation. He then moved on to discuss other outstanding pre-trial issues. When defense counsel moved for a directed verdict at the close of Allen's case, there was no objection.

Under these circumstances, we reject Allen's claim that the defense was inadequately pled or waived. It is clear that the parties' understood that in pleading assumption of risk as an affirmative defense, defendant gave effective notice of its intention to rely on the contract's exculpatory clauses. Allen's arguments to the contrary are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Tuesday, June 21, 2011

Wilson v. Woodfields A-6277-08T1

06-03-11
This agreement to arbitrate "any disputes arising in connection with this agreement and/or any amendments to this agreement" does not suggest waiver of the right to bring a suit in court on a statutory claim. In that regard, this arbitration clause is distinguishable from those addressed in Curtis and Griffin. InCurtis, the language unmistakably specified that plaintiff waived his right to a judicial forum and jury trial. 413 N.J. Super. at 37-38.In Griffin, the clause included language referencing statutory claims. 411 N.J. Super. at 518.

We also conclude that the agreement to arbitrate contractual claims, while sufficiently clear when read alone, is not at all clear when the agreement is read as a whole. The contract does not articulate or explain the relationship between the clause addressing alternate dispute resolution under the New Home Warranty Act and the arbitration clause. Read together, these provisions are so confusing that they "confound[] any clear understanding of the parties' undertaking" with respect to resolution of disputes. See Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577, 583 (App. Div.), certif. denied, 181 N.J. 545 (2004).Accordingly, we conclude that it was error to compel arbitration of the contractual and negligence claims as well.

Summit v. Jimenez A-2413-09T1

05-17-11

Notice of the intended action is essential to the landlord obtaining a judgment of possession. First, a notice to cease must be sent providing a tenant with notice of the offending conduct and an opportunity to alter that conduct. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). Second, if the tenant does not cease the late payments, a notice to quit is mailed informing the tenant that the tenancy has been terminated and explaining the basis of the termination, thereby requiring the tenant to vacate the premises. See Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967). The Notice to Quit must "specify in detail the cause of the termination of the tenancy."N.J.S.A. 2A:18-61.2.

Accordingly, a landlord's failure to comply with the notice requirements negates the salutary purpose of the Act, precluding entry of judgment in favor of the landlord. Paige, supra, 346 N.J. Super. at 383-84. Because the Act "does not specify any limit on the number of months that must pass before the Notice to Cease becomes ineffective or must be reissued, nor does it state how many late payments of rent constitute 'habitual' late payment of rent under the statute[,]" the Court has instructed judges to apply "a flexible[,]" rather than a strict, time period so that a determination that the tenant's conduct is "habitual" becomes "a function of time and circumstances." A.P. Dev. Corp. v. Band, 113N.J. 485, 495-96 (1988).

Wednesday, June 1, 2011

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

4-28-11 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).

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

4-27-11 In this multi-vehicle auto negligence action, the Court concluded

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.