Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Tuesday, December 17, 2013

WASTE MANAGEMENT OF N.J., INC. v. MORRIS COUNTY MUNICIPAL UTILITIES AUTHORITY, ET AL.

WASTE MANAGEMENT OF N.J., INC. v. MORRIS COUNTY
MUNICIPAL UTILITIES AUTHORITY, ET AL.
 A-2806-12T1/A-2808-12T1 (CONSOLIDATED)

In this public bidding matter, the court granted leave
to appeal the denial of an interlocutory injunction based
solely on the trial judge's determination that plaintiffs
were not likely to succeed on the merits. Because the
judge mistakenly overlooked his authority to impose
interlocutory injunctive relief to preserve the parties'
positions and subject matter of the suit – even when there
are legitimate doubts about plaintiffs' likelihood of
success – the court reversed. 12/16/13

IRVIN B. BEAVER VS. MAGELLAN HEALTH SERVICES,

IRVIN B. BEAVER VS. MAGELLAN HEALTH SERVICES,
INC., ET AL.
 A-1311-12T3

Under what circumstances may a litigant pursue common
law and statutory causes of action in the Law Division,
rather than appeal from State final agency determination,
where the merits of the agency determination are at issue?
This is the question we address in deciding this appeal. 12/11/13

Tuesday, December 3, 2013

PATERSON POLICE PBA LOCAL 1, ET AL. VS. CITY OF PATERSON

PATERSON POLICE PBA LOCAL 1, ET AL. VS. CITY OF
PATERSON, ETC.
 A-1263-11T1

The parties engaged in compulsory interest arbitration
after N.J.S.A. 40A:10-21(b) required public employees to
pay a contribution of 1.5 percent of base salary toward
their health benefits and the resulting award made specific
reference to this requirement. However neither the statute
nor the award defined "base salary." Defendant City of
Paterson interpreted the term as base pensionable salary
and made deductions accordingly. Plaintiffs initiated this
action, contending that "base salary" meant base
contractual salary and excluded additional items of
compensation such as longevity, educational incentives, and
night and detective differentials. Because "base salary"
was defined in a subsequent statute applicable to the award
here, N.J.S.A. 34:13A-16.7, we assume that, absent any
statement to the contrary, the arbitrator used the term
"base salary" as directed by the Legislature. Therefore,
we reverse the judgment entered in plaintiffs' favor. 11/27/13

Thursday, November 21, 2013

JAMES J. PROCOPIO, JR. VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY

JAMES J. PROCOPIO, JR. VS. GOVERNMENT EMPLOYEES
INSURANCE COMPANY, a/k/a and d/b/a GEICO
 A-2313-12T2

On leave granted, we reverse the trial court's
interlocutory order compelling production of an insurer's
claim file without first awaiting the outcome of the
insured's bifurcated claim to underinsured (UIM) benefits,
as premature, inefficient and potentially prejudicial to
the insurer. We hold that where the underlying UIM or UM
claim has been severed from the insured's bad faith claim
for trial purposes, discovery as to the latter should await
completion of the former in the insured's favor. 11-21-13

Monday, November 4, 2013

WILLIAM SUSER VS. WACHOVIA MORTGAGE, FSB, ET AL. A-1330-12T2


WILLIAM SUSER VS. WACHOVIA MORTGAGE, FSB, ET AL.
 A-1330-12T2

In this appeal, the court considered whether
plaintiff, who had foreclosed on a mortgage and obtained
ownership of the property in question at a sheriff's sale,
could maintain a quiet-title action against the holders of
two previously-recorded mortgages. The court held that
even though there was no dispute about the validity and
priority of the other mortgages, the quiet title action
could be maintained to resolve the limited question of
whether one of the defendants had the right to foreclose in
light of the factual disputes concerning the validity of
its assignment and, for that reason, the court reversed the
summary judgment entered in favor of that defendant.
Summary judgment as to the other defendant, which came into
ownership of its mortgage through a merger with the
original mortgagee, was affirmed. 11-04-13

ADVANCE AT BRANCHBURG II, LLC VS. TOWNSHIP OF BRANCHBURG


ADVANCE AT BRANCHBURG II, LLC VS. TOWNSHIP OF
BRANCHBURG BOARD OF ADJUSTMENT
 A-1840-12T2

This appeal presented the issue of whether a
residential development consisting primarily of market-rate
housing, but also including affordable housing units,
constitutes an inherently beneficial use for the purposes
of obtaining a use variance pursuant to N.J.S.A. 40:55D-
70(d)(1). Plaintiff sought to build the development in an
industrial zone. In the reported portion of the opinion,
the panel concluded that such a development is not an
inherently beneficial use. In the unreported portion of
the opinion, the panel concluded that the Board's decision
denying the variance was not arbitrary, capricious or
unreasonable. 11-01-13

JOSEPH OETTINGER, III VS. TOWNSHIP OF BEDMINSTER


JOSEPH OETTINGER, III VS. TOWNSHIP OF BEDMINSTER,
 ET AL.
 A-1838-11T3/A-3182-11T3, CONSOLIDATED

Although it was enacted in 1979, there are no
published opinions that interpret or apply the Subpoena
First Act, N.J.S.A. 2A:84A-21.9 to -21.13 (the Act), which
has been described as "narrowly circumscrib[ing] the
situations in which the State can properly search and seize
materials acquired in the course of newsgathering." In
this case, we consider the application of the Act to a
suspect in a criminal investigation who asserted a claim to
its protection based upon his status as an "internet
publisher" after a search warrant was executed and his
suppression motion was denied. We hold that plaintiff
waived any claim to protection; that the officers here were
not required to conduct an investigation to determine
whether plaintiff was protected by the Act prior to seeking
a warrant; and that, even if plaintiff had timely asserted
his claim, he was not entitled to the Act's protection
because the materials sought were not obtained in the
course of newsgathering activities. The order granting
summary judgment is affirmed. 10-31-13

HONORABLE DANA L. REDD, ET AL. VS. VANCE BOWMAN, ET AL.

 HONORABLE DANA L. REDD, ET AL. VS. VANCE BOWMAN,
ET AL.
 A-5731-11T4

After Camden's city clerk certified an initiative
petition pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to
210, the mayor and city council president sought relief
declaring the proposed ordinance invalid and restraining
its further submission to the city council or the voters.

 The proposed initiative sought to maintain the city's
police department and prohibit the city from joining an
anticipated, newly-formed county-wide police department.
The Law Division judge granted plaintiffs' requested
relief, concluding that the proposed ordinance created an
undue restraint on the future exercise of municipal
legislative power and was invalid on its face. We
reversed, noting that prior decisions adopting this
judicially-imposed restriction on the Faulkner Act's
initiative provisions preceded the Legislature's 1982
amendment. That amendment vested an ordinance passed by
initiative with a special characteristic: "No such
ordinance shall be amended or repealed within 3 years
immediately following the date of its adoption by the
voters, except by a vote of the people." N.J.S.A. 40:69A-
196(a). Additionally, in a series of recent opinions
regarding the Faulkner Act's referendum provisions, the
Court has signaled that, absent express legislative
restrictions, the power of the voters to exercise their
rights to initiative and referendum cannot be abridged. 10-29-13
 

Monday, October 28, 2013

DR. & MRS. JOHN PETROZZI, ET AL. VS. CITY OF OCEAN CITY, ET AL.


 DR. & MRS. JOHN PETROZZI, ET AL. VS. CITY OF OCEAN CITY, ET AL.

A-1633-11T4/A-1677-11T4 (CONSOLIDATED)

In this action by Ocean City beachfront property owners for breach of easement agreements obligating the township to maintain a dunes height restriction, we hold that the municipality's failure to perform its part of the bargain is due to reasonably unforeseen circumstances beyond its control (passage of CAFRA amendments regulating dune maintenance) so as to relieve Ocean City of its contractual duty.

Even though Ocean City may not be liable for breach of contract under the doctrine of impracticability of performance, we nevertheless hold that the homeowners are not left without a remedy in the interest of fairness, since plaintiffs surrendered their right to compensation (through eminent domain condemnation) in reliance on Ocean City's promise to protect their ocean views. We go on to explain the proper measure of restitutionary damages, necessarily limited to the harm that flows naturally only from the increased height and to include the principles recently espoused in Borough of Harvey Cedars v. Karan, 124 N.J. 384 (2013). 10-28-13

GLENN HEDDEN VS. KEAN UNIVERSITY, ET AL.


GLENN HEDDEN VS. KEAN UNIVERSITY, ET AL.

A-4999-12T2

We hold that an e-mail from the head women's basketball coach at Kean University to the University's general counsel was protected by the attorney-client privilege even though she later disclosed it to the NCAA during its investigation into certain practices of the University's athletic program. In the organizational context, the University is considered the client and holder of the privilege, which cannot be waived by an employee who is neither an officer nor director of the entity, and who was not acting under the direction or with the express approval of the University in releasing the document.

Judge Guadagno dissents, finding, based on his review, that the e-mail was not seeking legal advice from counsel; was not made in confidence because another University employee was copied on the document; and that, in any

event, any privilege that may have attached was waived when the University failed to object to the employee's disclosure to the NCAA. 10-24-13

JACQUELIN ARROYO VS. DURLING REALTY, LLC.

 JACQUELIN ARROYO VS. DURLING REALTY, LLC. A-0967-12T2

In this negligence case, plaintiff was injured after she slipped on a telephone calling card that had been discarded on the sidewalk outside of defendant's convenience store. The trial court granted defendant summary judgment, which we affirm.

We reject plaintiff's argument that defendant is liable under the "mode of operation" theory of liability recognized in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003), and in other customer self-service cases. The present case is dissimilar to the successful mode-of-operation cases in several respects. In particular, the phone card had to be presented to a cashier after it was taken from a self-service rack, making the nexus between the rack and the eventual presence of the card on the sidewalk extremely attenuated. Also, the card stored minutes or value and thus was not debris that would invariably be discarded when its purchaser left the store.

It cannot be reasonably asserted that the store's "method of doing business," see Nisivoccia, 175 N.J. at 564, created the sidewalk hazard. What the purchaser chose to do with the card upon leaving the store was not an integral feature of the store's retail operation. Hence, ordinary principles of premises liability, including plaintiff's obligation to show defendant's actual or constructive notice of a dangerous sidewalk condition, apply.

The trial court properly rejected plaintiff's proffered report from a construction consultant, which included criticisms of defendant's maintenance and trash removal practices. The expert's criticisms comprised inadmissible "net opinions" that were not based on objective standards. Instead, the opinions were based upon the expert's personal experiences, without sufficient substantiation or competent proof that they were prevailing or common in the field. 10-23-13


 

Monday, October 21, 2013

Borough of Saddle River v. 66 East Allendale, LLC


 Borough of Saddle River v. 66 East Allendale, LLC
 (A-126-11; 070525)

 The jury heard evidence about the probability of a
zoning change that should have been ruled on by the
judge in advance and outside of the jury’s presence.
A new trial on just compensation is required because
the jury was allowed to hear speculative evidence that
undermined the soundness of its property valuation
determination. 10-21-13

Sunday, October 20, 2013

PATRICIA SOLIMAN ET AL. VS. THE KUSHNER COMPANIES, INC, ET AL. A-5397-10T2

 PATRICIA SOLIMAN ET AL. VS. THE KUSHNER COMPANIES, INC, ET AL.

A-5397-10T2

This appeal involves four consolidated law suits brought by employees of tenants and members of their families, including minors, against the landlord and managers of this commercial office building, as well as a number of other companies responsible for installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms, two male and two female. Plaintiffs allege intentional and negligent infliction of emotional distress, common law invasion of privacy, and invasion of privacy under N.J.S.A. 2C:58D-1(b). They seek common law compensatory damages, punitive damages under the Punitive Damages Act, and statutory damages under N.J.S.A. 2C:58D-1(c).

The Law Division granted defendants' motions for summary judgment and dismissed plaintiffs' cause of action as a matter of law. We reverse the Law Division's order dismissing the counts in their complaints grounded on invasion of privacy. As a threshold issue, plaintiffs must show defendants' actions to clandestinely monitor their activities in a gender-restricted bathroom is subject to liability because it is the type of intrusion that a reasonable person would find to be highly offensive.

Consistent with the approach endorsed by the Supreme
Court in Rumbauskas v. Cantor, 138 N.J. 173 (1995), we also hold that a plaintiff in a cause of action predicated on the tort of invasion of privacy, grounded in the subcategory of "invasion of intrusion on the plaintiff's physical solitude or seclusion," which includes the

characteristics of unconsented prying, may recover compensatory damages for "personal hardships," similar in kind and scope to those codified in N.J.S.A. 10:5-3, if plaintiffs can show a causal link between defendants' intrusion and these "personal hardships." 10-17-13










 

KELLY GREENE VS. AIG CASUALTY COMPANY


KELLY GREENE VS. AIG CASUALTY COMPANY
 A-2990-12T3

We held that defendant had the right to present expert
testimony concerning his heroin addiction and withdrawal
symptoms and the potential impact of his physical and
psychological condition on the reliability of his
confession. The expert may explain how heroin withdrawal
could have affected the defendant during the police
interrogation, but may not opine that the defendant's
confession was unreliable or was false, because such
testimony would usurp the jury's role. While the expert
may rely in part on hearsay to explain his opinions,
N.J.R.E. 703, there must be some legally competent evidence
that defendant was in fact suffering from withdrawal at the
time he made the confession. 10-16-13

Wednesday, October 9, 2013

ALLSTATE NEW JERSEY INSURANCE COMPANY, ET AL. VS. GREGORIO LAJARA, ET AL. A-5684-11T4


ALLSTATE NEW JERSEY INSURANCE COMPANY, ET AL. VS.
GREGORIO LAJARA, ET AL.
A-5684-11T4
In this interlocutory appeal, we affirm the trial court's order striking a jury demand in a private civil action under the Insurance Fraud Prevention Act (Act), N.J.S.A. 17:33A-1 to -30. We previously held that a right to trial by jury does not apply to a civil action under the Act by the Commissioner of Banking and Insurance. State v. Sailor, 355 N.J. Super. 315, 323-24 (App. Div. 2001).
We analyze the statute in view of established principles of statutory construction, and reject defendants' argument that the Act impliedly establishes a right to a jury trial. We distinguish Zorba Contractors, Inc. v. Housing Authority of Newark, 362 N.J. Super. 124 (App. Div. 2003), which found an implied jury trial right under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -109. We also conclude that there is no constitutional right to trial by jury under the fraud prevention law because the equitable nature of the statutory right to relief was unknown at common law before adoption of the State Constitutions. 10-09-13

Anthony D’Agostino v. Ricardo Maldonado (068940; A-82/83-11)


Anthony D’Agostino v. Ricardo Maldonado
(068940; A-82/83-11)
Maldonado’s execution of the transaction at issue gave rise to an unconscionable commercial practice under N.J.S.A. 56:8-2. Notwithstanding the trial court’s
restoration of plaintiffs’ equity in their home, the transfer of that equity to Maldonado constituted an ascertainable loss within the meaning of N.J.S.A.
56:8-19, and the trial court’s determination of damages was within its discretion. 10-3-13

Wednesday, October 2, 2013

I/M/O NEW JERSEY D.E.P. CONDITIONAL HIGHLANDS APPLICABILITY DETERMINATION,PROGRAM INTEREST NO. 435434 A-3236-10T1


I/M/O NEW JERSEY D.E.P. CONDITIONAL HIGHLANDS 
APPLICABILITY DETERMINATION,PROGRAM INTEREST NO. 435434 
A-3236-10T1 
This appeal arises from the second challenge to JCP&L's construction of a 230 kV/12.5 kV electrical substation in Tewksbury Township by the Friends of Fairmount Historic District (FFHD). In its last appeal, FFHD appealed from a final determination of the Board of Public Utilities that the substation was necessary to address repeated power outages in Tewksbury caused by an increased demand and we affirmed. In this case, FFHD appeals from a final agency decision of the Department of Environmental Protection (DEP), which determined that the construction of the substation was exempt from the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35, pursuant to N.J.S.A. 13:20-28(a)(11). That exemption applies to "the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines . . . by a public utility . . . ." We affirm. 09-26-13 

IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities


IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities (A-23-10/A-26-11; 066271) 
The judge’s acting and comedy career is incompatible with the Code of Judicial Conduct and therefore he may not serve as a municipal court judge while continuing with that career. 9-19-13  

In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing


In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing 
(A-90/91/92/93/94-10; 067126) 
The Third Round Rules are at odds with the FHA, which incorporated the Mount Laurel II remedy. Although that remedy imposed thirty years ago should not be viewed as a constitutional straightjacket to legislative innovation of a new remedy responsive to the constitutional obligation, the FHA remains the current framework controlling COAH’s actions. With respect to the current version of the FHA, the Third Round Rules are ultra vires. 9-26-13 

Thursday, September 26, 2013

BARBARA MINKOWITZ VS. RON S. ISRAELI

BARBARA MINKOWITZ VS. RON S. ISRAELI
A-2335-11T2
This matter considers whether the arbitrator, having
once mediated issues in dispute, can thereafter resume the
role of arbitrator. On appeal, plaintiff challenges five
separate orders confirming arbitration awards. She
maintains each must be set aside under N.J.S.A. 2A:23B-23
or, alternatively, requests the final judgment of divorce
be vacated pursuant to Rule 4:50-1, based on alleged
procedural violations, the arbitrator's bias and
substantive errors causing an unconscionable result.
We affirmed orders confirming arbitration awards
incorporating the parties written mediated settlement
agreements. Willingboro Mall, Ltd. v. 240/242 Franklin
Ave., L.L.C., ___ N.J. ___, ___ (2013) (slip op. at 10,
31). However, after concluding an arbitrator may not
conduct arbitration hearings once he or she functioned as a
mediator, we vacated orders confirming arbitration orders
entered after the arbitrator exceeded his powers. N.J.S.A.
2A:23B-23a(4). 09-25-13

NUWAVE INVESTMENT, ET AL. VS. HYMAN BECK

NUWAVE INVESTMENT CORPORATION, ET AL. VS. HYMAN
BECK & COMPANY, ET AL.
A-5275-10T1/ A-5451-10T1(CONSOLIDATED)
In this libel case, the jury awarded presumed damages
to plaintiff NuWave Investment Corp., and two of its
principals, Buckner and Ryan, in excess of $1 million in
total. The jury also awarded NuWave $1.4 million in
"actual" damages, rejected any award of actual damages to
the two principals, and awarded NuWave $250,000 in punitive
damages.
We affirmed the jury verdict on liability, but
remanded the matter for a new trial on damages. We
concluded that in light of the Supreme Court's recent
opinion, W.J.A. v. D.A., 210 N.J. 229 (2012), a jury may
award nominal presumed damages in a libel case, but it may
not make an award of both "actual" damages and presumed
damages. An award in excess of $1 million dollars in
presumed damages cannot stand.
We also concluded that the matter should be
remanded for a new trial on damages in light of the Model
Jury Charge which is, in some respects, inconsistent with
the Court's holding in W.J.A. and its discussion of damages
in defamation actions. As a result, we also vacated the
punitive damages award.
Lastly, we affirmed the dismissal of plaintiffs'
complaint against other defendants based upon the one-year
statute of limitations applicable to defamation suits,
finding that the "discovery rule" has been held to be
inapplicable to defamation actions. 09-19-13

CITIZENS UNITED RECIPROCAL EXCHANGE VS. SABRINA A PEREZ

CITIZENS UNITED RECIPROCAL EXCHANGE VS. SABRINA A
PEREZ, ET AL.
A-3100-11T1
An insurance exchange appealed the trial court's
holding that when an automobile insurance policy is
declared void from its inception due to a fraudulent
application, an innocent injured third party is entitled to
the statutory mandatory minimum liability coverage of up to
$15,000/$30,000. The majority reaffirmed our holding in
New Jersey Manufacturers Insurance Co. v. Varjabedian, 391
N.J. Super. 253 (App. Div.), certif. denied, 192 N.J. 295 09-13-13

Advance Housing, Inc. v. Township of Teaneck

Advance Housing, Inc. v. Township of Teaneck
(069436; A-72/73/74/75/76/77/78/79-11)
Advance Housing has established that it is a not-forprofit corporation, organized exclusively for a
charitable purpose, and that the properties for which
it seeks tax exemptions are actually used for the
charitable purpose of providing supportive housing for
the mentally disabled, entitling them to tax-exempt
status under N.J.S.A. 54:4-3.6. 9-25-13

Farmers Mutual Fire Insurance v. New Jersey Property-Liability Insurance

Farmers Mutual Fire Insurance Company of Salem v. New
Jersey Property-Liability Insurance Guaranty
Association as Administrator of Claims Against Newark
Insurance Company (A-42-11; 068824)
In long-tail, continuous-trigger cases where an
insolvent carrier is on the risk along with solvent
carriers, the PLIGA Act’s exhaustion provision
mandates that an insured first exhaust the policy
limits of the solvent carriers prior to seeking
statutory benefits from the Guaranty Association. 9-24-13

Darnice Green v. Morgan Properties (A-100-11; 069540)

Darnice Green v. Morgan Properties (A-100-11; 069540)
Applying the indulgent standard used to review motions
for dismissal under Rule 4:6-2(e), plaintiffs have
alleged sufficient facts to state causes of action
against the corporate defendants for consumer fraud
and negligence. Plaintiffs have not, however, alleged
sufficient facts to support a consumer fraud or
negligence claim against the individual defendant. 9-17-13

Wednesday, September 25, 2013

Potomac Insurance Company of Illinois v. Pennsylvania Manufacturers’ Association Insurance Company (A-2-12; 070756)


Potomac Insurance Company of Illinois v. Pennsylvania Manufacturers’ Association Insurance Company (A-2-12; 070756) 
OneBeacon’s contribution claim was valid because an insurer may assert, against a co-insurer, a claim for defense costs incurred in litigation arising from property damage manifested over a period of several years, during which the policyholder is insured by successive carriers. The release negotiated between Aristone and PMA had no bearing on OneBeacon’s contribution claim against PMA because OneBeacon was not a party to the release. 9-16-13 

Alex Perez and Cathy Perez v. Professionally Green, LLC, et al. (A-66-11; 069482)


Alex Perez and Cathy Perez v. Professionally Green, LLC, et al. (A-66-11; 069482) 
When a trial court grants a defendant’s motion for involuntary dismissal of plaintiffs’ CFA claim under Rule 4:37-2(b), no bona fide ascertainable loss claim exists within the meaning of N.J.S.A. 56:8-19, and thus plaintiffs are not entitled to attorneys’ fees. 9-12-13 

In the Matter of John C. Johnson, Cape May County (A-39-11;068900)


In the Matter of John C. Johnson, Cape May County 
(A-39-11;068900) 
The reclassification of Johnson’s position was an arbitrary and capricious agency action that was manifestly unjust. Johnson is entitled to restoration of his prior unclassified title of prosecutor’s agent. 9-10-13 

Sunday, September 15, 2013

LINDA KUBERT, ET AL. VS. KYLE BEST, ET AL. A-1128-12T4


LINDA KUBERT, ET AL. VS. KYLE BEST, ET AL. 
A-1128-12T4 
The sender of a text message has a duty under the common law of negligence to refrain from sending a text to a person who the sender knows, or has special reason to know, is then driving and is likely to read the text while driving. Plaintiffs in this case, who were grievously injured by a driver who was texting, did not produce sufficient evidence to withstand summary judgment on the remote texter's breach of such a duty. (The concurring opinion disagrees with the imposition of such a 
duty on a remote texter, concluding that traditional tort principles are adequate to determine whether liability can be imposed.) 08-27-13 

GENE FEDOR VS. NISSAN OF NORTH AMERICA, INC./ JINGESH GHANDI VS. NISSAN OF NORTH AMERICA, INC. A-6034-11T3/ A-0116-12T1


GENE FEDOR VS. NISSAN OF NORTH AMERICA, INC./ 
JINGESH GHANDI VS. NISSAN OF NORTH AMERICA, INC. 
A-6034-11T3/ A-0116-12T1(CONSOLIDATED) 
We determine whether plaintiff-consumers, who were granted a repurchase of their respective vehicles through defendant- manufacturer's informal dispute settlement mechanism, Auto Line, specifically established pursuant to the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act (MMA), 15 U.S.C.A. §§ 2301 to 2312, retain the right to file a separate action solely to recover attorney's fees under the MMA or the New Jersey Motor Vehicle Warranty Act (Lemon Law), N.J.S.A. 56:12-29 to -49, notwithstanding that Auto Line's procedures expressly excluded attorney fee awards. 
We conclude a warrantor's informal dispute resolution mechanism adopted under the MMA is not required to include a fee-shifting component for successful consumers, and may properly exclude an award of attorney's fees. Further, we discern no support for the suggestion a consumer who successfully elects relief through a manufacturer's informal dispute resolution mechanism created pursuant to the MMA has a right to attorney's fees under the Lemon Law. 08-23-13 

MORRISTOWN ASSOCIATES VS. GRANT OIL COMPANY, ET AL. A-0313-11T3


MORRISTOWN ASSOCIATES VS. GRANT OIL COMPANY, ET AL. A-0313-11T3 
The general six-year statute of limitations for damage to property, N.J.S.A. 2A:14-1, as mitigated by the discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973), applies to a private claim for contribution pursuant to N.J.S.A. 58:10-23.11f(a)(2), which is part of the New Jersey Spill Compensation and Control Act. 08-23-13 

TOWNSHIP PHARMACY VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES A-3849-10T1


TOWNSHIP PHARMACY VS. DIVISION OF MEDICAL ASSISTANCE 
AND HEALTH SERVICES 
A-3849-10T1 
Plaintiff appeals from the decision of the Director of the New Jersey Division of Medical Assistance and Health Services denying its application to participate in the State's Medicaid program as a pharmaceutical service provider. The Director's decision was based on plaintiff's failure to disclose the criminal record of one of its employees. We affirm. 
We hold that the Director correctly construed the disclosure requirements to enroll in the State's Medicaid program as a provider of health care, in this case pharmaceutical services. Here, plaintiff failed to perform basic due diligence before answering a question intended to disclose information material to a proper determination of an applicant's eligibility to participate in the Medicaid provider program. Although plaintiff did not intend to deceive or conceal this information, public policy supports the Director's determination that, under these circumstances, failure to provide accurate, truthful, and complete information constitutes good cause to deny the application. 08-22-13 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.S. and J.C A-3353-12T3


 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY 
v. C.S. and J.C 
A-3353-12T3 
In this interlocutory appeal of an order transferring temporary custody of a child from foster parents to grandparents prior to trial of a Title 30 action, the court reversed the trial court's refusal to permit the admission of evidence regarding any bond that may have formed between the child and the foster parents, and the impact of its severance, and remanded. Although the court observed that in such a circumstance there is a statutory preference for temporary placement with the grandparents, the child's best interests 
warranted a consideration of any bonding evidence opponents of the transfer might wish to present. 08-19-13

BRUCE KAYE, ET AL. VS. ALAN P. ROSEFIELDE, ET AL. VS. DEBORAH KAYE, ET AL. A-1120-07T1


 BRUCE KAYE, ET AL. VS. ALAN P. ROSEFIELDE, ET AL. VS. 
DEBORAH KAYE, ET AL. 
A-1120-07T1 
This civil dispute originated in the Chancery Division where plaintiff filed a complaint against defendant alleging, inter alia, unfaithful servant, civil fraud, and legal malpractice. Although monetary damages were potentially available, plaintiff sought primarily equitable relief. Defendant answered and filed a counterclaim alleging, in part, violations of the protections afforded whistleblowers under the Conscientious Employee Protection Act (CEPA) and common law breach of contract. 
We hold that the trial court did not misuse its discretionary authority when it invoked the doctrine of ancillary jurisdiction to adjudicate the entire controversy, including trying, without a jury, the claims raised by defendant in his counterclaim. We also hold that attorneys hired to serve as in-house counsel are bound by the conflict of interests proscription in RPC 1.8(a), including specifically providing the client/employer with written notice of potential conflicts. 
On the question of damages, we hold that the Chancery Division has the authority to award punitive damages, provided such damages are warranted under the Punitive Damages Act. In a legal malpractice action, if punitive damages are based on defendant's "actual malice" as defined in N.J.S.A. 2A:15-5.10, counsel fees awarded to the plaintiff constitute "compensatory damages" as defined in N.J.S.A. 2A:15-5.10. 
Finally, under the facts of this case, we hold that defendant, who was hired to be the chief operating officer and general counsel of plaintiff's varied businesses, was not an "employee" entitled to the protections afforded under CEPA, pursuant to standards established by the Court in D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110 (2007), and Stomel v. City of Camden, 192 N.J. 137 (2007). 08-16-13

Monday, August 19, 2013

Willingboro Mall v. 240/242 Franklin Avenue (A-62-11; 069082)


Plaintiff expressly waived the mediation-communication privilege and disclosed privileged communications. The oral settlement agreement reached by the parties is upheld. Going forward, however, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable. 8-15-13

Cole v. Jersey City Medical Center (A-6-12; 070542)


Evaluating the totality of the circumstances and applying a fact-sensitive analysis, Liberty’s active participation in the litigation for twenty-one months before invoking the arbitration provision on the eve of trial constituted a waiver of its right to arbitrate.   8-14-13

Waksal v. Div. of Taxation (A-103-11; 069599)


In accordance with the plain language of N.J.S.A.54A:5-1c, the worthless nonbusiness debt at issue is not a “sale, exchange or other disposition of property.” Section 5-1c does not integrate into the Act every provision of the Internal Revenue Code governing capital gains and losses, and 26 U.S.C.A. § 166(d)(1)(B) does not constitute a federal “method of accounting” for purposes of this case. 8-13-13

Emma v. Evans (A-112-11; 070071)


In a dispute to rename a child of divorced parents, the party seeking to alter the surname jointly given to the child at birth bears the burden of proving by a preponderance of the evidence that the change is in the child’s best interest. Irrespective of whether the parents were married at the time of the child’s birth, the best-interests-of-the-child test should be applied in a renaming dispute without a presumption in favor of the custodial parent’s decision to change the jointly given surname of the child. 8-12-13

Hirsch v. Amper Financial Services (A-9-12; 070751)


Although traditional contract principles may in certain cases warrant compelling arbitration absent an arbitration clause, the intertwinement of the parties and claims in a dispute, viewed in isolation, is insufficient to warrant application of equitable estoppel to compel arbitration. 8-7-13

Norfolk Southern Railway v. Intermodal Properties (A-117-11; 070240)


Norfolk Southern’s proposed use meets the requirement of N.J.S.A. 48:3-17.7 that the taking be “not incompatible with the public interest.” Intermodal may not invoke the prior public use doctrine because it lacks the power to condemn and its proposed use is neither prior nor public. As used in N.J.S.A. 48:12-35.1, “exigencies of business” does not necessitate an urgent need for land in order to justify a taking. Rather, it limits a railroad’s power to condemn to those circumstances where the general needs or ordinary course of business require it. 8-6-13

Ten Stary Dom Partnership v. Mauro (A-52-11; 069079)


Defendant satisfied the positive and negative criteria and is therefore entitled to a bulk variance from a frontage zoning requirement. The trial court’s affirmance of the Board’s denial of the variance without prejudice violated the principle of res judicata. 8-5-13

Longo v. Pleasure Productions (A-37-11; 069257)


In cases arising under CEPA, an upper management jury charge is required to support an award of punitive damages against an employer, which can only be awarded if the jury finds wrongful conduct under the clear and convincing evidence standard. 7-24-13

TSI East Brunswick v. Zoning Bd. of Adjustment of Twp. of East Brunswick (A-124-11; 070383)


The relaxed standard of proof established in Coventry
Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994), applies to the evaluation of the negative criteria in an application for a conditional use variance. The enhanced quality of proofs standard established in Medici governing use variances is
inapplicable to an application for a conditional use variance. 7-23-13

Battaglia v. United Parcel Service (A-86/87-11; 069405)


Under the LAD, an employee who voices complaints and allegedly suffers a retaliatory employment action need only demonstrate a good-faith belief that the complained-of conduct violates the LAD. An identifiable victim of actual discrimination is not required. An LAD plaintiff may only recover an award for future emotional distress if evidence of permanency is offered in the form of an expert opinion. In order to succeed on a fraud-based CEPA claim, a plaintiff must reasonably believe that the complained-of activity was occurring and was fraudulent. 7-17-13

In re Plan for the Abolition of the Council on Affordable Housing (A-127-11/A-14-12; 070426)


Because COAH is “in, but not of,” an Executive Branch department, the plain language of the Reorganization Act, which extends the Chief Executive’s authority only to agencies that are “of the executive branch,” N.J.S.A. 52:14C-3(a)(1), does not encompass, and thus
does not authorize the Governor to abolish, an independent agency like COAH. To abolish independent agencies, the legislative and executive branches must enact new laws that are passed by the Senate and Assembly and signed by the Governor. 7-10-13

Shelton v. Restaurant.com (A-123-10; 068404)


The TCCWNA covers the sale of tangible and intangible property. Plaintiffs are “consumers” within the scope of the TCCWNA because the certificates acquired by them through the Restaurant.com website are “property . . . primarily for personal, family, or household purposes.” The certificates purchased from Restaurant.com are “consumer contracts” and the standard terms provided on the certificates are
“notices” subject to the TCCWNA. 7-9-13

Monday, August 12, 2013

Harvey Cedars v. Karan (A-120-11; 070512)


A property’s fair market value should be used as the benchmark in computing “just compensation” in a partial-takings case. Non-speculative, reasonably calculable benefits that increase the property’s value at the time of the taking should be considered in determining just compensation regardless of whether those benefits are enjoyed to a lesser or greater degree by others in the community. Because the Borough was prohibited from presenting evidence of such benefits, and the trial court erroneously charged the jury as to the calculation method for just compensation, a new trial is required. 7-8-13

Sipko v. Koger (A-38/102-11; 068417)


George’s gift of Koger stock to Robert was unconditional and therefore irrevocable. Robert’s transfers of KDS and KPS stock are void for lack of consideration. 7-2-13

Ruroede v. Borough of Hasbrouck Heights (A-95-11; 069484)


The Law Division should have reviewed the evidence to determine whether sufficient, competent evidence supported the charges against Kelly Ruroede. The evidence was competent, and it was sufficient to support the ultimate facts necessary to sustain the Borough’s charges that Ruroede engaged in inappropriate conduct unbecoming a police officer, warranting his termination. 7-1-13

Kane Properties v. Hoboken (A-96/97-11; 069676)


The appearance of impropriety standard governs the evaluation of a municipal attorney’s conflict of interest. The City Council’s decision is set aside because it was tainted by its attorney’s conflict of interest. In these unusual circumstances, to balance the rights of the parties and recognize the proper roles of the relevant decision-making bodies, the Court remands this matter to the Law Division for a de novo review of the Zoning Board’s resolution, and directs the court to entertain the City Council’s arguments or supplements to the record that bear upon its own expertise and knowledge of the zoning scheme and give due consideration to the City Council’s evaluation of the proposed use variances. 6-26-13

Price v. Himeji, Union City Zoning Bd. of Adjustment (A-46-11; 068971)



Evaluation of the particularly suitable standard is fact-specific and site-sensitive, requiring a finding that the general welfare would be served because the proposed use is peculiarly fitted to the particular location. Although the availability of alternative locations is relevant to this analysis, it does not bar a finding of particular suitability. In light of the thorough record and detailed resolution, the Appellate Division’s decision to exercise its original jurisdiction was proper, as was its decision to reinstate the Board’s resolution granting Himeji’s application. 6-25-13

Town of Kearny v. Brandt (A-60/61-11; 068992)


The ten-year period of the statute of repose commenced when the first Temporary Certificate of Occupancy was issued for the Town’s public safety facility. When the claims against a defendant are dismissed on statute of repose grounds, fault may be apportioned to the dismissed defendant under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law. 6-20-13

In the Matter of the Liquidation of Integrity Insurance Company/The Celotex Asbestos Trust (A-50-11; 068970)


Under the doctrine of collateral estoppel, the orders entered in the prior federal court proceedings, which found that there was one occurrence from which all pending and future claims derive and that Celotex failed to provide notice of occurrence to post-1982 excess insurers, bar the proofs of claim filed by the Trust. 6-19-13

DYFS v. I.S. (A-81-11; 069672)


Where abuse or neglect is not found, a trial court cannot maintain jurisdiction under Title 9 and must dismiss that portion of the complaint. Title 30 provides alternative means for providing services to children in need and does not require the Division to meet the same burden as that imposed in proceedings under Title 9. Although FM custody proceedings should occur separately from child-protection proceedings, consolidation is permitted when the individual circumstances of the case require it and no harm results. 6-12-13

Angland v. Mountain Creek Resort (A-57-11; 069461)


The Ski Act is intended to address duties and responsibilities between ski area operators and skiers and it does not apply to claims made between skiers. Testing the record against the applicable common law recklessness standard of care, enough evidence exists to require plaintiffs’ claim to be determined by a jury. 6-6-13

Estate of Naitil Desir v. Vertus (A-3-11; 067899)


This business owner owed no duty of care to his neighbor under the facts contained in this record, which included the business owner leaving his premises to request that a neighbor use his phone to call the premises, who told the neighbor what he had observed before he left the premises, but who failed to prevent the neighbor from going to the scene where he encountered a fleeing robber who shot him. 5-20-13

Northgate Condominium Association, Inc. v. Hillsdale Planning Board (A-5-11; 067794)


The developer’s notice of public hearings, although using lot numbers that were not included on the official tax map, did not thereby misidentify the lot to be developed, complied with the provisions of the Municipal Land Use Law, and conferred jurisdiction on the Planning Board. Plaintiff fails to point to anything in the record supporting its claim that the project design of the internal roadway did not comply with density requirements under the Residential Site Improvement Standards. 5-13-13

Nicholas v. Mynster (A-6/7-11; 068439/068440)


Under a plain textual reading of N.J.S.A. 2A:53A-41,which requires that plaintiffs’ medical expert must “have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty” as defendant physicians, plaintiffs cannot establish the standard of care through an expert who, although credentialed by a hospital to treat the same condition, does not practice in the same specialties as defendant physicians. 4-25-13

New Jersey Dep’t of Envtl. Protection v. Robert and Michelle Huber (A-116-10; 065540)


The exception to the warrant requirement for administrative inspections of commercial property in a closely regulated business recognized in New York v.Burger, 482 U.S. 691 (1987), does not apply to a regulatory inspection of residential property under the FWPA. Land subject to FWPA restrictions, which by law must be recorded, is subject to the statutory, reasonable right of entry and inspection. In exercising that right, the DEP must comply with its processes, which require presentation of credentials before seeking consent to entry at reasonable times. If entry is denied, the Commissioner may order that entry be provided and the DEP is entitled to judicial process to compel access to the property subject to the permit. Here, even excluding Nystrom’s testimony about his inspection, there was sufficient evidence to sustain the finding of a violation of the FWPA. 4-4-13

Borough of East Rutherford v. East Rutherford PBA Local 275 (A-24-11; 068872)


The arbitration award is sustained because it was not procured by undue means, the Arbitrator did not exceed her authority, the award was not contrary to existing law or public policy, and the award was a reasonably debatable interpretation of the CBA. 3-19-13

In the Matter of the Letter Decision of the Committee on Attorney Advertising, Docket No. 47-2007 (A-14-08; 062134)


RPC 7.5 is amended to permit a law firm trade name so long as it describes the nature of the legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results. The name must be accompanied by the name of the attorney responsible for the management of the organization. The term “Alpha” in the Center’s name is impermissible under revised RPC 7.5 and current RPC 7.1. The remainder of the name, coupled with the name of a managing New Jersey attorney, satisfies revised RPC 7.5. 
3-14-13

D.D. v. Univ. of Medicine & Dentistry of N.J. and Rutgers (A-29/30-11; 068812)


Neither attorney inattention nor incompetence constitutes an extraordinary circumstance sufficient to excuse failure to comply with the ninety-day filing deadline under the TCA; plaintiff’s medical proofs were insufficient to meet the extraordinary circumstances standard; and the doctrine of substantial compliance cannot serve to relieve a claimant of the TCA’s written-notice requirement.  3-12-13

Nostrame v. Santiago, et al. (A-40-11; 068651)


Competition for clients among attorneys must be conducted in adherence to the Rules of Professional Responsibility and the means used to induce a client may be neither improper nor wrongful. Any claim that an attorney has engaged in behavior that would constitute a form of tortious interference with the attorney-client relationship of another must be specifically pleaded. Plaintiff’s complaint lacks that specificity, and the Court rejects plaintiff’s application to be permitted to engage in discovery in the hope of finding the requisite factual basis for his claim as both unnecessary and unwarranted.3-11-13

612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority (A-13-11; 067931)


Each sewerage authority that serves a property for the purpose of handling and treating sewage, whether through a direct or indirect connection, may charge a non-duplicative connection fee that reflects the use of its system and contributes toward its system’s cost. In this case, the connection fee was paid into an escrow account by plaintiff 612 Associates, which created an interpleader action that relieved it of any further obligation, therefore the trial court’s apportionment of the fee between the parties was not an abuse of discretion. 3-7-13

IMO Advisory Letter No. 7-11 of the Supreme Court Comm. on Extrajudicial Activities (A-12-11; 068633)


A fully informed and reasonable person could question a judge’s ability to be impartial in ruling on matters concerning law enforcement colleagues of the judge’s child. Thus, consistent with the canons of the Code of
Judicial Conduct, a municipal court judge whose child becomes a police officer in the same municipality may not hear any cases involving that police department. The judge also may not supervise other judges who hear those cases. 3-6-13

DYFS v. A.L. (A-28-11; 068542)


The finding of abuse and neglect under Title 9 cannot be sustained because the Division failed to show actual harm or demonstrate imminent danger or a substantial risk of harm to the newborn child, which N.J.S.A. 9:6-8.21(c)(4)(b)specifically requires. 2-6-13

Jersey Central Power & Light v. Melcar Utility (A-96-10; 067444)


N.J.S.A. 48:2-80(d), on its face, provides no right to a trial by jury. It is unusual in that it is binding on litigants who are effectively suing in negligence under a statutory standard of care for a claim rooted in common-law negligence causing damage to property. The Court has no recourse except to declare the statute as written to be constitutionally flawed. 1-24-13

Prime Accounting Dep’t v. Carney’s Point (A- 32-11; 068380)


Bocceli’s misdesignation of the plaintiff did not deprive the Tax Court of subject-matter jurisdiction. The tax appeal complaint was timely, accurately described the property, and put the Township and the public on notice that the 2008 assessment for the property was disputed by the taxpayer. The defect in the complaint did not prejudice the Township and can be corrected by an amended complaint that relates back to the filing of the original complaint. 1-17-13

Headen v. Jersey City Board of Education (A- 17-11; 068598) REVISED – Originally filed 11-15-12


The Civil Service Act’s paid vacation leave provisions apply to career service, non-teaching staff employees of school districts that have opted to be part of the civil service system, including ten-month employees such as plaintiff Valeria Headen. Because the Act and its implementing regulations establish a floor for the amount of leave to be provided to such employees and a collectively negotiated agreement provided Headen with more than the minimum paid vacation leave to which she was entitled under the Act, her claims were properly dismissed. 1-11-13

Thursday, August 1, 2013

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE


PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE
2053 Woodbridge Ave.
Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.


The offices are located on the 1st floor of the building.
2 rooms office  
office room # 6 approx 12.4 x 9.4       
and front room appr 8 x 9 -office room # 5
plus use of reception room  16.6 x 7.2
and use of storage area in basement
         
$600 per month  [was $700]
Call 732-572-0500
    Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law. 

Sunday, February 24, 2013

No damages for possible violation here of Patient Bill of Rights

No damages for possible violation here of Patient Bill of Rights

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1233-11T1


ARNOLD GREENSTEIN,

Plaintiff-Appellant,

v.

SUNITHA MOONTHUNGAL, P.C.,
SUNITHA MOONTHUNGAL, M.D., and
COGENT HEALTHCARE OF NEW JERSEY, P.C.,1

Defendants-Respondents.
_______________________________
January 15, 2013

Submitted December 4, 2012 - Decided

Before Judges Lihotz and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7070-10.

Arnold Greenstein, appellant pro se.

O'Connor Kimball, LLP, attorneys for respondents (Stephen E. Siegrist, on the brief).

PER CURIAM
Plaintiff Arnold Greenstein appeals from the summary judgment dismissal of his civil rights complaint against defendants Cogent Healthcare of New Jersey, P.C. (Cogent), and Sunitha Moonthungal, M.D.2 We affirm.
On January 14, 2010, plaintiff sought medical treatment at the Hackensack University Medical Center for persistent rib pain following a fall from his bicycle. He was admitted for treatment and first interviewed by a nutritionist the next day. She recorded his responses, including his statement, "[I] will kill myself if I don't lose weight."
Later on July 15, 2010, Dr. Moonthungal, who was employed by Cogent, performed her rounds and met with plaintiff, who became upset because he felt she ignored his question about necessary treatment. Plaintiff recalls Dr. Moonthungal offering a diagnosis of "a lung blockage" and explained he needed to use an oxygen canister. Plaintiff suggests she failed to consult with a pulmonologist.
A second consulting physician, Dr. Cyrus Yau, spoke to plaintiff and reaffirmed he might be required to continue his use of oxygen when discharged. That afternoon, plaintiff again spoke to Dr. Moonthungal because he wanted to check himself out of the hospital. She explained he needed to remain because his statement referencing a desire to harm himself required a psychiatric consultation. Plaintiff averred Dr. Moonthungal refused to issue his discharge. Dr. Moonthungal left the hospital at 7 p.m. The psychiatry department had not yet cleared plaintiff for discharge.
Later that evening, two psychiatrists evaluated plaintiff. At approximately 9 p.m., he desired to leave the hospital and was told by the nurses on duty he must execute a general release relieving the hospital and its staff for liability resulting from his "voluntary departure from said hospital and the termination of [his] stay as a patient therein." He declined to do so. After speaking to someone by telephone, the nurse was instructed she could not make plaintiff execute the release. He left the hospital at approximately 9:15 p.m.
Plaintiff's complaint alleged Dr. Moonthungal violated the New Jersey Patients' Bill of Rights; did not treat him "as a human being, but as a machine"; and engaged in a "shouting match." Further, he blamed her for including a retaliatory, false chart entry, listing him as suicidal (which he claims was subsequently removed from his records), requiring him to remain hospitalized. Finally, he attributes the release instruction to Dr. Moonthungal, who sought to be absolved of liability for her conduct. Plaintiff sought one million dollars for "[e]motional [s]tress and [d]istress, for the [t]hreat that would have put [him] in a [m]ental [h]ospital, and for [f]alse [i]mprisonment, in preventing [him] [f]rom leaving the [h]ospital unless he sign [sic] a 'General Release.'"
Following discovery, defendants moved for summary judgment. Judge Rachelle L. Harz considered the parties' arguments. The judge found no factual basis to support plaintiff's civil rights claims. She concluded Dr. Moonthungal did not violate the Patients' Bill of Rights, N.J.A.C. 8:43G-4.1, and, nevertheless, the sole remedy for such a violation was administrative. As for the tort claim of intentional infliction of emotional distress, the conduct alleged was not intentional, reckless, or outrageous, but rather the facts reflected "a concern for the well being of the patient[.]" Further, the judge determined the facts did not support a claim for false imprisonment, as defendants' actions were directed at reviewing plaintiff's expressed statement of possible self-harm. The judge dismissed plaintiff's complaint. Plaintiff appeals.
Our review of the trial court's decision is governed by well-established principles. When reviewing the grant of summary judgment, we "'view the facts in the light most favorable to plaintiff.'" Livsey v. Mercury Ins. Group, 197 N.J. 522, 525 n.1 (2009) (quoting Sciarrotta v. Global Spectrum, 194 N.J. 345, 348 (2008)). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment."Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (internal quotation marks and citations omitted). We employ the same standard in our review.Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004) (citations omitted).
On appeal, plaintiff suggests factual disputes rendered summary judgment inappropriate. He poses several questions he believes should be presented to a jury for review. However, he has failed to present the foundational facts supporting determination by a trier of fact. For example, he asks: "May a physician require a patient to sign a 'general release' as a condition for [r]elease from a hospita[l]?" However, plaintiff admitted he did not know with whom the nurses were conversing on the telephone; he merely assumed it was Dr. Moonthungal. However, Dr. Moonthungal's shift ended at 7 p.m. and she left the hospital. Plaintiff also asks: "May a physician use the threat of the commitment to a mental hospital as a vendetta?" However, he cannot establish such a threat was ever uttered by Dr. Moonthungal.
We reject plaintiff's arguments, as "'unsubstantiated inferences and feelings' are not sufficient to support or defeat a motion for summary judgment."Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011) (quotingOakley v. Wianecki345 N.J. Super. 194, 201 (App. Div. 2001)). "In addition, '[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.'" Ibid.(quoting U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n67 N.J. Super. 384, 399-400 (App. Div. 1961)).
Regarding plaintiff's assertion rights granted by N.J.A.C. 8:43G-4.1 were abridged, Judge Harz correctly explained the remedy for such claims rests with the hospital administration, not the courts. Specifically, the regulatory provision states "[t]he hospital administrator shall be responsible for developing and implementing policies to protect patient rights and to respond to questions and grievances pertaining to patient rights." N.J.A.C. 8:43G-4.1(a).
The New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, was adopted "for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection." Owens v. Feigin194 N.J. 607, 611 (2008) (citations omitted). However, plaintiff expressed no facts demonstrating Dr. Moonthungal or Cogent acted to deprive him "'of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State,'" or that the "'exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law.'" Ibid. (quoting N.J.S.A. 10:6-2(c)). Simply stated, Dr. Moonthungal provided medical advice after reviewing plaintiff's chart, which included his comments to the nutritionist and Dr. Yau's psychiatric referral. Because plaintiff had suggested he would kill himself if he did not lose weight, Dr. Moonthungal acted prudently, following through with the psychiatric consultation to assure plaintiff's protection.
Moreover, the doctor's conduct does not form the basis of the intentional torts of infliction of emotional distress or false imprisonment. See Taylor v. Metzger,152 N.J. 490, 509 (1998) (stating the proofs necessary to sustain a cause of action for intentional infliction of emotional distress); Mesgleski v. Oraboni330 N.J. Super. 10, 24 (App. Div. 2000) (listing the elements of false imprisonment).
Following our review of the arguments presented on appeal, in light of the record and applicable law, we conclude Judge Harz correctly determined there were no materially disputed facts, and summary judgment in favor of defendants was appropriate. Consequently, we may not disturb the dismissal of plaintiff's complaint.
Affirmed.
1 Cogent Healthcare of New Jersey, P.C., was incorrectly named as Cogent Hospital Group.
2 Dr. Moonthungal's medical practice was dismissed from the litigation by order dated March 25, 2011.