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Tuesday, August 12, 2014

THE RIDGE AT BACK BROOK, LLC VS. W. THOMAS KLENERT A-2345-12T1


THE RIDGE AT BACK BROOK, LLC VS. W. THOMAS
          KLENERT
A-2345-12T1
Defendant represented himself from the commencement of the action, through the summary judgment stage and when final judgment was entered. Following the entry of final judgment, defendant retained counsel and unsuccessfully sought Rule 4:50 relief, arguing he could not previously afford counsel and did not understand what was required of him in responding to Rule 4:22 requests or in opposing summary judgment. In this appeal, the court vacated the order denying Rule 4:50 relief, concluding the trial judge should have more liberally indulged defendant's argument and remanding for that purpose. The court held the Rule 4:50 motion should have been treated in the same manner as such motions are treated when the moving party has been represented by a negligent attorney, as in cases such as Parker v. Marcus, 281 N.J. Super. 589, 593 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996). 

GLOBE MOTOR COMPANY AND THE MARGOLIS LAW FIRM, LLC VS.ILYA IGDALEV AND JULIA IGDALEV A-0897-12T1

GLOBE MOTOR COMPANY AND THE MARGOLIS LAW FIRM, LLC VS.ILYA IGDALEV AND JULIA IGDALEV
A-0897-12T1
Plaintiffs' action sought enforcement of the terms of settlement, when a portion of the funds transferred by defendants in satisfaction of their obligations was reclaimed by a Chapter 7 Bankruptcy Trustee as a fraudulent transfer of the corporate debtor's funds. Defendant Ilya Igdalev certified the bank and certified checks he gave plaintiffs were sent by his friend, who was holding Ilya's money, which he was owed. In support of summary judgment,plaintiffs attached the Trustee's adversary proceeding, emails from bankruptcy counsel suggesting, after his review, settlement was appropriate, and the final settlement of the adversary proceeding.
We concluded, as did the motion judge, the documents sufficiently showed the money came from the debtor corporation and Ilya's claim his friend was to send his money did not defeat the fact his friend actually used the debtor corporation's funds. Also, Ilya never asserted the debtor owed him money.
We concluded even if Ilya was unaware of his friend's conduct, he directed the transaction and is responsible for the consequences. In accordance with the terms of settlement, defendants were liable to pay plaintiff the sum accepted by the Chapter 7 Trustee, along with attorney's fees and costs.
Judge Sapp-Peterson dissents, reasoning summary judgment should have been granted in favor of defendants on the breach of contract claim as a matter of law. As for plaintiffs' remaining claims of breach of the covenant of good faith and fair dealing, fraud, unjust enrichment and indemnification, she finds there are genuinely disputed issues of fact surrounding the source of the funds utilized to satisfy defendants' obligations under the settlement agreement, which are sufficient to defeat summary judgment. She would reverse and remand for trial on those remaining claims. 

K.A.F. VS. D.L.M. D.L.M. VS. K.A.F. AND F.D. A-0878-12T2

K.A.F. VS. D.L.M.
          D.L.M. VS. K.A.F. AND F.D.
A-0878-12T2
We hold that the consent of both fit and active legal parents to the creation of a psychological relationship between their child and a third party is not necessary for standing on the part of the third party to bring an action asserting psychological parenthood. It is sufficient if only one of the legal custodial parents has consented, and such consent need not be explicit, but may be gleaned from the circumstances. The status of the non-consenting parent, rather, is one factor among many a court should consider in determining whether the third party has established that he or she is a psychological parent, and,
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if so, whether the best interests of the child warrant some form of custody or visitation. 

Sunday, August 10, 2014

I/M/O GOVERNOR CHRIS CHRISTIE'S APPOINTMENTOF MARTIN PEREZ AS PUBLIC MEMBER 7 OF THE RUTGERS UNIVERSITY BOARD OF GOVERNORS A-6047-12T3


I/M/O GOVERNOR CHRIS CHRISTIE'S APPOINTMENTOF MARTIN PEREZ AS PUBLIC MEMBER 7 OF THE RUTGERS UNIVERSITY BOARD OF GOVERNORS
A-6047-12T3

In this case, Senate President Stephen M. Sweeney challenges Governor Chris Christie's appointment of Martin Perez to the Rutgers Board of Governors. We hold that the Appellate Division has jurisdiction to hear the appeal, the appeal should not be dismissed as untimely, and the Senate President has standing to challenge the Governor's action. We also hold that Governor's appointment of Perez without the advice and consent of the State Senate is a valid exercise of authority conferred on the Governor by the New Jersey Medical and Health Services Education Restructuring Act, L. 2012, c. 45. 

R.K. VS. F.K. A-4165-11T4

 R.K. VS. F.K.
          A-4165-11T4
Under the two-step process outlined in Lepis v. Lepis, 83 N.J. 139 (1980), a movant seeking a change of custody must show a change of circumstances warranting relief to be entitled to an evidentiary hearing, but the judge must
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decide the evidentiary hearing based on the best interests of the child. After a seven-day divorce trial focused on child custody, the trial court mistakenly found no substantial change in circumstances rather than determining the best interests of the children.
The trial court also erred by relying on the Domestic Violence Act's provision that the court "shall presume that the best interests of the child are served by an award of [temporary] custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). That presumption, important in the initial FRO proceeding, has no application in a subsequent custody determination in a divorce trial, particularly once a change of circumstances has been shown. Rather, that trial is governed by N.J.S.A. 9:2-4, under which "the history of domestic violence" is one factor among several that the court must consider in determining the best interests of the children. 

DARCY J. KOLODZIEJ VS. BOARD OF EDUCATION OF SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN COUNTY A-4826-12T1


DARCY J. KOLODZIEJ VS. BOARD OF EDUCATION OF
          SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN
          COUNTY
          A-4826-12T1
We hold that maternity leave constitutes continued employment under N.J.S.A. 18A:28-5(a), entitling petitioner in this matter to tenure protection and status under the school district's Reduction In Force (RIF) plan. 

MICHAEL C. KAIN VS. GLOUCESTER CITY, ET AL. A-4854-12T2

MICHAEL C. KAIN VS. GLOUCESTER CITY, ET AL.
          A-4854-12T2
The plan or design immunity provision of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3, applies to injuries caused by "the plan or design of public property" approved "by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval . . . ." N.J.S.A. 59:4-6(a) (emphasis added). This case requires us to decide whether this provision exempts municipal defendants from liability for an allegedly dangerous condition in a pier designed by the Coast Guard and, specifically, whether the Coast Guard falls within the scope of the term, "some other body," under the statute. We decide that it does. We also conclude that the Charitable Immunity Act applies to the non-municipal defendants. 

IN RE CHALLENGE OF CONTRACT AWARD SOLICITATION 13-X-22694


IN RE CHALLENGE OF CONTRACT AWARD SOLICITATION
          13-X-22694 LOTTERY GROWTH MANAGEMENT SERVICES
          A-4629-12T4
The award of a long-term contract to a private entity for sales and marketing and other management functions of the New Jersey State Lottery did not violate the 1969 constitutional amendment that authorized the lottery or the State Lottery Law's provision "establishing a lottery to be operated by the State." N.J.S.A. 5:9-2. 

JORGE CASAL VS. HYUNDAI MOTOR AMERICA A-4487-12T3


JORGE CASAL VS. HYUNDAI MOTOR AMERICA
          A-4487-12T3
In a matter of first impression the issue is whether a manufacturer that violated the Lemon Law is required under N.J.S.A. 56:12-32a to pay counsel fees, for the work done by the consumer's attorney to cancel optional third party contracts arranged by the dealer at the time of the sale. We find this relief is required under the statute. 

CLAIR W. FLINN, ET AL. VS. AMBOY NATIONAL BANK AND AB MONMOUTH, LLC A-4216-12T1

CLAIR W. FLINN, ET AL. VS. AMBOY NATIONAL BANK AND AB MONMOUTH, LLC
A-4216-12T1
Plaintiffs, the owners of eighteen of the forty-eight constructed units in a partially-built, ninety-six-unit condominium complex, sought an order from the trial court granting them control of the condominium association's governing board. Plaintiffs relied on a provision within the New Jersey Condominium Act, N.J.S.A. 46:8B-12.1(a), which provides that "when some of the units of a condominium have been conveyed to purchasers and none of the others are being constructed or offered for sale by the developer in the ordinary course of business," then such unit owners "shall be entitled to elect all of the members of the [association's] governing board."
The trial court denied plaintiffs' request, relying upon N.J.A.C. 5:26-8.4(d), a regulation cited by defendants. The regulation states that "[a] developer may surrender control of the executive board of the [condominium] association prior to the time as specified [under the statute's percentage-based, lock-step procedures that are otherwise to be followed], provided the owners agree by a majority vote to assume control." The trial court ruled that plaintiffs were not entitled to an order transferring control because they had not agreed to assume such control by a majority vote of unit owners.
We reverse the trial court's decision because the cited regulation pertains to a developer's voluntary request to surrender control and does not pertain to the present situation of a request for involuntary surrender. In addition, the terms of the regulation cannot trump or negate the mandatory language of the statute.
The case is remanded for an evidentiary hearing to resolve the parties' factual dispute over whether or not the current developer is constructing or offering units for sale in the "ordinary course of business." In addition, in an unpublished portion of the opinion, we reversed the trial court's dismissal with prejudice of other counts of the complaint.


Borough of Merchantville v. Malik & Son A-66-12;


Borough of Merchantville v. Malik & Son, LLC, et al.
          (A-66-12; 072255)
          Prior to instituting a condemnation action, a
          condemning authority has an obligation to present an
          offer to acquire the subject property and to engage in
          bona fide negotiations only with the holder of the
          title of record or the holder of the interest sought
          to be condemned.  Therefore, the condemning authority
          here was not required to engage in negotiations with
          the holder of the final judgment of foreclosure for
          the property sought to be condemned.

Daniel Tumpson, et al. v. James Farina, et al. (A-13/14-13


Daniel Tumpson, et al. v. James Farina, et al.
          (A-13/14-13; 072813)
          The City Clerk violated the right of referendum
          guaranteed by the Faulkner Act and deprived plaintiffs
          of a substantive right protected by the Civil Rights
          Act, thus entitling them to attorney’s fees.

James P. Renner v. AT&T

James P. Renner v. AT&T (A-71-11; 068744)
          Where a Workers’ Compensation claimant fails to
          demonstrate that cardiovascular injury, disease or
          death, resulted from a work effort or strain involving
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a substantial condition or event, he or she is not
          entitled to compensation under N.J.S.A. 34:15-7.2.

Magic Petroleum Corporation v. Exxon Mobil Corporation (A-46-12;


Magic Petroleum Corporation v. Exxon Mobil Corporation
          (A-46-12; 069083)
          Plaintiff property owners or other responsible parties
          may file contribution claims in Superior Court, and a
          court may allocate liability before the final
          resolution of a site remediation plan by the DEP.  The
          trial court may assign liability based on evidence
          presented at trial, but may not be able to issue a
          final damages award.  In addition, a party need not
          obtain written approval of the remediation plan prior
          to filing a claim for contribution.

In the Matter of Civil Commitment of D.Y. (A-42-12; 071464)


In the Matter of Civil Commitment of D.Y. (A-42-12;
          071464)
          The plain language of N.J.S.A. 30:4-27.29(c) and -
          27.31(a) requires that there be one of two alternative
          forms of representation at SVP commitment hearings:
          (1) full representation by counsel, or (2) self-
          representation by an individual who is competent to
          conduct his or her case, with standby counsel present
          throughout the hearing to assist if needed.  Standby
          counsel may advise the committee, assist the court in
          expediting the proceedings, and assume an active role
          if his or her client proves unwilling or unable to
          participate cooperatively in the hearing.

Matthew J. Barrick, Jr. v. State of New Jersey (A-8/9-13; 072795)

 Matthew J. Barrick, Jr. v. State of New Jersey
          (A-8/9-13; 072795)
The Director’s determination that the distance
          requirement was not material to the RFP was
          unassailably reasonable and the decision awarding the
          lease contract to RMB was not arbitrary, capricious,
          or unreasonable.  Under the circumstances, the Court
          declines to consider the mootness issue, but warns
          future unsuccessful bidders that sitting on the right
          to seek a stay may imperil any opportunity for a
          merits review.

Martin E. O’Boyle v. Borough of Longport (A-16-12; 070999)


Martin E. O’Boyle v. Borough of Longport (A-16-12;
          070999)
          The Court expressly adopts the common interest rule as
          articulated in LaPorta v. Gloucester County Board of
          Chosen Freeholders, 340 N.J. Super. 254 (App. Div.
          2001).  Applying that rule, the private attorney’s
          protected attorney work product remained privileged
          despite its disclosure to the third-party municipal
          attorney because the materials were shared in a manner
          calculated to preserve their confidentiality, in
          anticipation of litigation, and in furtherance of a
          common purpose.  The requestor also failed to
          articulate a particularized need for the withheld
          materials as required to obtain privileged materials
          under the common law right of access

In the Matter of Opinion No. 17-2012 of the Advisory Committee on Professional Ethics (A-22-13

In the Matter of Opinion No. 17-2012 of the Advisory
          Committee on Professional Ethics (A-22-13; 072810)
          Volunteer Lawyers for Justice’s pro bono bankruptcy
          program does not present a conflict of interest under
RPC 1.7.  With appropriate safeguards, a volunteer
          attorney can represent a low-income debtor in ano-
          asset Chapter 7 bankruptcy matter even if the
          attorney’s firm represents one or more of the debtor’s
          creditors in unrelated matters.