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Tuesday, September 23, 2014

BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS A-3252-12T1

 BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS 
A-3252-12T1 
We affirm the summary judgment dismissal of plaintiff's LAD complaint, alleging claims of hostile work environment and constructive discharge. Plaintiff experienced racial discrimi-nation by a fellow employee assigned to train him. When the incidents were disclosed to defendant, its mechanisms, including a formal anti-harassment and anti-discrimination policy, a developed complaint procedure and an investigation process, effectively resolved the discriminatory treatment identified by plaintiff and he precluded any further racial harassment. However, plaintiff maintains as a result of his disclosures, co-workers avoided him, which he insisted caused his constructive discharge. 

We held plaintiff's complaints of perceived ostracism by fellow employees after he reported a co-worker's acts of racial discrimination are insufficient to support LAD claims of hostile work environment, retaliation or impose vicarious liability on the employer. 

BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS A-3252-12T1

 BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS 
A-3252-12T1 
We affirm the summary judgment dismissal of plaintiff's LAD complaint, alleging claims of hostile work environment and constructive discharge. Plaintiff experienced racial discrimi-nation by a fellow employee assigned to train him. When the incidents were disclosed to defendant, its mechanisms, including a formal anti-harassment and anti-discrimination policy, a developed complaint procedure and an investigation process, effectively resolved the discriminatory treatment identified by plaintiff and he precluded any further racial harassment. However, plaintiff maintains as a result of his disclosures, co-workers avoided him, which he insisted caused his constructive discharge. 

We held plaintiff's complaints of perceived ostracism by fellow employees after he reported a co-worker's acts of racial discrimination are insufficient to support LAD claims of hostile work environment, retaliation or impose vicarious liability on the employer. 

Monday, September 15, 2014

IN THE MATTER OF AN INITIATIVE PETITION FOR THE ADOPTION OF AN ORDINANCE TO AMEND THE JACKSON TOWNSHIP ADMINISTRATIVE CODE A-0517-13T1

IN THE MATTER OF AN INITIATIVE PETITION FOR THE ADOPTION OF AN ORDINANCE TO AMEND THE JACKSON TOWNSHIP ADMINISTRATIVE CODE 
A-0517-13T1 

This appeal involves a governing body's pre-election challenge to an ordinance proposed in an initiative petition. The trial court declared a section of the ordinance unlawful but, notwithstanding a severance clause in the ordinance, declined to sever the unlawful section and order that the excised ordinance be placed on the ballot. We affirm. We conclude that the trial court had the authority to hear the pre-election challenge to the proposed ordinance. We further conclude that the court did not have the authority to revise the ordinance and order that the altered ordinance be placed on the ballot. 

ERIC G. HANISKO VS. BILLY CASPER GOLF MANAGEMENT, INC., ET AL. A-5053-12T4

ERIC G. HANISKO VS. BILLY CASPER GOLF MANAGEMENT, INC., ET AL. 
A-5053-12T4 
In this appeal, we revisit the application of the special employer-special employee relationship addressed in Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967), and, in doing so, affirm the grant of summary judgment to defendants. Plaintiff, the superintendent of a golf club, sustained injuries in his employer-provided residence. Applying the Blessing factors, we found plaintiff was employed by both the management company that managed the golf club, and the golf club. We rejected plaintiff's contention that judicial estoppel precluded 

the golf club from asserting the exclusivity provisions of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, as a bar to plaintiff's action in Superior Court against the golf club. In addition, we found no error in the trial court's consideration, for summary judgment purposes, the fully executed employment agreement, which was not turned over to plaintiff during the course of discovery. We agreed, as the motion judge found, the parties did not dispute the authenticity of the document. 

PRINCETON SOUTH INVESTORS, LLC VS. FIRST AMERICAN TITLE INSURANCE INSURANCE COMPANY A-0850-12T3

PRINCETON SOUTH INVESTORS, LLC VS. FIRST AMERICAN TITLE INSURANCE INSURANCE COMPANY 
A-0850-12T3 

In a dispute over title insurance coverage, we held that a municipality's pending tax appeal, concerning the alleged under-assessment of plaintiff's property, did not render plaintiff's title unmarketable or constitute a defect in or an encumbrance on the title. In addition, based on the language of the title insurance policy, we held that the claim was not covered. 

ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. A-1113-12T4

 ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. 
A-1113-12T4 

This is a suit on a surety bond. Dobco, Inc. (Dobco) appeals from a final judgment denying its motion for partial summary judgment against Colonial Surety Company (Colonial), surety for J. Strober & Sons, LLC (Strober), Dobco's subcontractor, and granting Colonial's motion for summary judgment dismissing Dobco's claims against Colonial. The Law Division dismissed Dobco's claims against Colonial under the bond on the ground that the bond did not name Dobco as the obligee and because Dobco had rejected the bond as not in the form required by its subcontract with Strober. We deem neither of those facts material because we conclude that in entering into its surety contract with Strober, Colonial obligated itself to issue a performance bond to Dobco in the form annexed to the Dobco/Strober subcontract. Accordingly, we reverse. 

Davis v. Brickman Landscaping, Ltd. (A-22/23/24-12

Davis v. Brickman Landscaping, Ltd. 
(A-22/23/24-12; 071310) 

Plaintiffs were required to establish the applicable standard of care through expert testimony. The standard of care set forth by plaintiffs’ expert constituted an inadmissible net opinion because it lacked objective support. Summary judgment in defendants’ favor was appropriate because, as a result of plaintiffs’ failure to support their asserted standard of care, they were unable to establish the required elements of their negligence claim. 

Thomas Saccone v. Board of Trustees of the Police and Firemen’s Retirement System (A-49-12;

Thomas Saccone v. Board of Trustees of the Police and Firemen’s Retirement System (A-49-12; 071841) 

The disabled child of a retired member of the PFRS may have his or her survivors’ benefits paid into a first-party SNT created for him or her under 42 U.S.C.A. § 1396p(d)(4)(A). 

Stephanie Washington v. Carlos A. Perez (A-10-13;

 Stephanie Washington v. Carlos A. Perez (A-10-13; 072522) 

Given the significant distinctions between fact and expert witnesses, and the array of reasons why a party may choose not to call a previously designated expert witness to testify, an adverse inference charge should rarely be invoked to address the absence of an expert. 

Tahir Zaman v. Barbara Felton (A-60-12; 072128)

Tahir Zaman v. Barbara Felton (A-60-12; 072128) 
The Court affirms the jury’s determination that Felton knowingly sold her property to Zaman. It reverses the portion of the Appellate Division’s opinion that affirmed the trial court’s dismissal of Felton’s claim that the parties’ agreements gave rise to an equitable mortgage. The Court remands to the trial court for application of the eight-factor standard for the determination of an equitable mortgage set forth by the United States Bankruptcy Court in O’Brien v. Cleveland, 423 B.R. 477, 491 (Bankr. D.N.J. 2010) and, in the event that the trial court concludes that an equitable mortgage was created by the parties, for the adjudication of two of Felton’s statutory claims based on alleged violations of consumer lending laws, as well as several other claims not adjudicated by the trial court. The Court concurs with the trial court and Appellate Division that Felton has no claim under the Consumer Fraud Act, that this case does not implicate In re Opinion No. 26, and that Felton’s remaining claims were properly dismissed. 

Robert Lavezzi v. State of N.J. (A-29-13;

Robert Lavezzi v. State of N.J. (A-29-13; 072856) 
Pursuant to the Wright standard, the State is obligated to defend and indemnify the Prosecutor’s Office employees at this early stage of the litigation because, based on the limited record before the Court, this case arises from the performance of their law enforcement duties. 

ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. A-1113-12T4

ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. 
A-1113-12T4 
This is a suit on a surety bond. Dobco, Inc. (Dobco) appeals from a final judgment denying its motion for partial summary judgment against Colonial Surety Company (Colonial), surety for J. Strober & Sons, LLC (Strober), Dobco's subcontractor, and granting Colonial's motion for summary judgment dismissing Dobco's claims against Colonial. The Law  Division dismissed Dobco's claims against Colonial under the bond on the ground that the bond did not name Dobco as the obligee and because Dobco had rejected the bond as not in the form required by its subcontract with Strober. We deem neither of those facts material because we conclude that in entering into its surety contract with Strober, Colonial obligated itself to issue a performance bond to Dobco in the form annexed to the Dobco/Strober subcontract. Accordingly, we reverse. 

NEW CENTURY FINANCIAL SERVICES, INC., VS. AHLAM OUGHLA/ MSW CAPITAL, LLC, VS. AZEEM H. ZAIDI A-6078-11T4

NEW CENTURY FINANCIAL SERVICES, INC., VS. 
AHLAM OUGHLA/ MSW CAPITAL, LLC, VS. AZEEM H. ZAIDI 
A-6078-11T4/A-6370-11T1(CONSOLIDATED) 
In these two appeals we consider the proofs necessary for plaintiffs to prevail on summary judgment in an action to collect an assigned debt on a closed and charged-off credit card account. 
In considering whether plaintiffs established prima facie proof of their claims of ownership of the defendant's charged-off debt and the amount due the card issuer when it charged off the account, we hold that lack of notice to the debtor of the sale of the debt does not affect the validity of the assignment; the assignment need not specifically reference defendant's name or account number and instead may refer to an electronic data file containing that information; a plaintiff need not procure an affidavit from each transferor in its chain of assignments and may instead establish prima facie proof of ownership on the basis of business records documenting its ownership; and that an electronic copy of the periodic billing statement for the last billing cycle is prima facie proof of the amount due on the account at charge off. Applying those standards to the facts presented on the motions, we affirm one judgment and reverse the other. 

KATHLEEN KRUPINSKI N/K/A KATHLEEN GOCKLIN VS. MICHAEL KRUPINSKI A-2300-12T2

KATHLEEN KRUPINSKI N/K/A KATHLEEN GOCKLIN VS. MICHAEL KRUPINSKI 
A-2300-12T2 
Defendant appeals from the order of the Family Part denying his motion to terminate his obligation to pay permanent alimony. Although the motion judge found defendant's retirement created "changed circumstances" under Lepis, the judge did not consider whether plaintiff can maintain her former marital lifestyle after she began receiving her equitable distribution share of defendant's pension. Although under N.J.S.A. 2A:34-23(b), the share of retirement benefits that has been equitably distributed is not "income" to plaintiff for purposes of determining alimony, defendant must be given the opportunity to prove that the value of plaintiff's share of his retirement benefit was enhanced by his "post-divorce efforts." If defendant is able to quantify the value of his post-divorce efforts, the court must then consider that "enhanced value" as "income" to plaintiff and outside the bar in N.J.S.A. 2A:34-23(b). If this "income" to plaintiff allows her to maintain a lifestyle equal to or better than her marital lifestyle, defendant is entitled to terminate his permanent alimony obligation. We reverse and remand for limited discovery and an evidentiary hearing. 

KHASHAYAR VOSOUGH, M.D., ET AL. VS. ROGER KIERCE, M.D., ET AL. A-3017-11T1

KHASHAYAR VOSOUGH, M.D., ET AL. VS. ROGER KIERCE, M.D., ET AL. 
A-3017-11T1 
In this common law contract and tortious interference case, plaintiff doctors claimed damages on the ground that defendant hospital's bylaws were violated and not enforced by the hospital. The jury's verdict of about $1.27 million for plaintiffs is reversed because they did not have viable theories of recovery and because they did not prove compensable damages. 
The same conduct of the individual defendants (the hospital's CEO and a department chairman) that allegedly constituted their tortious interference with plaintiffs' independent contractor agreements could not also constitute their conduct on behalf of the hospital that constituted the hospital's breach of the contract. 

Furthermore, the at-will independent contractor agreements limited the doctors' claim for future lost income to 60 days, which was the time for notice by either party that the contract would be terminated. 

DYFS vs. S.I. I/M/O S.I., a minor. A-2878-12T1

DYFS vs. S.I. I/M/O S.I., a minor. 
A-2878-12T1 
We reversed an order of abuse and neglect resulting from a custodial grandparent's refusal to comply with the Division's recommendation for the twelve-year-old child to undergo a psychiatric assessment. The grandmother insisted the child was rebelling and acting out, and was not suicidal. The Division removed the child, obtained what was an unremarkable mental health assessment, and filed Title 9 complaint alleging medical neglect. 

We concluded there was no competent evidence the conduct complained of rose to the level of abuse and neglect because there was no proof the disagreement with the Division's recommendation recklessly created a substantial risk to the child's mental or physical safety, as required by N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013). The trial judge's view that an immediate mental status evaluation was necessary was based on a generalized concern for teenage suicide and untethered to the facts of the case, which was void of factual or expert evidence demonstrating the child was in imminent danger. [*Approved for Publication date] 

JAMES F. WALTERS V. YMCA A-1062-12T3

JAMES F. WALTERS V. YMCA 
A-1062-12T3 
Plaintiff sued the YMCA after he slipped and fell on steps that led to the indoor pool. The trial court granted defendant's motion for summary judgment and dismissed plaintiff's complaint based on an exculpatory clause included in the membership agreement plaintiff signed to access YMCA's facilities and physical fitness equipment. The motion judge found plaintiff's cause of action was barred under the Court's holding in Stelluti v. Casapenn Enters., Inc., 203 N.J. 286 (2010). 
  We reverse because the type of expansive exculpatory clause involved here was specifically not addressed by the 
Court in Stelluti. Applying the standard for enforceability in Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 248 (App. Div. 2004), endorsed by the Court in Stelluti, we hold the YMCA's exculpatory clause is unenforceable because it would eviscerate the common law duty of care owed by the YMCA to its invitees, regardless of the nature of the business activity involved. 

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. 

J.B. v. W.B. (A-111-11


 J.B. v. W.B. (A-111-11; 069972) 

A parent seeking to modify a negotiated agreement for the support of a disabled child through the establishment of a special needs trust must present a specific plan and demonstrate how the proposed trust will benefit the disabled child. When a disabled child is the subject of a proposed special needs trust, it is within the trial court’s discretion to appoint a guardian ad litem. 

Willingboro Mall, LTD. v. 240/242 Franklin Avenue, L.L.C. (A-62-11


 Willingboro Mall, LTD. v. 240/242 Franklin Avenue, L.L.C. (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. 

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


 Karen 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. 

Harlan W. Waksal v. Director, Div. of Taxation (A-103-11;


 Harlan W. Waksal v. Director, 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. 

Paul Emma v. Jessica Evans (A-112-11

Paul Emma v. Jessica 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. 

Michael E. Hirsch v. Amper Financial Services, LLC (A-9-12

Michael E. Hirsch v. Amper Financial Services, LLC 
(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. 

Norfolk Southern Railway Company v. Intermodal Properties, LLC (A-117-11;

Norfolk Southern Railway Company v. Intermodal Properties, LLC (A-117-11; 
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. 

Ten Stary Dom Partnership v. T. Brent Mauro (A-52-11;

Ten Stary Dom Partnership v. T. Brent 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.