Recent Decisions of the New Jersey Appellate Courts
from 2012-05-02
to 2012-05-16
Docket No.: a-84-10
Decided: 2012-05-14
Caption: John Seals and Julia Seals v. County of Morris
Summary:
ALBIN, J., writing for a unanimous Court. The issues in this appeal are whether, pursuant to Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1994) or N.J.S.A. 48:3-17.1, an electric utility company is entitled to immunity for any negligence in its placement of a pole along a public roadway; and whether a county is entitled to immunity for any negligence on its part pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
Docket No.: a-114-10
Decided: 2012-05-08
Caption: State v. Juan Pablo Santos
Summary:
LaVECCHIA, J., writing for a majority of the Court. In this appeal the Court considers whether a post-conviction relief (PCR) petitioner – permanently removed from the United States to Mexico – could have his testimony taken by telephone or video communication at an evidentiary hearing.
Docket No.: a-101-10
Decided: 2012-05-07
Caption: Twenty-FirstCentury Rail Corporation, et al. v. New Jersey Transit Corp., et al.
Summary:
HOENS, J., writing for a unanimous Court. The Court considers whether an attorney who was retained to provide advice to a client in connection with a dispute over delays on a construction project violated RPC 1.9 by subsequently undertaking the representation of another party involved in the construction dispute whose interests were adverse to those of the former client.
Docket No.: a-98-10
Decided: 2012-05-03
Caption: N.J. Association of Sch. Administrators v. Bret Schundler
Summary:
Docket No.: a2735-09
Decided: 2012-05-14
Caption: EDIE BRITMAN SAURO v. FRANK SAURO
Status: published
Summary:
FUENTES, J.A.D. The law firm of Budd Larner, P.C. (Budd Larner) was one of three firms that represented plaintiff Edie Britman Sauro during this protracted matrimonial case. Budd Larner now appeals the Family Part's equitable distribution award, arguing that the manner in which the court allocated the parties' marital assets negatively affected the firm's attorney charging lien pursuant to N.J.S.A. 2A:13-5. Specifically, Budd Larner challenges the court's decision to establish a $200,000 education trust fund to cover the cost of college education for the parties' three children; to release $12,000 to pay the cost of plaintiff's paralegal studies; and to issue two pendente lite orders that directed the payment of support to plaintiff and the children.
Docket No.: a5022-10
Decided: 2012-05-14
Caption: STATE OF NEW JERSEY v. JAMES CRAFT
Status: published
Summary:
Docket No.: a1777-10
Decided: 2012-05-11
Caption: CARMENA STONEY v. MAPLE SHADE TOWNSHIP
Status: published
Summary:
P.J.A.D. At issue is whether a trial court may deny injunctive relief upon a jury finding of access discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. By way of background, plaintiff Linda Vandeusen, a South Carolina resident, has dystonia, is wheelchair dependent, and is aided by a dog. She travels to New Jersey approximately twice a year to help a disabled man, attend disability conferences, and visit friends. She is a self-acknowledged "tester,"1 that is, "a person who goes places just to see if it is accessible for people with disabilities . . . ."
Docket No.: a2742-10
Decided: 2012-05-11
Caption: GREGORY LASKY v. MOORESTOWN TOWNSHIP
Status: published
Summary:
P.J.A.D. Plaintiff Gregory Lasky, a paraplegic, filed suit against defendant Moorestown Township, alleging that defendant discriminated against him by not providing him access to Strawbridge Lake Park (park), in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101- 12213 (1990), and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. A jury returned a verdict in favor of defendant.
Docket No.: a5256-10
Decided: 2012-05-11
Caption: GREGORY LASKY v. BOROUGH OF HIGHTSTOWN
Status: published
Summary:
PARRILLO, P.J.A.D. This civil rights litigation, alleging a municipality's violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to make various public facilities handicap accessible, raises the novel issue of whether a request for assistance is required to sustain an LAD public accommodation disability discrimination claim alleging overall lack of access. The motion judge granted summary judgment dismissal of plaintiff's LAD complaint because plaintiff, indisputably, did not request an accommodation prior to filing suit. Plaintiff appeals, and for the following reasons, we now reverse.
Docket No.: a2685-10
Decided: 2012-05-09
Caption: DAVID SCHMIDT v. CELGENE CORPORATION
Status: published
Summary:
GRALL, J.A.D. Plaintiff David Schmidt appeals from the dismissal of a complaint charging his employer, Celgene Corporation, and one of Celgene's customers, CVS/Caremark Corporation (Caremark), with violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Schmidt filed the complaint well beyond CEPA's one-year limitation period, N.J.S.A. 34:19-5, while he had a breach of contract action based on the same facts pending in Texas. Primarily because Schmidt's delay is attributable to his initial selection of the Texas forum and his subsequent decision to pursue a remedy for a CEPA violation in New Jersey after an unfavorable choice of law determination by a court in Texas, we conclude that the doctrines of substantial compliance and equitable tolling do not permit him to proceed in New Jersey. Accordingly, we affirm.
Docket No.: a1513-10
Decided: 2012-05-08
Caption: STATE OF NEW JERSEY v. DAVID M. GIBSON
Status: published
Summary:
FISHER, P.J.A.D. In this appeal, defendant argues, among other things, that the trial judge erred in denying his motion to suppress evidence seized from him following his arrest for defiant trespass. This argument centers on whether, by the time of the search, the arresting officer possessed probable cause that defendant had engaged in a defiant trespass -- an issue that requires our consideration of whether it mattered that the owner of the property had posted a "no loitering" instead of a "no trespassing" sign. We reject this and defendant's other arguments and affirm.
Docket No.: a4410-10
Decided: 2012-05-08
Caption: STATE OF NEW JERSEY v. KIWANIE SALTER
Status: published
Summary:
MESSANO, P.J.A.D. We granted the State of New Jersey's motion for leave to appeal from the Law Division's order dismissing with prejudice counts four and six of Essex County Indictment No. 07-02-0430 against defendant Kiwanie Salter. For the reasons that follow, we affirm in part, reverse in part and remand the matter for further proceedings.
Docket No.: a0120-11
Decided: 2012-05-07
Caption: ETHEL GRAY v. CALDWELL WOOD PRODUCTS INCORPORATED
Status: published
Summary:
J.S.C. (temporarily assigned). Plaintiff Ethel Gray appeals the order granting summary judgment entered in favor of defendant 27-75th North Bergen LLP. The issue presented in this appeal is whether sidewalk liability applies to an owner of a vacant commercial building. In deciding this case, we add to the evolving jurisprudence on sidewalk liability and hold that a commercial property owner has a duty to maintain the sidewalk abutting its vacant building. We reverse and remand. Plaintiff was injured on January 18, 2009, when she slipped and fell on an ice and snow covered sidewalk in front of defendant's commercial building in Paterson. At the time of the accident, the building was vacant and had been since the prior tenant vacated on October 1, 2007.
Docket No.: a5119-09
Decided: 2012-05-04
Caption: STATE OF NEW JERSEY v. JENNIFER LEE LOCASCIO
Status: published
Summary:
SABATINO, J.A.D. This vehicular homicide case stems from a one-car accident in which defendant's boyfriend, who had been in the car with defendant, was killed after the car veered off the road and crashed into a tree. Both defendant and her boyfriend had been drinking that evening and were evidently impaired. The pivotal factual question at trial was whether, as the State contended, defendant was driving the car at the time of the crash, or whether, as the defense contended, the boyfriend was driving and defendant was the front-seat passenger. The jury adopted the State's theory and found defendant guilty of vehicular manslaughter.
Docket No.: a0192-11
Decided: 2012-05-03
Caption: STATE OF NEW JERSEY v. ANTHONY ROSE
Status: published
Summary:
PARRILLO, P.J.A.D. We granted the State's motion for leave to appeal to decide whether the forfeiture by wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9), applies retroactively to wrongdoing that occurred before the new rule's effective date. We conclude that it does and that such application does not constitute an ex post facto violation.
Docket No.: a2319-10
Decided: 2012-05-14
Caption: MICHAEL MARTIN v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Michael Martin appeals from a final decision of the Department of Corrections finding he committed prohibited acts .752 and .802 — attempting to accept "money or anything of value from, another inmate," in violation of N.J.A.C. 10A:4-4.1(a). His sanctions were forfeiture of the $900 he obtained, 15 days' detention, 60 days' loss of commutation credits, and 90 days' administrative segregation that was suspended for 90 days. See N.J.A.C. 10A:4-5.1(b) and N.J.A.C. 10A:3-6.6(a)3.
Docket No.: a3242-10
Decided: 2012-05-14
Caption: STATE OF NEW JERSEY v. CLEVIN A. PITTMAN
Status: unpublished
Summary:
PER CURIAM Following denial of motions to suppress, to dismiss the indictment, and to compel a Wade Hearing,1 defendant Clevin Pittman entered a plea of guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree terroristic threats, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(5). Defendant was sentenced in accordance with the plea agreement to concurrent terms of four years imprisonment with a two-year period of parole ineligibility, together with mandated fines and penalties. The remaining charges were dismissed. Defendant appeals from his judgment of conviction. We affirm. These are the facts adduced at the motion hearing. Defendant, armed with a BB gun, went to the diner where he worked. During an argument with his boss, Alexis Manolakis, defendant threatened to kill him. In a subsequent conversation with a coworker, defendant told her that he wanted to kill the boss, then opened his coat and showed her the BB gun. Defendant left the diner and rode away on his bicycle.
Docket No.: a4046-10
Decided: 2012-05-14
Caption: LT PROPCO, L.L.C v. WESTLAND GARDEN STATE PLAZA LIMITED PARTNERSHIP
Status: unpublished
Summary:
PER CURIAM Defendant Westland Garden State Plaza L.P. (Westland), the owner of the Garden State Plaza Mall in Paramus, successfully sought c(2) variances, pursuant to N.J.S.A. 40:55D-70c(2), to permit it to replace an existing parking deck with a new five-story structure, add 80,722 square feet of retail space as infill, modify traffic circulation and pedestrian walkways, and install new signage. Following extensive hearings in the matter and the Borough of Paramus Planning Board's adoption of a resolution granting the variances, plaintiff LT Propco, L.L.C. (Lord & Taylor), a mall sub-tenant, challenged the Board's action by way of an action in lieu of prerogative writs, naming as defendants Westland and the Board. When that was unsuccessful, Lord & Taylor filed the present appeal.
Docket No.: a4357-09
Decided: 2012-05-14
Caption: THURMAN E. KING v. TERRI E. JOHNSON
Status: unpublished
Summary:
PER CURIAM When plaintiff Thurman E. King was fifty-seven years old, he had a stroke that left him paralyzed on his left side and affected his speech. His daughter, defendant Terri E. Johnson, was living in Maryland at the time. She left her job, sold her condominium and returned to New Jersey to live with and care for her father. Defendant had a power of attorney and access to plaintiff's bank account and 401k. Using funds from the 401k, they purchased a residence that required improvements, including an accessible bathroom and repairs neglected by the prior owners such as window replacement and siding. While living with her father, defendant purchased a car, in part, with plaintiff's funds. Plaintiff's funds were also used to pay shelter expenses, personal expenses incurred by defendant and to fund several trips they took together.
Docket No.: a4529-10
Decided: 2012-05-14
Caption: DORIS S. HUGGINS v. MAURICE W. ARMSTRONG
Status: unpublished
Summary:
PER CURIAM Plaintiffs appeal from an April 4, 2011 order denying their motion to reinstate their complaint. We affirm.
Docket No.: a5428-10
Decided: 2012-05-14
Caption: IN THE MATTER OF ANTHONY McIVER, SOUTH WOODS STATE PRISON DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Appellant Anthony McIver appeals a final decision of the Civil Service Commission removing McIver as a corrections officer because he engaged in "conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), and violated a departmental policy by failing to properly report his arrest and conviction for refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2(a). We find no merit in McIver's arguments and affirm.
Docket No.: a5822-09
Decided: 2012-05-14
Caption: STATE OF NEW JERSEY v. JORDAN T. WEBER
Status: unpublished
Summary:
PER CURIAM Following the denial of his motion to suppress, defendant Jordan T. Weber entered an open guilty plea to third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count one), and third-degree possession of CDS (oxycodone), N.J.S.A. 2C:35-10a(1) (count two). The trial judge sentenced defendant to two years probation and 354 days incarceration in the Somerset County Correctional Center, which was suspended pending successful completion of probation.
Docket No.: a0198-09
Decided: 2012-05-11
Caption: STATE OF NEW JERSEY v. LOUIS WILLIAMS
Status: unpublished
Summary:
PER CURIAM An Atlantic County jury on May 4, 2009 found defendant guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2); possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a firearm, N.J.S.A. 2C:39-5b; endangering an injured victim, N.J.S.A. 2C:12-1.2; automobile theft, N.J.S.A. 2C:20-3; hindering apprehension, N.J.S.A. 2C:29-3a(3); disturbing or desecrating human remains, N.J.S.A. 2C:22-1a; and possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. For the murder, the trial court sentenced defendant to sixty-five years, eighty-five percent of which had to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a consecutive ten-year sentence, with five years of parole ineligibility, for the certain person not to possess a firearm offense, and a concurrent five-year term for the automobile theft. The court merged the other convictions into the murder conviction. We reverse the convictions because the trial court did not clearly and unequivocally instruct the jury to begin deliberations anew after substituting two alternate jurors for two deliberating jurors who were unable to continue.
Docket No.: a0839-10
Decided: 2012-05-11
Caption: STATE OF NEW JERSEY v. ANTHONY SIMS, JR
Status: unpublished
Summary:
PER CURIAM Following a mistrial caused by the jury deadlock, defendant entered a retraxit plea of guilty to amended counts one and three, second-degree criminal attempt and manslaughter -- passion, N.J.S.A. 2C:5-1 and 2C:11-4b(2); and count two, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1). He was sentenced to concurrent seven-year terms of imprisonment on counts one and three, each subject to the terms of N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), and a three-year period of parole supervision. The court also imposed a concurrent five-year term of imprisonment on count two with a three-year period of parole ineligibility. The statutory fines, penalties and assessments were ordered, as well as $13,828.67 in restitution for the victim, Anthony Graves. Defendant appeals from a judgment of conviction. We affirm the conviction, but reverse the order of restitution and remand for a hearing on defendant's ability to pay. I.
Docket No.: a2485-10
Decided: 2012-05-11
Caption: A & J COMPANIES INTERNATIONAL INC. v. GOVERNING BODY OF THE TOWNSHIP OF IRVINGTON
Status: unpublished
Summary:
PER CURIAM Petitioner, A & J Companies International, Inc, t/a Joyce's Tropical Garden, appeals from the December 6, 2010 final conclusion and order of the Director, Division of Alcoholic Beverage Control (Director) affirming the decision of the Administrative Law Judge (ALJ) sustaining eight charges occurring on two dates and revoking petitioner's plenary retail consumption license. We affirm in part, reverse in part, and remand.
Docket No.: a4776-10
Decided: 2012-05-11
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. J.R IN THE MATTER OF THE GUARDIANSHIP OF C.B. AND G.B Minors
Status: unpublished
Summary:
PER CURIAM Defendant J.R. is the biological father of two girls, G.B. (Cathy), born in 2004, and C.B. (Debbie), born in 2006.1 Defendant appeals from the order of the Family Part terminating his parental rights. The biological mother, S.B.,2 voluntarily agreed to an identified surrender of her parental rights, designating the girls' seventy-two-year-old maternal great-grandmother R.M., as the putative adoptive parent. The order terminating defendant's parental rights clears the way for R.M. to legally adopt both children.
Docket No.: a5152-10
Decided: 2012-05-11
Caption: FROSINA NASUFI v. MONICA L. MURRAY
Status: unpublished
Summary:
PER CURIAM Plaintiffs, Frosina1 and Arben Nasufi, appeal orders of the trial court denying their request to restore their complaint pursuant to Rule 4:50-1(f). The basis of plaintiffs' request was that their former attorney had mishandled their case and then concealed the case's dismissal from them and from his superiors at his law firm. Because the trial court did not misapply its discretion under the Rule in declining to restore plaintiff's lawsuit a year and a half after it had been dismissed, we affirm.
Docket No.: a1597-09
Decided: 2012-05-10
Caption: STATE OF NEW JERSEY v. EDDIE GONZALEZ
Status: unpublished
Summary:
PER CURIAM On May 2, 2006, a Law Division judge, after trial de novo on the record, convicted defendant Eddie Gonzalez of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(b). See R. 3:23. As a result, defendant was terminated on January 16, 2008, from his employment as a Newark police officer. Defendant thereafter filed a petition for post-conviction relief (PCR), denied in the municipal court. He appealed the denial to the Law Division. On October 21, 2009, the Law Division judge also denied PCR, and defendant now appeals. We affirm. The procedural history in this case is noteworthy. The incident resulting in the charges occurred on August 28, 2002, although the summons did not issue until September 4, 2002. At the close of the State's case on November 25, 2003, the municipal court judge granted defendant's motion to dismiss based on the State's failure to prove the date of the incident.
Docket No.: a2378-10
Decided: 2012-05-10
Caption: GODSON IKE ORAEDU v. ANAMBARA-ENUGU STATE ASSOCIATION OF NJ, INC.
Status: unpublished
Summary:
PER CURIAM This is an appeal, by leave granted, from an order entered on August 3, 2010, which disqualified the attorney for defendants/third-party plaintiffs from continuing to represent them, and an order entered on November 16, 2010, which denied a motion for reconsideration of the order disqualifying that attorney. The underlying action, which was filed on December 29, 2008, more than a year-and-a-half before the disqualification of the defendants' attorney, involves a dispute concerning a December 7, 2008 election of officers of defendant Anambra-Enugu State Association of N.J., Inc. (AESA), which is described in the preamble to its bylaws as consisting of "citizens of Anambra/Enugu States residing in New Jersey" organized to pursue "their common desire to preserve and promote their cultural heritage of Igbos of Nigeria living in the United States." The individual defendants are members of AESA who were elected as officers in the December 7, 2008 election. The plaintiffs are other members of AESA who claim the election was improperly conducted and that the results are therefore invalid.1 Plaintiffs' complaint sought to (1) invalidate the AESA elections held on December 7, 2008 and order new elections to be administered by a court-appointed officer; (2) restrain the individual defendants from having access to AESA's bank accounts; and (3) order the individual defendants to reimburse AESA all funds used to defend this action.
Docket No.: a2633-10
Decided: 2012-05-10
Caption: STATE OF NEW JERSEY v. ABDUL-HAQQ SALAAM
Status: unpublished
Summary:
PER CURIAM Defendant, Abdul-Haqq Salaam, appeals from the July 19, 2010 order denying his motion to correct an illegal sentence. We affirm. Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e). On February 14, 1997, defendant was sentenced to a custodial term of life imprisonment without parole, pursuant to N.J.S.A. 2C:43-7.1, the "Three Strikes Law."
Docket No.: a3749-10
Decided: 2012-05-10
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. M.L and L.L IN THE MATTER OF D.L a minor
Status: unpublished
Summary:
PER CURIAM Defendant M.L. appeals from a Family Part order dated June 1, 2010, finding that he abused and neglected his grandson, D.L. (Douglas), by acts that "alienated L.L. (Laura), the mother from [Douglas]."1 The litigation was terminated by order of February 18, 2011, making this matter ripe for appeal. See N.J. Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 164-65 (App. Div. 2003). M.L. argues that the trial court erred during the factfinding hearing under N.J.S.A. 9:6-8.44 "when it permitted the attorneys to argue the merits without presenting witnesses to testify and without the admission of competent, material and relevant evidence[.]" For reasons expressed in this opinion, we find this contention to be without merit and we affirm the order of the trial judge.
Docket No.: a3879-10
Decided: 2012-05-10
Caption: JOSEPH A. MANZI v. BOARD OF REVIEW DEPARTMENT OF LABOR and ASBURY PARK HOUSING AUTHORITY
Status: unpublished
Summary:
PER CURIAM Claimant Joseph Manzi appeals from the March 3, 2011 order of the Board of Review (the Board) dismissing his appeal from a determination that he is not qualified to receive unemployment compensation. The Board found that claimant's appeal from the deputy's determination to the Appeal Tribunal was filed beyond the ten day period permitted by N.J.S.A. 43:21-6(b)(1). We affirm. Claimant filed a claim for unemployment compensation benefits on May 2, 2010. On June 3, 2010, claimant received the determination of the deputy examiner informing him that he was disqualified for benefits because he left his job voluntarily without good cause attributable to the work. Claimant filed an appeal of the deputy's determination with the Appeal Tribunal by letter postmarked July 15, 2010. Pursuant to N.J.S.A. 43:21-6(b)(1), the appeal should have been filed within seven calendar days of delivery or ten calendar days from mailing. In this case, the appeal should have been filed on or before June 11, 2010.
Docket No.: a4068-09
Decided: 2012-05-10
Caption: NEW JERSEY DIVISON OF YOUTH AND FAMILY SERVICES v. L.A.G.
Status: unpublished
Summary:
PER CURIAM Defendant L.S. appeals from the March 25, 2010 Family Part order that terminated her parental rights to two of her children, B.G.-S. and J.G.-S. The children's father, W.S., executed an identified surrender of his parental rights to both children on September 8, 2008.1 L.S. argues that the Division of Youth & Family Services (DYFS) failed to establish by clear and convincing evidence the four criteria for terminating parental rights set forth in N.J.S.A. 30:4C-15.1(a). We agree with the trial judge that DYFS clearly and convincingly established all of the statutory prongs. Accordingly, we affirm.
Docket No.: a5254-10
Decided: 2012-05-10
Caption: TRENTON EDUCATIONAL SECRETARIES ASSOCIATION v. TRENTON BOARD OF EDUCATION
Status: unpublished
Summary:
PER CURIAM This appeal involves the arbitration of a public-sector labor dispute. Plaintiff Trenton Educational Secretaries Association (the Association) appeals from the Law Division's vacation of an arbitration award obtained against the Trenton Board of Education (the Board) and the court's concomitant refusal to confirm the award in the Association's favor. We reverse both prongs of the Law Division's determination and remand for the entry of a judgment confirming the arbitrator's award. I.
Docket No.: a0201-09
Decided: 2012-05-09
Caption: STATE OF NEW JERSEY v. BRIAN C. CARTER
Status: unpublished
Summary:
PER CURIAM Defendant Brian Carter appeals from a judgment in the Law Division finding him guilty of disorderly conduct, contrary to N.J.S.A. 2C:33-2(a)(1), and resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(1). Defendant was initially tried in Asbury Park Municipal Court on March 13, 2009, and was found guilty of both charges. On August 14, 2009, defendant's de novo appeal was heard in the Law Division. The trial judge also found defendant guilty of both charges. I
Docket No.: a0444-11
Decided: 2012-05-09
Caption: MARCO ANTONIO CRUZ - v. IVANIA PEREZ ALONZO -
Status: unpublished
Summary:
PER CURIAM Marco Antonio Cruz was injured while remodeling Ivania Perez Alonzo's1 residential basement. Cruz filed a claim for medical and temporary benefits with the Workers' Compensation Court, claiming that he was an "occasional employee." Alonzo filed an answer and moved to dismiss the claim. A hearing on the motion was held on July 5, 2011, and on August 16, 2011, the compensation judge dismissed Cruz's complaint, finding that Cruz was not an "employee," as defined under the Workers' Compensation Act (WCA or the Act), N.J.S.A. 34:15-1 to -128, and was ineligible for benefits. Cruz appeals from this dismissal and raises the following issues: POINT ONE
Docket No.: a0925-11
Decided: 2012-05-09
Caption: TINA LEE v. SHOPRITE
Status: unpublished
Summary:
PER CURIAM In this slip and fall case, plaintiff Tina Lee appeals from the August 19, 2011 Law Division order, which granted summary judgment to defendant ShopRite and dismissed her complaint. She also appeals the October 6, 2011 order denying her motion for reconsideration. We affirm. I.
Docket No.: a1304-10
Decided: 2012-05-09
Caption: EDWARD CURLEY v. ROBERTA CURLEY
Status: unpublished
Summary:
PER CURIAM In this matrimonial matter, plaintiff Edward Curley (husband) appeals from a pre-judgment order granting the motion of defendant Roberta Curley (wife) for reconsideration of a prior order dismissing her pleadings for failure to answer interrogatories, and from the entry of partial summary judgment exempting certain assets from equitable distribution. Husband also appeals from the final judgment of divorce, challenging portions of the equitable distribution and the quantum of the counsel fee awarded to him. Wife cross-appeals from the equitable distribution, alimony, and counsel fee awards, the court's refusal to allow her to offset equitable distribution obligations, and the court's finding of dissipation of assets. We affirm in part and reverse and remand in part on both the appeal and cross-appeal.
Docket No.: a2181-10
Decided: 2012-05-09
Caption: ROYAL K WAREHOUSE AND SUPPLY INC v. DOLNIK MANAGEMENT CORPORATION
Status: unpublished
Summary:
PER CURIAM We have been advised prior to argument that this matter has been amicably adjusted and the parties have stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs.
Docket No.: a3243-10
Decided: 2012-05-09
Caption: THOMAS GALLI v. KEY MOTORCARS, LLC
Status: unpublished
Summary:
PER CURIAM Plaintiff Thomas Galli appeals from summary judgment dismissal of his complaint alleging violation of the Consumer Fraud Act against individual defendants, Russ Williams, a salesman, and Ronald A. Markey, owner and manager of defendant Key Motorcars, LLC (Key Motorcars), and denial of his motion for reconsideration. We affirm as to Williams and reverse as to Markey.
Docket No.: a4606-10
Decided: 2012-05-09
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. C.T IN THE MATTER OF THE GUARDIANSHIP OF T.T., a minor
Status: unpublished
Summary:
PER CURIAM Defendant C.T. appeals from an April 8, 2011 judgment terminating her parental rights to her adopted son, T.T. She argues that the judgment should be reversed because the trial judge did not set forth sufficient findings of fact and conclusions of law, as required by Rule 1:7-4(a), regarding the four prongs of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1(a). Alternatively, C.T. contends that the Division of Youth and Family Services (DYFS or the Division) failed to establish each prong of the best interests standard by clear and convincing evidence.
Docket No.: a4822-10
Decided: 2012-05-09
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. L.O and W.L., SR IN THE MATTER OF B.L and W.L., JR Minors
Status: unpublished
Summary:
PER CURIAM Defendant L.O. appeals from an April 28, 2011 Family Part order terminating this Title Nine proceeding, awarding her and her husband, W.L., Sr., joint legal custody of their two minor children, B.L. and W.L., Jr., and granting W.L., Sr. interim physical custody of the children. Because the New Jersey Division of Youth and Family Services (the Division) failed to establish abuse or neglect and the Title Nine action was dismissed, we conclude that the children must be returned to L.O., the parent from whose custody they were removed. Accordingly, we vacate the trial court's order and remand for further proceedings.
Docket No.: a5815-09
Decided: 2012-05-09
Caption: STATE OF NEW JERSEY v. KENNETH NERO
Status: unpublished
Summary:
PER CURIAM Defendant Kenneth Nero appeals from an order dated August 11, 2009, denying his petition for post-conviction relief (PCR). We affirm.
Docket No.: a0256-11
Decided: 2012-05-08
Caption: IN THE MATTER OF WILLIAM F DONOUGHE, JR
Status: unpublished
Summary:
PER CURIAM William F. Donoughe, Jr. (defendant) appeals from an August 11, 2011 final administrative action of the Waterfront Commission of New York Harbor (Commission) revoking his registration as a warehouseman, following an administrative hearing. The revocation was based on his having "harvested marijuana plants" at two different locations in New York (Brooklyn and Manhattan), offenses which would have been disqualifying factors had he committed them prior to applying for registration. For the reasons that follow, we affirm.
Docket No.: a0784-09
Decided: 2012-05-08
Caption: STATE OF NEW JERSEY v. JOHN W. CREAMER, III
Status: unpublished
Summary:
PER CURIAM Defendant was tried before a jury, and found guilty of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a), and two counts of hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(b)(1) and (a)(3). Defendant appeals from his convictions and the sentences imposed. We affirm. I.
Docket No.: a0891-09
Decided: 2012-05-08
Caption: JILL WYMAN v. J&B INVESTMENTS OF NEW JERSEY INC
Status: unpublished
Summary:
PER CURIAM Plaintiff Jill Wyman commenced this small claims action for the return of the security deposit on residential premises she leased from defendant J&B Investments of New Jersey, Inc. After a non-jury trial at which both plaintiff and a representative of the landlord testified, the trial judge rendered an oral opinion, concluding that plaintiff was entitled to no relief.
Docket No.: a1067-10
Decided: 2012-05-08
Caption: RANDALL KIDD v. PEDERSEN BUILDING SYSTEMS, LLC
Status: unpublished
Summary:
PER CURIAM Plaintiff Randall Kidd appeals from two Law Division orders entered on September 17, 2010, which, in combination, resulted in the dismissal of his complaint against defendants Pedersen Building Systems, LLC (Pedersen), and March Associates Construction, Inc. (March). As to defendant Pedersen, the judge refused to reconsider his earlier July 23, 2010 order that had barred plaintiff from calling Vincent Gallagher as an expert witness because plaintiff had not demonstrated exceptional circumstances justifying the reopening of discovery ten days before trial. As to defendant March, the judge held that plaintiff was not entitled to the tolling of the statute of limitations, as March's role in the incident leading to plaintiff's injuries could have been discovered with the exercise of due diligence within the applicable two-year limitations period. We affirm.
Docket No.: a2267-10
Decided: 2012-05-08
Caption: GREATER PATERSON PROPERTIES L.L.C. v. RAMESH R. PATEL
Status: unpublished
Summary:
PER CURIAM Plaintiff, Greater Paterson Properties L.L.C., d/b/a Tax Lien Assignment Fund 020301, appeals from orders that vacated final judgment in its favor in a tax sale foreclosure and awarded a counsel fee that it deemed inadequate. For the reasons that follow, we affirm the order vacating final judgment and reverse the award of attorney's fees and costs. Title to the property in question was held by Ramesh and Kantaben Patel and their son, Anil Patel.1 In 1994, the elder Patels moved to what has been described as a remote part of India. Anil resides at the property with his wife, Dipika, and two children.
Docket No.: a2707-10
Decided: 2012-05-08
Caption: STATE OF NEW JERSEY v. YAKOV BUKHMAN
Status: unpublished
Summary:
PER CURIAM Following a trial de novo in the Law Division, defendant Yakov Bukhman appeals from his January 20, 2011 conviction on a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant's conviction results from a conditional plea of guilty in the Springfield Township municipal court, in which he reserved the right to challenge on appeal the State's use of a temperature probe manufactured by Control Company, even though the Supreme Court in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), had only referenced the use of a temperature probe manufactured by the Ertco-Hart company. In State v. Holland, 422 N.J. Super. 185, 195-97 (App. Div. 2011), we rejected the very claim defendant reserved at the time he entered his conditional plea of guilty, concluding that the use of the Control Company temperature probe did not render the Alcotest results invalid as a matter of law. Because the precise issue defendant preserved when he entered his conditional guilty plea has now been decided in favor of the State, we affirm defendant's conviction.
Docket No.: a4923-10
Decided: 2012-05-08
Caption: REVOLUTION MARINE & SPORTS CENTER, LLC v. ANTHONY CARLO
Status: unpublished
Summary:
PER CURIAM This action consisted of numerous claims between and among the parties regarding, among other things, the ownership of certain business entities. The parties consented to submitting the issues to binding arbitration, and the arbitrator received evidence over the course of eight days, ultimately rendering a twenty-six page decision.
Docket No.: a5416-10
Decided: 2012-05-08
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. K.W.
Status: unpublished
Summary:
PER CURIAM Defendant K.W., the biological mother of Kate,1 born in October 2007, appeals from the final judgment issued by the Family Part terminating her parental rights. K.W. contends that plaintiff Division of Youth & Family Services (Division or DYFS) failed to prove by clear and convincing evidence the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a). She further maintains that the judge erred by barring a portion of the testimony of her witness Patricia Johnson, and by admitting hearsay testimony and documents upon which the judge relied in terminating K.W.'s parental rights.
Docket No.: a5826-10
Decided: 2012-05-08
Caption: STATE OF NEW JERSEY v. E. LEROY WITHERSPOON
Status: unpublished
Summary:
PER CURIAM Defendant E. Leroy Witherspoon appeals from a June 23, 2011 Law Division judgment denying his petition for post-conviction relief (PCR). We affirm.
Docket No.: a6006-09
Decided: 2012-05-08
Caption: NOBIS VENTURE, LLC v. DONAHOE BROTHERS, LLC
Status: unpublished
Summary:
PER CURIAM Plaintiff Phillip H. Stamborski appeals from the June 30, 2010 order dismissing his complaint against defendant Jersey City Municipal Utilities Authority (JCMUA) because he failed to timely file a notice of claim as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.1 We reject plaintiff's arguments that he substantially complied with the TCA notice provisions by filing a notice of claim with defendant City of Jersey City, and that the JCMUA is equitably estopped from denying his claim. Accordingly, we affirm.
Docket No.: a6259-10
Decided: 2012-05-08
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. V.W.
Status: unpublished
Summary:
PER CURIAM Defendant V.W. is the mother of A.W. who is now nineteen years old. V.W. appeals from a Family Part order dated July 18, 2011, finding that she committed an act of abuse and neglect, when she refused to accept services proffered by the Division of Youth and Family Services (the Division), to allow A.W. to return home, or offer a caretaker for A.W., thereby requiring the Division to arrange for A.W.'s placement. On appeal, V.W. argues the court erred in determining that she abandoned her daughter. For the reasons that follow, we affirm.
Docket No.: a0637-09
Decided: 2012-05-07
Caption: STATE OF NEW JERSEY v. OMAR AUSTIN
Status: unpublished
Summary:
PER CURIAM An Essex County Grand Jury charged defendant Omar Austin with second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); four counts of first degree robbery while armed with a "handgun" of Juana Osuna, Christian Made, Sofia Rodriguez and Marisol Rosario, N.J.S.A. 2C:15-1 (counts two, three, four and five); first degree attempted murder of Sofia Rodriguez, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count six); aggravated assault upon Sofia Rodriguez, N.J.S.A. 2C:12-1(b)(1) (count seven); felony murder of Juana Osuna, N.J.S.A. 2C:11-3(a)(3)(count eight); murder of Juana Osuna, N.J.S.A. 2C:11-3(a)(1)(2)(count nine); felony murder of Christian Made, N.J.S.A. 2C:11-3(a)(3)(count eleven); murder of Christian Made, N.J.S.A. 2C:11-3(a)(1)(4)(2)(count twelve); unlawful possession of a firearm, a "handgun", N.J.S.A. 2C:39-5(b)(count fourteen); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(count fifteen).1
Docket No.: a2506-10
Decided: 2012-05-07
Caption: JOSEPH COMPRELLI v. TOWN OF HARRISON
Status: unpublished
Summary:
PER CURIAM Plaintiffs Joseph Comprelli, M&J Comprelli Realty, LLC, Joseph Supor III, J. Supor & Son Trucking & Rigging, Co., Inc. and S&B Realty Co. own property in Harrison proximate to the PATH station and the Red Bull Arena on which they operate surface commercial parking lots. In 1988, plaintiffs received permission from the Town of Harrison Planning Board to operate a commercial parking lot. In 1993, plaintiffs received their first license for 145 parking spots. By 2008, the number of spaces increased to 1050. When the Town of Harrison (the Town) issued a license in 2010 for 198 spaces, plaintiffs commenced an action in lieu of prerogative writs. Judge Hector R. Velazquez granted defendants' motion to dismiss. We affirm. Plaintiffs operate a surface parking lot at 1000 Frank E. Rogers Boulevard in the Town. They have operated this parking lot since 1988.
Docket No.: a2633-09
Decided: 2012-05-07
Caption: STATE OF NEW JERSEY v. OMAR PARDO
Status: unpublished
Summary:
PER CURIAM A grand jury indicted defendant for second-degree forcible sexual assault, N.J.S.A. 2C:14-2c(1) (count one); third-degree criminal restraint, N.J.S.A. 2C:13-2b (count two); and second-degree sexual assault of a victim at least 13 but less than 16 years old, N.J.S.A. 2C:14-2c(4) (count three). Defendant was also charged with the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1a, and offering an alcoholic beverage to an underage person, N.J.S.A. 2C:33-17a.
Docket No.: a3438-09
Decided: 2012-05-07
Caption: STATE OF NEW JERSEY v. OSEAS S. PONS
Status: unpublished
Summary:
PER CURIAM Defendant Oseas Pons was convicted after trial by jury of multiple counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), and related offenses, including kidnapping, N.J.S.A. 2C:13-1. On October 8, 2004, he was sentenced to an aggregate term of thirty-five years of imprisonment subject to the eighty-five percent parole disqualifier found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant's convictions and sentence were affirmed on appeal. State v. Pons, No. A-2437-04 (App. Div. Oct. 3, 2007). The Supreme Court denied certification on December 5, 2007. State v. Pons, 193 N.J. 276 (2007).
Docket No.: a3968-10
Decided: 2012-05-07
Caption: RENEE STONE v. JOHN E. STONE, JR
Status: unpublished
Summary:
PER CURIAM In this post-divorce matrimonial case in which plaintiff-wife sought to modify defendant-husband's child support obligations, plaintiff appeals from paragraph three of an October 22, 2010 order enforcing a verbal agreement to split equally the private high school tuition for the parties' children.1 We reverse, remand, and direct the judge to (1) recalculate defendant's child support obligations, and consider in her analysis the children's private high school educational expenses and any other relevant factors; and (2) determine the nature of the parties' agreement and whether reallocation is warranted.
Docket No.: a4259-10
Decided: 2012-05-07
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. L.T.R.
Status: unpublished
Summary:
PER CURIAM Defendant L.T.R. (Louis)1 appeals from the March 17, 2011 Family Part order terminating his parental rights to his daughter, A.N.J.R. (Abigail), born in October, 2008. For the reasons that follow, we affirm.
Docket No.: a4261-10
Decided: 2012-05-07
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. L.G. andM.G.
Status: unpublished
Summary:
PER CURIAM In these consolidated appeals, defendants L.G. (Linda)1 and M.G. (Matthew) appeal from the determination by a Family Part judge that they abused and neglected their four-year-old daughter, A.G. (Abby) and five-year-old son, D.G. (Danny). The judge found the children were harmed as the result of witnessing acts of domestic violence between Linda and Matthew and between Linda and another man, not a party to this action. We conclude that the evidence presented was insufficient to support the findings of abuse and neglect and reverse. I.
Docket No.: a4864-10
Decided: 2012-05-07
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. P.M.J and M.R.A.
Status: unpublished
Summary:
PER CURIAM This is an appeal from the termination of a Title Nine1 protective services proceeding. Defendant Pamela J.2 appeals the April 29, 2011 order of the Family Part (1) ordering that her five-year-old son Stanley "shall remain in the legal and physical custody of [his father defendant Martin A.] under docket FD-04-2215-08-M" and (2) terminating the litigation.3 Pamela's primary grievance is that the Family Part denied her due process by failing to conduct a proper dispositional hearing required by New Jersey Division of Youth & Family Servs. v. G.M., 198 N.J. 382, 398-400 (2009). We disagree and affirm. I.
Docket No.: a5987-10
Decided: 2012-05-07
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. L.G. and M.G.
Status: unpublished
Summary:
PER CURIAM In these consolidated appeals, defendants L.G. (Linda)1 and M.G. (Matthew) appeal from the determination by a Family Part judge that they abused and neglected their four-year-old daughter, A.G. (Abby) and five-year-old son, D.G. (Danny). The judge found the children were harmed as the result of witnessing acts of domestic violence between Linda and Matthew and between Linda and another man, not a party to this action. We conclude that the evidence presented was insufficient to support the findings of abuse and neglect and reverse. I.
Docket No.: a6063-09
Decided: 2012-05-07
Caption: ALLSTATE OF NEW JERSEY INSURANCE COMPANY v. DELAWARE VALLEY PHYSICAL THERAPY
Status: unpublished
Summary:
PER CURIAM Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss the appeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.
Docket No.: a6064-09
Decided: 2012-05-07
Caption: ALLSTATE OF NEW JERSEY INSURANCE COMPANY v. DELAWARE VALLEY PHYSICAL THERAPY
Status: unpublished
Summary:
PER CURIAM Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss the appeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.
Docket No.: a6065-09
Decided: 2012-05-07
Caption: ALLSTATE OF NEW JERSEY INSURANCE COMPANY v. DELAWARE VALLEY PHYSICAL THERAPY
Status: unpublished
Summary:
PER CURIAM Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss the appeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.
Docket No.: a6066-09
Decided: 2012-05-07
Caption: ALLSTATE OF NEW JERSEY INSURANCE COMPANY v. DELAWARE VALLEY PHYSICAL THERAPY
Status: unpublished
Summary:
PER CURIAM Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss the appeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.
Docket No.: a6067-09
Decided: 2012-05-07
Caption: ALLSTATE OF NEW JERSEY INSURANCE COMPANY v. DELAWARE VALLEY PHYSICAL THERAPY
Status: unpublished
Summary:
PER CURIAM Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss theappeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.
Docket No.: a6068-09
Decided: 2012-05-07
Caption: ALLSTATE OF NEW JERSEY INSURANCE COMPANY v. DELAWARE VALLEY PHYSICAL THERAPY
Status: unpublished
Summary:
PER CURIAM Allstate of New Jersey Insurance Company (Allstate) appeals from six Law Division orders entered on May 7, 2010, denying its motions for summary judgment to dismiss with prejudice arbitration awards for Personal Injury Protection (PIP) benefits in favor of patients of Delaware Valley Physical Therapy (Therapy). The PIP arbitration awards were assigned by the patients to Therapy. Allstate also challenges corresponding summary judgment motions in favor of Therapy upholding the arbitration awards. We dismiss the appeal and hold that Allstate has no right to seek review in this court from the Law Division's decision. Finally, we affirm orders awarding attorney fees to Therapy, following its successful defense of Allstate's motions for reconsideration.
Docket No.: a6241-10
Decided: 2012-05-07
Caption: DALE J. ECKENSBERGER SR v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Status: unpublished
Summary:
PER CURIAM Appellant Dale Eckensberger, Sr. appeals from the final decision of respondent Board of Review (Board), which affirmed the Appeal Tribunal's decision that appellant's claim for unemployment compensation benefits was invalid, and he was liable to refund the amount of $24,676 he had received pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. We remand to the Director of the Division of Unemployment Compensation to consider appellant's request for a waiver of repayment.
Docket No.: a0382-11
Decided: 2012-05-04
Caption: IN THE MATTER OF THE ESTATE OF WILLIE BOOKER
Status: unpublished
Summary:
PER CURIAM Willie Booker died intestate. His sole heir was an adult son. Decedent's mother, Margaret Bryant, filed a verified complaint seeking her appointment as administrator of the estate, creation of a statutory special needs trust, and appointment of a trustee for her grandson. Bryant filed another verified complaint seeking a medical and psychiatric evaluation of her grandson, a declaration of incapacity, and her appointment as guardian of her grandson's property and person. Approximately six months after filing the complaints, Bryant discharged her attorney and proceeded pro se. Approximately six weeks later, Bryant withdrew the guardianship action and the court entered the dismissal. Bryant's attorney appeals from the August 9, 2011 order denying his application for fees. We affirm. Judge Koprowski held there was "no legal basis to award counsel fees from the Estate" to Bryant's attorney. He noted that the guardianship complaint had been withdrawn, it was "severely deficient on its face," the subject of the guardianship was a resident and domiciliary of Pennsylvania and a guardianship action had not been filed there, and Bryant had not demonstrated how any of her actions aided in preservation or protection of the corpus of the estate. The judge stated:
Docket No.: a1021-10
Decided: 2012-05-04
Caption: STATE OF NEW JERSEY v. GREGORY POWELL
Status: unpublished
Summary:
PER CURIAM Defendant Gregory Powell appeals his conviction for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), as well as the resulting aggregate sentence of incarceration for eight years with an eighty-five-percent period of parole ineligibility. We affirm. I.
Docket No.: a1095-10
Decided: 2012-05-04
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. R.B. and D.S IN THE MATTER OF THE GUARDIANSHIP OF T.B., A Minor
Status: unpublished
Summary:
PER CURIAM
Docket No.: a1187-10
Decided: 2012-05-04
Caption: DIVISION OF YOUTH AND FAMILY SERVICES v. R.B. and D.S IN THE MATTER OF THE GUARDIANSHIP OF T.B., A Minor
Status: unpublished
Summary:
PER CURIAM
Docket No.: a1340-10
Decided: 2012-05-04
Caption: HAL HOLDING, L.L.C v. TOWNSHIP OF MOUNT LAUREL
Status: unpublished
Summary:
PER CURIAM Plaintiff Hal Holding, LLC, is the owner of approximately 175 acres of land located in Mount Laurel, consisting of two nine-hole golf courses known as the "Red Course" and "White Course," Ramblewood Swim Club and Ramblewood Country Club (collectively the subject property). The subject property, along with a third nine-hole golf course known as the "Blue Course," comprises the Ramblewood Golf Course and Country Club (RGCC). The Blue Course, owned by a non-profit homeowner's association known as Ramblewood Village Club, is leased to plaintiff. Plaintiff now appeals from an order of the Law Division concluding that three Mount Laurel Township ordinances apply to the subject property and preclude plaintiff from subdividing the property for residential use or otherwise converting the property to a use other than a golf course and country club. Defendants, the Township of Mount Laurel (the Township) and the Mayor and Council of Mount Laurel (collectively defendants), cross-appeal from the dismissal of their counterclaim, which alleged that plaintiff improperly acquired title to the Blue Course and retained a controlling stake in Ramblewood Village Club. We affirm as to both the appeal and cross-appeal.
Docket No.: a1418-10
Decided: 2012-05-04
Caption: STATE OF NEW JERSEY v. VINCENT SANBORN
Status: unpublished
Summary:
PER CURIAM Defendant Vincent Sanborn appeals his conviction for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count two); two counts of fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (counts three and four); two counts of third-degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (counts five and six); and the disorderly persons offense for resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Sanborn also challenges his aggregate sentence of eight years with an eighty-five-percent period of parole ineligibility. We affirm.
Docket No.: a2431-10
Decided: 2012-05-04
Caption: STATE OF NEW JERSEY v. SHAQUAN GRAY
Status: unpublished
Summary:
PER CURIAM Defendant Shaquan Gray appeals from the July 16, 2010 order that denied his petition for post-conviction relief (PCR). Convicted on his non-negotiated guilty plea to two counts of first-degree robbery, defendant was sentenced to concurrent ten-year prison terms, both including an eighty-five percent period of parole ineligibility. Defendant argues that his counsel was ineffective for failing to assert the existence of mitigating factors at defendant's sentencing, correct the trial court's erroneous evaluation of aggravating and mitigating sentencing factors, and argue that defendant should be sentenced as if to a crime graded one degree lower. We reject those arguments and affirm.
Docket No.: a2738-10
Decided: 2012-05-04
Caption: LOIS LEBBING v. MIDDLESEX COUNTY CLERK'S OFFICE
Status: unpublished
Summary:
PER CURIAM In this matter, plaintiff Lois Lebbing claimed that defendants Middlesex County, the Middlesex County Clerk and Clerk's Office, and the Middlesex County Board of Chosen Freeholders (collectively, the County) violated the common law right of access and the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, by charging a fee for copies of public records made on both self-service photocopy machines owned by a vendor (the self-service photocopiers claim) and County-owned printers connected to the County's computer database (the computer printers claim) that exceeded the County's actual cost for the copies. Plaintiff sought a refund of all sums the County had collected in excess of its actual cost, injunctive relief, an accounting, and attorney's fees and costs. The County appeals from that part of the September 2, 2010 Law Division order, which denied its motion to dismiss plaintiff from this matter for lack of standing and its motion for summary judgment regarding plaintiff's attorney's fee petition. The County also appeals from the January 11, 2011 order, which awarded plaintiff attorney's fees and costs. Plaintiff cross-appeals from the January 11, 2011 order as to the amount of the attorney's fee award and the denial of a stipend for herself. We affirm all orders.
Docket No.: a4463-10
Decided: 2012-05-04
Caption: J.M v. J.R
Status: unpublished
Summary:
PER CURIAM Plaintiff J.M., to whom we refer by the pseudonym Jane, and defendant J.R., to whom we refer by the pseudonym James, are the parents of a daughter born in January 2007. Jane appeals the February 16, 2011 and April 11, 2011 orders of the Family Part to the extent they (1) grant James expanded parenting time, (2) deny her request to modify the times of parenting exchanges, (3) deny her request to increase their daughter's preschool attendance; and (4) modify the parent-child holiday schedule. We affirm in part and remand in part.
Docket No.: a4953-10
Decided: 2012-05-04
Caption: CAROLE GORDON v. ALEXANDER A. PUHALLA
Status: unpublished
Summary:
PER CURIAM MATTER SETTLED.
Docket No.: a5882-09
Decided: 2012-05-04
Caption: BANK OF NEW YORK v. UZI MAROM
Status: unpublished
Summary:
PER CURIAM In this foreclosure case, defendants appeal from a May 14, 2010 order1 denying their motion to vacate a sheriff's sale, stay a deed transfer, and obtain leave to issue a subpoena and conduct discovery; and a July 9, 2010 order that denied both reconsideration and their new motion to vacate default judgment. We affirm.
Docket No.: a3092-10
Decided: 2012-05-03
Caption: OF YOUTH AND FAMILY SERVICES v. T.T IN THE MATTER OF D.T M.T T.L., R.T., and I.T Minors
Status: unpublished
Summary:
PER CURIAM In this appeal, we consider whether the trial court correctly found that defendant T.T.'s conduct with regard to her daughter, C.T., constituted abuse and neglect under Title Nine, N.J.S.A. 9:6-8.21 to -8.73.1 The Division of Youth and Family Services (the Division) commenced this action, claiming C.T. was an abused or neglected child within the meaning of N.J.S.A. 9:6-8.21(c), when subjected to corporal punishment while residing at defendant's home. In early 2008, when the events in question occurred, C.T. was sixteen years old. At the conclusion of a factfinding hearing, the Family Part judge found C.T. was abused and neglected. We conclude that the court's findings are supported by substantial credible evidence in the record and affirm.
Docket No.: a3448-09
Decided: 2012-05-03
Caption: NEW JERSEY SCHOOLS CONSTRUCTION CORPORATION v. POWER TEST REALTY COMPANY, L.P.
Status: unpublished
Summary:
PER CURIAM The matter having been amicably adjusted and the parties having stipulated to the dismissal of this appeal, it is hereby ordered that the appeal is dismissed with prejudice and without costs.
Docket No.: a3891-09
Decided: 2012-05-03
Caption: STATE OF NEW JERSEY v. LEROY MCLAUREN
Status: unpublished
Summary:
PER CURIAM Defendant Leroy McLauren appeals from the Law Division's March 23, 2010 order dismissing his petition for post-conviction relief (PCR). We affirm.
Docket No.: a4027-10
Decided: 2012-05-03
Caption: DIVSION OF YOUTH AND FAMILY SERVICES v. S.L.U and M.W IN THE MATTER OF THE GUARDIANSHIP OF A.R.U Minor
Status: unpublished
Summary:
PER CURIAM The New Jersey Division of Youth and Family Services (DYFS) appeals an order of the Family Part, dated March 23, 2011, dismissing its guardianship complaint filed against defendant S.L.U. (Sue) for termination of Sue's parental rights and for resource parent adoption of Sue's son, A.R.U. (Aaron).1 The order also terminated the guardianship litigation and reopened the protective service litigation. DYFS argues the judge erred by not terminating Sue's parental rights, as DYFS established by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.
Docket No.: a4164-09
Decided: 2012-05-03
Caption: LARKEN ASSOCIATES L.L.C. v. P&H CLINTON PARTNERSHIP
Status: unpublished
Summary:
PER CURIAM These are back-to-back appeals, which we address in a single opinion. In A-4164-09, plaintiffs Larken Associates, L.L.C., JLB Associates, L.L.C. and Readington Commons II, L.L.C. (hereafter, plaintiffs or Larken) appeal from an order of summary judgment, dated April 28, 2010, dismissing plaintiffs' claims against defendants P&H Clinton Partnership, Pulte Homes of New Jersey, L.P. and Pulte Home Corporation of the Delaware Valley (hereafter, P&H) of malicious use of process, malicious abuse of process, tortious interference with economic advantage, and tortious interference with a contractual relationship. Plaintiffs also appeal orders denying their motions to disqualify P&H's counsel, Hill Wallack, L.L.P., and to pierce the attorney-client privilege between Hill Wallack and P&H in order to permit the depositions of certain Hill Wallack attorneys. In A-5344-09, plaintiffs Larken Associates, L.L.C., JLB Associates, L.L.C., Readington Commons II, L.L.C., and Lawrence Gardner, Larken's chief executive officer, (hereafter, Larken or plaintiffs) appeal a May 28, 2010 order of summary judgment dismissing their claims against defendants Hill Wallack, L.L.P. and attorneys Thomas Carroll, III, Stephen Eisdorfer, the Estate of Henry Hill, Esq., and Kenneth Meiser (hereafter, Hill Wallack) for abuse of process, malicious use of process, tortious interference with contractual relations and prospective economic advantage, and legal malpractice. We affirm.
Docket No.: a4578-10
Decided: 2012-05-03
Caption: LEXINS, LLC v. POWERPLACE SOFTWARE INC
Status: unpublished
Summary:
PER CURIAM Plaintiff Lexins, LLC, appeals from summary judgment, dismissing its complaint against defendant Dan Kenton. Plaintiff alleged Kenton was individually liable for the breach of the lease between plaintiff, the landlord, and PowerPlace Software Inc. (PowerPlace), the tenant. The motion judge found no legal basis to impose personal liability for the corporation's default. On appeal, plaintiff argues the motion judge erred by assuming facts not in the record and because the facts regarding Kenton's liability as a named tenant in the lease document was reasonably disputed, obviating summary judgment. We disagree and affirm.
Docket No.: a5127-10
Decided: 2012-05-03
Caption: OF YOUTH AND FAMILY SERVICES v. M.M.B IN THE MATTER OF THE GUARDIANSHIP OF N.K.T.W., a minor
Status: unpublished
Summary:
PER CURIAM M.M.B. appeals from an order entered by the Family Part on May 10, 2011, terminating her parental rights to N.K.T.W. For the reasons that follow, we affirm. We briefly summarize the relevant facts. In January 2009, a social worker at a hospital reported to the Division of Youth and Family Services (Division) that M.M.B., who was then twenty-four years old and in the second trimester of her pregnancy, had not received prenatal care, admitted she regularly used cocaine, and acknowledged that she suffered from bipolar disorder. M.M.B. said that T.W. was the child's father. After M.M.B. was released from the hospital, she met with one of the Division's caseworkers and entered into a case plan, wherein she agreed to receive prenatal care.
Docket No.: a5344-09
Decided: 2012-05-03
Caption: LARKEN ASSOCIATES L.L.C. v. P&H CLINTON PARTNERSHIP
Status: unpublished
Summary:
PER CURIAM These are back-to-back appeals, which we address in a single opinion. In A-4164-09, plaintiffs Larken Associates, L.L.C., JLB Associates, L.L.C. and Readington Commons II, L.L.C. (hereafter, plaintiffs or Larken) appeal from an order of summary judgment, dated April 28, 2010, dismissing plaintiffs' claims against defendants P&H Clinton Partnership, Pulte Homes of New Jersey, L.P. and Pulte Home Corporation of the Delaware Valley (hereafter, P&H) of malicious use of process, malicious abuse of process, tortious interference with economic advantage, and tortious interference with a contractual relationship. Plaintiffs also appeal orders denying their motions to disqualify P&H's counsel, Hill Wallack, L.L.P., and to pierce the attorney-client privilege between Hill Wallack and P&H in order to permit the depositions of certain Hill Wallack attorneys. In A-5344-09, plaintiffs Larken Associates, L.L.C., JLB Associates, L.L.C., Readington Commons II, L.L.C., and Lawrence Gardner, Larken's chief executive officer, (hereafter, Larken or plaintiffs) appeal a May 28, 2010 order of summary judgment dismissing their claims against defendants Hill Wallack, L.L.P. and attorneys Thomas Carroll, III, Stephen Eisdorfer, the Estate of Henry Hill, Esq., and Kenneth Meiser (hereafter, Hill Wallack) for abuse of process, malicious use of process, tortious interference with contractual relations and prospective economic advantage, and legal malpractice. We affirm.
Docket No.: a0599-08
Decided: 2012-05-02
Caption: STATE OF NEW JERSEY v. MARLON SIMON
Status: unpublished
Summary:
PER CURIAM Following denial of his motion to suppress evidence, defendant pled guilty to count three of a six-count indictment: third degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. The judge imposed a six-year term of imprisonment subject to a three-year period of parole ineligibility. The judge also imposed the appropriate fines, penalties and assessments. On appeal, defendant raises the following argument:
Docket No.: a1523-10
Decided: 2012-05-02
Caption: STATE OF NEW JERSEY v. JAMIE CENTENO
Status: unpublished
Summary:
PER CURIAM After trial by jury, defendant Jamie Centeno was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count four); and certain persons not to possess weapons, N.J.S.A. 2C:39-7(b) (count five). On March 23, 2010, defendant was sentenced to life on the murder charge, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Count two was merged with count one. He received a five-year term of imprisonment on count three, concurrent to count one. Four years of imprisonment were made consecutive to count one on count four, and a seven-year term with five years of parole ineligibility on count five was also made consecutive to counts one and four. Appropriate monetary penalties were also imposed. Defendant appeals, and we affirm. We summarize the facts from the trial record. Defendant's killing of Jose Sosa occurred around midnight on December 13, 2008. Sosa was then seated with a friend at the bar, The Waterview Inn, also known as Monte's.1 Earlier that evening, when defendant entered the bar, he asked the bartender, Rose Marie Nelson, if he could charge his cell phone. She directed him to another area of the bar, near the pool table. Defendant was wearing dark clothes, including a jacket or "hoodie." During the course of the evening, defendant and an acquaintance, Diana Ocasio, spoke briefly. Defendant complimented Ocasio on her appearance, and with his cell phone photographed the two of them standing together.
Docket No.: a2585-10
Decided: 2012-05-02
Caption: LYNNE C. HALLANAN v. TOWNSHIP OF FAIRFIELD BOARD OF EDUCATION
Status: unpublished
Summary:
PER CURIAM Plaintiff Lynne C. Hallanan, a former Supervisor of Curriculum and Instruction for defendant Township of Fairfield Board of Education (Board) filed a complaint against her employer and its superintendent, defendant John Klug, in which plaintiff alleged that her termination violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.1 She appeals from the order granting defendants' motion for summary judgment and dismissing her CEPA claim. We reverse. We review a summary judgment in accordance with the same standard as the motion judge. Maimone v. City of Atlantic City, 188 N.J. 221, 233 (2006). We apply the standard articulated in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):
Docket No.: a2695-10
Decided: 2012-05-02
Caption: DAVID A. FRY, SR v. LYNNE A. FRY
Status: unpublished
Summary:
PER CURIAM In this post-judgment matrimonial appeal, we review an order entered following an evidentiary hearing. The November 2007 amended dual judgment of divorce (JOD) between plaintiff David A. Fry, Sr., and defendant Lynne A. Fry required defendant to return or make available to plaintiff certain personal property. Judge Tomasello found that defendant did not return or make available to plaintiff portions of a train collection accumulated by plaintiff during the marriage as required by the JOD. Based on records and notations made by plaintiff at the time he acquired individual items of the collection and a publication considered authoritative as to value by collectors, the trial judge awarded $27,187 to plaintiff.1 Defendant argues the facts found by Judge Tomasello are not supported by the record, and plaintiff failed to submit sufficient evidence to establish with any specificity the missing property. Defendant also contends that the trial judge improperly relied on a transcript from the December 11, 2007 hearing regarding discharge of a final domestic violence restraining order entered in 2004 against plaintiff.
Docket No.: a4397-10
Decided: 2012-05-02
Caption: STATE OF NEW JERSEY v. JOSE GILBERTO RAMOS
Status: unpublished
Summary:
PER CURIAM Defendant appeals from an April 5, 2011 order denying his third petition for post-conviction relief (PCR). He challenges the jury charge and verdict sheet, and contends that the PCR judge erred by barring his petition. We affirm.
Docket No.: a6159-10
Decided: 2012-05-02
Caption: WHITMAN CONSTRUCTION LLC v. NEW FIRST MILLENNIUM PROPERTIES LLC
Status: unpublished
Summary:
PER CURIAM Plaintiff Whitman Construction, LLC, appeals from the July 8, 2011 order of the Law Division dismissing its complaint and confirming an arbitrator's award finding no cause of action against defendants New First Millennium Properties, LLC, Jonathan Tiger, and Edward Kalinowski. Having reviewed the issues raised on appeal in light of the applicable law and the record before us, we conclude that they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm essentially for the reasons stated by Judge Rochelle Gizinski in her oral decision of July 8, 2011.
