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Coard v. Oaks Integrated Care, Inc.

Client: Oaks Integrated Care, Inc.

Court:  Appellate Division

Brief Attorney:  Joseph F. Betley, Esq. and Sanmathi (Sanu) Dev, Esq.

Plaintiff, who is African-American, alleged that he was improperly terminated from his position at Oaks Integrated Care, Inc. (“Oaks”), because of his race, in violation of the New Jersey Law Against Discrimination (“NJLAD”).  After receiving an anonymous tip alleging plaintiff was smoking marijuana outside the group home, Oaks suspended plaintiff pending an internal investigation.  Oaks found the allegations to be unsubstantiated and contacted plaintiff multiple times to schedule his return to work, but plaintiff did not return the calls.  Plaintiff was subsequently terminated due to his violation of Oaks’ attendance and conflict resolution policy.

Plaintiff brought suit under the NJLAD alleging he was terminated because of his race.  He premised the claim on comments his supervisor allegedly made questioning his ability to afford certain “luxuries,” such as designer jeans, sneakers, rental cars, and vacations.  The motion judge determined that plaintiff’s “subjective feelings of race-based discrimination” failed to demonstrate a prima facie violation of the NJLAD and dismissed the case.  On appeal, the Appellate Division agreed that plaintiff’s termination was not a pretext for discrimination and upheld the dismissal.

 

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Multiple Medical Reimbursement Cases Dismissed for Lack of Jurisdiction

A number of medical providers for New York workers’ compensation claimants had filed medical reimbursement applications in the Division of Workers’ Compensation in New Jersey seeking the higher New Jersey rates.  We filed motions to dismiss for lack of jurisdiction with briefs arguing that there is no New Jersey jurisdiction if the injured worker himself would not have the right to file a New Jersey claim because of lack of employment/ injury connection to New Jersey.

Judge Ferriero in Hackensack agreed with our arguments and has dismissed for lack of jurisdiction , with prejudice a total of 20 claims over the past several months for a number of our clients – Amtrust, Glacier Bay, York Claims Services, First MCO, PMA and Chesterfield. The applicant’s attorney has not elected to appeal these dismissals.  Claire Ringel, Esq. and Caroline Yount, Esq. on the motions and briefs.

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Rose v. Lasasso et al.

Client: Farmers Insurance Company of Flemington

Court:  Appellate Division

Brief Attorney:  Christopher J. Carlson, Esq.

Our insured was one of dozens of attendees at a party where Plaintiff claimed that he was assaulted. At deposition, Plaintiff acknowledged that he had no proof that the insured was involved in the alleged assault. A “frivolous litigation” letter was accordingly immediately issued to Plaintiff’s counsel. When the Complaint was not withdrawn, a Motion for Summary Judgment was filed and granted. Thereafter, a Motion for Sanctions against Plaintiff’s counsel was granted.  After judgment against Plaintiff’s counsel was docketed, Plaintiff’s counsel ultimately appealed the same, though he had never opposed the Motion for Summary Judgment or the Motion for Sanctions.  The Appellate Division affirmed the award of sanctions. Currently pending is our Motion seeking additional sanctions against Plaintiff’s counsel for the frivolous appeal, since a second “frivolous litigation” letter was served upon him immediately upon the filing of the appeal.

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Chinchilla v. Walmart

Client:  Claims Management, Inc.

Attorney:  Ana-Eliza T. Bauersachs, Esq.

Petitioner filed a Motion for Temporary and/or Medical Benefits requesting lumbar spine surgery and injections to the cervical spine, as well as temporary disability benefits.  The respondent opposed the motion with a report from Dr. Gatto, who found petitioner’s condition not work related.

At trial, petitioner testified as to her employment duties. Petitioner’s IME doctor subsequently testified regarding petitioner’s current need for treatment and causal relationship.  Thereafter, Respondent’s expert, Dr. Gatto, testified and concluded there was no causal relationship between petitioner’s diagnoses and her occupational exposure. Rather, the doctor felt petitioner’s objective changes were age-related. Judge Thuring ordered the parties to obtain a third opinion. The court-appointed expert agreed with respondent’s expert and concluded petitioner’s condition was degenerative, not occupational in nature. Following submission of briefs, Judge Thuring issued an oral decision denying the Motion for Temporary and/or Medical Benefits, finding petitioner’s lumbar and cervical spine changes degenerative in nature and concluding that, pursuant to Section 31, age-related changes are not compensable.

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Chavez v. Orange Board of Education et al., Docket Number ESX-L-451-17

Client: Orange Board of Education

Brief Attorney:  Jessica M. Anderson, Esq.

Plaintiff, a 17 year old senior at Orange High School, left school without permission in the early afternoon to go skateboarding and was injured when he hit a defect in the roadway.  Plaintiff’s claimed injuries included a skull fracture, cerebral hemorrhage which resulted in a crainiotomy and crainioplasty, memory loss, cognitive and neurologic dysfunction, and acute respiratory failure.

We filed a motion for summary judgment arguing that pursuant to Pico and Ogborne, Plaintiff cannot invoke liability under both dangerous condition liability pursuant to N.J.S.A. 59:4-2 and the ordinary negligence standard in N.J.S.A. 59:2-2.  We further argued that Plaintiff’s claim that Defendant allowed Plaintiff to leave school property is not viable because Defendant is immune for failure to enforce the law pursuant to N.J.S.A. 59:2-4, for its exercise of discretion when determining whether and how to apply resources pursuant to N.J.S.A. 59:2-3(d), for injury caused by an escaping person pursuant to N.J.S.A. 59:5-2(b)(2), and even if Defendant was not immune, Plaintiff could not prove the elements of a dangerous condition or negligence because Plaintiff was not exercising due care, Defendant did not have a duty or prevent Plaintiff from leaving school property because he was over the age of 16 and our compulsory education statute limits the age in which a child must attend school to the ages between six and sixteen, and no reasonable jury could conclude that Defendant’s alleged negligence proximately caused the accident.

Plaintiff agreed that dangerous condition liability pursuant to N.J.S.A. 59:4-2 applied, and not the ordinary negligence standard in N.J.S.A. 59:2-2.  However, Plaintiff argued that the immunities did not apply because he was not making an argument that Defendant failed to enforce the truancy laws, but rather was arguing that Defendant failed to adequately follow its own procedures and protocols – i.e. failing to notify Plaintiff’s parents that he was cutting school;  discretionary immunity did not apply because his liability expert outlined the duty imposed on Defendant; and that N.J.S.A. 59:5-2(b)(2) only applies to escaped prisoner or persons under police arrest or police custody.  Plaintiff further argued that the manner in which security was run at the school created a dangerous condition because students would cut class and leave school via the trailer area; Plaintiff’s failure to exercise due care is a question for the jury; and that Defendant proximately caused his accident because they knew students were cutting school by leaving through the trailer area and failed to stop them.

We filed a reply brief arguing that the immunities do apply because failing to enforce truancy laws or failing to notify Plaintiff’s parents that he was cutting school bears no material difference; the duty outlined by Plaintiff’s expert is immaterial as the court must first determined whether an immunity applies before engaging in a liability analysis; and that our courts have held that N.J.S.A. 59:5-2(b)(2) should receive a board interpretation in view of the clear legislative objective of immunity and as such has been applied to public entities beyond police departments.  See Tice v. Cramer, 254 N.J. Super. 641, 648 (App. Div. 1992).  Defendant further argued that Plaintiff has not asserted a viable theory because there is no indication that there was a physical defect in the trailers themselves, Levin v. County of Salem, 133 N.J. 35, 44 (1993); the term “due care” has been interpreted to mean objective, not subjective, due care and Plaintiff has failed to prove that element; and the exclusive proximate cause of this accident was Plaintiff’s poor decision to skateboard down a dangerously steep hill, without a helmet or any protective gear, even after being repeatedly warned by his friend not to, not the condition of the trailers.

The Court agreed with Defendant’s argument and granted summary judgment finding that discretionary immunity applied, that there wasn’t a physical defect in the trailers themselves, and that Defendant’s property was not a proximate cause of Plaintiff’s accident.

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N.P., o/b/o M.B v. Oaklyn Borough Board of Education, (OAL DKT. NO. EDS 10187-18)

Client: Oaklyn Borough Board of Education

Venue: New Jersey State Office of Administrative Law

Brief Attorney: Robert A. Muccilli, Esq.

The parents of a special education student brought a due process petition against the Oaklyn Borough Board of Education seeking, among other things, compensatory education related to allegations that Oaklyn failed to implement certain elements of a Section 504 plan for the student.  Oaklyn made an application that the petition should be dismissed for failure of the parent to sufficiently set forth the facts and proposed remedy in the petition.  Oaklyn prevailed by obtaining an order from the Office of Administrative Law dismissing the petition for failure of the parent to sufficiently allow Oaklyn and the tribunal the ability to understand the nature of the dispute.

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M.F. and W.W. o/b/o A.F. v. Collingswood Borough Board of Education, (OAL DKT. NO. EDS 13180-18)

Client: Collingswood Borough Board of Education

Venue: New Jersey State Office of Administrative Law

Brief Attorney: Robert A. Muccilli, Esq.

The parents of a special education student who transferred into the Collingswood School District brought an emergent relief application seeking an order that Collingswood maintain an out-of-district placement at the New Grange School which was the placement contained in an IEP developed by the student’s prior school district.  Collingwood opposed the placement at New Grange and proposed within 30 days of the student’s transfer an alternative placement located in-district.  The Collingswood School District prevailed in obtaining a decision from the Office of Administrative Law denying the parent’s application for emergent relief.

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Heather Deitch v. Camden County Educational Services Commission, (OAL DKT. NO. EDU 11837-18)

Client: Camden County Educational Services Commission

Venue: New Jersey State Office of Administrative Law

Brief Attorney: Robert A. Muccilli, Esq.

Heather Deitch alleged that the Camden County Educational Services Commission violated her tenure and seniority rights when it chose not to interview and appoint her to a teacher/media specialist position that was the subject of a shared services agreement between the Commission and the Berlin Borough School District.  The Commission prevailed in obtaining a Commissioner of Education decision dismissing the petition of appeal against it.

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Southampton Board of Education v. Southampton Township Education Association, (PERC DKT. NO. C-2018-269)

Client: Southampton Board of Education

Venue: State of New Jersey Public Employment Relations Commission

Brief Attorney: Robert A. Muccilli, Esq.

The Education Association charged that the Board of Education failed to negotiate regarding the scheduling of teacher work days prior to September 1, 2019 and failed to negotiate regarding the impact of establishment of a school calendar that called for teachers to report to work prior to September 1st. The Education Association sought interim restraints against the Board. The Southampton Board prevailed in obtaining an order from the Commission’s Designee denying the Association’s application for interim relief.

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McNeil v. Township of Ewing et al.

Client: NIP Management Services, LLC,
Claims Administrator for the Garden State Municipal Joint Insurance Fund

Court:  Mercer County Superior Court

Trial Attorney:  Christopher J. Carlson, Esq.

Plaintiff brought a claim alleging a variety of very serious injuries to several parts of her body which she attributed to a minor motor vehicle accident where a police officer in the course of his employment lightly struck the rear of the vehicle in which Plaintiff was a passenger.  Similar bodily injury claims asserted on behalf of her two children were dismissed via a Motion for Summary Judgment relying upon the Tort Claims Act, but Plaintiff’s claim was permitted to proceed to trial.  Liability was accordingly stipulated, with the issue of damages to be decided by the jury.

After thorough cross-examination of Plaintiff which called into question her version of the accident and what allegedly happened to her body within the vehicle, and thus her credibility, the jury was shown vehicle “damage” photographs and heard the testimony of the vehicle owner, who acknowledged that the vehicle was never repaired after the accident.  Thereafter, the defense relied upon the report and testimony of an accident reconstructionist and a biomechanist, arguing that- contrary to her testimony- the minimal impact would not have subjected Plaintiff’s body to forces severe enough to cause her significant and permanent injury, which Plaintiff was required to prove in order to prevail under the Tort Claims Act, applicable to this matter given the status of Defendants as a municipal entity.

Thorough cross-examination of Plaintiff’s medical expert, combined with credible testimony from the defense medical expert, presented the jury with evidence that many of Plaintiff’s alleged injuries were at least to some extent pre-existing, and completed the presentation of a defense that comprehensively refuted each aspect of Plaintiff’s claim.

The jury accordingly returned a verdict for our clients, finding that Plaintiff’s alleged injuries attributable to the accident did not satisfy the Tort Claims Act.

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