Homeowner not liable for sweetgum spiky seed pod slip and fall

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Sweetgum treeIn the past, I have written about whether property owners can be liable for slip-and-fall accidents caused by ice and snow on their sidewalks. (Click here, here, and here for examples.) This is the first time I will address the related topic of whether property owners can be liable for accidents caused by "spiky seed pods" that fall from sweetgum trees on their property. Turns out that the source of the slippery sidewalk does not change the law too much for residential property owners.

In Neilson v. Dunn, plaintiff was injured when she slipped on spiky seed pods that fell from a sweetgum tree on defendant's property onto an adjacent sidewalk. The tree had been on defendant's property since she and her husband bought it, and plaintiff knew that there were seed pods on the sidewalk when she began her walk. Defendant also "employ[ed] a lawn maintenance contractor whose services include fall and spring clean ups." The most recent clean up occurred two month's prior to plaintiff's accident.

After plaintiff sued, defendant moved for summary judgment, arguing that she could not be liable for plaintiff's injuries because she had neither created nor exacerbated a dangerous condition on the sidewalk. She argued that the "seed pod accumulation" was a natural condition over which she had no control, and that she acted reasonably in retaining a lawn maintenance service to "periodically clean up any debris, [including the seed pods,] on her lawn and sidewalk." Plaintiff countered that defendant had a duty to ensure that her property was spiky seed pod free and that her failure to do so created a hazardous condition.

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Have You Ever Left $600 At The Counter Of A UPS Store?

Security camera (pd)
Me neither, but that is what happened in Glenn v. Duroseau. In fact, plaintiff in that case alleged that she not only left the money on the counter but that, when she went back a few minutes later, it was gone. To make matters worse, the security camera in the store did not work, so there was no way to tall exactly what happened. The trial court originally held this against the store owner, holding that he had a duty to plaintiff to ensure that the security cameras were working, but this decision was reversed on appeal. 

In Glenn, plaintiff claimed that she walked into a UPS Store and placed her pocketbook on the counter, along with an envelope containing $600 in cash. When she left, she claimed that she took the pocketbook but not the envelope. She walked about four blocks away from the store before she realized that she was missing the envelope. When she returned to the store, the envelope was gone. She asked a store employee if he had seen it, but he responded that plaintiff did not leave an envelope in the store. Plaintiff became upset and called her boyfriend, who arrived and told the employee to give plaintiff her money back. The employee again denied that plaintiff had left an envelope in the store. 

Plaintiff then called the police. When police officers arrived, they asked if the security cameras in the store were working. The employee did not know, but called his boss, who arrived on the scene and promised to review the tapes. However, it turned out that the security cameras were not working. Plaintiff sued the store owner, seeking the return of her $600.

 

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Borrowers Cannot Vacate Final Judgment Of Foreclosure Because They “Read Something Wrong”

Foreclosure (PD)
This might have seemed obvious, but the Appellate Division nonetheless recently confirmed that a borrower's claim that it "read something wrong" could not establish "excusable neglect" sufficient to vacate a final judgment of foreclosure.

In New Jersey Housing and Mortgage Finance Agency v. Wolinski, borrowers defaulted on their mortgage and their lender filed a foreclosure complaint. The first complaint named borrowers and "John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants." This complaint was voluntarily dismissed against all parties, real and fictitious. The second complaint, filed approximately six months later, also named borrowers and "John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants." This complaint was also voluntary dismissed, but only as to the fictitious defendants.

Borrowers never answered the complaint and the lender filed a request to enter default, and then obtained final judgment by default. The lender scheduled a sheriff's sale but the borrowers filed for bankruptcy protection. The lender moved to lift the bankruptcy stay. After this motion was granted, the borrowers moved to vacate final judgment. They argued: (1) that they misread the dismissal of the second foreclosure complaint to be, like the dismissal of the first one, a dismissal of all defendants, not just the fictitious ones; and (2) that the trial court abused its discretion when it allegedly miscalculated the amount due in the final judgment. The Appellate Division rejected both of these arguments.

 

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Fishing Hole Fight Fails To State Claim For Harassment And Discrimination

FishingA morning out fishing on the lake ended up in a lawsuit between two residents of a gated community. In Chrzanowski v. Harriz, plaintiff and defendant were both members of the Smoke Rise Club, which the court described as "essentially a homeowners association" for residents of a gated community known as Smoke Rise. One of the privileges of membership in the Smoke Rise Club is access to a lake and an adjacent beach and dock. One morning, plaintiff and his nine-year-old son were attempting to fish from the dock at the same time as Harriz when "a dispute occurred between [them] over fishing locations." Harriz told plaintiff that he did not want plaintiff fishing near him, "directed coarse and offensive language" at plaintiff and his son, and told plaintiff that plaintiff did not belong in the Smoke Rise Club.  Then, after Harris overhead plaintiff talking to his son in Polish, Harriz allegedly called plaintiff "an ignorant foreigner who could not speak English." As the dispute escalated, Plaintiff saw Harriz get on his phone and heard Harriz request that plaintiff be removed from the facilities. Feeling threatened, plaintiff called Smoke Rise security and the police. When the police arrived, they spoke to both parties and sent them both on their ways without filing any charges.

Plaintiff later sued Harriz and Smoke Rise, alleging (1) that both defendants discriminated against him by depriving him of his right to use a place of public accommodation and (2) that Harriz harassed him. Both defendants moved for summary judgment and the trial court granted both motions. The Appellate Division did not indicate the basis for the trial court's decision on the harassment claim, but it noted that the trial court dismissed the discrimination claim because the Smoke Rise Club and its amenities were private, and thus not places of public accommodation. Plaintiff appealed and the Appellate Division affirmed, albeit for slightly different reasons.

 

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“Get Your Priorities Straight!” Refinanced First Mortgage Maintains Priority Over Junior Liens

by:  Peter J. Gallagher (@pjsgallagher)

New Jersey is a "race-notice" jurisdiction when it comes to mortgage priority. What this means, in its simplest terms, is that if Party A obtains a mortgage on a piece of property before Party B does, but Party B records its mortgage first (i.e., it wins the "race" to the clerk's office), then Party B's mortgage has priority unless Party B had "actual knowledge" of Party A's previously-acquired interest. But what happens when a first mortgage is refinanced? The original mortgage is technically paid off and replaced with the refinanced mortgage. Does this "newly-recorded," refinanced mortgage maintain the first priority status of the original mortgage or does it go to the back of the line? The answer to this question — as discussed in a recent decision from the Law Division, Wells Fargo Bank, NA v. Kim — is that the refinanced mortgage generally takes the original mortgage's first priority position.

In Kim, defendant borrowed $328,000 from Washington Mutual Bank, FA ("WaMu") to buy a home and secured repayment of this loan with a purchase money mortgage on the home. Later, defendant obtained a home equity loan from Plaintiff, Wells Fargo Bank, N.A. ("Wells Fargo") that was also secured by a mortgage on defendant's home. Defendant then refinanced her original, purchase money mortgage with WaMu. Defendant used the entire amount of the refinance loan, which was secured by a mortgage on defendant's home, to pay off the original purchase money mortgage (i.e., she did not borrow and more money through the refinance) and the purchase money mortgage was discharged of record. WaMu did not obtain a subordination of the Wells Fargo mortgage in connection with the refinance.

Approximately three years after the refinancing, defendant defaulted on the Wells Fargo home equity loan, and Wells Fargo moved to foreclose. Defendant did not file a contesting answer and the court entered default against her. However, U.S. Bank Trust, N.A. ("U.S. Bank"), the successor to WaMu's interest in the refinance loan and mortgage, filed a contesting answer claiming that its mortgage stood in first priority position ahead of  Wells Fargo's mortgage.

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A Rare Narrowing Of The Consumer Fraud Act’s Scope: Medical Malpractice Insurance Not Covered

 by:  Peter J. Gallagher (@pjsgallagher)

It is not every day that a New Jersey court limits the scope of the New Jersey Consumer Fraud Act (“CFA”), so when one does, it is worth writing about. Anyone who litigates in New Jersey knows about the CFA and, depending on whether you are on the plaintiff’s side or the defendant’s side, either loves it or hates it. (I am mostly on the defendant’s side, but occasionally find myself representing a plaintiff, so my relationship with the CFA is “complicated.”) Because it is remedial legislation, the CFA is liberally construed to afford the greatest protection to consumers. This philosophy has led courts to apply the CFA (and its treble damages and prevailing party’s attorney fees) to a seemingly ever growing, and very rarely contracting, variety of disputes. In fact, many years ago, the New Jersey Supreme Court observed that: “The history of the Act is one of constant expansion of consumer protection.”

With this in mind, we turn to the Law Division’s published decision in Khan v. Conventus Inter-Insurance Exchange. That case was a putative class action in which plaintiff, a doctor, alleged that defendant violated the CFA in connection with the sale of medical malpractice insurance and the administration of the policy after it was purchased. Plaintiff purchased a policy from defendant and, as part of her initial membership, was required to make a one-time contribution, equal to the first year’s premium, to defendant’s surplus fund. (Defendant is not a traditional insurance carrier, but is instead a “non-profit physician member-owned risk sharing exchange.”) Plaintiff elected to make this contribution in installments over a ten-month period, with the understanding that if she cancelled her policy before the final payment was made, she would still be responsible for the full surplus fund contribution. Plaintiff eventually cancelled her policy before the ten-month period passed and defendant demanded that she immediately pay her entire surplus fund contribution rather than allowing her to pay it off in installments as originally agreed upon by the parties. Plaintiff sued alleging that this attempt to accelerate the surplus fund payment was a breach of contract and a violation of the CFA. She sought to bring her claims as a class action.

Before addressing whether plaintiff could sustain a class action and be appointed class representative, the court first had to decide whether the CFA applied to “transactions involving the purchase and sale of medical malpractice insurance.” Because the court held that it did not, it never had to reach the class certification issues.

 

 

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Free Speech In Condos and Co-Ops: Round III Goes To The Resident

by:  Peter J. Gallagher (@pjsgallagher)       

It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.

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