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United States District Court Southern District of New York
June 27, 2012
SERGEI CHEPILKO, PLAINTIFF,v.CIGNA GROUP INSURANCE, DEFENDANT.
This case arises from the denial by Cigna Life Insurance Company of New York ("CLICNY") of a claim for disability benefits by Dr. Sergei Chepilko ("Chepilko"), the plaintiff pro se, under a Group Long-Term Disability Insurance Policy (the "Policy") issued by CLICNY that Chepilko had through his former employer. The Policy is subject to the requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. After CLICNY denied Chepilko's claim in 2002, he appealed, and CLICNY denied his appeal. Chepilko then brought this breach of contract action pursuant to 29 U.S.C. § 1132(a)(1), seeking to enforce his rights under the Policy.
CLICNY has now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that the statute of limitations has run, and that, in any event, Chepilko has failed to raise a material issue of fact, and that the undisputed facts show that he was able to perform the material duties of his job and was therefore not disabled as defined by the Policy, for a continuous 180-day period, as required by the Policy. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). For the reasons explained below, the motion for summary judgment is granted.
The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is appropriate if it appears that the nonmoving party cannot prove an element that is essential to the nonmoving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805--06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587--88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114--15 (2d Cir. 1998); Montalbano v. Port Authority of New York and New Jersey, No. 10 Civ. 5973, 2012 WL 516150, at *1 (S.D.N.Y. Feb. 17, 2012).
The following facts are undisputed unless otherwise noted:
Chepilko held a research position at Cornell University's Weill Medical College ("WMC") since at least 1997. (Arbitrio Decl., Ex. B ("Administrative Record" or "AR"), at 175.) In June, 2001, Chepilko was appointed to a one year position as a postdoctoral fellow in the Department of Pharmacology at WMC, which was renewable based on, among other things, performance. (AR at 173-174.)
Chepilko was assigned to work on a project relating to the effect of particular compounds on insulin secretion by the pancreas. (Def.'s R. 56.1 Stmt. ¶ 3; Pl.'s R. 56.1 Resp. ¶ 3.) Chepilko was expected to conduct experiments, interpret data, and prepare manuscripts for publication. (Def.'s R. 56.1 Stmt. ¶ 5; Pl.'s R. 56.1 Resp. ¶ 5.)
On September 26, 2001, Chepilko, received a termination letter, effective on September 28, 2001. (AR at 438.) The letter asserted that Chepilko had "failed to make any progress," had "failed in even the most basic laboratory skills," and had "managed to contaminate the cell culture incubator, putting everybody's work at risk." (AR at 438.)
CLICNY insured Chepilko under the Policy, which was offered through WMC. (Def.'s R. 56.1 Stmt. ¶ 2; Pl.'s R. 56.1 Resp. ¶ 2.) A person covered under the Policy is considered disabled if, "because of Injury or Sickness . . . he is unable to perform all the material duties of his regular occupation." (AR at 39; see Def.'s R. 56.1 Stmt. ¶ 16; Pl.'s R. 56.1 Resp. ¶ 16.)
Under the Policy, an employee only becomes eligible for benefits if the employee is continuously disabled over the course of a waiting period. (See Def.'s R. 56.1 Stmt. ¶ 17;
Pl.'s R. 56.1 Resp. ¶ 17.) In Chepilko's case, the parties agree that the waiting period is 180 days, and that the relevant period is September 27, 2001 to March 27, 2002. (See Def.'s R. 56.1 Stmt. ¶¶ 18-19; Pl.'s R. 56.1 Resp. ¶¶ 18-19.)
The parties dispute the exact origin of Chepilko's alleged disability. Chepilko asserts that he has "suffered from lower back pain for many years," (Pl.'s R. 56.1 Resp. at ¶ 11; see also AR at 168 (MRI from 1995 indicating central disc protrusion)) and that these problems were "considerably aggravated" on September 11, 2001, when Chepilko allegedly walked for over seven hours from Manhattan to Brooklyn. (Pl.'s R. 56.1 Resp. at ¶ 11; see also AR at 203, 442.) Chepilko claims that, after September 11, 2001, he ceased working full time, was out of the office for several days, and left early on days when he was in the office. (Pl.'s R. 56.1 Resp. at ¶ 14.)
CLICNY asserts that Chepilko worked full time until September 27, 2011, and that September 28, his termination date, was his first day off due to his claimed disability. (Def.'s R. 56.1 Stmt. ¶¶ 14-15; see also AR at 444.) In any event, on his claim form submitted to CLICNY on March 26, 2002, Chepilko claimed that September 27, 2001 was the day on which he became totally disabled. (AR at 0442; but see AR at 331 (form submitted by Chepilko in April, 2002 indicating that his last day of work was September 26, not September 27, and that he worked zero hours, not seven hours, on his last day, and that he became unable to work on September 12, 2001)). The portion of the claim form submitted by WMC also notes that September 27, 2001 was Chepilko's last day working, that he worked for seven hours that day and that he did not return to work thereafter. (AR at 0444.)
With respect to Chepilko's medical issues and the medical history of the alleged disability, there is evidence in the record supporting the following facts.
Chepilko first saw Dr. George Fieberg, a chiropractor, on September 14, 2001. Chepilko's subjective complaints included sharp, shooting pain in the neck and lower back, both of which Chepilko complained "preclude[d] carrying out activities of daily living. (AR at 232.) Dr. Fieberg noted the "Date of Onset" as September 11, 2001. (AR at 232.) Dr. Fieberg's objective evaluation confirmed that Chepilko was in "severe pain." (AR at 232.) Dr. Fieberg concluded that "[t]he prognosis for Mr. Chepilko is fair at this time. His is a complicated case and despite the probability of permanent residuals, continued improvement is expected." (AR at 233.) Chepilko continued to see Dr. Fieberg over the course of the next year.
Chepilko visited the New York-Presbyterian Hospital's Emergency Department on September 27, 2001. There is no explicit mention in those records of back or foot problems; rather, the notes indicated that Chepilko was suffering from hypertension and anxiety. (See AR at 169-170.) However, there is evidence that Chepilko complained of pain during that visit, and he was prescribed Motrin. (AR at 170.)*fn1 Nothing from the notes from Chepilko's September 27, 2001 hospital visit indicates that he was totally disabled.
The next day, September 28, 2001, Chepilko saw Dr. Fieberg again. Dr. Fieberg noted the same symptoms that he had noted on September 14, 2001, and found Chepilko's condition unchanged and unimproved. (AR at 234-35.) With respect to Chepilko's subjective complaints, Dr. Fieberg noted that Chepilko complained that the pain "seriously affected" his daily activities. (AR at 234.) Dr. Fieberg described Chepilko as being in a "relief phase of care," and recommended a treatment plan including physical therapy, traction, and electrical muscle stimulation with the goal of decreasing Chepilko's pain and "returning the patient to his pre-clinical status." (AR at 235.) Dr. Fieberg gave virtually identical evaluations through five subsequent visits in October, 2001, and four in November, 2001. (See AR at 236-253.)
Chepilko saw a podiatrist, Dr. Jonathan Thurm, for the first time on November 26, 2001, and Dr. Thurm's notes indicate subsequent visits on November 29, 2001, and on January 17 and March 12, 2002. (See AR 154-156.) On November 29, 2001, Dr.
Thrum diagnosed Chepilko with a ruptured tendon in his foot and plantar fasciitis, and prescribed a "walking air splint." (AR at 153.) There is no evidence of Dr. Thrum ever opining that Chepilko was totally disabled, or opining as to how long the tendon had been ruptured.
On December, 2001, Dr. Fieberg noted that Chepilko had "experienced some improvement" since his last visit, although Dr. Fieberg's objective assessment, and the subjective complaints listed, remained virtually identical. (AR at 254-55.) On December 28, 2001, Dr. Fieberg noted "minor improvement" since Chepilko's previous visit. (AR at 256-257.) Dr. Fieberg then noted "some improvement" or "minor improvement" since each previous visit at each of six visits in January, 2002, four visits in February, 2002, three visits in March, 2002, one visit in April, 200, and two in May 2002. (AR at 258-289.) Dr. Freiberg's objective findings with respect to his examination of Chepilko did not change over the course of this time, and Chepilko's subjective complaints continued to assert that his level of pain was unchanged and continued to "seriously affect[] his daily activities." (See, e.g., AR at 288.) At no point did Dr. Feiberg specifically opine as to whether he believed Chepilko was disabled or otherwise unable to perform the material duties of his job.
Dr. Fieberg referred Chepilko for various tests during the course of his treatment. Dr. Fieberg referred Chepilko for electrodiagnostic testing by Doctor Gary Weiss, a neurologist. In December, 2001 and January, 2002, Chepilko underwent a Nerve Conduction Study and a Dermatomal Somatosensory Evoked Potential test, both of which use "electrodes . . . placed at various positions along the peripheral nerves." 229-230, 346-350. Dr. Weiss, a neurologist, interpreted the tests, and concluded that the test results for Chepilko's "lower extremity" were "consistent with . . . radiculopathy." (AR at 229, 346, 349.)*fn2
A spinal ultrasound was also taken in December, 2001, and evaluated by Dr. Wiess. (See AR at 351-352.) Dr. Weiss found that the ultrasound revealed "inflammation of a mild degree" with regard to one thoracic vertebra and one lumbar vertebra. (AR at 352.) Dr. Weiss noted that "[c]linical correlation is necessary." (AR at 352.) Dr. Weiss did not opine as to the extent of any disability suffered by Chepilko, and noted again after the last test in January, 2002 that "[c]linical correlation is recommended." (AR at 229.)
In early February, 2002, separate MRIs were taken of Chepilko's foot and lower back (lumbar spine). (See AR at 204-205.) The doctors who interpreted the MRIs opined that they were consistent with plantar fasciitis with respect to Chepilko's foot, and transitional vertebra and a degenerative disc bulge with respect to Chepilko's back. (AR at 204-205.) Neither opined as to the extent of any disability that may have been caused by these diagnoses. Dr. Fieberg also referred Chepilko for an MRI of his middle back (thoracic spine), and the radiologist who interpreted that MRI in March, 2002, detected "[n]o significant abnormalities." (AR at 343.)
In January, 2002, Chepilko also began seeing Dr. Igor Ostrovsky, a pain specialist. (Def's R. 56.1 Stmt ¶ 25; Pl.'s R. 56.1 Resp. ¶ 25.) Dr. Ostrovsky diagnosed Chepilko with lumbar radiculopathy due to a bulging disc, myalgia, muscle spasm, and plantar fasciitis, and noted his "impression that radiculopathy is the main sauce [sic] of the pain." (AR at 307-308.) Dr. Ostrovsky noted that Chepilko appeared to be in "severe pain," but he did not opine as to whether he was totally disabled or otherwise unable to perform the material duties of his job. (AR at 307-308.) Dr. Ostrovsky prescribed physical therapy three times a week, Vioxx, and paravertebral blocks "[t]o control severe pain." (AR at 308.) On January 31, 2002, Chepilko saw Dr. Ostrovsky again and received an injection for his back, which Dr. Ostrovsky noted provided "instant pain relief." (AR at 302.) Chepilko saw Dr. Ostrovsky again on February 7, 2002, and March 21, 2002, and Dr. Ostrovsky's assessment at both evaluations was virtually identical to his initial evaluation from January 21, 2002. (AR at 303-306.)
Chepilko also had an initial evaluation at the Metropolitan Pain Center in Manhattan on March 14, 2002. The initial evaluation stated that Chepilko suffered from mid-back and lower back pain that was aggravated by prolonged sitting and prolonged walking. (AR at 203.) At the initial visit, Chepilko was prescribed continued therapy and therapeutic exercise. (AR at 202.) The evaluation noted that Chepilko was "on disability now," but did not state whether Chepilko was unable to perform the material duties of his job. (AR at 202-203.) There is evidence in the record of further visits to the pain center through November of 2002 for lower back pain. (See AR at 185-202.)
In September, 2002, Chepilko also sought the services of the Medical Massage Group, located at the same address as the Pain Center, for lower back pain. (See AR at 206.) In October, 2002, Chepilko had another evaluation with the Pain Center, again indicating consistent lower back pain that was aggravated by sitting or standing for more than 20 minutes or walking for more than 20-25 minutes. (AR at 197.) Additional therapy was prescribed, and Chepilko reported some improvement in the pain in later sessions. (See AR at 185-188, 190-195.)
Chepilko filed a claim for long term disability benefits with CLICNY on March 26, 2002. (Def.'s R. 56.1 Stmt ¶ 21; Pl.'s R. 56.1 Resp. ¶ 21; see also AR at 442.) Chepilko claimed "severe pain in the low [sic] back and left foot, [and] periodically strong headache" due to his experience walking back to Brooklyn on September 11, 2001. (AR at 442.) He claimed he became totally disabled on September 27, 2001. (AR at 442.)*fn3
Chepilko submitted with his claim form a Physician's Statement of Disability filled out and signed by Dr. Ostrovsky. Dr. Ostrovsky indicated on the form that Chepilko had a herniated lumbar disc, plantar fasciitis, and mylagia. (See AR at 446.) Dr. Ostrovsky indicated that Chepilko's disability was "total," that Chepilko had been unable to do his job or any job since September 26, 2001, and that Chepilko's present job could not be "modified to allow for handling with impairment." (AR at 448.)
On April 16, 2002, Chepilko completed a Disability Proof of Loss form. He stated on the form that he was suffering from "severe pain in low [sic] back and left foot, periodically strong headaches." (AR at 331-32.) He indicated that his condition was an "illness" and not an "injury," and that his "[d]ate of illness" was September 11, 2001. (AR at 331.) Chepilko indicated on the form that his last day worked was September 26, 2001, on which day he claimed he worked zero hours, and he indicated that the date on which he was first unable to work was September 12, 2001. (AR at 331.) Chepilko also indicated that he was not laid off or terminated. (AR at 332.)
On April 22, 2002, Chepilko filled out an "Activities of Daily Living" Questionnaire as part of his application for benefits. (Def.'s R. 56.1 Stmt. ¶ 26; Pl.'s R. 56.1 Resp. ¶ 26; see also AR at 324-328.) Chepilko explained that he could not work because of "severe pain in the left foot and lower back area radiating to the right foot, aggravating [sic] during standing and walking." (AR at 324.) Chepilko listed Drs. Fieberg and Ostrovsky as his doctors, and noted that he was taking Vioxx and Norvasc, and was doing physical therapy "1-2 times per week." (AR at 327.)
On June 7, 2002, CLICNY denied Chepilko's claim for Long-Term Disability benefits under the Policy. (AR at 292-93.) CLICNY explained in a letter to Chepilko that it was denying benefits because there was no evidence that Chepilko had been disabled for the entire 180 day waiting period beginning on September 27, 2001. (See AR at 294; see also AR at 320.) CLICNY wrote that it had only received treatment information from Dr. Ostrovsky, who had begun treating Chepilko in January, 2002, and that it had requested, but not received, Dr. Fieberg's records, or any other records from the period before January, 2002. (AR at 294.) CLICNY's denial of benefits letter explained that Chepilko had the right to appeal. (See AR at 295.)
CLICNY received Dr. Fieberg's notes shortly after the initial denial of benefits, and, in a conversation with Chepilko on June 10, 2002, the case manager for Chepilko's case explained to Chepilko that CLICNY could not simply change its determination and that he would need to appeal the denial. (See AR at 338-339; see also AR at 342.) Chepilko appealed the denial of his claim in early December, 2002. (AR at 162, 164-65.)
In January, 2003, CLICNY classified Chepilko's occupation as a "light" duty occupation. (AR at 147.) CLICNY determined that the job description in their database that most closely matched Chepilko's job description was "biochemist," a light duty occupation. (See AR at 147-51.)*fn4
As part of the appeal process, CLICNY sent Chepilko's file for an independent physician review. (See AR at 125, 146) Chepilko's medical file was reviewed by a neurologist, Dr. Kenneth Graulich. Dr. Graulich wrote in his subsequent report that he attempted to contact Dr. Weiss, the neurologist who had conducted testing on Chepilko, without success, and that Drs. Feiberg and Ostrovsky would not speak to him until he produced a waiver from Chepilko, and did not return his calls after he procured a waiver. (See AR at 129) Dr. Graulich concluded that he thought Chepilko had "degenerative arthritis" of the spine, and a "history of plantar fasciitis." (AR at 129.) Dr. Graulich concluded that "[t]he medical documentation does not support the patient's inability to work at a light duty position from 9/27/01 and up to the present time," that there was "no evidence for radiculopathy," and that "[t]here is a strong suspicion that work problems may be playing a large part in the magnitude of his back pain complaints." (AR at 129-130.)
CLICNY denied Chepilko's appeal in February, 2003. (AR at 131-32.) In a letter to Chepilko dated February 12, 2003, CLICNY explained that it was affirming the denial of benefits, largely based on Dr. Graulich's conclusion that "there is no medical evidence in your file to support your inability to work at any type of work." (AR at 131; see also AR at 134.) The letter further reminded Chepilko of his right to bring "legal action for benefits under ERISA." (AR at 132.)
Chepilko filed this lawsuit on March 26, 2008.
CLICNY argues that this action is barred by the statute of limitations contained within the Policy.
The Policy provides that "[n]o action at law or equity will be brought to recover on the policy until at least 60 days after proof of loss has been filed with the Insurance Company. No action will be brought at all unless brought within 3 years (Kansas: 5 years; South Carolina: 6 years), after the time within which proof of loss is required by the policy." (AR at 61.) Chepilko's claim file indicates that the "Proof of Loss
Date" for his claim was June 4, 2002. (AR at 3.).*fn5 Chepilko brought this lawsuit on March 26, 2008. (Def.'s R. 56.1 Stmt. ¶50; Pl.'s R. 56.1 Stmt ¶ 50.)
Chepilko argues that the statute of limitations for a breach of contract action in New York is six years. (See Pl.'s R. 56.1 Resp. ¶¶ 20, 86;) see also N.Y. C.P.L.R. § 213. If this six year statute of limitations applied,*fn6 Chepilko's lawsuit would be timely. The issues are whether the language in the Policy imposes a three year statute of limitations-in which case Chepilko's action would plainly be time-barred-and whether such a limitations period is enforceable.
Chepilko argues that the "legal actions provision is vague," with "no specifications for other states, including New York." (Pl.'s R. 56.1 Resp. ¶ 86.) CLICNY argues that the meaning of the provision is plain and unambiguous. CLICNY is correct.
Courts in this Circuit construe the terms in ERISA plans in accordance with federal common law, and give the terms of the Plan their plain meanings. Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002). "Where the contract language is plain and unambiguous, a court may construe the contract and grant summary judgment." Id. (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 148 (2d Cir. 1993) (alteration omitted). "Language is ambiguous when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire agreement." Id. (alterations and internal quotation marks omitted).
In this case, a reasonably intelligent person could come to only one conclusion as to the meaning of the disputed term in the policy: legal actions must be filed within three years of the date on which proof of loss is required under the Policy, but there are exceptions to this rule in Kansas, where the period is five years, and South Carolina, where the period is six years. Moreover, federal courts interpreting ERISA-covered plans employ the "familiar rules of contract interpretation." Lifson v. INA Life Ins. Co. of N.Y., 333 F.3d 349, 352--53 (2d Cir. 2003) (per curiam). One of those rules is "the textual canon of expressio unius est exclusio alterius." See Novella v. Westchester Cty., 661 F.3d 128, 142 (2d Cir. 2011) (applying expressio canon in ERISA context). Here, the Policy language states a limitations period of three years, and provides for two different periods for Kansas and South Carolina. The natural reading is that there is no different period for New York, because such a New York exception was not expressed, and was thus excluded. In New York, suits under the Policy are therefore subject to a three year limitations period. Chepilko's claim was therefore brought well outside of the period defined by the Policy.
The next issue is whether the limitations period in the Policy is enforceable. The Court of Appeals for the Second Circuit has explicitly addressed this point, and held that such limitations periods are enforceable. Burke v. PriceWaterHouseCoopers LLP Long Term Disability Plan, 572 F.3d 76, 81 (2d Cir. 2009) ("[A] court must not rewrite, under the guise of interpretation, a term of the contract when the term is clear and unambiguous, as is the policy-prescribed limitations period at issue here." (internal quotation marks and citation omitted)) (affirming grant of summary judgment based on three year statute of limitations imposed by policy which began to run on the Proof of Loss date); see also, e.g., Viti v. Guardian Life Ins. Co. of America, 817 F. Supp. 2d 214, 224 (S.D.N.Y. 2011). Moreover, Chepilko had "ample time within which to bring
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March 23, 2012
SETON HALL UNIVERSITY, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,v.ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH ORANGE VILLAGE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3997-09.
Argued March 5, 2012
Before Judges Ashrafi and Fasciale.
In this prerogative writs case, plaintiff Seton Hall University (Seton Hall or the University) appeals from a May 16, 2011 order upholding a resolution by the Zoning Board of Adjustment of the Township of South Orange Village (the Board) denying Seton Hall's application for a "use" variance and dismissing its complaint. We affirm.
Seton Hall seeks to convert a three-story six-bedroom residence, formerly used as an in-home doctor's office,*fn1 into faculty offices and a welcome center for its military science department. The property is located at 1 South Centre Street, adjacent to the University's campus but within a residential district known as Tuxedo Park, a "Residence A: Single Family Zone" (RA-60 zone) in South Orange. From the backyard, the property abuts a large University parking lot located within the "University Zone" (U zone).*fn2
In 2008, Seton Hall applied for a "use" variance along with certain "bulk" variances and preliminary and final site plan approval. The Board conducted a three-day hearing,*fn3 at which Seton Hall presented testimony and evidence in support of its application.
The University stipulated that the use variance would be applicable for only so long as Seton Hall used the property for faculty offices. The University presented testimony from five witnesses: Dennis Garbini, its vice president of finance and technology; Lieutenant Colonel John Haubert, the chairperson of the military science department; Kenneth Bienkowski, its engineer; Alfred Consoli, its architect; and James Dowling, its planner, the only planning expert to testify at the hearing.
Garbini testified that Mooney Hall, the building housing the military science department, was insufficient because it did not have an elevator or handicap accessibility. He stated that although the subject property was not "well suited for a residence at the University," the property could serve as a new military science faculty building. Garbini also testified that the University intended to "maintain the front of the home along Cent[re] Street as it appears as it is today, as a residence," make changes to the fencing, including placing a gate across the driveway, and create an entrance from the parking lot through the backyard.
Haubert testified that the military science program needed to be on-campus because an off-campus location would cause lower matriculation into the program. He stated that the program needed "visibility." Haubert also testified that he "did no reconnaissance of alternate sites."
Dowling testified that the University serves an inherently beneficial use and discussed the positive and negative criteria required for a variance pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He opined that the property is "particularly suited" for the military science department because it is adjacent to the campus boundary and accessible from the parking lot, thereby eliminating a need for additional parking. He also stated that the property would remain "exceptionally residential in character in terms of its visibility."
As to the negative criteria, Dowling opined that there would be no substantial detriment to the public good. He testified that there would be no intrusive outdoor activities or large gatherings in the backyard; the hours would be limited to office hours; no firearms would be stored onsite; access would occur only through the backyard; there would be no increased street parking; and the house would maintain low profile lighting. Dowling further opined that there would be no substantial impairment to the zoning plan and ordinance. He stated that "the use would be less intense in regards to its activity on South Centre Street than the previous [doctor's office] use," and that Seton Hall would "maintain a residential appearance . . . consistent with the character of other homes in the area." Finally, Dowling analyzed the four prongs of the Sica balancing test*fn4 and concluded that the benefits of granting the variance would outweigh the detriments.
On April 7, 2009, the Board adopted a resolution denying the variance. The Board found that Seton Hall's intended use was inherently beneficial, but that, "after applying the Sica balancing test, . . . a use variance [was] not warranted."
Regarding benefits of the proposed use, the Board found that the variance would allow the University to locate its military science department "on a parcel directly adjacent to the University campus," and that Haubert had "stated his preference for the program to maintain an on-campus presence in order to help with recruiting." However, the Board stated:
Although other University officers may have looked at other locations, [Haubert] stated that he had not looked, nor had he been asked to look, at other possible locations, either on or off campus, including the building located at 525 South Orange Avenue which is owned by the [University], is presently being used by the [University] for offices, and is directly across the street from the main entrance to the University. Although Colonel Haubert testified that an on campus location helps with recruiting[,] there was no convincing evidence concerning the degree to which recruitment would be affected if the Department were located at 525 South Orange Avenue as opposed to 1 South Centre Street, nor was there any convincing testimony why the Department could not be located in another location on campus either existing or to be built.
Next, the Board considered the detriments of the proposed use and concluded that they would be substantial:
Allowing the University to expand, even for the limited purpose of faculty offices and a welcoming/recruitment center, into the surrounding residential neighborhood of Tuxedo Park, a neighborhood which by reason of its singular homogenous residential use offers an intact buffer against the urban problems of Newark to the east and the institutional [University] to the west, would be destructive of the zoning plan and ordinance. The Board recognizes the fragility of Tuxedo Park and the importance of preserving its zoning boundary in order to preserve its residential character.
Although [Seton Hall's] plans were intended to minimize negative impacts, the Board finds that notwithstanding those efforts[,] the Property at 1 South Centre would no longer be a part of the adjacent residential community because it would no longer have the type of daily human activity normally associated with a single family home. It would instead become a small office building in a residential community.
Finally, the Board found that there were "no other conditions which could be imposed, further to the ones [Seton Hall] has already offered, which could offset the substantial detriment outlined above." Thus, the Board concluded that "on balance the benefits of the proposed use are far outweighed by the detriments to both the public good and the goals of the zoning plan and ordinance."
Following denial of its application, Seton Hall filed a complaint in lieu of prerogative writs. On May 16, 2011, the judge entered an order upholding the Board's decision and issued a written decision. The judge found that the record supported the Board's conclusion that the University "had offered no convincing testimony as to why the offices could not be located somewhere in the existing campus." Specifically, the judge stated:
There was no specific testimony about the availability of space on campus, what other on-campus locations had been considered, or the ability or inability to construct a new building on the campus. There was no evidence that the inventory of available campus space had been reviewed or rejected for some reason.
The judge further found that Seton Hall's "expert witnesses admitted that they had not looked into other possible campus locations for the Department." She observed:
When asked if he had considered or examined other properties on campus, [Haubert] stated he had not. When [Dowling] was asked if there was available space elsewhere on campus for a new building[,] he stated he did not know. He further stated he did not know the reason why the renovation for Mooney Hall could not include new offices for the Department. Mr. Garbini similarly offered no evidence that the goals sought to be achieved - giving the Military Science Department it[s] own space and allowing for a welcome area - could not be met elsewhere on campus.
Further, the judge found that the record supported the Board's determination that Seton Hall "had offered no convincing testimony as to why the office building owned by the University directly across from the main gate could not be used for the Military Science Department." She stated:
Although [Haubert] testified that he was an expert in ROTC programs and in his opinion it was more difficult to recruit when the program was not on campus, there were no facts, studies, or literature offered to support this opinion. No figures regarding campus versus off campus ROTC recruitment at Seton Hall or any other university were introduced.
The judge also noted that the Board was free to reject Haubert's opinion as unsubstantiated.
Next, the judge found that "the Board's conclusions regarding the nature of Tuxedo Park and the effects of the prohibited use on that neighborhood [were] not unsupported by the record." She stated:
The evidence before the Board reflects that it is an island of a residential neighborhood that acts as a buffer from the urban problems of the neighboring city on one side and an institution on the other. The [c]court cannot find that it was arbitrary or unreasonable for the Board to conclude that putting a small office building (no matter how well masked) on one of the largest lots, in a "fragile" buffer residential neighborhood would be a substantial detriment.
The judge also found that the Board's balancing of the positive and negative criteria was not arbitrary:
The University exists in a University Zone in which all of its beneficial uses are permitted. The 1979 Master Plan first recommended that [South Orange] establish a "university" designation. The Specific Plan Objectives for the University zone included a purpose to restrict university uses to a "university" land use area, which coincided with the then current development of the University property. That same plan sought to protect existing residential neighborhoods. In the 1991 revision to the Land Use Element of the Master Plan[,] the recommended interior perimeter setback within the University Zone was 30 ft., except where the University adjoined a residential lot where the setback increased to 50 ft. In 1995 [South Orange] amended the Land Development Ordinance to increase the [minimum perimeter setback:]
A minimum perimeter setback of 75 feet is required[;] however the minimum set back shall be 100 feet where the University property line coincides with the rear property line of parcels fronting on South Centre Street. [(Emphasis omitted).]
Thus, the judge found that the Board did not act arbitrarily in concluding that the "impairment of the ordinance and zone plan was substantial and outweighed the positive criteria when the University showed no reason - supported by evidence - why it needed to extend its zone boundaries into Tuxedo Park."*fn5
Finally, the judge found that the case was "distinguishable from many beneficial use variance cases, because [Seton Hall] owns substantial property (its entire campus) specifically zoned to allow all of the this [sic] particular Applicant's beneficial uses." Thus, Seton Hall could not use the beneficial use variance "to effectuate a rezoning."
Local zoning boards have "peculiar knowledge of local conditions [and] must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). As such, courts must not trespass on the administrative work of local zoning boards by substituting independent judgment in areas of factual disputes. Ibid. Because the MLUL favors "comprehensive planning by ordinance rather than variances, use variances are appropriate only in 'exceptional circumstances.'" Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (quoting Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000)).
Accordingly, our review of the Board's variance denial is limited to considering whether the decision was arbitrary, unreasonable, or capricious. Id. at 198 (citing Kramer, supra, 45 N.J. at 296). And we make "no judicial declaration of invalidity in the absence of [a] clear abuse of discretion." Kramer, supra, 45 N.J. at 296-97. Moreover, we give "greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199. Specifically, our scope of review "is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adjustment, Twp. of Wall, 184 N.J. 562, 597 (2005). The crucial question is "whether the board followed the statutory guidelines and properly exercised its discretion." Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199 (citing Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990)).
Furthermore, when considering an appeal from a trial court's review, we are bound by the same standard as the trial court. N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
Here, Seton Hall applied for a use variance pursuant to N.J.S.A. 40:55D-70(d), which provides, in relevant part:
The board of adjustment shall have the power to:
d. In particular cases for special reasons, grant a variance to allow departure from [zoning] regulations . . . to permit:
(1) a use or principal structure in a district restricted against such use or principal structure . . . .
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
The statute requires an applicant to establish positive and negative criteria. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). "The 'special reasons' requirement . . . is referred to as the 'positive' criterion for a use variance[,] and the 'without substantial detriment to the public good' and 'will not substantially impair the intent and the purpose of the zone plan and zoning ordinance' requirements are referred to as the 'negative' criteria." Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adjustment, 423 N.J. Super. 282, 287 (App. Div. 2011) (citing Smart SMR, supra, 152 N.J. at 323).
The Legislature has recognized that some uses are "inherently beneficial" in nature and deserve special treatment. See Smart SMR, supra, 152 N.J. at 323. Thus, N.J.S.A. 40:55D-4 defines an "inherently beneficial use" as "a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare." There is "no dispute that the University, as an institution of higher learning, qualifies as an inherently beneficial use." Hughes v. Monmouth Univ., 394 N.J. Super. 207, 228 (Law Div. 2006), aff'd, 394 N.J. Super. 193 (App. Div.), certif. denied, 192 N.J. 599 (2007) (citing Smart SMR, supra, 152 N.J. at 323; Burbridge, supra, 117 N.J. at 394).*fn6
When an applicant seeks a variance for an inherently beneficial use, the applicant's burden of proof is "significantly lessened." Smart SMR, Inc., supra, 152 N.J. at 323. In fact, "[a]n inherently beneficial use presumptively satisfies the positive criteria," ibid. (citing Burbridge, supra, 117 N.J. at 394), and satisfaction of the negative criteria "does not depend on an enhanced quality of proof" id. at 323-24 (citing Sica, supra, 127 N.J. at 160-61). Cf. Medici v. BPR Co., 107 N.J. 1, 4 (1987) (holding that a use that is not inherently beneficial requires "an enhanced quality of proof, as well as clear and specific findings by the board of adjustment, that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance").
In Sica, supra, 127 N.J. at 165, the Supreme Court suggested a four-part balancing test "as a general guide to municipal boards when balancing the positive and negative criteria." The Court explained:
First, the board should identify the public interest at stake. Some uses are more compelling than others. . . .
Second, the Board should identify the detrimental effect that will ensue from the grant of the variance. Certain effects, such as an increase in traffic, or some tendency to impair residential character, utility or value, will usually attend any nonresidential use in a residential zone. When minimal, such an effect need not outweigh an inherently beneficial use that satisfies the positive criteria.
Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. . . .
Fourth, the Board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. [Id. at 165-66 (citations and internal quotation marks omitted).]
Although "properly making it more difficult for municipalities to exclude inherently beneficial uses . . . [the balancing] permits such exclusion when the negative impact of the use is significant." Id. at 166 (alteration in original) (internal quotation marks omitted). Thus, the Court has stated that "even when a proposed use inherently benefits the general welfare, the applicant still must prove that the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." Smart SMR, supra, 152 N.J. at 324 (internal quotation marks omitted) (quoting N.J.S.A. 40:55D-70(d)).
On appeal, the parties do not dispute that the use for which Seton Hall seeks the variance qualifies as an "inherently beneficial use" and thereby presumptively meets the positive criteria of N.J.S.A. 40:55D-70(d). See Smart SMR, supra, 152 N.J. at 323. Their main contention is whether the Board properly found that Seton Hall had not established the negative criteria.
Seton Hall argues that the Board misapplied the applicable standard, and that the Board's balancing analysis did not demonstrate that the variance would cause substantial detriment to the public good.*fn7 The University also argues that the judge failed to apply the Sica balancing test and did not "give due consideration to the benefits of the project." Although the Board and the judge made reference to a factor that we deem irrelevant to the competing considerations, we disagree that they misapplied the Sica balancing test.
In its resolution, the Board stated that Seton Hall had not considered locating the faculty offices and welcome center in a building it owned across South Orange Avenue from the campus, and that it had offered insufficient proof that direct access to the campus was necessary to help with its objective of recruiting students for its military science program. The trial judge also criticized the absence of studies or literature to prove that direct access to the campus was necessary for the program. We view these criticisms as overstepping the proper role of the Board and the court in considering the zoning application. Once the Board determined that the proposed use was inherently beneficial, it was not its proper function to question the manner that the University sought to operate its program or its determination as to the benefits of an on-campus location. Furthermore, the suggestion that the offices could be located off-campus runs counter to the Township's 1979 Master Plan and its objective "to restrict university uses to a 'university' land use area." The Board and the trial court recognized that planning objective in assessing the negative impact of allowing University uses to encroach into the Tuxedo Park neighborhood.
Nevertheless, given our limited review, we cannot conclude that the Board's findings are unsupported. The Board was concerned that the property "would no longer be a part of the adjacent residential community." The judge found that Tuxedo Park is "an island of a residential neighborhood that acts as a buffer from the urban problems of the neighboring city on one side and an institution on the other." As such, we agree that it was not arbitrary or unreasonable for the Board to conclude that "putting a small office building (no matter how well masked) on one of the largest lots, in a 'fragile' buffer residential neighborhood would be a substantial detriment." The University was unable to overcome this concern.
We also reject the University's contention that the Board should have provided expert planning testimony to counter Dowling's opinion that the zoning ordinance would not be impaired because the University would maintain the residential facade of the house. It was not the Board's burden to establish that there would be a detriment. "The burden of proving the right to relief sought in the application rests at all times upon the applicant." Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 255 (2008) (internal quotation marks omitted). Furthermore, the Board is free to accept or reject testimony, including expert testimony, as long as it explains a reasonable basis for doing so. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 434-35 (App. Div. 2009).
The Board's resolution reflects that the Board utilized the Sica balancing test and, except as previously stated, made appropriate findings of fact to support its conclusions. The Board did not abuse its discretion in determining that the public benefit derived from the proposed military science offices was outweighed by the detrimental effect upon the integrity of the zoning plan that would result from the erosion of Tuxedo Park's single-family residential neighborhood. Although Seton Hall's use constitutes an inherently beneficial use, the Board reasonably determined that allowing the University to expand into Tuxedo Park would cause substantial detriment to the zoning plan and ordinance. Thus, the Board's action was not arbitrary or unreasonable.
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'Lightning Bolt' Lloyd Ellett has switched training camps from the iBox Gym in Bromley to manager Scott Welch's gym in his hometown of Brighton in preparation for an April 1st fight date. ________________________________________________________________________________ Ellett (19-1) fights next on April 1st in Tolworth on a Hunt Promotions show as he plans an assault on titles later this year. The 'Lightning Bolt'…
Lloyd Ellett looks to go 18-0 on October 2nd
Lloyd Ellett tops the bill in Brighton on October 2
Performing well under pressure
Unbeaten light-middleweight Lloyd Ellett (17-0) will be looking to extend his unbeaten run on October 2nd at the Metropole Hotel in his hometown of Brighton.
The three-time Masters champion will headline the Crusader Events show which features a host of popular local boxers such as two weight British Masters champion Nicky Jenman (13-8-1), unbeaten welterweight Marcus Eaton (5-0-1) and emerging young talents such as unbeaten bantamweight Thomas Kindon (5-0).
"It's always good to be boxing in your hometown," said Ellett. "The support that I get is amazing so to headline the event as well is just brilliant."
This will be the fourth time that the 154lbs prospect has topped the bill in his coastal hometown in East Sussex.
He said of his latest opportunity, "I'm used to the pressure of headlining and I like the added pressure because it makes you perform.
"I think it's going to be an eight-rounder," the 28-year-old continued. "Then, hopefully, I'll look for a big fight after that in December or even before, it just depends on whatever comes my way.
Moving towards British title
After establishing a big fan base and notching up 16 straight wins under Micky Helliet's Hellraiser Promotions banner, Ellett switched camps and signed contracts with Queensberry Promotions late last year in his quest to fight for a major title.
"That's what I want to work my way towards now – the British title. Whatever fights I have now, that's the direction in which I want to be heading. Hopefully I'll be knocking on the door early to mid-next year."
October 2nd will provide the 'Lightning Bolt' with just his second fight of 2015 after competing 16 times in his first three years in the paid ranks.
The light-middleweight stated, "It's been annoying because I've wanted to fight but haven't been able to but I stayed in the gym the whole time so should be ready to take my frustrations out on 2nd October."
All systems go for the rest of 2015
I've been sparring all the way through this period with Darryl Williams (11-0), Larry Ekundayo (10-0), Chris Eubank Jr. (19-1), been doing a lot of rounds with them guys as well as also sparring my iBox Gym teammates in Bromley, Bradley Skeete (20-1) and Johnny Garton (14-1-1)."
The extended stint in the gym has proved highly beneficial for the light-middleweight and promises fans that a different fighter will be seen on that first weekend in October.
"More experience," he certified. "I'm adapting more to the professional game now and I would say that my apprenticeship is pretty much done now. The learning stage is complete and I'm ready to test myself now."
The Crusader Events show, headed by former World title challenger Scott Welch, are always popular occasions and this next installment is also likely to be a sold-out event.
"Most of the boxers on the show know each other so the support will be massive," enthused Ellett. "We're expecting a sell-out event, I think the capacity in The Metropole is around 1500 fans."
The supporting acts will feature Sussex southpaw Nicky Jenman (13-8-1), Shoreham's Marcus Eaton (5-0-1), Hatfield heavyweight Tom Little (7-3), unbeaten Surrey heavyweight Nick Webb (2-0), and the 'Pocket Rocket' Thomas Kindon (5-0).
(Image credit: Tim Rickson)


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1856 Mc 133, Oakland, AR 72661
- $19,900
- 310 Days on site
- Beds: n/a
- Baths: n/a
- Raw Land
Bargain Lake View Property with southern exposure & covered with native hardwood trees fronting on a lake access road. Here's over 3-1/2 wooded acres with a year round lake view. Lots of wildlife & very close to Bull Shoals Lake. The best part next door to a restricted subdivision with No Restrictions. No well or septic. Oakland Public Water Available.
- Year Built: n/a
- 310 Days on site
- Raw Land
- Beds: n/a
- Baths: n/a
Want More Information?
Listing Details
- Lot Size
- Approximately 3.64 Acres
Local Info
| Median Household Income
| Median Years In Residence
| Median Homeowner Age
| Households with Children
| Percent of Homes Rented
Nearby Elementary Schools
- Lutie Elementary
- Co. Rd 650
- Flippin Elementary School
- 209 Alford St
- Amanda Gist Elementary School
- 152 Lucille St
Nearby Primary Schools
- Mountain Home Kindergarten
- 1310 Post Oak Rd
Nearby Middle Schools
- Lutie High
- Co. Rd 632
- Flippin Middle School
- 308 N 1st St
- Cotter High School
- 198 Mabel St
Nearby High Schools
- Lutie High
- Co. Rd 632
- Flippin High School
- 103 Alford St
- Cotter High School
- 198 Mabel St
These are the closest schools to your requested location. Proximity does not guarantee enrollment eligibility. Please consult your real estate agent or school district to confirm the schools you are zoned to attend.
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Meet Linus.
Bonded Pair with Petunia
This little guy is so sweet and loving - look at his ears!! Linus loves to be around people and would make a great companion. He is up to date on his shots, neutered, microchipped, 1year 6months(September 2016) and ready for a wonderful home. He and Petunia have become a close bonded pair so they will need to be adopted together. Petunia is also a dachshund mix and loves people and other dogs. Please consider opening your heart and home to both Linus and Petunia!!
If you would like more information on this dog please contact APAWS at email@example.com. If you would like to begin the adoption process and fill out an application please use our online application available here: http://www.apawspets.org/dog_application.html.


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Phone: (289) 320-8250
1238 Dominion Road
Fort Erie, Ontario, L2A 1H7
To view our complete product offer in your area, we suggest you select this RONA.
At anytime you can select another RONA store or a RONA L'Entrepôt/ Home & Garden. The product selection listed will match the selected store.
Plastic cartridgeMoen "Magnum" 1225 cartridge for all Moen Stanadyne single lever faucets. Made of clear plastic. 4 1/8".


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In addition to beautiful, you can try a number of activities in the island of Bali. These tourist activities already mulau many emerging there. One is True Bali Experience. As the name implies, the packages offering activities that integrate a variety of activities and natural charm of Bali, such as elephant trekking.
"Trek and pod chocolate factory"
Really loved the trek through rural Bali with our guide. Chocolate tour was good but found it a bit distressing to be near obviously unhappy elephants. Also never received the lunch we had paid for...
Visited Dec 2016 Read More...
"White water rafting with the best instructors!!!!!! "
I can't rave enough about how much fun we had on this day!!!! We booked this trip for 7 of us for white water rafting.
Upon our arrival, we were greeted with an amazing reception staff by the name...
We had a great time and our driver/tour guide was great at explaining the Bali culture to us while guiding us on our tour. Couldn't have had a better time.
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There's only one thing more American than apple pie. And that's apple pie cookies! What could be more American than combining two of the most beloved traditions into one luscious bite? And to make it that much better, we're going to add some gooey caramel!
As prepared by Daring Gourmet,
December 9, 2013
Seriously, what could be more American than combining two of the most beloved dessert traditions into one luscious bite?
And to make it that much better, we're going to make this recipe (adapted from Oh, Bite It) extra special: Caramel apple pie cookies!
*SWOON* Oh, heart, don't fail me now. (At least not until I've had a second batch!)
These marvelous caramel apple pie cookies come with a brilliant convenience factor as well. Let's face it. There are limitations to when and where you can enjoy apple pie. I mean, it isn't exactly convenient to eat a slice of apple pie while driving, crossing the street, or taking the elevator. BUT…take that same apple pie and assemble it into hand-held cookie form…
*POOF* All limitations – gone!
*(Breathless)* Pinch me, someone. I think I've died and gone to caramel apple pie cookie heaven.
Get out the ingredients. Preheat the oven to 350ºF.
Sprinkle a little flour on a clean work surface. Roll out the dough just a teensy-weensy bit to slightly increase the surface area. (You don't want it too thin.)
Spread a thin film of that gooey goodness (aka "caramel sauce") over the crust.
Chop up the apple pie pieces so they're smaller.
Spread some of the apple pie mixture over the caramel sauce. Don't use quite the whole can or you'll end up with a goopy mess.
Sprinkle a little flour on your clean work surface and again…you know the routine…just roll the dough out very slightly. Use either a pastry cutter or a knife to cut a bunch of strips about 1/2 inch wide.
Now for the fun part! We're going to make a lattice crust topping! Have you ever seen those pics of lattice pies and wonder how they do it? Here's how.
First, lay down six strips of equal distance.
Fold back – away from you – the inner three (every other one). Lay down another strip perpendicular over the others at the bottom of the pie.
Fold those inner three strips back to where they were. Now this time fold back the other four strips away from you. Lay another perpendicular strip across. Then just keep repeating the process until you're done. That's it!
Look at that beautiful lattice pie just waiting to be cut into scrumptious hand-held cookies!
Get out a round cookie cutter and cut out the caramel apple pie cookies. Using a 3-inch cookie cutter, you should end up with 12.
Use a thin spatula to carefully transfer the cookies over to a non-stick baking sheet. Beat the egg in a small bowl with a fork and spread just a tiny bit across the strips on the cookies. Sprinkle with cinnamon sugar. Bake for 20-25 minutes until golden brown.
Stop! Halt! *Screeeeeeeeech!*
What are you going to do with all those leftover scraps?
Well, let's see now…what would one do with leftover pie scraps slathered with dripping caramel sauce, topped with sweet apple pie filling and sprinkled with cinnamon sugar?
Bake and eat 'em!
Which brings us to that old Chinese proverb: "Happiness is a tummy full of caramel apple pie cookie goodness."
(That might be slightly paraphrased.)


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war crimes
For the first time in the 20 years since the 1994 genocide, a Rwandan perpetrator is on trial in France, a historic event for a country long accused of harboring Rwanda's genocidaires. Continue reading
The Syrian town of Azaz suffered government air strikes that reportedly left 30 dead. And residents insist that the bombs were targeting civilians, not rebel forces. Meanwhile, U.N. human rights monitors declared that both Syrian troops and rebels have committed war crimes. Independent Television News' Jonathan Miller reports. Continue reading
The ongoing battle in Aleppo between Assad regime troops and the Syrian Free Army has left civilians caught in the crossfire. Margaret Warner talks to Amnesty International's Scott Edwards and American Association for the Advancement of Science's Susan Wolfinbarger on how satellites are documenting human rights abuse in Syria. Continue reading
In other news Wednesday, former Liberian President Charles Taylor was sentenced in an international war crimes court to 50 years in prison for fomenting civil war in neighboring Sierra Leone. Also, Britain's highest court upheld an order to extradite WikiLeaks' founder Julian Assange to Sweden. Continue reading
After more than 15 years on the run, Bosnian Serb Gen. Ratko Mladic — once one of the world's most-wanted fugitives — finally went on trial before an international court Wednesday. Mladic faces 11 charges of genocide, crimes against humanity and war crimes tied to the Bosnian Civil War in the 1990s. Jeffrey Brown reports. Continue reading
Facing 11 counts of genocide and crimes against humanity, Bosnian Serb Gen. Ratko Mladic finally went before an international court Wednesday after more than 15 years on the run. Jeffrey Brown and Michael Dobbs of the U.S. Holocaust Memorial Museum discuss the case and Mladic's war crimes charges tied to the Bosnian civil war. Continue reading
Former Liberian President Charles Taylor's guilty verdict Thursday was the first time an international court has convicted a head of state since the Nuremberg trials. Jeffrey Brown and Eric Stover of the University of California, Berkeley discuss the conviction and the potential legal implications for other cases. Continue reading
Former Liberian President Charles Taylor was convicted Thursday by an international war crimes court in The Hague, Netherlands, for a series of atrocities, including funding rebels in Sierra Leone. Alex Thomson of Independent Television News reports on the historic verdict. Continue reading
Fugitive Bosnian Serb Gen. Ratko Mladic, accused of the worst war crimes in Europe since WWII, was arrested in Serbia on Thursday. Independent Television News' Jonathan Rugman reports on the long-awaited arrest. Continue reading
Fugitive Bosnian Serb Gen. Ratko Mladic, accused of the worst war crimes in Europe since WWII, was arrested in Serbia on Thursday. Margaret Warner discusses the significance of the arrest with U.S. Ambassador-at-Large for War Crimes Issues Stephen Rapp and Human Rights Watch's Emma Daly. Continue reading


text: Use mouse scroll wheel over image or pinch-to-zoom on touch devices. You can also click and drag around on image. Park it 1 1 Follow All You Need Parked to Man And Machine by Goodhal Garage Tags Open Rod Road Man And Machine Sign up to add your own tags Travis W Ahh, the open road. More from this Garage: More from this Profile: Garage Aprilia Motorcycles Garage BMW Motorcycles Garage BSA Motorcycles


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- Worldwide Rank #7,085,427
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Juju Bicalho Twitter Stats
@xjulianaaa - Tracking Juju Bicalho Twitter profile since May 2, 2011
Saving people, hunting things...the family business.
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24 Comments
Nice photos. Thanks for sharing. Too bad we couldn't celebrate a Phils win.
Pingback: Tweets that mention Photos from Today's Phillies-Cubs Game | Phillies Nation -- Topsy.com
Great photos. Made me feel as if I was there. I go every other year. It's my favorite place, however I had to cancel this year because my father recently passed away and I am an only child and thought it was too soon to leave my mom alone for that length of time. These photos really brightened my day. Enjoy your trip. Check out the Beer Garden tonite at the Navy Pier. There's a band @ 8pm & fireworks @ 10:15 over the Lake…a great time.
why isnt todays game on WPHL? for some reason its not on that channel but it shoudl be…
what is up with no gameday post, just because it is a Saturday afternoon, no reason to take it off
Well since there is not place to put it I am going to put this on here.
Charlie really needs to sit Jayson down, he did it last year with Jimmy for a week. The guy's head is just not in the game, he takes too many strikes and shakes his head that they are called strikes. He is too busy bitching and he needs some time off, I know Ben Fransico is not the talent that Jayson is, but Charlie had Brunlett playing short for a week, and there is no way that Ben is not closer to Jayson then The Beard was to JRoll. I just do not get it, he sits Raul, which I understand, but he is hitting the ball more up the middle. how can you not put ben in there even if you bat him 6th or 7th
as Raul puts on back up the middle, a cheesy hit but it is a hit
Raul stole 2nd! Hell yea
When did Raul decide he was a base stealer?
today i guess…….
maybe he should realize that he's not
Way to not walk the pitcher Mr. Hamels
was that stupid baserunning by Vic? what's the deal?!?
WTF is up with this site?
Anyway HUGE win. It had to happen.
Cubs gave them that win, at least we got a good outing by Hamels, Durbin and Lidge was okay.
That was a ugly win,but a win never the less…………….
The hitting needs to be addressed. Any trade at this point I support.
what is up not game day for posts, no post game for post, phillies nation have the day off for some reason.
I will say a win is a win, Lidge looked ok, Durbin looked pretty good, I am not worried about the walks today with this umpires moving strike zone. Now Doc will need a shut out to get a win tomorrow, and then the phillies have to win a few series in a row
Sites been down a ton lately too was down during the game today
need to get a new server
Great WIN!
"Hamels has gone seven or more innings in seven of his last eight starts, delivering an impressive 2.96 ERA and 49:18 K:BB ratio during that span (54.2 innings)."
Will the real Phillies' hitters please stand up? I realize we've been hit with the injury bug, and it has affected both the fielders & the pitching. BUT didn't someone tied to the game that hitting is contageous? We'd have about 10 to 15 more wins if the offense would show up more often.
Looking forward to it.. thanks Brian.


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NY "least free state" in U.S., report saysAugust 05, 2016
OSHA Issues New Rules for Reporting Workplace Injuries and IllnessesJuly 29, 2016
New York Cracking Down on Worker Exploitation'
Who will you be voting for for President?
Welcome to the Associated Building Contractors of the Triple Cites, serving the construction industry in South Central New York and Northern PA.
Established in 1942 the Associated Building Contractors of the Triple Cities, Inc. is dedicated to helping your business operate more efficiently, more effectively and more competitively.
Our area of coverage encompasses a seven county area surrounding the Triple Cities of Binghamton, Endicott, and Johnson City.
Join the Associated Building Contractors of the Triple Cites or our affiliate Southern Tier Builders Association in Jamestown, New York, and let us help you start building your construction business today !
Project Expeditor, William H. Lane Incorporated
Project Manager, William H. Lane Incorporated
Estimator, William H. Lane Incorporated


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Montagu backs Nordic surge
UK buyout firm Montagu Private Equity has bought Norwegian survival equipment maker Helly Hansen Group in a deal that caps a blistering year for private equity activity in the Nordic region.
Montagu has bought Helly Hansen in a deal valued at about £100m, according to a source close to the situation.
The transaction adds further momentum to surging investment in the Nordic region this year, with $5.5bn of buyouts and sales carried out by private equity firms, accounting for 28% of European private equity deals overall, according to data provider Dealogic.
This compares with just $158m of Nordic deals last year, which accounted for 2% of the European volumes.
Helly Hansen, which makes protection suits for the shipping sector which will be renamed Hansen Protection, marks the latest in a string of Nordic deals in recent weeks.
Christian Rasmussen, an investment director at Montagu, said: "The banks [in the Nordic region] are opening up again and we are seeing a lot of banks willing to finance transactions in the Nordic region at the moment. The region is viewed as attractive and a number of companies are performing better than a year or two ago."
Last week, Finnish buyout firm CapMan sold Nordic healthcare company OneMed to fellow private equity firm 3i Group in a deal which will allow CapMan to return €110m to investors.
Also last week, UK buyout firm Apax Partners looked set to agree the biggest European buyout since 2007 after entering exclusive talks to buy Danish facility services company ISS from rival EQT Partners for $8.5bn.
Last month, buyout firm Nordic Capital bought US private equity house Carlyle Group's baby seat manufacturer Britax Childcare for £450m.
Meanwhile, EQT and Nordic Capital are the remaining bidders in the auction of refrigerator manufacturer Dometic International, according to Bloomberg. None of the parties could comment by time of publication.
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