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July 9, 2008
147 BROADWAY CORP., PLAINTIFF-RESPONDENT,v.KIMBERLY ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-15597-06.
Submitted April 16, 2008
Before Judges Sapp-Peterson and Messano.
In this appeal, pro se defendant Kimberly Robinson appeals from the decision of the trial court, following a bench trial, entering a $9,370 judgment in favor of plaintiff, 147 Broadway Corp. (147 Broadway), defendant's former landlord. We reverse.
At trial, defendant testified that she had been a tenant at plaintiff's apartment complex, located at 255 Gregory Avenue in Passaic, since 1987. Although she initially paid rent monthly, in 1998, at the direction of Estella and Douglas Frint, the President and Vice-President, respectively, of 147 Broadway, defendant commenced paying rent on a weekly basis. On June 30, 2005, she received a Notice to Quit directing her to vacate the premises or pay a $200 monthly rent increase. Defendant sought help from the City of Passaic and learned that the property was subject to rent control and therefore plaintiff could not increase the rent to that amount. Defendant notified plaintiff that the proposed rent exceeded that which was authorized. Approximately one week later, defendant received another notice terminating her lease. This time the notice advised defendant that the apartment building was being converted into condominiums.
At this point in defendant's testimony the court questioned defendant as to the relevancy of this testimony. Defendant told the court that plaintiff was supposed to have given her three years notice and to offer her comparable housing if the property was being converted to condominiums. The court pointed out to defendant that she had been in "landlord-tenant court where [she] could have raised these defenses." Defendant explained to the court that she went to mediation. She also explained that she left the apartment because it was uninhabitable and indicated that she had pictures for the court's review. She also explained that plaintiff had started demolishing the building.
The court responded as follows:
Q: Well, before we get to that. Ma'am, you're mixing -- you're mixing all your issues here. You're talking about leaving, notices, and things like that. You had a landlord-tenant action, you settled it, you agreed to leave, and it gave them a judgment of possession.
A: Uh-huh.
Q: So those objections that you had on a legal basis are resolved. You can't raise them again. That was the chance to raise them, I don't want to leave for these reasons. You didn't raise those objections. You chose to leave. So those are not a defense to the money that's due to you now.
A: Okay.
Defendant explained to the court that she attempted to pay her rent between September 2005 and October 2006 but plaintiff would not accept it, and each time plaintiff refused to accept the payment, she sent a letter, which plaintiff signed for. The court once again explained that defendant was precluded from raising these issues because she could have done so before the landlord-tenant court, where she was represented by counsel, did not do so, and as far as the court was concerned, the matter was settled and defendant had no defenses to the action before it for non-payment of rent. We disagree.
New Jersey is an anti-eviction jurisdiction. See N.J.S.A. 2A:18-61.1 to -61.12, the Anti-Eviction Act (Act). As such, under the Act, no residential tenant may be removed from a premises unless the removal is for one of the statutory causes set forth under the Act, N.J.S.A. 2A:18-61.1(a)-(q). Non-payment of rent is one of the statutorily authorized bases for removal of a tenant. N.J.S.A. 2A:18-61.1(a).
Proceedings for removal of a tenant for non-payment of rent are instituted pursuant to N.J.S.A. 2A:18-53 and are summary in nature. See Hous. Auth. of Newark v. West, 69 N.J. 293, 300 (1976). The sole purpose of a summary action instituted by the landlord to recover possession of leased premises is to enable the landlord to obtain speedy recovery of the premises. West, supra, 69 N.J. at 300; Vineland Shopping Ctr., Inc. v. De Marco, 35 N.J. 459, 462 (1961). A judgment of possession enables the landlord to legally enter the property. In the absence of the judgment of possession, a landlord is prohibited from taking possession of residential premises. See Levin v. Lynn, 310 N.J. Super. 177, 183 (App. Div. 1998). Possession of the premises is the only available remedy for nonpayment of rent, because money damages may not be awarded in a summary dispossess action. Hous. Auth. of Morristown v. Little, 136 N.J. 274, 280 (1994).
However, neither a landlord nor tenant are precluded from seeking to recover money damages in a subsequent proceeding. Moyano v. Williams, 267 N.J. Super. 213, 216 (Law Div. 1993).
See Azar v. Jabra, 167 N.J. Super. 543, 552 (Law Div. 1979) (holding a "summary dispossession action is not conclusive or binding as between the parties in subsequent litigation"); see also Berzito v. Gambino, 63 N.J. 460, 469 (1973) (holding tenants were not precluded from seeking to recover rent paid prior to court's ruling in summary dispossession action that landlord had breached the warranty of habitability). N.J.S.A. 2A:18-59.
In the present matter, defendant and plaintiff entered into a Consent To Enter Judgment for Possession (Consent), a settlement agreement that called for defendant to surrender possession to the landlord within ten days of the entry of judgment. The agreement also provided that the "[t]enant shall pay no money[.]" Nowhere in the Consent is there notice to defendant that by reaching this agreement, she waived her right to challenge any subsequent action commenced by the landlord to recover damages arising out of non-payment of rent. Because the Consent did not make clear that by entering into the agreement, defendant was waiving any defenses she may have in any subsequent action for damages arising out of her tenancy, the trial court erred in precluding defendant from raising her defenses to the action.
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text: Troy Benjamin 9,424pages on this wiki Add New Page Edit History Talk0 Share Ad blocker interference detected! Wikia is a free-to-use site that makes money from advertising. We have a modified experience for viewers using ad blockers Wikia is not accessible if you've made further modifications. Remove the custom ad blocker rule(s) and the page will load as expected. Troy Benjamin wrote Agents of S.H.I.E.L.D.: Season One Declassified, Agents of S.H.I.E.L.D.: Season Two Declassified, and Guidebook to the Marvel Cinematic Universe. Retrieved from "http://marvelcinematicuniverse.wikia.com/wiki/Troy_Benjamin?oldid=433633" Categories: Crew Writers


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|Universal Squadrons
Actors: Riley Smith, Willa Ford, Christian Kane, Barry Corbin, Marshall Teague
Director: Mark Millhone
UR 2011 1hr 24min
Back from the Iraq, Captain Lance Deakin is haunted by flash-backs of a hyper violent video game he played while on tour. Exhibiting strange powers, he is pulled deeper into the vortex of this memory, slowly realizing that... more »
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|Actors: Riley Smith, Willa Ford, Christian Kane, Barry Corbin, Marshall Teague
Director: Mark Millhone
Studio: Maverick Entertainment Group
Format: DVD - Color,Widescreen
DVD Release Date: 06/07/2011
Release Year: 2011
Run Time: 1hr 24min
Screens: Color,Widescreen
Number of Discs: 1
SwapaDVD Credits: 1
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MPAA Rating: Unrated
Languages: English
Director: K.C. Bascombe
R 2009 1hr 30min
|Her Minor Thing
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PG-13 2007 1hr 31min
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Deanna Sirlin says of her show, "Under and Over: New Collages,"
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Through Dec. 11.
Bank of America Plaza
600 Peachtree Street NE
Atlanta, GA 30308


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Score +95
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Week 3 (special edition): June 22
Week 5: July 5
Week 6: July 12 (and here)
Week 7: July 19
Week 8: July 26
Week 9: August 2
1,274 Comments
Featured Comments
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Initial thoughts, it could be a Fox studio movie, or even a BBC studio (since those are two networks MasterChef has aired on) but the only recent releases they've had are Ice Age Collision Course and Florence Foster Jenkins, respectively.
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Shonen Knife | S/t
Shonen Knife Day. They got a new record out. I don't have it yet. Next paycheck. But time marches on, and with so many horrible things in the world, there's this band. It's maybe kinda dumb that there is a Shonen Knife Day. I didn't say that. Did you say that? I'm glad there's an excuse to write about them just now, myself. And listen to the album. I'm gonna listen to the album, then write about it, that's the order of things that I will be doing. Then maybe I'll listen to it again but that doesn't concern you.
This is not strictly a real album released by the band. It compiles their first two albums from the early eighties on Zero Records, Burning Farm and Yama-no Attchan and also includes tracks from the Zero comp Aura Music. Apparently these tracks are on the reissue of Burning Farm as well as the K Records cassette so maybe this is too much information. I've never bothered getting these other more official versions, but I've heard them and they just don't seem as good to me. I mean the sound quality's probably better, but I just love how this thing is sequenced. It really feels like one long album; it's the definitive early history imo. It's not like breaking up the two albums restores some kind of distinct conceptual arcs, they are just collections of songs they had at the time. And the level of songwriting and recording had yet to progress so it all matches. (They have a technically have a demo album before all this but that is really raw and not that great to listen to.)
The members of the band themselves may disagree but the recordings as they appear on this release are perfect. (They even re-recorded Dali's Sunflower, I love that one in particular. Maybe there's a guest on it they can't credit?) It's not exactly an Albini-type puritan affair of strictly live recordings, there's some studio experimentation and sound effects thrown in here and there, but it accurately records (unless it doesn't, I wasn't there) what the band was at the time, which is what any band starting out should strive for. Altho I admit when I first heard it I was shocked at the difference in sound from the very modern Rock Animals and polished surf-punk of Let's Knife, it grew on me pretty fast. It's like instant nostalgia for something I never experienced before, there's just a weird mood to it. Right from the version of Watchin' Girl that sounds like the tape is changing speeds. It's just as good as the later version but for different, unexplainable reasons. And I could be remembering this wrong, but I think it's the first album I heard that's all in Japanese. I remember falling in love with the sound of the language. It has a certain unique rhythm. Supposedly they prefer singing in English because all of their influences do, but before they learned English, they found it way to make their native language fit naturally in this early punk/pop soundscape. (Unusual song topics may have helped.)
Plenty has been written on Shonen Knife's song topics, but what about that early soundscape? Ramones and Buzzcocks are the obvious precursors whose influence is carried on more or less to today. But here there's the trebly, minimalist sound of the late-70s girl post-punk like Delta 5, Kleenex/LiLiPUT, maybe even The Slits. There's an unmistakable reggae vibe to several of the songs which they really never went back to. In their book Shonen Knife Land they each have a top 20 albums list and the closest thing mentioned is a Beat Happening's You Turn Me On, which is really not that close! That was from departed bassist Michie's list and I talked about her contribution to the band before. But Naoko tries a lot of weird stuff too on this record: the cartoon industrial of A Day at the Factory, the tribal jam of Burning Farm, the melancholic Bye Bye—obvious album closer that ends Yamo-no Attchan, but the tacked-on Parrot Polynesia with its upbeat island vibe is an even better way to sign off. Seems totally planned.)
A whole generation of SK fans now is probably not familiar with the old stuff and/or just listens to streams and doesn't care so much about the feel of an album. You are objectively wrong, first of all, that whole system is on it's way to crashing and burning and does not care about you. Second—there is no second, this is their best early album and you need to listen to all of it.


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Jarrod Dyson & Carlos Pena: Deep League Wire
More injuries opening up opportunities! Pair these two studs and you have the potential to receive a serious power and speed boost. Or not. But maybe.
Jarrod Dyson | OF KC | CBS 5% Owned
With Norichika Aoki out after suffering a groin injury, the major beneficiary is the slap-hitting speedster Dyson. As a lefty, he'll split the right field at-bats with Justin Maxwell in a strict platoon situation. You know what Dyson offers – speed and lots of it. He's stolen an insane 96 bases over his short Major League career, or about 71 bases per 600 plate appearances. He's essentially what fantasy owners were hoping Billy Hamilton would be, but without a full-time role!
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Carlos Pena | 1B TEX | 1% Owned
Seriously. The Rangers injuries woes continue, as they now search for a replacement for the replacement. After losing Mitch Moreland to an ankle injury, who was replacing Prince Fielder at first, who himself is out for the year, the Rangers tried journeyman Brad Snyder. He was given a short leash and let go after he happened to not perform over a tiny sample size. After learning that Moreland will indeed be lost for the year, the Rangers are attempting to catch lightning in a bottle again, this time by signing Carlos Pena. Yes, that Carlos Pena.
Pena, of course, was given up by the Astros last year, played in four games for the Royals, and wasn't heard from again. But desperate times call for desperate measures, and now Pena is getting his chance on the Rangers first base carousel. The good news is that Pena's plate discipline, namely his walk and strikeout rates, were the same as they have always been last year. He didn't become less patient or suddenly start striking out 40% of the time. He hit line drives at an above average clip, avoided the pop-up, and maintained a mid-teen HR/FB ratio.
Unfortunately, he lost the ability to loft the ball, as his fly ball rate fell to a career low, plunging below the 30% mark for the first time. That dampened his ability to hit for power resulted in a wOBA below .300. That's really it folks. It was only a matter of too few fly balls, as every other skill was right in line with past seasons. So perhaps Pena wasn't truly done after all, and maybe that low fly ball rate was just a fluke. Or, it could just be an old player following the aging curve trend in relation to his batted ball distribution.
Whatever the case may end up being for his fly ball rate, Pena comes to a home park that ranked fifth in baseball in left-handed home run factor at 110. He's obviously not going to help your average, but his value gets a huge boost in OBP leagues. While he could very well be released in a couple of weeks like Snyder, the Rangers have few other alternatives at this point.
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don't tell me that you don't think that nick robinson doesn't look like shawn mendes and ansel elgort in one
don't tell me that you don't think that nick robinson doesn't look like shawn mendes and ansel elgort in one
1) Listen to this with headphones.
2. Listen to this and think of Shawn.
3) Listen to this and think of how you feel when you hear his voice.
4) Listen to this and think of how much love you have for him in this very moment.
5) Now listen to this from Shawn's perspective.
That's exactly how much he loves you.
Y'all are definitely going to kill me for this one but I don't give a shit anymore because GUYS just imagine Shawn keeps whispering your name under his breath and you are sucking him off teasingly and you're looking up at him and making eye contact and not breaking your gaze and every time he says he is about to come you pull off and shake your head no and he is a writhing, whimpering mess because of you and he is tangling his hands in the sheets because you had already told him that he wasn't allowed to put his hands in your hair or touch you in general and before too long you finally stop teasing him and climb up and put a condom on him and you start riding him slowly and he's staring up at you with hooded eyes and he keeps moaning your name over and over again and getting louder and louder and you pick up the pace gradually and he is begging you to let him come and you finally say, "Ok. Since you've been so good." And he has the most intense orgasm of his entire life thanks to you.
I just need to have a black Lamborghini specifically made for me with my name engraved in gold on it for when I drive my ass to Hell because it's going to happen either way.
Being a cute adorkable dork….😘😘😘😘😘😘😍😍😍😍😍😍😍😘😘😘😘😘😘😝😎 Idk what happened to the second and third gif
confess here | ask.fm | twitter | personal blog
You want to comment this confession with me? You can do it here.
When you walk into school wearing new clothes musiic-is-lifee
You and your fav ;)
Currently crying my eyes out
{Creds to owner}
Many weird, but cute pictures of shawny
confess here | ask.fm | twitter | personal instagram
You want to comment this confession with me? You can do it here.
Candids are the best 😍
Favorite pic
"Matt Is 17"
What a dork
But guys just imagine you and Shawn going to the state fair and y'all ride every ride there and you hold his hand during every ride the whole and y'all walk around with his tatted arm around you and constantly kisses you on the cheek or on the forehead, his cool lip piercing always feeling cold against your warm skin, and y'all finally stop to get some cotton candy and he orders a huge one to share with you and he takes a large bite out of it and he grins proudly and says, "Tastes just like you, babe." And you blush really hard at his statement and when Shawn finishes up the cotton candy and ride a few more rides again, y'all head home and Shawn eats you out and says, "Mmm.. you taste so good, baby girl."
Let me just fuck myself to Hell already.
Sometimes Shawn can be sexy, other times he's a total weirdo……😍😘
*waits patiently*
They both look so good😍
Imagine your fav sending you this:


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The 58th Annual Scoutmasters Camporee will be held on February 17-19, 2017
Theme for 2017: Scouting the New Frontier: The Moon, Mars and Beyond
Chief: Fernando Gutierrez
2016 Camporee photographs have been posted on our Facebook page. Click the Facebook icon to the left of this text. Look for the 2016 album.
See the Camporee Announcements page for the latest details and new events. BIG NEWS! We have confirmed our main speaker for the 2017 Camporee. Francis R. Smith of Kennedy Space Center will be spending the weekend at the Camporee with us. See the Announcements page for full details.
As of November 1, all open campsites are available on a first-come, first-served basis. And remember that once you reserve your campsite this year, you will automatically have first right of refusal for retaining that spot going forward. To reserve your campsite you only need to pay the $20 deposit! All other participant fees will not be due until your unit confirms your final headcount by January 31st for the Early Bird pricing! Go to https://events.sfcbsa.org/index.php/event/192/2017-Scoutmaster-s-Camporee to reserve your unit's site.
2017 Campsite roster as of December 5, 2016
2017 Campsite map as of November 18, 2016
Scoutmasters Camporee forms
These forms are form field enabled meaning they can be filled out on a computer and then print the completed form. The cursor will change to an I bar when placed over a field. Click in any field to move the cursor there. Pressing "tab" will advance one field; "shift" + "tab" to go back one field.
Roster of your participants - PDF 15 kb - form field enabled
Parking ID
Join our Yahoo Group email list to get important notices about the Camporee
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Aerial photo from the 2012 camporee:


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Sinorock rock bolt system-Serving the diverse industrial needs
Le 28 mai 2016, 06:32 dans Humeurs • 0
Sinorock is a leading supplier of high-quality rock bolt system serving the diverse industrial needs ranging from infrastructure development to civil engineering and the concrete industries. Sinorock's high quality rock bolt systems are suitable for both permanent and temporary applications, including the most difficult ground conditions.And we are able to develop products designed for the specific applications of our customers through our continued research into new and innovative technologies,we also have many advanced product lines for anchor bolt system manufacturing.
In Tunneling, our core product line ranges from rock bolts and stainless steel rock bolts to anchor nets. Each rock bolt support system is customized and professionally engineered to your specific application.Our rock bolt support systems are designed to make tunneling safer. Thanks to our local presence around the globe, we can satisfy your needs for ground control quickly and efficiently – no matter where you are.
For projects facing geo-conditions above,self-drilling rock bolt should be considered as the main solution cuz it's designed for optimized installation, tailored to the project's needs.
This unique system, which was originally designed and developed by Sinorock, has been used extensively on a world-wide basis for anchoring in soils and weak rock and can provide between double and treble the working load of normal ground anchors over lengths of 8 to 10 metres.


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As summer hits us, the time to embrace the outdoors – but there's no need to sacrifice your design love, especially with Tait's new Breeze Modular.
Few would disagree that, as a nation, we love the great outdoors. But sometimes it doesn't love us back. How does A+D respond to the harsh conditions of the Australian climate?
The new Anaca Studio furniture range channels a sense of European minimalism to offer enhanced small-space living designer solutions for Australian homes
The Forest Collection from Knock on Wood brings a touch of nature to the indoors, with a warm collection of furniture designed to bring the forest home
When not curating the best designs from around the world, our Habitus Living team loves nothing better to lounge around on the products we write about. Here are some of our favourites, from beautiful works of art to astonishingly comfortable sofas and armchairs we just want to leap into and never leave.
Book case meets wine cabinet in Elite, To Be's Libreria del Vino, a modular storage system designed to keep our favourite thing at the tip of our fingers.
Getting international product is always a challenge. Shrinking local lead times makes the improbable completely impossible, especially if you have a fussy project. So how can we get classic European items into a project in a timely manner? Walter Knoll Australia teaches us how…
"Like music or art, our goal is to make furniture that becomes a part of your daily life, surpassing artificial boundaries of culture and custom to bring peace and tranquillity to people everywhere." This is the story of Japanese-Milanese furniture design house, Ritzwell.
Of all rooms in the home, the bedroom is one where comfort is perhaps most paramount. As the place to relax and spend time gathering forces for the day to day, the bedroom is a place where special care should be taken in design. These beds from AJAR exemplify the relaxing mood the bedroom should be
The Eames Lounge and Ottoman are amongst the most iconic designs in industrial design. Seamlessly blending luxury and comfort, the Lounge and Ottoman now celebrate their 60th anniversary, making it only fitting that we revisit them.
Celebrating 150 years in design, Walter Knoll is synonymous for timeless elegance. Their Healey Lounge continues this legacy.
Having just celebrated 50 years in the game, Schiavello has released Karo, their latest ottoman-inspired seating solution for home and work spaces. The collection proves that there's more to the humble ottoman than meets the eye.
Spring has sprung so it's the perfect time to start thinking about how to make the most of the season with nature flourishing out of Winter. Joost Bakker's latest iteration of the Vertical Garden is the perfect way to bring a little green inside the home.
"Amazing read about an amazing person! I love all the stuff you create and I'm so happy for you, proud of you"FOCUS, FORM AND FUNCTION


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- By Louise Jack
- 1 minute Read
Company | Profile
Apple Inc. is an American technology company known for its pivotal developments in hardware, software, and online services. Cofounded in 1976 by the revered tech entrepreneur and inventor Steve Jobs and engineer Steve Wozniack in Cupertino, California, Apple has continually revolutionized the consumer electronics industry. The company helped usher in the age of the personal computer in the 1980s with the sleek, affordable Macintosh; bolstered the age of digital-music listening with the iPod in 2001 (and later iTunes); and laid the groundwork for the current smartphone landscape with 2007's iPhone and iOS operating system.
Apple is now a multinational corporation, influencing consumer technology on a global level, growing an entertainment business with Apple Music and Apple TV, and even breaking into the auto and health care industries. It's the dominant high-end phone maker in China--its second-most important market after the United States, where its mobile operating system already enjoys a 44% market share after Android's 51%. Globally, the iPhone has the second-highest smartphone market share, second only to Samsung.
Under Jobs's purview as Apple's CEO from 1997 to his death in 2011, the company became known for its intense focus on design. The British designer Jony Ive, who was hired in 1992 and later became Apple's chief design officer, is largely responsible for much of the company's iconic visual appeal: sleek (often white) minimalism and an emphasis on unparalleled user experience. Apple's design-first approach has become enmeshed in the fabric of everything the company touches, from its fast-growing retail concept, the Apple Store, to the interfaces of 2010's iPad and 2015's Apple Watch.
And the company has been expanding beyond its traditional consumer electronics roots: In 2014, Apple purchased headphones and music streaming company Beats for nearly $3 billion, laying the groundwork for its own streaming service Apple Music to launch in 2015 and growing its entertainment footprint. Apple also is making big bets in seemingly far-flung sectors: investing in developing a (possibly autonomous) car due out in 2019; rolling out a common language for Internet of Things products called HomeKit in 2014; and investing in health care technology, namely its free open source software framework ResearchKit (2015) that will help researchers and developers create apps that collect data on a massive scale.
While the company's U.S. operations and data centers already run entirely on renewable energy, 72% of its greenhouse gas emissions can be traced to manufacturing. So Apple is focusing on cleaning up its global supply chain: In April 2015, the company announced a plan to build 200 megawatts of solar projects in China that will offset energy use and produce enough energy to power 265,000 homes in a year. When Apple's first retail store in Southeast Asia opens in Singapore, it will run entirely on solar power. And a 1,300-acre solar farm in Monterey County, California, will be completed in 2016 to power Apple's new campus and all of its California offices and retail stores.
In its fiscal 2015 fourth quarter, Apple posted quarterly revenue of $51.5 billion, its most successful year ever.Up next on the horizon for the company will be a push to expand its global reach: Apple has been doubling App Store sales in China every year since 2013 and is in the process of growing its fleet of physical Apple Stores there from just six stores in 2013 to 40 in the next year.


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United States District Court, N.D. New York
June 17, 2014
UNITED STATES FOR THE INTERNAL REVENUE SERVICE, Appellant,v.JEFFREY H. BENJAMIN, Appellee. UNITED STATES FOR DEPARTMENT OF VETERANS AFFAIRS, Appellant,v.JEFFREY H. BENJAMIN, Appellee.
LAURA C. BECKERMAN, ESQ., Trial Attorney, HON. ERIC H. HOLDER, JR., Attorney General of the United States, United States Department of Justice-Tax Division Washington, DC., Counsel for Appellant.
WILLIAM F. LARKIN, ESQ., Assistant United States Attorney, HON. RICHARD S. HARTUNIAN, U.S. Attorney for the Northern District of New York, Syracuse, NY, Co-Counsel for Appellant.
SELBACH LAW FIRM, PLLC, JAMES F. SELBACH, ESQ., Liverpool, NY, Counsel for Appellee.
SUSAN N. ESCE, ESQ., OFFICE OF SUSAN N. ESCE, East Syracuse, NY, Co-Counsel for Appellee.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
The two above-captioned actions are bankruptcy appeals, filed by the United States, from a Decision and Order issued by United States Bankruptcy Judge Margaret Cangilos-Ruiz on September 18, 2013. For the reasons set forth below, the United States' appeals are denied, and Judge Cangilos-Ruiz's decision is affirmed.
A. Events Giving Rise to Current Dispute
Jeffrey H. Benjamin ("Debtor" or "Appellee") filed a voluntary petition for bankruptcy on April 10, 2013. The automatic stay protecting Debtor from creditors seeking to collect prepetition debts was immediately imposed pursuant to 11 U.S.C. § 362(a).
Debtor alleges that, despite the automatic stay, on June 17, 2013, he received a notice from the Internal Revenue Services ("IRS") informing him that it had applied $1, 497.88 of his 2012 tax refund to an outstanding 2008 tax liability (which liability is dischargeable in the pending bankruptcy case), noting a net "refund due" of $403.12. Moreover, Debtor alleges that, on June 3 and 7, 2013, he received a bill and notice from the Department of Veterans Affairs ("DVA"), informing him that it had applied the balance of his 2012 tax refund ($403.12) in partial payment of his pre-petition debt.
On July 10, 2013, Debtor filed motions pursuant to 11 U.S.C. § 362(k) seeking to vindicate his right to be free from the harassment of creditor demands, and preserve the integrity of the automatic stay.[1] In such a motion, a debtor may seek compensation for actual damages suffered in such an action. In his motions, Debtor sought "actual damages in the form of emotional distress" (because the IRS and DVA had denied him the right to be free of creditor collection "pressure, " and the right to a "fresh start, " guaranteed by the Bankruptcy Code), as well as "attorney's fees."[2]
On August 13 and 14, 2013, the IRS and DVA filed requests to strike or summarily deny Debtor's motions for lack of jurisdiction. In their requests, the IRS and DVA argued that, because Debtor seeks money damages in connection with the alleged violations of the stay, the relief Debtor seeks may be sought only through an adversary proceeding (which must be, but was not, initiated through the filing of a separate complaint).
On August 22, 2013, Bankruptcy Judge Cangilos-Ruiz held a hearing. At the hearing, Judge Ruiz orally overruled the Government's objections and denied the motions to strike. Approximately four weeks later, on September 18, 2013, Judge Ruiz issued a written decision explaining her ruling.
B. Judge Cangilos-Ruiz's Decision
Generally, in her Memorandum-Decision and Order of September 18, 2013, Judge Ruiz reasoned as follows: (1) of course, there is a difference between an "adversary proceeding" (which is commenced by filing a complaint under Bankruptcy Rule 7003) and a "contested matter" (which may be commenced by filing a motion under Bankruptcy Rule 9014); (2) Bankruptcy Rule 7001 lists ten types of proceedings that must be commenced by adversary proceeding (and thus must be commenced by filing a complaint), one of which is "a proceeding to recover money or property...."; (3) the United States agues that, because Debtor's request seeks money damages in connection with the alleged violations of the automatic stay, Debtor's request is "a proceeding to recover money or property" that must be, but has not been, commenced through the filing of a complaint; (4) however, a request to vindicate one's rights under 11 U.S.C. § 362(k) is not in the nature of "a proceeding to recover money or property" under Bankruptcy Rule 7001; (5) such an interpretation (which is shared by judges across this Circuit) permits the expeditious resolution of a matter that affects the fundamental purpose of the Bankruptcy Code-to give a debtor necessary breathing room to be free from the harassment of creditor demands while simultaneously preserving property of the estate intact for ultimate distribution to creditors; and (6) moreover, because Part VII of the Federal Rules of Bankruptcy Procedure incorporate (or adopt with modification) many of the Federal Rules of Civil Procedure, due process norms during litigation in bankruptcy court correspond to due process norms during litigation in district court (for example, service of a motion under Bankruptcy Rule 9014 must be made in the same manner as service of a complaint under Bankruptcy Rule 7004). (Action No. 13-CV-1503, Dkt. No. 1, Attach. 5.)
C. Parties' Arguments on Appeal
1. Appellant's Memorandum of Law in Chief
Generally, in its memorandum of law in chief, Appellant asserts six arguments. First, argues Appellant, Appellee's failure to bring his action for damages as an adversary proceeding deprives the Court of jurisdiction over Appellant. (Action No. 13-CV-1503, Dkt. No. 3, at 16-17 [attaching pages "10" and "11" of Appellant's Memo. of Law].)
Second, argues Appellant, numerous courts have found that actions for damages require an adversary proceeding, and many courts see no basis to except claims for damages under 11 U.S.C. § 362(k)(1). ( Id. at 17-21 [attaching pages "11" through "15" of Appellant's Memo. of Law].)
Third, argues Appellant, the rationale underlying Judge Cangilos-Ruiz's decision is flawed and cannot justify ignoring Bankruptcy Rule 7001's plain language because (a) the Decision's insistence that damages are not a money recovery is untenable and at odds with the definition of "recover, " (b) the Decision's finding ignores the commonality among all ten paragraphs of Bankruptcy Rule 7001, which underlie the common need for an adversary proceeding, (c) neither the goals of the automatic stay, its legislative history, nor the Second Circuit's decision in Weber v. SEFCU support an exception to the Bankruptcy Rule's plain Language, (d) the exceptions to Bankruptcy Rule 7001 do not support Judge Cangilos-Ruiz's construction of Bankruptcy Rule 7001, (e) comparing a debtor's claim to recover monetary damages to a creditor's motion to lift an automatic stay under Bankruptcy Rule 4001 is flawed in that it misses the point of why proceedings to recover money were included in Bankruptcy Rule 7001 (i.e., that proceedings covered by Bankruptcy Rule 7001 may be brought against third parties, whereas motions to lift the stay are against the debtor who filed the petition giving rise to the stay), and (f) the ability to apply Part VII of the Federal Rules of Bankruptcy Procedure to motions (under certain circumstances) does not support creating another exception to the plain text of Rule 7001. ( Id. at 21-35 [attaching pages "15" through "29" of Appellant's Memo. of Law].)
Fourth, argues Appellant, courts that allow actions for damages to be brought by motion rely primarily on a flawed understanding of the contempt doctrine, because (a) contempt is not available for a purely statutory violation, (b) sovereign immunity bars a contempt action against the United States for an alleged violation of 11 U.S.C. § 362(a), and (c) cases allowing motions for damages based on alleged violations of the discharge injunction under 11 U.S.C. § 524 are not applicable. ( Id. at 35-41 [attaching pages "29" through "35" of Appellant's Memo. of Law].)
Fifth, argues Appellant, Judge Cangilos-Ruiz's conclusion that need for haste supports a practice of allowing damages claims to be brought by motion is based on faulty logic and without support, because (a) the decision conflates a motion to stop an ongoing violation of the stay with an action seeking damages for injuries already caused, creating an artificial need for haste as to the latter, (b) concern for urgency cannot override Bankruptcy Rule 7001, and (c) occasional urgency cannot justify overriding the rule in all cases. ( Id. at 41-46 [attaching pages "35" through "40" of Appellant's Memo. of Law].)
Sixth, argues Appellant, because reversal may not be an adequate remedy, the Court should consider advising the Bankruptcy Court to summarily reject "motions" for damages under 11 U.S.C. § 362(k)(1), without prejudice to the filing of a proper adversary complaint. ( Id. at 46-50 [attaching pages "40" through "44" of Appellant's Memo. of Law].)
2. Appellee's Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Appellee asserts six arguments. First, argues Appellee, the Government's argument is based entirely on a fundamental misunderstanding of the primary intent and nature of 11 U.S.C. § 362(k)(1) as a compensation statute instead of a rights-enforcement statute. (Action No. 13-CV-1503, Dkt. No. 6, at 6-7 [attaching pages "1" and "2" of Appellee's Opp'n Memo. of Law].)
Second, argues Appellee, 11 U.S.C. § 362(k)(1) is a "fee shifting statute" in that mandates the award of attorney's fees in the event of a violation of an automatic stay that injures an individual (in order to incentivize private enforcement and encourage compliance with the law). ( Id. at 7-10 [attaching pages "2" through "5" of Appellee's Opp'n Memo. of Law])
Third, argues Appellee, like every other fee-shifting statute, 11 U.S.C. § 362(k)'s primary purpose is not compensation but is to uphold the rights of debtors to be free from creditor harassment and to preserve the integrity of the automatic stay. ( Id. at 10-12 [attaching pages "5" through "7" of Appellee's Opp'n Memo. of Law].)
Fourth, argues Appellee, both the Bankruptcy Code and the Second Circuit have described a monetary award under 11 U.S.C. § 362 not as compensation but as a "penalty" or "sanction." ( Id. at 12 [attaching page "7" of Appellee's Opp'n Memo. of Law].)
Fifth, argues Appellee, if the internal systems of the Government somehow consider a Notice of Motion less serious than a Summons (and thus less likely to result in a response than a Summons), then those systems must be changed to comply with the Bankruptcy Code; it is not the obligation of the Bankruptcy Code to comply with the internal practices and procedures of the Internal Revenue Service. ( Id. at 13 [attaching page "8" of Appellee's Opp'n Memo. of Law].)
Sixth, argues Appellee, the majority of courts have found that contested matters involving a wilful violation of the automatic stay must be made by motion. ( Id. at 13 [attaching page "8" of Appellee's Opp'n Memo. of Law]; see also Dkt. No. 1, Attach. 15, at 2-6 [attaching pages "1" through "5" of Debtor's Brief].)
3. Appellant's Reply Memorandum of Law
Generally, in its reply memorandum of law in chief, Appellant asserts five arguments. First, Appellant argues, Judge Cangilos-Ruiz did not endorse the arguments upon which the Appellee relies, and the Appellee did not defend the rationale of Judge Cangilos-Ruiz against critiques of the United States. (Action No. 13-CV-1503, Dkt. No. 7, at 2 [attaching page "2" of Appellant's Reply Memo. of Law].)
Second, Appellant argues, there is no "majority" view: Appellee misreads relevant case law and fails to address the case law in support of Appellant's position, because (a) Appellee's underlying brief misreads the Central District of Illinois' opinion in In re Dean, and (b) Appellee's underlying brief inaccurately dismisses other cases that support the United States' position. ( Id. at 2-8 [attaching pages "2" through "8" of Appellant's Reply Memo. of Law].)
Third, Appellant argues, Appellee's argument that 11 U.S.C. § 362(k)(1) is a fee-shifting statute is contrary to the plain language of the statute and applicable case law, because (a) 11 U.S.C. § 362(k)(1) is not simply a fee-shifting statute in that a debtor must show actual damages to maintain a claim, and (b) Appellee vastly overstates the legislative history of 11 U.S.C. § 362(k)(1), which does not show an intent on the part of Congress to create an exception to Bankruptcy Rule 7001(1). ( Id. at 8-13 [attaching pages "8" through "13" of Appellant's Reply Memo. of Law].)
Fourth, Appellant argues, Appellee's characterization of 11 U.S.C. § 362(k)(1) as a penalty statute that imposes sanctions is inaccurate, because (a) when brought against the United States, a claim under the statute must have a compensatory purpose, rather than a penal purpose, (b) Appellee's reference to sanctions implicates the contempt doctrine, which Appellant has shown does not apply under the circumstances, and (c) Appellee's reliance on 11 U.S.C. § 342(g)(2) (to establish that 11 U.S.C. § 362[k] is a rights-enforcement statute rather than a compensation statute) is misplaced in that 11 U.S.C. § 342(g)(2) seems to refer only to the notice required for an award of punitive damages, not an award of all damages. ( Id. at 13-14 [attaching pages "13" and "14" of Appellant's Reply Memo. of Law].)
Fifth, Appellant argues, Appellee mischaracterizes the IRS's interest in being properly served, because, rather than arguing that it considers a Notice of Motion "less serious" than a summons and complaint and that it has an internal operating procedure designed to ignore motions, what Appellant was actually arguing was that (a) several features of a motion (i.e., its typical caption, its typical title, and the unit to which they are mailed) make oversights or internally misdirected documents more likely with respect to a motion than with respect to a complaint, and (b) it is "unprecedented [throughout the history of this country] to hold a person liable to pay out money for defaulting in response to a mere motion crafted by a private party and mailed to that person without any court-issued [summons or order]." ( Id. at 14-15 [attaching pages "14" and "15" of Appellant's Reply Memo. of Law].)
4. Oral Argument
Oral argument in this action occurred on May 28, 2014. Generally, at the oral argument, counsel for the parties elaborated on, and answered questions regarding, the arguments asserted in their memoranda of law. ( See generally Oral Argument Tr. 2-20.)
This Court has jurisdiction to hear this appeal under 28 U.S.C. § 158(a). Rule 8013 of the Federal Rules of Bankruptcy Procedure provides in pertinent part as follows:
[o]n an appeal, the district court... may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree, or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of witnesses.
Fed. R. Bankr. P. 8013. Thus, the district court must uphold the factual findings of a bankruptcy court unless they are clearly erroneous. Hudson v. Harris, 09-CV-1417, 2011 WL 867024, at *9 (N.D.N.Y. Mar. 10, 2011) (Scullin, J.). A district court may find a bankruptcy court's determination to be clearly erroneous when, on consideration of the record as a whole, the court is left with the definite and firm conviction that a mistake has been committed. Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 (2d Cir. 2001) (quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364 [1948]). "[P]articularly strong deference [must be given to] a [bankruptcy] court's findings of fact based on credibility assessments of witnesses it has heard testify." Pisculli v. T.S. Haulers, Inc. (In re Pisculli), 426 B.R. 52, 59 (E.D.N.Y. 2010), aff'd, 408 F.App'x 477 (2d Cir. 2011) (quoting In re Boyer, 328 F.App'x 711, 716 [2d Cir. 2009]). Although the bankruptcy court's findings of fact are not conclusive on appeal, the party that seeks to overturn them bears a heavy burden. H & C Dev. Group, Inc. v. Miner (In re Miner), 229 B.R. 561, 565 (B.A. P.2d Cir. 1999) (citation omitted).
The bankruptcy court's legal conclusions, however, are subject to de novo review. See Asbestosis Claimants v. U.S. Lines Reorganization Trust (In re U.S. Lines, Inc.), 318 F.3d 432, 435 (2d Cir. 2003). The court reviews mixed questions of law and fact either de novo or under the clearly erroneous standard depending on whether the question is predominantly legal or factual. Bay Harbour Mgmt., L.C. v. Lehman Bros. Holdings Inc. (In re Lehman Bros. Holdings, Inc.), 415 B.R. 77, 83 (S.D.N.Y. 2009) (quoting Italian Colors Rest. v. Am. Express Travel Related Servs. Co. (In re Am. Express Merchants' Litig.), 554 F.3d 300, 316 n. 11 [2d Cir. 2009]).
After carefully reviewing Judge Cangilos-Ruiz's Decision and Order of September 18, 2013, the Court can find no error whatsoever in her legal conclusions, nor can the Court find any error (clear or otherwise) in her factual findings. As a result, the Court denies Appellant's appeal, and affirms Judge Cangilos-Ruiz's Decision and Order for the reasons stated therein, and the reasons stated in Appellee's opposition memorandum of law. See, supra, Parts I.A. and I.B.2. of this Decision and Order. The Court would only add the following four points.
First, it appears that there are three district court cases from within the Second Circuit holding that the proceeding at issue in this appeal is not a proceeding to recover money or property. See In re: Nassoko, 405 B.R. 515, 526-27 (Bankr. S.D.N.Y. 2009) ("[I]t is unnecessary to proceed by way of adversary proceeding when requesting sanctions accompanied by damages for violation of the automatic stay under § 362 of the Bankruptcy Code."); In re: Hooker Inv. Inc., 116 B.R. 375, 378 (Bankr. S.D.N.Y. 1990) (holding that the imposition of sanctions for violation of automatic stay may be sought by motion rather than complaint), accord, In re: Texaco, Inc., 182 B.R. 937, 945 (Bankr. S.D.N.Y. 1995). The sole contrary case was issued before 11 U.S.C. § 362(k) (formerly 11 U.S.C. § 362[h]) was enacted in 1984. See In re: Nat'l Sugar Refining Co., 23 B.R. 726, 728 (Bankr. S.D.N.Y. 1982) (finding that an adversary proceeding is "clearly appropriate" when the plaintiff seeks recovery of monetary damages).[3]
Second, it appears that the circuit courts that have addressed the issue have similarly held that the request at issue in this appeal is not a proceeding to recover money or property. See In re Zumbrun, 88 Bankr. 250, 252 (9th Cir. B.A.P. 1998) (rejecting argument that a request for sanctions pursuant to 11 U.S.C. § 362[h] must be brought as an adversary proceeding in which a summons and complaint is filed and served). Other circuit courts-including the Second Circuit-have implicitly recognized that the request at issue in this appeal is not a proceeding to recover money or property. See, e.g., Fidelity Mortg. Investors v. Camelia Builders Inc., 550 F.2d 47, 50 (2d Cir. 1976) (affirming district court's granting of a motion for sanctions for violating the automatic stay, even though prior to the enactment of 11 U.S.C. § 362[h]); In re Meadows, 396 B.R. 485, 498 (6th Cir. B.A.P. 2008) ("[A]ctions to recover damages for stay violations are generally brought by motion...."); Budget Serv. Co. v. Better Homes of Va., 804 F.2d 289, 291-92 (4th Cir.1986) (affirming district court's granting of a motion for sanctions for violating the automatic stay).
Third, the Court rejects Appellant's lack-of-personal-jurisdiction argument because, as Appellee argued in his underlying brief and during oral argument in this proceeding on May 28, 2014, in a contested matter, a notice of hearing is treated as a summons and the motion is treated as a complaint. See In re Kalikow, 602 F.3d 82, 92 (2d Cir. 2010) ("In a contested matter, the notice of hearing is treated as a summons and the motion is treated as a complaint."), accord, In re Great Atl. & Pac. Tea Co., Inc., 11-CV-1338, 2011 WL 5546954, at *9 (S.D.N.Y. Nov. 14, 2011); see also In re Sustaita, 438 B.R. 198, 208 (9th Cir. B.A.P. 2010); Jacobo v. BAC Home Loans Servicing, LP, 477 B.R. 533, 538, n.6 (D. N.J. 2012); In re Parker, 392 B.R. 490, 496 (Bkrtcy. D. Utah 2008); In re Miller, 188 B.R. 1021, 1024 (Bkrtcy. S.D. Fla. 1995). (Dkt. No. 1, Attach. 15, at 7 [attaching page "6" of Debtor's Brief]; Oral Argument Tr. at 19.) Appellant attempts unsuccessfully to distinguish In re Kalikow (and the accompanying cases) on the ground that the action sought to enforce a pre-existing order of the Bankruptcy Court.
Fourth and finally, while the Court is reluctant (in the face of rather persuasive, if not binding, legal authority) to engage in the sort of policy-driven analysis heavily relied on by Appellant, the Court cannot help but note the following four facts: (a) Appellant appears to minimize the fact that a process exists by which it can move to vacate a money judgment issued by default, which motions are "usually" granted ( see, e.g., Oral Argument Tr. at 6); (b) any adverse effect of the Court's ruling on non-government rule violators, which are generally smaller entities, would appear to be less than the effect on the Government; (c) contrary to Appellant's argument that the United States was a "stranger" to the underlying Chapter 7 bankruptcy proceeding, the United States was listed as a creditor, and was properly served, in that proceeding ( see, e.g., Oral Argument Tr. at 3, 4, 10, 14-15); and (d) it would appear to be more efficient (and fair) for the Government to internalize the cost of properly responding to notices of motions (and/or assigning counsel to Chapter 7 bankruptcy proceedings in which the United States is listed as a creditor) rather than shifting the cost of its noncompliance to debtors who are attempting to pursue a fresh start through bankruptcy proceedings.
ACCORDINGLY, it is
ORDERED that the United States' appeals in both of the above-captioned proceedings are DENIED; and it is further
ORDERED that United States Bankruptcy Judge Margaret Cangilos-Ruiz's Decision and Order of September 18, 2013, is AFFIRMED.
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Next semester, I get to teach a seminar on race and difference in speculative fiction. I'm very excited about the class, and N.K. Jemisin's The Hundred Thousand Kingdoms is one of the books that I am most looking forward to teaching.
Although I have already ordered the books for the class, what I do with them is still up in the air. I have a few ideas for how to go about teaching this text, but I'd love to hear your suggestions as well--please post your ideas in the comments! [plot spoilers]
Right now, the class is split into three main units, one of which looks at representations of slavery. In this unit, the class will be reading Toni Morrison's Beloved, Octavia Butler's Kindred, and The Hundred Thousand Kingdoms. I'm hoping that the very different appearances of the supernatural in each of these texts will provide a helpful lens for thinking about how these novels address slavery. I plan to use the complicated dynamic between god and slave in The Hundred Thousand Kingdoms as a way to think through some of the power dynamics represented in both Morrison and Butler's texts.
I also plan on using W.E.B. DuBois discussion of double-consciousness from The Souls of Black Folk as a way to talk about the narrative structure of Jemisin's novel. The dual narration by both Yeine and Enefah (without it being made explicit that that is what is going on) was one of the aspects of the novel that I found most effective, and I'm interested to see how my students can use DuBois to think about how this narrative structure might have something to say about race.
I teach a lot of contemporary texts, and one of the benefits of this is that I can bring in what the author is writing about her work right now. Jemisin has a number of fascinating posts on her blog--including this post about why her book should not be in the African American section--and I plan on using posts such as this to start a discussion about the assumptions we make about race in the books that we read.
Finally, since many of my students will be familiar with Tolkien, I want to use Jemisin's novel to examine the claim made by blogger Thomas Belknap: "that fantasy writing is inherently racist."
He argues that in book after book, we see orcs being orcs, elves being elves, and identity is determined by race. I want to challenge my students to see how Jemisin uses and alters familiar fantasy tropes--the association of light with good and dark with evil, for example--to rethink these static categories of race and depict a process of identity formation that is much more fluid.
What would you do? I'd love to hear how you'd approach teaching this novel!
Friday, October 21, 2011
Race and Speculative Fiction: Teaching The Hundred Thousand Kingdoms
Labels: Book, Jen Miller, Teaching
1 comment:
I'm not quite halfway through yet, but you may want to take a look at "Woman on the Edge of Time" -- I think it would be a fantastic book to bring into a race and SF course.ReplyDelete
And, beyond just race, the way she shows interactions between people once they've labeled each other in a particular way (mentally ill, male or female [or ambiguous], poor, etc.) feels incredibly real and incredibly upsetting.
Might be worth a look for future courses!
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New Jersey Superior Court, Appellate Division
November 18, 2002
ROBERT APUZZIO AND DOREEN APUZZIO, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,v.J. FEDE TRUCKING, INC., A NEW JERSEY CORPORATION, AND ISRAEL R. BARDEN, SR., AND PASSAIC COUNTY TIRE, INC., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, HNT-L-361-99.
Before Judges Pressler, Ciancia and Axelrad.
Submitted October 22, 2002
The issue presented here is whether the doctrine of res ipsa loquitur was available to plaintiffs on facts demonstrating that the vehicle they were in was struck by a wheel that had detached from a passing truck. The trial court in granting summary judgments in favor of defendants believed it was not. We disagree.
On September 3, 1998, Israel Barden was operating a tractor-trailer owned by J. Fede Trucking, Inc., and proceeding eastbound on Interstate 78 when a dual set of wheels on the left side of the tractor dislodged. One of the wheels crossed the median into oncoming traffic and struck plaintiffs' vehicle, which had been traveling westbound on the same roadway.
Four days before, Passaic County Tire, Inc., had replaced two of the tires on the tractor, including the one that struck plaintiffs' vehicle. The wheels had been removed to replace flat tires and then put back on the tractor using an impact wrench. Although the air compressor powering the wrench had a maximum capacity of 160 pounds, it was pumping "a little over 100, about 110" pounds of pressure at that time. There were no spacers between the wheels that became detached on the left side of the tractor, although spacers were present on the right-side wheels. There was evidence that spacers were often placed between wheels of differing metals. Here, one wheel that came off the truck was aluminum while the other was made of steel.
During the intervening days after the wheels were serviced, the truck had been driven for approximately twenty-four to twenty-five hours. At the time of the accident Barden was in transit, delivering a load of bricks from Maryland to New York. Prior to heading out onto the road that day, Barden stated that he made a pre-trip inspection of the truck, which included an examination of the wheels, tires and lug nuts.
Following the accident, only the wheel that had struck plaintiffs' vehicle was recovered. Examination of the wheel and that portion of the truck on which it had been mounted revealed that the threads on the studs were worn out and stripped, and the holes into which the studs passed were oblong instead of round.
Plaintiffs' complaint against defendants alleged negligent maintenance and operation of the truck. The allegations were detailed in discovery as indicated. The trial judge granted summary judgments to defendants *fn1 finding no proof of negligence and specifically noting the absence of expert testimony "regarding the causal link between the absence of spacers on the tires and the accident." Application of the doctrine of res ipsa loquitur was rejected for two reasons. First, the trial court believed that plaintiffs' advancement of a negligence theory precluded application of the res ipsa loquitur doctrine. Second, the trial court found that the truck was not under the exclusive control of any one defendant. In our view, the trial court's analysis of the res ipsa loquitur doctrine was overly restrictive.
It appears without serious controversy in this State and in other jurisdictions that wheels coming off moving vehicles are a classic occasion for application of the doctrine of res ipsa loquitur. In Rapp v. Butler-Newark Bus Line, Inc., 103 N.J.L. 512 (Sup. Ct. 1927), a tire came off a moving bus and struck the plaintiff. A claim by defendant that the doctrine of res ipsa loquitur did not apply was met with a statement by the court that defendant's position was "in entire disregard of the earlier decisions of our courts." Id. at 514-515. The court believed it a matter of common knowledge that such accidents do not occur when due care is exercised. Ibid.
In Gaglio v. Yellow Cab Co., 63 N.J. Super. 206 (App. Div. 1960), a mechanical defect caused a wheel of a taxi to tilt at a thirty to forty-five degree angle causing injury to the passenger. We rejected a claim that res ipsa loquitur was inapplicable, stating in part:
While accidents caused by the mere blowout of a tire are generally held to be outside the rule of res ipsa loquitur, see Annotation, 24 A. L .R. 161, 163 (1952), since reasonably prudent persons experience tire blowouts, courts have not hesitated to invoke the doctrine in cases of accidents resulting from defective or detached wheels. In Gates v. Crane Co., 107 Conn. 201, 139 A. 782 (Sup. Ct. Err. 1928), the doctrine was applied when plaintiff, a pedestrian, was struck by a wheel which suddenly became detached from an automobile and rolled on the sidewalk. In Fenstermacher v. Johnson, 138 Cal. App. 691, 32 P. 2d 1106 (Ct. App. 1934), res ipsa loquitur was applied to facts showing plaintiff, a passenger in defendant's automobile, was injured when the car overturned due to the buckling or collapsing of the wheel or the frame. See in our own State, Rapp v. Butler-Newark Bus Line, Inc., 103 N. J. L. 512 (Sup. Ct. 1927), and Mumma v. Easton & Amboy R. R. Co., 73 N. J. L. 653 (E. & A. 1905). [Id. at 210.]
Cases from around the country are collected in William A. Harrington, Annotation, Res Ipsa Loquitur as Applied to Accident Resulting From Wheel or Part Thereof Becoming Detached From Motor Vehicle, 79 A.L.R. 3d 346 (1977). The overwhelming majority of cases apply the doctrine in the circumstances described.
The trial court here was troubled by the allegations of negligence that accompanied the claimed application of res ipsa loquitur. It is true that at some point the cause of an accident, the operative negligence, will be sufficiently identified so that application of res ipsa loquitur becomes inappropriate. The doctrine is an evidential rule used to circumstantially prove the prima facie existence of negligence where proof of the specific elements of negligence has not been shown. Myrlak v. Port Auth., 157 N.J. 84, 95 (1999); see Buckelew v. Grossbard, 87 N.J. 512, 525-526 (1981). Some demonstration or allegation of negligence, however, is not necessarily antithetical to application of the doctrine. In Rapp, supra, it was argued that the doctrine was not available to plaintiffs because they had alleged specific acts of negligence in their bill of particulars, to wit:
The statement in the bill of particulars was that the bus in which Mrs. Rapp was riding was not in proper condition; that some of the attachments which held on the rear right wheel of the bus were not properly fastened or adjusted to the axle, and that, as the result thereof, the wheel became loose from the axle; that the defendant did not keep this mechanism which attached the wheel to the axle in proper condition, and did not properly supervise the connection between it and the axle, and did not make a proper inspection of the said bus to keep it in a condition suitable and safe for the passengers who were riding thereon. The primary cause of the accident, i.e., the wheel coming loose from the axle, as appears in the statement of the facts above set out, is clearly indicated in the bill of particulars. [103 N.J.L. at 514.]
The court rejected defendant's argument stating:
It is argued, however, that the non-suit should have been granted because the accident did not itself speak negligence on the part of the defendant; and, further, that the doctrine of res ipsa loquitur had been abandoned by the plaintiffs by alleging in their bill of particulars specific acts of negligence.
We think that these contentions are without merit. As to the last contention: The bill of particulars was furnished to the defendant in compliance with its demand for such specification. The theory that a defendant, by the making of such a demand, can deprive a plaintiff of the protection afforded by the doctrine of res ipsa loquitur seems to us to be absolutely without any basis to rest upon. If it be sound, then counsel has discovered a method of entirely abrogating this doctrine; for it can readily be imagined that in all actions of this kind hereafter brought the course of procedure adopted in the present case would be followed. [Ibid.]
Analogously, plaintiffs here provided information concerning possible negligence in compliance with the practice and procedure in pleadings and discovery. On the motion for summary judgment, the trial court found the negligence allegations to be insufficient to raise an issue of material fact, particularly in light of plaintiff's failure to offer any expert opinion. It is anomalous to make such a finding and then reject application of res ipsa loquitur because negligent acts were pleaded. Here, the precise cause of the accident was not shown in a manner to preclude application of the doctrine, and certainly not in the context of a motion for summary judgment where the facts are viewed most favorably to the party opposing the motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiffs showed certain circumstances that may have played a part in the accident -- e.g., no spacers between wheels made of two different kinds of metal, tightening the lug nuts with an air wrench that may have been underpowered, and possibly inadequate inspection by the driver of the truck. None of this, however, was so completely explanatory of how the accident occurred as to preclude application of the res ipsa loquitur doctrine. Accord Harless v. Ewing, 469 P.2d 520 (N.M. Ct. App. 1970) (despite evidence of negligent inspection it could not be said as a matter of law what caused the wheel to come off and the inference of negligence under the doctrine of res ipsa loquitur was available to plaintiff); see also Lambert v. Markley, 503 S.W.2d 162 (Ark. 1973) (if at the close of the evidence the cause of a set of dual tires becoming detached from a truck's axle did not clearly appear, it was then open to plaintiff to argue the res ipsa presumption to the jury).
The trial court's other major concern was that aspect of traditional res ipsa loquitur analysis requiring the defendant to be in exclusive control of the instrumentality. The short answer to this concern is that the exclusive control requirement has not been interpreted as limiting application of the doctrine only to those situations involving a single defendant. In Meny v. Carlson, 6 N.J. 82 (1950), plaintiff was injured when a scaffold collapsed. The scaffold had been furnished by defendant Carlson Co. and constructed by defendant Busman & Rosen, Inc. In holding that questions of negligence under the res ipsa loquitur doctrine were for the jury, the Court rejected an argument advanced by Busman & Rosen, Inc. that it did not have exclusive control of the scaffolding when plaintiff was injured. The Court stated:
The fact that the jury determined that both this defendant and the Carlson Company were in control of the scaffold creates no inconsistency. Control might have been in either or both of the defendants; in either case the doctrine of res ipsa loquitur was applicable. The word "exclusive" when used to define the nature of the control necessary to invoke the doctrine of res ipsa loquitur does not connote that such control must be several and the defendant singular and never plural. Schroeder v. City & County Savings Bank of Albany, et al., 293 N. Y. 370, 57 N. E. 2d 57 (N. Y. Ct. of App. 1944); rehearing denied, 293 N. Y. 764, 57 N. E. 2d 842. See also 65 C. J. S., Negligence, § 220 (8) bb, p. 1018. This philosophy was followed in Biondini v. Amship Corporation, 185 P. 2d 94 (Dist. Ct. of App. Cal. 1947). . . . Indeed, the courts of this State have decided that an instrumentality causing injury may be in joint control of two defendants in which event the doctrine of res ipsa loquitur will apply against both of said defendants. Smith v. Claude Neon Lights, Inc., 110 N. J. L. 326, 331 (E. & A. 1932). This principle appears to have been recognized in an opinion by Chief Justice Beasley in Van Winkle v. American Steam Boiler Co., 52 N. J. L. 240, 246 (Sup. Ct. 1890). We conclude that in the instant case the question of whether the scaffold was under the control and management of either or both the defendants at the time of the plaintiff's injury was factual and was properly submitted to the jury. [Id. at 93-94.]
In Allendorf v. Kaiserman Enters., 266 N.J. Super. 662 (App. Div. 1993), plaintiff was injured when an elevator door closed on her. She sued the building owner as well as the elevator maintenance company that had worked on the elevator shortly before the accident. In holding that the jury was properly charged on res ipsa loquitur, Judge Skillman quoted Meny v. Carlson, supra, and cited other New Jersey cases containing consistent principles. Id. at 669. He then added: If the evidence presents a factual issue as to how an accident occurred, and the res ipsa loquitur doctrine would be applicable under only one version of the accident, the court should give a "conditional" res ipsa loquitur instruction, under which the jury is directed first to decide how the accident happened and to consider res ipsa loquitur only if it finds that the accident occurred in a manner which fits the doctrine. Terrell v. Lincoln Motel, Inc., 183 N.J. Super. 55, 59-61, 443 A.2d 236 (App. Div. 1982). [Ibid.]
Application of the res ipsa loquitur doctrine against more than one defendant also occurred in Maciag v. Strato Med. Corp., 274 N.J. Super. 447 (App. Div. 1994) where physicians, a hospital, and a manufacturer were sued after a catheter fragmented inside plaintiff's decedent. We there spoke of "collective application of res ipsa loquitur to all of the defendants." Id. at 460. Judge Dreier went on to state:
Res ipsa loquitur can be applied against more than one defendant, and in fact upon multiple theories against different defendants. See Meny v. Carlson, 6 N.J. 82, 94, 77 A.2d 245 (1950) (joint control of scaffolding); Smith v. Claude Neon Lights, Inc., 110 N.J.L. 326, 331, 164 A. 423 (E. & A. 1932) (owner of building and owner and installer of sign that fell); Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 669, 630 A.2d 402 (App. Div. 1993) (owner of building and company maintaining elevator); cf. Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 246, 19 A. 472 (Sup. Ct. 1890). In Jakubowski v. Minnesota Mining & Mfg., 42 N.J. 177, 183, 199 A.2d 826 (1964), the Court stated that even if an instrumentality has left the control of the defendant prior to an accident, "the plaintiff may be permitted to invoke the doctrine [of res ipsa loquitur] if he introduces evidences that it was not improperly handled by himself or others, or its condition otherwise changed, after control was relinquished by the defendant." [Id. at 460-461.]
Although not a res ipsa loquitur case per se, Nopco Chem. Div. v. Blaw-Knox Co., 59 N.J. 274 (1971) is closely analogous. There, plaintiff was the recipient of heavy equipment with concealed damage that was discovered only after delivery. Plaintiff sued the manufacturer and all carriers and bailees who had successively, but unconnectedly, handled the equipment. Plaintiff had no way of knowing who caused the damage and the Supreme Court said it was entitled to sue all who had handled the machine. The burden would then shift to defendants to come forward with facts uniquely within their possession. Id. at 282-283.
In our view, the same rationale should apply in the present case. Plaintiffs were undeniably without fault. An accident such as this does not normally occur without negligence. Each defendant had an obligation to either service or inspect the tires that came off the axle. Those defendants are in the better position to explain the occurrence. Plaintiff should not be nonsuited on motion for summary judgment merely because they are unable to specifically identify the negligence that apparently caused the accident.
Finally, we address a question of expert testimony, which the trial court found was necessary but lacking. The trial court's rulings in this regard appear primarily directed at plaintiffs' claims of negligence rather than at plaintiffs' assertion of the res ipsa loquitur doctrine. We find no error in the trial court's determination that expert testimony was required to advance a claim that the absence of spacers between the wheels constituted negligence or that use of a somewhat underpowered impact wrench to tighten lug nuts was negligence. We do, however, need to dispel any implication in the court's rulings that expert opinion was necessary in the context of a res ipsa loquitur claim.
It is certainly true that some cases may involve machinery or technical matters so complex that expert testimony is necessary in conjunction with the doctrine of res ipsa loquitur. The expert testimony is used to "reduce the likelihood of other causes" so that the inference of negligence may be properly drawn. Jiminez v. GNOC Corp., 286 N.J. Super. 533, 545 (App. Div. 1996) (plaintiff injured by malfunctioning escalator). Here, the mechanism is not so complex. Wheels are mounted on vehicles by tightening lug nuts onto threaded studs. The tandem nature of the wheels adds some degree of complexity, but not enough to mandate that plaintiffs must produce an expert witness before availing themselves of the res ipsa loquitur doctrine.
Accordingly, plaintiffs' complaint against all defendants is reinstated so that they may proceed on their claim of res ipsa loquitur. The trial court's rulings that plaintiffs' negligence claims based upon the absence of spacers between the wheels or the use of an underpowered impact wrench were legally insufficient in the absence of expert testimony, are affirmed.
Affirmed in part; reversed in part.
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Tucson police have been joined by FBI agents and a large contingent of deputy U.S. Marshals as they search for a 6-year-old girl who went missing from her house.
Isabel Mercedes Celis was last seen by her parents late Friday and they discovered her missing at about 8 a.m. Saturday.
Sgt. Maria Hawke says police are searching the area of the Arizona city around East Broadway Boulevard and Craycroft Road using street patrols, canines, detectives and a helicopter.
Police say they are investigating all potential scenarios, including the possibility that Isabel got up and wandered out of the home she shares with her parents and two brothers or that she was kidnapped.
She's described as just under 4-feet-tall and weighing 44 pounds, with brown hair and hazel eyes.


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|1 1⁄2 Pound
|1 Tablespoon
|1 1⁄2 Cup (24 tbs)
|Chopped parsley
|1 Tablespoon
|Green cabbage/Curly kale
|1 1⁄2 Cup (24 tbs), boiled
|To Taste
|To Taste
Boil the potatoes and mash as for CHAMP.
Add the boiling milk and scalded, chopped scallions and beat until fluffy.
Toss the cooked cabbage, finely chopped, gently in the melted butter.
Add to the potatoes, together with the parsley, and fold well.
Season generously with pepper and taste for salt.
This is very Irish and far nicer than it sounds.
In some districts the cabbage is omitted.
Recipe Summary
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 896 Calories from Fat 215
% Daily Value*
Total Fat 24 g37.3%
Saturated Fat 14.3 g71.4%
Trans Fat 0 g
Cholesterol 66.2 mg22.1%
Sodium 616.1 mg25.7%
Total Carbohydrates 157 g52.3%
Dietary Fiber 20.5 g81.9%
Sugars 28.8 g
Protein 28 g56.5%
Vitamin A 60% Vitamin C 348.9%
Calcium 59.6% Iron 45.4%
*Based on a 2000 Calorie diet