SHASHI CUKKEMANE VS. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (L-9142-13, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 29, 2019
• Docket: A-4630-17T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4630-17T1

SHASHI CUKKEMANE and SHYAM CUKKEMANE, her husband,

Plaintiffs-Respondents,

v.

THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,

Defendant-Respondent,

and

AMPCO SYSTEM PARKING, an ABM Industries Incorporated Company,

Defendant-Appellant,

ABM INDUSTRIES, INC.,

Defendant. ________________________________

Submitted March 11, 2019 – Decided March 29, 2019 Before Judges Messano and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9142-13.

Gallo Vitucci & Klar, LLP, attorneys for appellant (Yolanda L. Ayala, on the briefs).

Lewis Brisbois Bisgaard & Smith, LLP, attorneys for respondent The Port Authority of New York and New Jersey (Peter B. Van Deventer, Jr., of counsel; Douglas H. Amster, of counsel and on the brief; Gene K. Kaskiw, on the brief).

PER CURIAM

Plaintiff Shashi Cukkemane, an employee of United Airlines, parked her

vehicle in an employee parking lot at Newark Liberty International Airport,

which is leased and operated by defendant, The Port Authority of New York and

New Jersey (the PA). Cukkemane slipped and fell on ice, allegedly causing

serious injury. She sued the PA and Ampco Systems Parking (Ampco). 1

Ampco was the assignee of a contract between the PA and another

contractor, whereby Ampco became responsible for supervising the parking lots

at the airport. The agreement required that "the [Ampco] . . . indemnify and

hold harmless the [PA], . . . against all claims and demands . . . arising out of or

1 Ampco is a subsidiary of ABM Industries Incorporated. For ease of reference, we use Ampco when referring to both throughout the opinion. Plaintiffs' claims against other defendants were dismissed. A-4630-17T1 2 in any way connected" with the agreement, and to procure and maintain

commercial general liability insurance in favor of the PA. An endorsement to

the policy provided: "Insurance provided by this policy shall be primary

insurance and no other insurance or self[-]insured retention carried or held by

the [PA] shall be called upon to contribute to a loss covered by insurance for

[Ampco]."

Ampco and the PA filed answers to plaintiff's complaint that included

cross-claims for contribution and indemnification. The PA tendered its defense,

and Ampco accepted, subject to a reservation of rights. The PA subsequently

rejected the offer to defend subject to the reservation and defended plaintiff's

suit itself. It eventually moved for and was granted summary judgment,

dismissing plaintiff's complaint and all cross-claims against the PA. 2 The PA

immediately moved for reimbursement of litigation costs and fees, submitting a

certification from counsel along with billing statements. Counsel stated that the

PA's legal expenses had been paid by Global Aerospace, Incorporated (Global),

described as the PA's "insurer."3 The PA requested oral argument on the motion.

2 Ampco has not appealed from this order. Ampco settled with plaintiff in the underlying suit. 3 Global apparently insured plaintiff's employer, United Airlines, which, in turn, apparently agreed to defend and indemnify the PA. A-4630-17T1 3 Ampco opposed the motion on four grounds. It argued the PA lacked

standing, because Global already paid its legal fees and expenses. Ampco also

argued the fees were unreasonable and that any award should be "split on an

equal basis with Global." Lastly, Ampco contended the PA was not entitled to

pre- or post-judgment interest. Ampco also requested oral argument.

Without conducting oral argument, the judge granted the motion and

ordered Ampco to pay the entire amount sought by the PA, $159,895 in fees and

costs, as well as pre-judgement interest in the amount $17,548.48, and post-

judgment interest from the date she granted the PA summary judgment. The

judge placed no oral decision on the record and filed no written statement of

reasons. Ampco filed this appeal.

Ampco essentially reiterates the arguments made before the motion judge,

but we choose not to reach their merits. We reverse because the judge failed to

carry out her responsibilities, thereby denying both the parties and this court the

ability to conduct any meaningful review.

Despite both parties requesting oral argument, the judge decided the

motion without it. Except for motions involving pre-trial discovery or the

calendaring of a case, a request for oral argument "shall be granted as of right."

R. 1:6-2(d) (emphasis added). The failure to grant a request for oral argument

A-4630-17T1 4 on a substantive motion such as this, without any explanation, provides grounds

for reversal. See Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super.

495, 497-98 (App. Div. 2000). However, "[w]e need not consider whether the

denial of oral argument in itself warrants reversal, given that we find a reversal

is required on other grounds." LVNV Funding, LLC v. Colvell, 421 N.J. Super.

1, 5-6 (App. Div. 2011) (citing Spina Asphalt Paving Excavating Contractors,

Inc. v. Borough of Fairview, 304 N.J. Super. 425, 427 n.1 (App. Div. 1997)).

Rule 1:7-4(a) provides that "[t]he court shall, by an opinion or

memorandum decision, either written or oral, find the facts and state its

conclusions of law thereon . . . on every motion decided by a written order that

is appealable as of right . . . ." (emphasis added). The failure to do so impedes

our ability to consider the parties' arguments, even when we apply a de novo

standard of review. See Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298,

302 (App. Div. 2018) ("[O]ur function as an appellate court is to review the

decision of the trial court, not to decide the motion tabula rasa.").

Regarding the amount of the counsel fee award and the award of

prejudgment interest, the shortcoming is perhaps more acute, because we review

the award of counsel fees and pre-judgment interest for a mistaken exercise of

discretion. Occhifinto v. Olivo Constr. Co., LLC, 221 N.J. 443, 453 (2015);

A-4630-17T1 5 Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 390 (2009). That requires

us to consider whether "the decision was 'made without a rational explicatio n,

inexplicably departed from established practices, or rested on an impermissible

basis.'" Estate of Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). We are unable to

decide because the judge gave no reasons for her decision.

"Because it is fundamental to the fairness of the proceedings and serves

as a necessary predicate to meaningful review, . . . 'a trial court must analyze the

[relevant] factors in determining an award of reasonable counsel fees and then

must state its reasons on the record for awarding a particular fee.'" R.M. v. Sup.

Ct. of N.J., 190 N.J. 1, 12 (2007) (alteration in original) (quoting Furst v.

Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)). The judge failed to do that in

this case.

Because the judge failed to explain why she rejected Ampco's arguments

opposing the PA's motion, and why she granted the full amount of fees requested

as well as pre-judgment interest, we reverse. 4

4 Ampco contends it was error to award post-judgment interest pursuant to Rule 4:42-11(a) because the Rule applies only to tort actions. The argument lacks sufficient merit to warrant any discussion. R. 2:11-3(e)(1)(E). Without limitation, "[p]ost-judgment interest is generally available pursuant to Rule

A-4630-17T1 6 The matter is remanded to the motion court for further proceedings. The

judge shall grant oral argument if either party requests it.

Reversed and remanded. We do not retain jurisdiction.

4:42-11(a)." United Consumer Fin. Servs. Co. v. Carbo, 410 N.J. Super. 280, 313 (App. Div. 2009) (citing Bd. of Educ. of Newark v. Levitt, 197 N.J. Super. 239, 244-45 (App. Div. 1984)). On remand, the judge need not reconsider or explain her decision to award post-judgment interest.

A-4630-17T1 7