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

NOT FOR PUBLICATION WITHOUT THE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
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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,
and
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.
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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
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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);
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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
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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.
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