07-2-2236 Carozza, M.D. v. Bank of America , App. Div. (per curiam) (7 pp.) The New York State Department of Taxation and Finance issued to defendant a tax compliance levy of $52,379.47 against plaintiff, specifying four accounts plaintiff had maintained in defendant’s branches located in New York. By the time the levy was issued, plaintiff had closed those accounts and opened two accounts with defendant’s West Orange branch. On receipt of the levy, defendant froze those two accounts. Determining that plaintiff’s position that a levy issued by New York state was ineffective with respect to an account maintained in New Jersey was correct, defendant restored the funds. In the interim, defendant had assessed plaintiff’s accounts with various charges, primarily overdraft fees, and it declined to reverse those charges. Plaintiff, acting pro se, filed a complaint seeking reimbursement. After the court entered judgment for defendant, defendant filed a claim for attorneys’ fees and costs. Defendant appeals from a trial court order denying that motion. Finding plaintiff put forth a reasonable, good-faith argument to modify or extend existing law, the appellate panel declined to conclude that it was so wholly baseless that an award of counsel fees would be in order. [Decided Nov. 24, 2008.]
CIVIL PROCEDURE — DISMISSAL OF COMPLAINTS — FRAUD — JUDICIAL CONDUCT
07-2-2237 Grippi v. Spalliero et al. , App. Div. (per curiam) (20 pp.) Plaintiffs, shareholders in defendant-corporation, had filed litigation against the corporation and, inter alia, its incorporator, alleging, inter alia, beach of contract, negligence, and fraud in connection with its proposed development of property into a mixed-use commercial site, which resulted in a settlement. Plaintiffs later filed this action to set aside the settlement, alleging fraud and fraudulent conveyance of property to induce the settlement. The trial court’s grant of defendants’ motion to dismiss this action is affirmed as plaintiffs failed to plead sufficient facts to support their claims of fraud where it is clear that plaintiffs knew of the wetland problems on the site, that the property would be developed, and that defendant would continue to have an interest in the property that was not precluded by the settlement before entering into the settlement. The trial judge did not violate Canon 3A(6) in consulting with the judge before whom the settlement was entered on the record. Nor did the judge improperly convert defendants’ motion to dismiss into a motion to enforce the settlement. [Decided Nov. 24, 2008.]
