Unpublished Opinions for the Week of June 27, 2016

01-2-9541 In the Matter of Presley, N.J. Super. App. Div. (per curiam) (14 pp.) Appellant, formerly employed as a family service worker at the Passaic North office of respondent New Jersey Department of Children and Families, appealed from a final decision of the Civil Service Commission addressing the imposition of discipline for misconduct, which the CSC affirmed, and appellant’s release from employment following a probationary period, which was also upheld. Appellant contended that the CSC’s decisions to impose a 120-day suspension and uphold his termination at the conclusion of his working test period were arbitrary, capricious and unreasonable, and not supported by substantial evidence. The panel affirmed. It said that the record contained substantial evidence supporting the CSC’s findings where, despite receiving warnings and being counseled regarding the state vehicle policy after two anonymous telephone complaints regarding cellphone use while driving, appellant thereafter failed to sign out a vehicle; was unable to account for 300 miles of use; admitted he drove a state vehicle for personal errands; and drove in an erratic manner while speeding. The panel said that appellant’s inability to abide by the department’s vehicle policy and state traffic laws proved that he was unwilling or unable to perform the position as required. Further, the record showed that prior warnings and directives to familiarize himself with the policy went unheeded. The panel found no error in the admission of testimony by an off-duty park police officer who testified that he had observed appellant driving a state vehicle in an erratic fashion while speeding, or in the use of the anonymous complaints, as they were not the foundation of the disciplinary charges or appellant’s release after his probationary period but were corroborative of his disregard of the state policy after being counseled and warned.

11-2-9510 Ogorodnikov v. Dikker, N.J. Super. App. Div. (per curiam) (4 pp.) The complaint in this matter concerned a dispute over a commercial deal that was negotiated in Russia between two parties who resided in Russia at the time, concerning property located in Russia. Plaintiff appealed the dismissal of his complaint pursuant to a forum selection clause in the parties’ contract that provided that any disputes between the parties would be litigated in Russia. The contract was drafted by plaintiff’s attorney, was written in Russian and was signed in Russia. The panel affirmed, substantially for the reasons expressed below. It added that plaintiff provided no legal support for his speculation that defendant, who had since moved to the United States, would be unwilling to return to Russia to participate in litigation there; that if plaintiff filed the complaint in Russia and served the complaint on defendant in the United States, defendant would be able to have the Russian complaint dismissed for lack of in personam jurisdiction; and if the Russian court entertained his complaint, New Jersey courts would not enforce a Russian judgment, on the theory that the Russian court did not have personal jurisdiction over defendant. Moreover, the panel noted that at oral argument, defendant’s attorney unequivocally responded that his client would not raise the defense of lack of in personam jurisdiction, and in fact conceded that, by invoking the forum selection clause, his client had waived the defense.