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Edwin Conk and Kimberly Conk, His Wife v. Friendly Village

August 15, 2011

EDWIN CONK AND KIMBERLY CONK, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
FRIENDLY VILLAGE, LLC, DEFENDANT-RESPONDENT, AND PCI, INC., DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0760-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 24, 2011

Before Judges Carchman, Graves, and Waugh.

Plaintiff Edwin Conk appeals the order of the Law Division dismissing his personal injury action against defendant Friendly Village, LLC (FV), on the ground that the claim is barred by the exclusive remedy provision contained in N.J.S.A. 34:15-8. We reverse.

I.

We discern the following facts and procedural history from the record on appeal. Because Conk's complaint was dismissed on a motion for summary judgment, we outline the facts in the light most favorable to him. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445 (2007).

FV owns and operates a mobile home park known as Friendly Village of Riverview (Friendly Village), which is located in Toms River. It was acquired by FV in October 2001. FV is a limited liability company, the managing member of which is PCI Redhen Corporation (PCI).*fn1 PCI owns one hundred percent of the stock of Advanced Horizons Enterprises, Inc. (AHE), which manages FV's financial affairs and Friendly Village. According to its president, William Murphy, AHE is "a management company" that "oversees real estate investments" owned through various LLCs.

Conk had been a resident of Friendly Village from 1994 through 2000, prior to its purchase by FV. During that period, he was employed full-time by a car dealership, but he sometimes cut the grass at Friendly Village for the then-owners. In 2002, after FV purchased Friendly Village, Conk resumed part-time employment there. He started living there again in 2004.

In April 2005, several months after the closure of the car dealership for which he had previously worked, Conk became a full-time employee of AHE. He received his paychecks from AHE and was enrolled in its 401(k) plan. He was hired by Murphy, who described himself during his deposition as an employee of AHE.

Conk's hiring by AHE was memorialized in a memorandum from Murphy to Conk's then-wife, who was known as Kimberly Conk at the time but is now known as Kimberly Montgomery (Montgomery). She was the manager at Friendly Village, but was an employee of AHE. The memorandum was on the letterhead of Friendly Village of Riverview, with an address in West Caldwell, which is the location of the corporate offices of the affiliated AHI entities.

The memorandum provides, in relevant part, as follows:

It has been agreed that Advanced Horizons Enterprises, Inc will hire your husband, Ed Conk, as our maintenance foreman at our Friendly Village of Riverwood location for all grounds, building and common area maintenance. It is further understood, Advanced Horizons may require, at certain times, that Ed perform tasks at other projects owned or managed by Advanced Horizons in the Ocean County area. I assume the majority of Ed's work will be at Friendly Village of Riverwood; however, we will work together with regard to his schedule. Friendly Village of Riverwood will be reimbursed for labor costs should Ed be required to work at our other facilities.

It is my understanding Ed's formal employment began on Monday, April 11, 2005 and that essentially he will decline medical benefits because he is currently covered under your family benefits option. It is further my understanding[] you will supervise Ed so that his workday is devoted to maintaining our assets at Friendly Village of Riverwood. If you can forecast that Ed will have available hours you should contact this office to ...


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