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State v. Cherry Hill Mitsubishi, Inc.

Superior Court of New Jersey, Appellate Division

February 26, 2015

STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION, Plaintiff-Appellant,
v.
CHERRY HILL MITSUBISHI, INC., a New Jersey Corporation; FOULKE MANAGEMENT CORPORATION, a New Jersey Corporation, d/b/a Cherry Hill Triplex, Cherry Hill Dodge, Cherry Hill Kia and Cherry Hill Mitsubishi; CHERRY HILL DODGE, INC., a New Jersey Corporation, Defendants/Third-Party Plaintiffs-Respondents,
v.
VICTOR AKPU; THE COMMISSIONER OF THE DEPARTMENT OF TRANSPORTATION, Third-Party Defendants-Appellants

Submitted: October 1, 2014.

Approved for Publication February 26, 2015.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3489-13.

John J. Hoffman, Acting Attorney General, attorney for appellants ( Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief).

Capehart & Scatchard, attorneys for respondent ( Laura D. Ruccolo, on the brief).

Before Judges ALVAREZ, WAUGH, and MAVEN. The opinion of the court was delivered by ALVAREZ, P.J.A.D.

OPINION

Page 93

[439 N.J.Super. 465] ALVAREZ, P.J.A.D.

The State of New Jersey filed a Rule 4:67 summary action[1] to compel removal of encroachments on a portion of its Route 70 right-of-way in Cherry Hill. See N.J.S.A. 27:7-44.1.[2] On the return date, the trial judge denied the State's requested relief, and granted defendant Foulke Management, which operates three car dealerships adjoining the right-of-way, the opportunity to file responsive pleadings.

Foulke Management's second counterclaim named as defendants: the Commissioner of the Department of Transportation (DOT); Victor Akpu, the Director of the DOT's Division of Right-of-Way and Access Management; and " John Does[ in

Page 94

their individual capacities[.]" The counterclaim sought monetary damages for the alleged violation of Foulke Management's equal protection rights under the Fourteenth Amendment of the United States Constitution, 42 U.S.C.A. § 1983, and the New Jersey Constitution. It also included a count for unjust enrichment based on Foulke Management's maintenance of the State's property, and a count for injunctive relief. The State promptly moved to dismiss [439 N.J.Super. 466] the counterclaim, on grounds of qualified immunity, for " failure to state a claim upon which relief can be granted." See R. 4:6-2(e). The trial judge denied that motion.

After we granted the State leave to pursue this interlocutory appeal from that decision, Rule 2:2-4, the State renewed its request to the trial judge for a stay of discovery. The judge refused, noting that if the State did not complete discovery within seventeen days, " the court will hear a motion on ...


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