ms b - the new york times...ms b mcmanimon-scotland-baumann 75 livingston avenue, roseland, nj 07068...

MS B McMANIMON - SCOTLAND - BAUMANN 75 Livingston Avenue, Roseland, NJ 07068 (973) 622—1800

Writer’s Direct Dial: 973-622-5378

[email protected]

August 29, 2018

VIA HAND DELIVERY

The Honorable Jeffrey R. Jablonski, P.J.Ch.

Superior Court of New Jersey

Chancery Division, Hudson County

William J. Brennan Courthouse

583 Newark Avenue, 2nd Floor

Jersey City, New Jersey 07302

RE: CITY OF HOBOKEN V. SUEZ NORTH AMERICA and SUEZ WATER

ENVIRONMENTAL SERVICES INC.

DOCKET NO.: TBD

Dear Judge Jablonski:

Please accept this letter brief in lieu of a nwre formal

brief on behalf of the Plaintiff, City of Hoboken (the “City")

in support of its Order to Show Cause (with Temporary

Restraints) in this matter requesting Defendants Suez North

America and Suez Water Environmental Services Inc.,

(collectively “Suez”), appear and show cause before this Court

why an order should not be issued requiring Suez to:

a. Provide to the City all studies, reports, plans,

agreements or similar documents prepared by or on behalf of

Defendants detailing: i) the scope of construction

occurring on the Chamber or any other part of the City’s

water system, and any preliminary planning or work done to

protect the water system in anticipation of Chamber work,

including but not limited to record drawings (“as—builts”);

1

36730-022: 8023754

ii) any investigation conducted by Defendants or on behalf

of Defendants as to the cause of the water main breaks;

iii) any and all claims of costs incurred for the water

main reaks; and iv) all records, from January 1, 2018 to

present, of hydrant flushing, valve exercising, and system

pressure testing (both emergency and routine maintenance)

for the time period prior to and during construction of the

Chamber;

b. Within ten (10) days of the return of the

accompanying Order to Show Cause and the grant of the

aforementioned relief, formulate a plan for determining the

cause(s) of the recurring water main breaks, for review and

ultimate approval by City officials and its relevant

professionals.

For purposes of this letter brief, all defined terms set

forth. in Plaintiffs’ Verified Complaint shall be incorporated

herein by reference as if set forth at length herein. Unless

otherwise indicated, defined terms shall have those meanings

ascribed to them in the Verified Complaint.

PRELIMINARY STATEMENT

In the past six (6) weeks, at various locations, the City

of Hoboken. (the “City”) has experienced. no less than fifteen

(15) water main breaks, including breaks in the month of August

alone on August 6, ll, 12, 14, 20, 25, 26, 27 and 28, 2018. The

36730-022: 8023754

August 25, 2018 break involved a 13—inch water main that flooded

parts of Newark and Hudson Streets in the City. On Sunday

August 26, 2018, a 6—inch break caused flooding on l3u‘Street in

the City. Another 8-inch water main break occurred just

yesterday, August 28, 2018, flooding Hudson, River and Second

Streets and threatening the PATH & NJ Transit systems. Enough

is enough.

To date, Defendants have been unable or perhaps unwilling

to determine any cause for the frequency' of the water~ main

breaks. The City cannot continue to sit idly by watching the

continued threats to its residents and property, (both public

and private), along with the omnipresent yet unpredictable

threat of the next break looming' quite literally' around. the

corner. An impaired and unreliable water supply system

presents a danger to the health, safety' and. welfare of the

residents of the City. Immediate action is required by the

City to ensure the water supply system is operating effectively

and the City and its inhabitants are safe. The' City is

obligated to provide clean water to its residents and maintain

effective operation of its water supply system, and must proceed,

without interference from Suez, in preparing a course of action to

determine the cause of the repeated water main breaks and for

36730-022: 8023754

the repair of the existing breaks that have jeopardized the

health, safety and welfare of the residents of the City.

STATEMENT OF FACTS

Plaintiffs rely upon the facts in the Verified Complaint

incorporated herein as if set forth at length.

LEGAL ARGUMENT

PLAINTIFFS HAVE MET THE CROWE STANDARDS FOR INJUNCTIVE RELIEF AS

REQUESTED BY THE ORDER TO SHOW CAUSE

To obtain emergent and interim relief, Plaintiffs must meet

the test articulated in Crowe v. DiGioia, 9O N.J. 189 (1982):

1. Irreparable harm will ensue, unless the relief is

granted;

2. The legal right underlying Plaintiff’s claims are

settled;

3. Plaintiff can show a reasonable probability of success

on the merits; and,

4. The balance of the equities favors Plaintiff. Ed. at

132—134.

It is well settled that in determining whether such relief

should issue, the courts in the State of New Jersey have

approached the analysis from a qualitative and not quantitative

View, balancing the factors to arrive at an equitable result.

See Gen. Elec. Co. v. Gem Vacuum Stores, 36 N.J. Super. 234, 237

(App. Div. 1955) (noting that the standards governing the

36730-022: 8023754

issuance of relief “are not to be looked upon as hard and fast

and sharply defined in scope; rather they are but factors, among

others, which. must be weighed, one with. another. . .”); see

also, Sheppard v. Township of Frankford, 261 N.J. Super. 5, 10

(App. Div. 1992) (stating that “[t]o the extent the factors

[underlying the issuance of relief] are present, the judicial

process is to “migh and balance each factor 1J1 a qualitative

rather than a quantitative manner.”).

In this case, the balancing of the EEQEE factors directs

that Plaintiff is entitled to the equitable relief sought here.

IRREPARABLE HARM

As to irreparable harm, there is no question that

irreparable harm will befall Plaintiff if emergent and interim

relief does not issue here.

The water system is a public system serving a public

purpose, and its systematic failure significantly impacts the

public interest within. the City‘ of Hoboken. Yakus v. United

States, 321 U.S. 414, 440 (1944)1 recognized that courts, in the

exercise of their equitable powers, “may, and frequently do, go

much farther both to give and withhold relief in furtherance of

the public interest than they' are accustomed to go when. only

private interests are involved.” Ed. at 441 (quoting 'Virginia

1Cited with approval by the Appellate Division in Waste

Management v. Union County Utilities Authority, 399 N.J. Super.

588, 520 (App. Div. 2008).

36730-022: 8023754

Ry. Co. v. Sys. Fed’n, 300 U.S. 515, 552 (1937). The failure of

the water system is systematic and ongoing, and will continue if

the requested relief does not issue. The immediate threat to

the public at large is palpable and beyond dispute.

SETTLED LEGAL RIGHT

There is no question. that Plaintiffs’ entitlement to the

relief sought rests upon settled legal rights. Defendant Suez

Operating is charged with operating the City’s water system for

the benefit of the City; putting residents and visitors in

danger by failing to supply water and threatening life and

property (public & private) with floods, is antithetical to that

obligation. The City's legal right to temporarily halt further

non—emergency repair construction and be allowed full access to

Defendants' records and reports is beyond question.

The facts of the Verified Complaint make clear the City is

required to provide necessary' services to its residents. Suez

has, to date, provided inadequate or inaccurate information. They

are obligated to share the information requested through this

action with the City, and have failed to perfonn. The City is

required to protect its interests as a result.

LIKELIHOOD OF SUCCESS ON THE MERITS

As the law is well settled on the ability and the right of

Plaintiffs to seek the relief sought by this application. and

within the Verified Complaint, its likelihood of success on the

36730-022: 8023754

merits respecting the relief sought by this application is well

established.

BALANCING OF THE RELATIVE HARM FAVORS PLAINTIFF

It is beyond question that the balancing of the relative

harm to Plaintiff if injunctive relief does not issue, against

that which might befall Suez if it does, favors Plaintiff.

In contrast, if such relief does not issue, Plaintiff

runs the risk of continued damage to the water supply system, a

continued disruption of water supply services throughout the

City and the threats posed by constant flooding. Withholding

such relief leaves the Plaintiff and the residents of Hoboken in

limbo and without a remedy. Conversely, Defendants are not at

all impacted if the relief requested is granted.

The balancing of the relative harms favors Plaintiffs.

CONCLUSION

For the foregoing reasons, this Court is respectfully

requested to enter an Order granting Plaintiff the emergent and

preliminary relief sought by the Order to Show Cause entered in

this matter.

Respectfully submitted,

@6646 W/Véfifv/William W. Northgrave

C743

WWN/wpo

36730-022: 8023754

William W. Northgrave, Esq. (039201990)

MCMANIMON, SCOTLAND & BAUMANN, L.L.C.

75 Livingston Avenue, Second Floor

Roseland, New Jersey 07068

(973) 622—1800

Attorneys for Plaintiff,

CITY OF HOBOKEN

THE CITY OF HOBOKEN,

laintiff,

v.

SUEZ NORTH AMERICA and SUEZ

WATER ENVIRONMENTAL SERVICES

INC.,

I

Defendant.

THIS MATTER being brought before the Court by McManimon,

Scotland & Baumann, LLC,

Hoboken (the “City”), seeking relief

forth in the Verified Complaint filed. herewith,

cause shown.

It is on this

Defendant, Suez North America and Suez Water Environmental

Services Inc., (“Defendants”),

Superior Court at the William J.

City, New Jersey at

thereafter as counsel can

of 2018, why

requiring Defendant, to:



o’clock

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION:

HUDSON COUNTY

DOCKET NO. HUD—C

Civil Action

ORDER TO SHOW CAUSE

attorneys for Plaintiff, City

day of August, 2018, ORDERED that

appear and show cause before the

Brennan Courthouse in Jersey

in the noon or as soon

heard, on the day

an Order should not be issued

based upon the facts set

and for good


occurring on the Chamber or any other part of the City's







main breaks; and iv) all records, from January 1, 2018 to




Chamber;






professionals;

t is further ORDERED that:

l. A copy of this Order to Show Cause, Verified Complaint

and any supporting affidavits or certifications submitted in

support of this Application, be served upon Defendants by hand

delivery within____

days of the date hereof, in accordance with

3. 4:4—3 and 3. 4:4—4, this being original process.

2. Plaintiff must file with the Court its proof of service

of the pleadings on the Defendant no later than three (3) days

before the return date.

3. Defendant shall file and serve a written response to

this Order to Show Cause and the request for entry of injunctive

relief and proof of service by , 2018.

The original documents must be filed with the Clerk of the

Superior Court in the County listed above. A list of these

offices is provided. You must send a copy of your opposition

papers directly to Hon. Jeffrey" R. Jablonski, P.J.Ch., whose

address is: William J. Brennan Courthouse, 583 Newark Avenue,

Efi Floor, Jersey City, New Jersey. You must also send a copy of

your opposition papers to the Plaintiff’s attorney whose name

and address appears above, or to the Plaintiff, if no attorney

is named above. A telephone call will not protect your rights;

you must file your opposition and pay the required fee and serve

your opposition on your adversary, if you want the Court to hear

your opposition to the injunctive relief the Plaintiff is

seeking.

4. Plaintiff may file and serve any written reply to the

Defendant's opposition to the Order to Show Cause by

,2018. The reply papers must be filed with

the Clerk of the Superior Court in the county listed above, and

a copy of the reply papers must be sent directly to the chambers

of the Hon. Jeffrey R. Jablonski, P.J.Ch.

5. If the Defendant does not file and serve opposition to

this Order to Show Cause, the Application will be decided on the

papers on the return date and relief may be granted by default,

provided that Plaintiff files a proof of service and a proposed

form of order at least three days prior to the return date.

6. If Plaintiff has not already done so, a proposed form

of order addressing the relief sought on the return date (along

with. a self—addressed return envelope with. return. address and

postage) must be submitted to the Court no later than three (3)

days before the return date.

7. Defendant take notice that Plaintiff has filed a

lawsuit against you in the Superior Court of New Jersey. The

Verified Complaint attached to this Order to Show Cause states

the basis of the lawsuit. If you dispute this Complaint, you, or

your attorney, must file a written Answer to the Complaint and

proof of service within 35 days from the date of service of this

Order to Show Cause, not counting the day you received it.

These documents must be filed with the Clerk of the Superior

Court in the county listed above. A list of these offices is

provided. Include the required filing fee payable to the

“Treasurer State of New Jersey." You must also send a copy of

your Answer to Plaintiff’s attorney whose name and address

appear above, or to the Plaintiff, if no attorney is named

above. A telephone call will not protect your rights; you must

file and serve your Answer (with the fee) or judgment may be

entered against you by default. Please note: Opposition to the

Order to Show Cause is not an Answer, and you must file both.

Please note further: if you do not file and serve an. Answer

within 35 days of this Order, the Court may enter‘ a default

against you for the relief Plaintiff demands.

8. If you, cannot afford an attorney, you. may' call the

Legal Services office in the county in which you live. A list of

these offices is provided. If you do not have an attorney and

are not eligible for free legal assistance you may obtain a

referral to an attorney by calling one of the Lawyer Referral

Services. A list of these numbers is also provided.

9. The Court will entertain argument, but not testimony,

on the return date of the Order to Show Cause, unless the Court

and Parties are advised to the contrary no later than days

before the return date.

Hon. Jeffrey R. Jablonski, P.J.Ch.





(973) 622-1800


CITY OF HOBOKEN

THE CITY OF HOBOKEN, SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION:

Plaintiff, HUDSON COUNTY

V. DOCKET NO. HUD-C

SUEZ NORTH AMERICA and Civil Action

SUEZ WATER ENVIRONMENTAL

SERVICES INC.,

Defendants. ORDER

THIS MATTER having been brought before the Court by

McManimon, Scotland & Baumann, LLC, attorneys for Plaintiff,

City of Hoboken (the “City”) (William W. Northgrave appearing)

by way of Verified Complaint and Order to Show Cause, for an

Order requiring Defendants, Suez North America and Suez Water

Environmental Services Inc., (“Defendants"), to:







136730—022: 8023724

including but not limited to record drawings (“as-builts”);








Chamber;






professionals;

IT APPEARING, that the Court having considered the Verified

Complaint and the letter brief submitted by Plaintiff in support

of the within application, along with all other supporting

papers, and the opposition filed by Defendants (if any), and for

good cause shown;

IT IS on this day of , 2018, ORDERED

that an Order be and hereby is entered requiring Defendants to:

a. Provide to the City all studies, reports, plans, agreements

or similar documents prepared by or on behalf of Defendants

236730-022: 8023724

detailing: i) the scope of construction occurring on the

Chamber or any other part of the City’s water system, and

any preliminary planning or work done to protect the water

system in anticipation of Chamber work, including but not

limited to record drawings (“as—builts”); ii) any

investigation conducted by Defendants or on behalf of

Defendants as to the cause of the water main breaks; iii)

any and all claims of costs incurred for the water main

breaks; and iv) all records, from January 1, 2018 to




Chamber;






professionals;

IT IS FURTHER. ORDERED, that a copy‘ of this ORDER Shall be

served on all counsel and Parties within days of the

receipt of this Order.

335730-022: 8023724

Hon. Jeffrey R. Jablonski, P.J.Ch.

This application was

( ) Opposed

( ) Unopposed

436730-022: 8023724


McMANIMON, SCOTLAND & BAUMANN, L.L.C.



(973) 622-1800


CITY OF HOBOKEN


CHANCERY DIVISION:


V. DOCKET NO. HUD-C

SUEZ NORTH AMERICAN and Civil Action

SUEZ WATER ENVIRONMENTAL

SERVICES INC.,

Defendants. VERIFIED COMPLAINT

Plaintiff, City of Hoboken (“Plaintiff” or “City"), having

administrative offices at 94 Washington Street in the City of

Hoboken, County of Hudson and State of New Jersey, by way of

Verified Complaint against the Defendant, Suez North America

(“Defendant”), states and alleges as follows:

PARTIES

1. Plaintiff is a municipal corporation of the State of

New Jersey, charged with ensuring the health, safety and welfare

of its residents.

2. Defendant Suez Water Environmental Services Inc., with

a street address of 451 From Road, Paramus, NJ (“Suez

Operations”) is the operator of the water supply system for the

36730-022: 8023735

City pursuant to an agreement first entered into in 1994, as

subsequently amended.

3. Defendant SUEZ NORTH AMERICAN, also located at 461 From

Road, Paramus, NJ 07652 (“Suez Construction") is, upon

information and belief, the entity responsible for, among other

things, the construction of a chamber (the “Chamber”) below

grade in Jersey Avenue beneath the overpass in Jersey City near

the border of Hoboken, for the housing of two water meters

connected to the system providing potable drinking water to both

cities. The construction began on or about June 23, 2018.

WATER MAIN BREAKS

4. Since construction of the Chamber began 6 weeks

ago, the City of Hoboken (the “City") has experienced no

less than fifteen (15) water main breaks, including breaks

this month on August 6, 11, 12, 14, 16, 20, 25, 26, 27 and

28, 2018.

5. Specifically, (m1 Monday, August. 20, 2018, a 12—

inch water main break flooded parts of Newark Street and

Jefferson Street in the City.

6. On Saturday August 25, 2018, a 13—inch water main

break flooded parts of Newark Street and Hudson Street in

the City.

7. On Sunday August 26, 2018, a 6—inch break caused

flooding on 13“‘Street in the City.

36730—022: 8023735

8. On Tuesday August 28, 2018, an 8-inch break caused

flooding on Hudson Street, River Street and Hudson Place in

the City and threatened both the PATH System and NJ Transit.

9. To date, Defendants have been unable or unwilling

to determine a cause for the frequency of the water main

breaks or at least unwilling to advise the City if in fact

Defendants have determined the cause.

10. Based on the GIS data provided by Suez Operations

via ArcGIS online, no water main breaks were reported in

2017.

11. To date, there have been 24 reported water main

breaks in 2018.

12. Further, based on the GIS data provided by Suez

Operations via ArcGIS online, in the months of June, July

and August during the prior five years, there have been a

total of 12 reported breaks, as opposed to the 16 breaks

that have occurred just in the past six weeks.

13. An impaired or unreliable water supply system

presents a danger to the health, safety and welfare of the

residents of the City, and immediate action is required by

the City to both ensure the water supply system is

operating effectively and the residents and property in the

City are protected from the dangers presented by near

constant flooding.

36730-022: 8023735

l4. Defendants, as operator of the water supply system

and the entity responsible for the construction of the

Chamber respectively, have refused or been unable to prepare

a course of action to determine the cause of the repeated

water main breaks and for the repair of the existing breaks

that have jeopardized the health, safety and welfare of the

residents of the City.

INJUNCTIVE RELIEF

15. Defendant’s ongoing efforts to repair and/or prevent

future breaks have been woefully inadequate and have threatened

the City’s water supply and the general public.

16. Injunctive relief requiring Defendants to cease

construction on all capital improvement projects unrelated to

the repair of emergency water main breaks, until specifically

reviewed and approved by the City of Hoboken, is necessary.

17. Defendants further must prepare a plan of action to

prevent future breaks and immediately provide to the City all

studies, reports, plans or similar documents prepared by or on

behalf of Defendants detailing: a) the scope of construction

occurring on the Chamber or any other part of the City’s water

system; and b) any investigation conducted by Defendants or on

behalf of Defendants as to the cause of the water main breaks.

WHEREFORE, Plaintiff demands judgment requiring Defendant,

Suez North America (“Defendant”), to:

36730-022: 8023735















Chamber;






professionals;

c. Awarding Plaintiff attorneys' fees and costs of

suit in bringing this application; and,

36730-022: 8023735

d. Grant such other relief as the Court deems

equitable and just.

McMANIMON, SCOTLAND & Baumann, L.L.C.

Attorneys for Plaintiff

WILLIAM W. NORTHGRAVE

DATED: August 29, 2018

DESIGNATION OF TRIAL COUNSEL

Pursuant to E; 4:5-1(c), William W. Northgrave is designated as

trial counsel for Plaintiff in this matter.

MCMANIMON, SCOTLAND & Baumann, L.L.C.

Attorne for Plaintiff

DATED: August ZZ, 2018 By: AWW’ u


RULE 4:5-1 CERTIFICATION

I hereby certify in accordance with New Jersey Civil

Practice Rule 4:5-1 that to the best of my knowledge,

information and belief the instant matter in controversy is not

the subject of any other action pending in any other court or of

a. pending arbitration. proceeding, nor is any other action. or

36730-022: 8023736

arbitration contemplated. I am not aware of the names of any

other parties who should be joined in the action.

MCMANIMON, SCOTLAND & BAUMANN, L . L . C .


DATED: AugustZi , 2018 ByM/rwWILLIAM W. NORTHGRAVE

RULE 1:38-7(b) CERTIFICATION

I certify that confidential personal identifiers have been

redacted from the documents now submitted to the Court, and will

be redacted from all documents submitted in the future in

accordance with Rule l:38-7(b).

MCMANIMON, SCOTLAND & BAUMANN, LLC



Dated: August 22'1z 2018

36730-022: 8023735

VERIFICATION OF COMPLAINT

COUNTY OF HUDSON }

} SS

STATE OF NEW JERSEY }

‘1, Jennifer Gonzalez, Director of Environmental Services

for the City of Hoboken, being of full age and having been sworn

according to the laws of the State of New Jersey, deposes and

says:

1. I have read the foregoing Verified Complaint, and to

the best of my knowledge, information and belief, the factual

allegations contained therein are true.

CITY OF HOBOKEN

WQ-QAVWGgfi6mm:Jeknifer\Gfnzale§_J

. H\a_./

Sworn and subscribed to

before me this QflTH dayof August, 2018

DAISY AMADO

ID # 2405965

NCfiARYPUBUC

STATE OF NEW JERSEY

My Gommlsalun Expires March 22. 2021 rvTvv‘TT‘

36730-022: 802373.4





(973) 622—1800


CITY OF HOBOKEN


CHANCERY DIVISION:


V. DOCKET NO. HUD-C

SUEZ NORTH AMERICA, Civil Action

Defendant.

FACSIMILE CERTIFICATION

I, WILLIAM P. OPEL, ESQ., do hereby certify that:

l. I am an attorney for Plaintiff City of Hoboken (the

“City”) in the above—entitled action.

2. The signature affixed to the within Verification of

Complaint is a facsimile. I certify that the affiant has

acknowledged to my satisfaction and genuineness of her

signature and that the document or a copy with an original

signature affixed will be filed if requested by the Court

or by a party to this litigation.

McManimon, Scotland & Baumann, LLC

s for Plainti

By:WILLIAM P. OPEL \

Dated: August 29, 2018

36730-022: 8023761

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