Sunday, December 10, 2017
NANCY JACOBS VS. JERSEY CENTRAL POWER & LIGHT COMPANY
After a streetlight fell on the corner of plaintiff's property, an employee of the defendant electric company disconnected the power, removed the light pole, pushed the wires into a hole in the ground, and covered the hole with dirt. He placed over the hole an orange safety cone, which disappeared within a few days. White markings painted by the hole faded in the ensuing weeks.
Nearly two months later, plaintiff inadvertently stepped into the hole and injured herself, resulting in lumbar and knee surgeries. She brought a negligence case against the utility for creating and failing to timely repair a dangerous condition. A jury found the utility primarily at fault in causing the accident. It awarded plaintiff damages, which were reduced by her own percentage of fault. The utility appeals and asserts multiple trial errors.
JANET HENEBEMA VS. DOMENICO RADDI, JR.
On remand, and ten years after a serious car accident, defendants raised for the first time the affirmative defenses of N.J.S.A. 52:17C-10 (9-1-1 dispatcher immunity) and N.J.S.A. 59:5-4 (failure to provide police protection). We concluded that the judge erred by (1) failing to resolve whether defendants waived the new defenses; and (2) dismissing the complaint relying on Royster v. N.J. State Police, 439 N.J. Super. 554 (App. Div. 2015), aff'd as modified, 227 N.J. 482 (2017) (dismissing a claim under the Americans with Disabilities Act).
EDWARD GRIMES VS. NEW JERSEY DEPARTMENT OF CORRECTIONS
Appellant, an inmate at the New Jersey State Prison, challenged the final decision of the Department of Corrections (DOC), which reiterated DOC's informal policy (the calling policy) prohibiting inmates from making phone calls to cell phones and "non-traditional telephone service numbers." He asserted the calling policy violated the United States Constitution and DOC's informal implementation of the calling violated the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -31 (the APA).
The court concluded DOC's adoption and implementation of the calling policy violated the rulemaking procedures required by the APA. The court recognized the likely disruption that immediate invalidation of the policy would cause, and left the policy in place, pending DOC's commencement of rulemaking without delay.
FWDSL & ASSOCIATES, LP VS. RICHARD BEREZANSKY, ET AL.
Plaintiff, a tax sale certificate holder, appealed an order which permitted a party to intervene in this foreclosure action and redeem based on its having obtained title pursuant to its profit-sharing agreement with the property owners. The intervenor agreed to pay the owners $10,000 for clear title and, by way of the profit-sharing agreement, promised to: pay all outstanding property taxes; satisfy a $70,000 judgment against one of the owners; allow the owners free use and occupancy until the property's eventual sale; and consented to a thirty-five/sixty-five split of the net proceeds, with the owners receiving the larger share. Plaintiff argued the consideration received by the owners was illusory or was only nominal because the profit-sharing agreement called for reimbursement to the intervenor of its payment of the taxes, of the $70,000 judgment, and of all repairs made to the premises. In affirming, the court held that the owners received more than nominal consideration – thereby satisfying N.J.S.A. 54:5-89.1's requirements – and rejected plaintiff's contention that Simon v. Cronecker, 189 N.J. 304 (2007) imposed a blanket prohibition on all profit-sharing agreements in this setting.
Sunday, November 19, 2017
AZIZ M. THABO VS. Z TRANSPORTATION
In this breach of contract case, the Law Division judge dismissed with prejudice plaintiff's complaint by imposing the ultimate discovery sanction provided in Rule 4:23-5. This court reversed and remanded this matter for further proceedings because the party who filed the motion and the Law Division judge who imposed the sanction failed to follow the procedural safeguards codified in Rule 4:23-5. The attorney representing the moving party did not disclose to the motion judge that he had received the outstanding discovery which formed the basis of the sanction a month before the judge dismissed plaintiff's complaint with prejudice. This wholesale disregard for the due process protections embodied in Rule 4:23-5 can occur only when the trial court fails to perform its basic gatekeeping function.
GREENBRIAR OCEANAIRE COMMUNITY ASSOCIATION, INC. VS.
U.S. HOME CORPORATION, ET AL.
Plaintiff homeowners association filed a complaint against the defendant developer alleging various claims on its own behalf and on behalf of the homeowners. The homeowners had agreed when purchasing their properties from the developer to arbitrate any disputes; the association had entered into no such agreement with the developer. The trial court granted the developer's motion to compel arbitration of all the disputes, and the association appealed. The court remanded with a direction that plaintiff file an amended complaint that separated the claims the association brought on its own behalf from those it brought on behalf of the homeowners so the trial court might better ascertain which claims were subject to the arbitration agreement and which were not.
EQR-LPC URBAN RENEWAL NORTH PIER, LLC, ET AL. VS. CITY
OF JERSEY CITY
A-5231-14T3 (NEWLY PUBLISHED OPINION FOR 11/15/17)
On leave granted, we reverse an April 10, 2015 Law Division order granting partial summary judgment in favor of plaintiffs, limited liability companies that qualify as urban renewal entities under the Long Term Tax Exemption (LTTE) Law, N.J.S.A. 40A:20-1 to -22. The City of Jersey City (City) claims that plaintiffs attempted to circumvent a tax abatement agreement by improperly changing their allowable profit rate so as to avoid paying the City any excess net profit. Plaintiffs' complaint sought a declaratory judgment against the City declaring that the parties' financial agreements incorporate future changes to the LTTE law, such that plaintiffs may calculate their "allowable profit rate" in accordance with the 2003 amendments to the LTTE Law. The City argued that the motion court misinterpreted the 2000 and 2001 financial agreements, warranting reversal. We find it contrary to fundamental public financing concepts for the Legislature to adjust the terms of municipal tax abatement contracts after the fact. See N.J.S.A. 40A:20-2, N.J.S.A. 40A:12A-2. We further find the Legislature did not intend to do so in the 2003 LTTE amendments.
We issued our unpublished opinion on July 22, 2016. At the direction of the Court, we now publish our opinion.