Sunday, February 18, 2018
BERYL ZIMMERMAN, ET AL. VS. SUSSEX COUNTY EDUCATIONAL SERVICES COMMISSION, SUSSEX COUNTY A-1003-16T4
BERYL ZIMMERMAN, ET AL. VS. SUSSEX COUNTY EDUCATIONAL
SERVICES COMMISSION, SUSSEX COUNTY
In this appeal from a final agency decision by the Commissioner of Education, the court addresses the rights that part-time tenured teachers in the non-public school setting enjoy pursuant to the New Jersey Tenure Act, N.J.S.A. 18A:28-1 to -18. The court held that the omission of a contractual guaranteed number of minimum hours per year did not deprive them from the protection against a reduction in compensation or of their seniority rights. Because the record was incomplete, the court remanded with instructions to determine whether the reduction in hours constituted a reduction in their compensation and a reduction in force under the Tenure Act.
K.K. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH
SERVICES, ET AL.
K.K., an eighty-eight-year old legal permanent resident who entered the country in 1991, left in 2007 and returned in 2014, is entitled to Medicaid payments without waiting five years because he entered the country before August 22, 1996. The agency's ruling to the contrary is reversed based on a de novo interpretation of federal statutory requirements.
TASHICKA HAYES VS. TURNERSVILLE CHRYSLER JEEP
Defendant filed a motion for reconsideration 101 calendar days after the trial court's order denying its motion to enforce an arbitration agreement. Although facially untimely, the motion judge denied the motion on its merit. Defendant appealed. This court affirms for reasons other than those expressed by the trial court. This court holds that a decision to deny a motion to enforce an arbitration agreement is a final order subject to the 20-day time restraints for filing a motion for reconsideration under Rule 4:49-2. Neither the parties nor the trial court may enlarge the time specified by Rule 4:49-2. See R. 1:3-4(c). The trial court's order denying defendant's motion to compel arbitration was appealable as of right. R. 2:2-3(a)(3). Defendant's only legally cognizable recourse after the time to file a motion for reconsideration expired was to file a timely
direct appeal to this court. GMAC v. Pitella, 205 N.J. 572, 586-87 (2011).
Monday, February 12, 2018
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. EXXON MOBIL CORPORATION A-0668-15T1/A-0810-15T1
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS.
EXXON MOBIL CORPORATION
Following a sixty-six day bench trial, and before the judge ruled on the admissibility of the experts' testimony and rendered a verdict, the Department of Environmental Protection (DEP) and Exxon Mobil Corporation settled DEP's lawsuit seeking natural resource damages (NRD) caused by pollution at Exxon's refinery in Linden and facility in Bayonne. DEP provided public notice of the proposed consent order pursuant to N.J.S.A. 58:10-23.11e2, and received 16,000 comments, mostly objections, including those of appellant State Senator Raymond Lesniak and appellants, a number of public interest environmental groups.
Before DEP responded to the comments, both appellants sought to intervene in the trial court; Judge Michael J. Hogan denied their motions without prejudice, and he permitted them to file opposition as amici and argue against the proposed settlement at a subsequent hearing. After Judge Hogan approved the settlement, appellants again sought to intervene for purposes of appeal. Judge Hogan denied their motions.
The court holds that a party must have standing before it can intervene at trial under our Court Rules. Because appellants cannot bring suit for NRD under the Spill Compensation and Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to 23.24, the Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14, or the common law, the court affirmed Judge Hogan's denial of their motions for intervention at trial.
However, because the Appellate Division alone can decide whether an appellant has standing to appeal, and because the environmental groups have standing to assert the public's interest in challenging DEP's decision to settle the lawsuit, the court considered the merits of Judge Hogan's decision to approve the settlement.
Applying the rationale of federal decisions interpreting the Spill Act's federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-675, the court concluded the appropriate standard of review is whether the judge mistakenly exercised his discretion in concluding the settlement was fair, reasonable, consistent with
the Spill Act's goals, and in the public interest. The court affirmed Judge Hogan's approval of the settlement.
ROBERT J. CURRAN VS. DEBRA CURRAN
The parties in this matrimonial action agreed to submit issues incident to their divorce to binding economic arbitration pursuant to the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. A handwritten provision inserted into the arbitration agreement read: "The parties reserve their rights to appeal the arbitrator's award to the appellate division as if the matter was determined by the trial court."
Appellant does not contend that he has satisfied any of the grounds enumerated under Section 23 of the Act to vacate the award. He argues instead, that the provision is illegal and therefore, it renders the arbitration award void in its entirety.
The court confirms that the parties cannot create subject matter jurisdiction by agreement and bypass the trial court to seek immediate appellate review.
The court concludes that striking the illegal clause does not defeat the primary purpose of the contract, which was to resolve the parties' matrimonial issues through binding arbitration
pursuant to the Act. The remainder of the arbitration agreement is valid and enforceable and we confirm the arbitration award.
ANTHONY Y. KITE VS. DIRECTOR, DIVISION OF TAXATION
Money recovered from a qui tam action brought pursuant to a provision of the federal False Claims Act, 31 U.S.C. § 3730, is a "prize or award" under N.J.S.A. 54A:5-1(l) that is subject to taxation under the New Jersey Gross Income Tax Act, N.J.S.A. 54A:1-1 to 10-12; and the taxpayer may not deduct the fees he paid to his attorneys to prosecute the action, or the amounts he paid to the plaintiffs in related qui tam actions pursuant to their joint prosecution and sharing agreement.
SHARON BEN-HAIM VS. DANIEL EDRI, ET AL
We hold that New Jersey courts do not have jurisdiction to hear civil claims against foreign officials when the United States, through the State Department, has issued a suggestion of immunity (SOI) determining that those officials are entitled to conduct-based immunity. Therefore, we affirm a December 9, 2016 order dismissing plaintiff's civil complaint against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel after the State Department determined that the judges and official were acting within the scope of their duties for a foreign sovereign nation.