Monday, July 30, 2007
In applying the Schmid/Coalition multifaceted standard, the twin
Rivers Homeowners’ Association’s policies, as set forth in its
rules and regulations, do not violate the New Jersey
constitutional guarantees of free expression.
Mayor Milan was the policy-maker for the City in respect of
Stomel’s removal as municipal public defender, and thus the §
1983 claim against the City based on Milan’s actions is
reinstated. Also, Stomel set forth a prima facie case that, as
municipal public defender, he was an “employee” of the City for
purposes of advancing his CEPA claim.
D’Annunzio presents many facts that support the creation of an employment relationship for CEPA purposes, notwithstanding that his agreement described him as an independent contractor.
Parents who are the subject of a termination action have the
right to effective counsel. A claim of ineffective assistance
of counsel is to be evaluated in light of the standard
articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). Such a claim must be raised on
the parent’s direct appeal from an order of termination.
To establish that a disability is “a direct result of a
traumatic event” for purposes of the accidental disability
retirement statutes, a member must prove that the event is (a)
identifiable as to time and place; (b) undersigned and
unexpected; and (c) caused by a circumstance external to the
member (and not the result of pre-existing disease that is
aggravated or accelerated by the work).
A "Service of Suit" clause in a commercial insurance policy
is not a forum selection cause and does not preclude the insurer
from filing first in the jurisdiction in which the insurer
We consider whether tinnitus, often described as "ringing
in the ears," may be compensable under our State's workers'
compensation laws, N.J.S.A. 34:15-1 to -128, in the absence of a
compensable hearing loss.
We hold that tinnitus qualifies as a compensable disability
under N.J.S.A. 34:15-36, provided that (1) the condition is due
in a material degree to exposure to harmful noise at the employee's workplace, (2) materially impairs his or her working ability or is otherwise serious in extent, and (3) is corroborated by objective medical testing despite the mainlysubjective nature of the affliction. Tinnitus meeting those requirements is compensable, even if the employee does not also have a sensorineural loss of hearing below the decibel levels
specified as disabling by the Occupational Hearing Loss Act ("OHLA"), N.J.S.A. 34:15-35.10 to -35.22.
The question presented is whether a supporting parent's
payments against child support arrears should be suspended where the parent is disabled and his or her only income is SSI benefits. Following Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004), we held that the parent's payments against arrears
are to be suspended until such time as the parent has the ability to pay the arrears from income or assets, actual or
imputed, other than SSI.
N.J.S.A. 39:6A-5.1, which provides for arbitration of
disputes regarding PIP benefits upon the demand of either the
insured or the insurer, does not apply to a dispute regarding
alleged fraud in the procurement of the policy.
Pennsauken Township determined that approximately 600 acres
of waterfront property, including 137 acres owned by plaintiff,
was in need of redevelopment. The Township designated a master
redeveloper for the entire area. Plaintiff does not challenge
the Township's determination that the area is in need of
redevelopment or the Township's redevelopment plan. It argues
that it should be permitted to develop its own property as part
of the redevelopment project and not be subject to eminent
domain proceedings to turn its property over to the master
We held that plaintiff does not have a constitutional right
to redevelop its own property, and, once it is determined that
the property is in need of redevelopment, thus establishing a
public purpose, the municipality has the authority under the
LRHL to condemn the property and designate a master redeveloper to execute the redevelopment plan if the municipality reasonably concludes that such action is necessary or convenient. The record established a reasonable basis here, and we owe judicial deference to the legislative decision.
Judge Holston filed a dissent.
We consider a municipality's statutory obligations to
afford notice and a hearing prior to demolition of a privately
owned building it deems unsafe, N.J.S.A. 40:48-2.5; N.J.S.A.
40:48-2.7, and conclude that the Township did not meet or
substantially comply with its obligations in this case.
Monday, July 23, 2007
Because N.J.S.A. 52:13D-17 serves a legitimate governmental
purpose and does not improperly encroach on judicial interests,
the Court defers to the Legislature in the spirit of comity and
holds that attorneys formerly employed by the State must comply
with both the Act and the RPCs.
The Alcoholic Beverage Control Act, N.J.S.A. 33:1-1 to – 97,
imposes strict liability on a licensee for a violation
of the Act’s provisions by the licensee’s employees. The
measure of punishment is determined by considering all relevant
facts, including the licensee’s knowledge, efforts taken to
prevent violations, and character and reputation; whether
excessive hardship would result; and whether repeated violations
were the direct product of governmental action.
The Merit System Board decision recognized legitimate public
policy reasons for not insisting that DYFS retain an employee
who, in so short a time, lost the trust of her employer. The
Appellate Division impermissibly imposed its own judgment as to
the proper penalty in this matter when the Merit System Board’s
penalty could not be said to be either illegal or unreasonable,
let alone “shocking” any sense of fairness. Therefore, the
Appellate Division’s reversal of Herrmann’s removal was in
Plaintiff sued to collect commissions promised to him for
effectuating an introduction to Leona Helmsley and her key
personnel, resulting in defendants' purchase of a valuable tract
of land in Fort Lee owned by the Helmsley interests. The trial
court granted defendants' motion to dismiss for failure to state
a claim because plaintiff is not a licensed real estate broker.
We reversed, finding that plaintiff should have the opportunity
to attempt to develop a record to establish that denying him a
commission would unfairly benefit defendants and not further the
purpose of N.J.S.A. 45:15-3.
Appellant, a Commissioner of the Board of Public Utilities,
appeals from a decision of the State Ethics Commission advising
that she must recuse herself from any matters in which her
sister's work product is involved. Appellant's sister is a BPU
employee within the Division of Energy, holding the position of
Chief of the Bureau of Rates and Tariffs.
We affirmed, holding that there is a disqualifying conflict
of interest here because appellant's sister has a significant
role in matters assigned to her Bureau. Thus, allowing
appellant to participate in matters on which her sister worked,
creates a reasonable public impression that appellant's judgment
as a member of the Board Public Utilities may be tainted or at
least influenced by personal considerations.
Decedent perished in a one-car collision. His Estate sued
the vehicle's manufacturer, alleging the products liability
theory that the death occurred because the vehicle was not
"crash worthy." After the products liability suit was settled,
the Estate filed a UM claim, alleging that the accident was
caused by a "phantom" vehicle. UM insurer filed a declaratory
judgment action to preclude the UM claim on several grounds.
We hold that the Estate is not barred from pursuing a UM
claim based on the doctrines of judicial estoppel, which applies
when a party has convinced a court to accept its position. The
doctrine does not apply here because a settlement does not imply
endorsement of a party's position by the court.
We also hold that the settlement of the products liability
claim without the consent of the UM insurer does not bar the UM
claim because the products liability defendant is neither an
uninsured motorist nor the owner of an uninsured vehicle.
Lastly, we hold that, in order to avoid a double recovery,
the UM insurer is entitled to a credit for the amount of the
products liability settlement.
In this appeal, we determine whether the New Jersey
Property-Liability Insurance Guaranty Association (PLIGA) is
liable for a claim filed by the issuer of a surety bond, which
acted as the guarantor of the performance of a subcontractor in
a school construction project.
We hold that the direct negligence claim asserted by the
surety against the company now insured by PLIGA is a covered
claim under both the policy issued by the insolvent carrier, and
the statute defining what is a compensable, covered claim
against PLIGA. By so doing, we reject PLIGA's argument that the
surety's claim here is analogous to the subrogation claim
asserted by the workers' compensation carrier in Sussman v.
Osterhoff, 232 N.J. Super. 306 (App. Div.), certif. denied, 117
N.J. 143 (1989).
We consider the automobile exclusion in a CGL policy and
conclude that the business's auto insurer, not the CGL insurer,
owed a duty to defend and indemnify. We also determine that a
passenger in the insured dump truck, who left that truck to
direct its driver and was hit by the driver of an insured car
was "occupying" the dump truck and is entitled to UM coverage.
The issue before us is whether a municipality may devise a
transfer of development rights program other than as authorized
by the State Transfer of Development Rights Act, N.J.S.A.
40:55D-137 to -163. We held that it may not; therefore, the de
facto transfer of development rights program adopted by the
municipality based on a provision of N.J.S.A. 40:55D-65c that
allows a municipality to adopt standards for planned
developments that include clustering of development between
noncontiguous parcels is invalid.
After the death of the minors' mother, the Camden County
Board of Social Services reduced Temporary-Assistance-to-Needy-
Families benefits which had been paid to appellant prior to the
mother's death under the Work First New Jersey Act, N.J.S.A.
44:10-44 to -78, on the ground that one of the two minors was
not the biological child of appellant, nor did appellant have a
legal relationship with that child. Appellant contended that he
was the psychological parent of that ten-year-old child because
the child and his mother had lived with appellant for nine years
before the mother's death. Relying on V.C. v. M.J.B., 163 N.J.
200, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d
243 (2000), appellant argued that psychological parenthood is a
legal relationship within the policy objectives of the Work
First New Jersey Act and that he was entitled to receive
benefits for his psychological child.
We held that the Work First New Jersey Act and the
regulations promulgated thereunder specifically require that a
legal relationship must exist pursuant to a court order and that
neither a county social services agency nor the Department of
Human Services could recognize a de facto psychological parental
relationship. Such a psychological-parent relationship may be
established through a Kinship Legal Guardianship proceeding,
N.J.S.A. 3B:12A-1 to -7, after which the kinship legal guardian
would be eligible for benefits under the Kinship Care Subsidy
Program, N.J.A.C. 10:90-19.1(a), (c). We determined that the
V.C. decision did not require agency recognition of
psychological parenthood because the statutory and regulatory
scheme of the Work First New Jersey Act expressly required a
court order and one could readily be obtained by psychological
parents under the Kinship Legal Guardianship Act.
Although an order of a judge of compensation may be
enforceable in the Law Division pursuant to R. 4:67-6,
petitioner's civil action here arising out of a compensation
judge's orders was properly dismissed because he failed to
exhaust his administrative remedies in the Division of Workers'
Compensation, including but not limited to N.J.S.A. 34:15-28.1
and N.J.S.A. 12:235-3.14.
Plaintiffs are a homeowner's association and individual
homeowners in the City of Camden. They filed a legal challenge
seeking to invalidate an ordinance authorizing the City to
acquire property by eminent domain, under the authority of
N.J.S.A. 52:27D-325, of the Fair Housing Act.
We hold that under express language of N.J.S.A. 52:27D-325,
the City has the authority to acquire private property by
eminent domain without having to obtain a substantive
certification from the Council on Affordable Housing (COAH)
provided for in N.J.S.A. 52:27D-313. We nevertheless remand for
the trial court to conduct a fact-finding hearing to determine
whether the proposed land acquisition plan authorized by the
ordinance actually increases the number of affordable housing
units in the City.
In this non-jury matter, the trial judge held defendant
liable for a credit card debt despite his contention that he
never applied for or used the credit card. On appeal, the court
concluded that the credible evidence supported the trial judge's
determination that defendant either expressly applied for the
card, or authorized his roommate -- to whom he ceded authority
over his finances -- to apply for and use the card. The court
held that the consequence of any misuse or fraudulent use by the
roommate was to be borne by defendant, and not the credit card
The court also rejected defendant's argument that plaintiff
or its assignor had failed to comply with the Truth in Lending
Act, 15 U.S.C.A. §§ 1601 to 1667, because that Act was designed
to protect credit cardholders from unauthorized use, and because
a cardholder's failure to examine credit card statements that
would reveal fraudulent use of the card constitutes a negligent
omission that creates apparent authority for charges that would
otherwise be considered unauthorized.
Monday, July 16, 2007
Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.
Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop?s constitutionality.
An exculpatory clause in a contract for the sale of a
burglar alarm system is not contrary to public policy because
such a clause simply allocates responsibility to the buyer to
maintain the requisite insurance coverage for any property loss
due to theft.
Considerations of underlying policy and statements in
legislative committee reports cannot trump the plain language of
a statute, L. 2003, c. 89, § 86 (dealing with motor vehicle
insurance), regarding the effective dates of separate provisions
of the enactment, specifically § 35, codified at N.J.S.A. 39:6-
86.7 (concerning PIP payments by the UCJF to pedestrians).
An insured's settlement of a number of pending malpractice
actions by agreeing to submit the claims to arbitration, at
which it would not contest liability or proximate cause,
violated the duty of cooperation because the carrier had not
abandoned the insured.
Four years after his release from prison, appellant, who is
serving a term of community supervision for life, N.J.S.A.
2C:43-6.4(b), was ordered to abide by a curfew, which required
confinement to his residence every day from 8:00 p.m. to 7:00
a.m., for an indefinite period of time. The court held that
N.J.A.C. 10A:71-6.11(l), which governs the manner in which a
curfew may be imposed by the Parole Board as a special
condition, provides an inadequate procedural framework upon
which to rest this limitation on appellant's liberty interests
and deprived him of a meaningful opportunity to be heard. The
matter was remanded for further proceedings consistent with due
Judge Wefing filed a dissenting opinion.
In determining whether striking nurses employed by a notfor-
profit hospital are qualified to receive unemployment
benefits, the Division of Unemployment Insurance must apply its
regulations governing a stoppage-of-work determination in a
flexible manner where, as here, the employer is a regulated
entity. Where a regulated entity is required to maintain
operations and hire temporary replacement workers, as here, the
Director must consider a variety of factors, including a
comparison of net operating revenue before and during the
strike, in determining whether the employer has suffered a
stoppage of work under N.J.A.C. 12:17-12.2(a)(2).
The decision of the Board of Trustees, Public Employees'
Retirement System, denying an accidental disability pension
under the prevailing test for "traumatic event," is reversed
because it lacked substantial support in the essentially
uncontradicted facts and because, in applying legislative
policies to the facts, the Board reached conclusions that could
not reasonably have been drawn from the record. A re-evaluation
of Kane is advocated.
The decision of the Board of Trustees, Police and Firemen's
Retirement System, denying an accidental disability pension
under the prevailing tests for "traumatic event" is affirmed as
supported by substantial evidence; not arbitrary, capricious or
unreasonable; and reflecting a respectable application of
statutory and case law standards. A re-evaluation of the
"traumatic event" standard is advocated.
This appeal is from a post-judgment order in a civil action
denying defendant's motion for the return of funds plaintiff
collected on a judgment that was reversed on appeal because the
trial court erred in concluding that the statute of limitations
was equitably tolled. See Bernoskie v. Zarinsky, 383 N.J.
Super. 127, 141 (App. Div.), certif. denied, 186 N.J. 604
(2006). Acknowledging the continuing validity of the equitable
principles applied in Bruns v. Mattocks, 6 N.J. Super. 174, 176-
77 (App. Div.), certif. denied, 4 N.J. 456 (1950), we employ
them, hold that defendant is entitled to restitution and remandfor further proceedings.
Monday, July 9, 2007
The Division of Youth and Family Services failed to meet its
burden of satisfying by clear and convincing evidence the four
prongs of the statute authorizing the termination of parental
Woolwich Landowners Association v. The Township of
Woolwich - A-3818-05T5
The breadth and impact of proposed amendments to the zoning
ordinance effected a change of classification within three
residential zones and required notice as prescribed by N.J.S.A.
Although critical of the trial judge's timing, we held that
an appearance of impropriety was not created when the judge
began negotiating for post-retirement employment with
plaintiff's law firm before entry of the final judgment because
the judge had finally decided the case and the judgment merely
memorialized the decision.
We also held that the Limited Liability Company Act,
N.J.S.A. 42:2B-1 to -70 requires that a member's fair share be
valued as of the date a court disassociates the member from the
limited liability company.
Counsel fee award was properly made after a mid-trial
settlement of a multi-count class action, in which plaintiffs'
CFA claim was still viable and the injunctive relief provided in
the settlement was substantially that sought in the CFA count.
Township Council of South Brunswick appeals the
invalidation of a municipal ordinance which rezoned plaintiff's
property from a commercial development district to an office
development district. In a published opinion, Finnegan v. Twp.
Council of S. Brunswick, 386 N.J. Super. 255 (Law Div. 2006),
the trial court held that the municipal legislation was
arbitrary and capricious, because the Township Council did not
have the benefit of expert testimony to support the enactment of
the ordinance. The court held that the ordinance constituted
inverse spot zoning.
We reverse and held that the trial court applied an
incorrect standard of review in determining the validity of the
ordinance. The Township Council was entitled to rely on the
views expressed by Township residents as a basis for enacting
municipal legislation. We also held that the ordinance did not
constitute spot zoning, because its principal purpose furthered
a comprehensive zoning scheme, and was not designed merely to
relieve the lot from the burden of a general regulation.
In this appeal, we must decide whether a lawyer, in the
context of opposing a motion for leave to appeal, has a duty to
disclose the existence of a pending appeal in which the lawyer
is counsel of record, when the pending appeal involves the
identical legal issue the appellate tribunal is being asked to
consider in the motion for leave to appeal.
We held that under the provisions of R.P.C. 3.3(a)(5),
plaintiff's counsel had an affirmative duty to inform the
appellate panel considering the motion for leave to appeal of a
pending appeal involving a material issue that was substantially
similar or related to a material issue raised in the motion for
leave to appeal in which the attorney was involved. This lawyer
violated this duty because, as attorney of record, he was
actually aware of the existence of such an appeal and failed to
inform the appellate panel of its existence.
Guided by the principles articulated by the Supreme Court
in In re Seelig, 180 N.J. 234 (2004), we set aside a settlement
that was tainted by such sharp practices, as the only way to
restore the essential elements of good faith and fair dealing
which are implicit parts of all contracts in this State.
This appeal requires us to consider whether an award of
counsel fees and costs is available to a first-party insured who
prevails in an action to compel the insurer to provide extended
medical-expense benefits required by N.J.A.C. 11:3-7.3(b). We
conclude that both counsel fees and costs are available.
In this non-jury action, the trial judge awarded a salesman
damages against his former principal based on a determination as
to what their contract required; the judge awarded additional
damages based upon quantum meruit. The court concluded, in
light of the presence of an express contract as to the amount of
commissions due, that the trial judge was precluded from
awarding additional commissions based upon quantum meruit.
The court also held that the Sales Representatives' Rights Act,
N.J.S.A. 2A:61A-1 to -7, governs the amount of counsel fees to
which the salesman might be entitled upon remand. The Act
limits such an award to a determination of whether the fees
sought were actually incurred and whether the fees actually
incurred represented a reasonable expenditure of time and effort
for what was accomplished in the lawsuit.
Friday, July 6, 2007
An employee must possess the bona fide occupational
qualifications for the job position that employee seeks to
occupy in order to trigger an employer’s obligation to
reasonably accommodate the employee to the extent required by
the Law Against Discrimination (LAD). An employer may
reasonably limit light duty assignments to those employees whose
disabilities are temporary, and the availability of light duty
assignments for temporary disabled employees does not give rise
to any additional duty on the part of the employer to assign a
permanently disabled employee indefinitely to an otherwise
restricted light duty assignment.
Monday, July 2, 2007
If design or construction services relating to an improvement to
real property are completed before a certificate of occupancy is
issued, and the designed or contractor has no further work to
perform on that construction project, then the start date for
purposes of the Statute of Repose, N.J.S.A. 2A:14-1.1(a), is the
date on which the designer or contractor has completed his or
her portion of the work. The complaint against Lepley and
Buterick was properly dismissed because it was filed more than
ten years after they completed their work.
The trial judge’s instruction to the jury on the appropriate
standard of care applicable to Dr. Hunter, though not entirely
in keeping with the Model Jury Charge, nonetheless did not
result in error; the Court is satisfied that the jury concluded
that Hunter’s actions were reasonable in light of all of the
facts relating to the emergency he confronted; the Court finds
no error in the trial court’s dismissal of the fraud claim or in
the Appellate Division’s analysis of plaintiffs’ argument on
appeal; and, because the change in the expert’s opinion,
although significant, was one which brought his opinion into
alignment with plaintiffs’ expert, the Court does not perceive,
in these circumstances, any prejudice to plaintiffs.
A non-appealability clause in an arbitration agreement,
executed before New Jersey's Arbitration Act was amended
effective January 1, 2003, and between parties of relatively
equal bargaining position who are represented by counsel, that
bars judicial review other than confirmation of the arbitration
award is enforceable only to the extent it waives judicial
review beyond the trial court level. In this case, despite the
broad preclusionary language in the agreement's nonappealability
clause, defendant obtained meaningful review of
its claims of arbitrator bias and misconduct in the Chancery
Division and therefore
The court found that Mr. Triffin manufactured assignment
agreements for checks upon which he filed suit against the
drawer. However, the jury's verdict on the drawer's
counterclaim for common law fraud against Mr. Triffin cannot
stand due to lack of reliance on the drawer's part. We
recognized, though, that sanctions for committing fraud on the
court may be appropriate and remanded the matter for a hearing
on that issue.
In this appeal Monmouth University obtained several
variances from the Borough of Long Branch Board of Adjustment to
construct a large student dormitory in a low density residential
zone. We affirmed the trial court's decision, which we approved
for publication, holding that Board of Adjustment members did
not have disqualifying conflicts because they participated in
various University events, were alumni, or had children who had
gone to the school.
We also held that a Board member who disqualified herself
from voting because she had missed several meetings, was not
precluded from commenting on issues for which she was properly
This is an automobile accident personal injury negligence
case. Plaintiff and defendant were both pizza delivery drivers
engaged in the course of their employment when their vehicles
collided. Defendant asserted the bar of the Workers
Compensation Act (Act) as an affirmative defense in his answer
to plaintiff's complaint. Plaintiff's counsels' actions during
the course of the litigation lulled defense counsel into
mistakenly believing that the fellow-servant rule was not a
viable defense to plaintiff's cause of action. After belatedly
becoming informed of the viability of the defense, defendant one
week prior to the scheduled trial date, asserted the defense as
a bar to plaintiff's complaint. We found that equitable
principles and the strong public policy underpinnings of the
fellow-servant provision supported the trial judge's finding
that defendant did not waive his workers compensation defense by
his late assertion of the defense.
A standard clause in architects' and builders' contracts
abrogates the discovery rule by providing that the statute of
limitations for claims between the parties runs from the date of
substantial completion of the project. The clause is subject to
equitable defenses such as equitable estoppel. In this case,
however, plaintiff was aware of the alleged construction defects
before the six-year limitation period expired but waited another
two years before filing suit. Plaintiff presented no evidence
that defendants lulled plaintiff into missing the filing
deadline or engaged in other inequitable conduct that would give
rise to estoppel.
In circumstances where the driver of an automobile may
either be unwilling or unable to seek emergency aid for an
individual struck by the car and lying helpless in the middle of
a roadway, the passengers' inaction in failing to take simple
precautions at little if any cost or inconvenience to them, is
actionable based either on an independent legal duty to act or,
vicariously, as aiders or abettors who substantially assisted
the driver's misconduct by encouraging him to abandon the scene.
An applicant for a driver's license cannot obtain an
exemption from the requirement of submission of a social
security number with the application by simply showing that he
tendered an "Affidavit of Revocation and Rescission" of his
social security registration to the Social Security
Defendants operate art auctions on cruise ships. They
appealed from the certification of a putative class of bidders.
We reversed the order granting class certification because
Admiralty Jurisdiction applies, and under an Admiralty Law
analysis, common questions of law do not predominate over
individual questions of law.