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Thursday, December 18, 2008

Walter Sroczynski v. John Milek

(A-68/77-07)
12-17-08

A carrier does not satisfy N.J.S.A. 34:15-81 merely by transmitting electronic notice of cancellation of coverage to the Commissioner by way of the FTP. The statute clearly requires that to effectuate the cancellation, a carrier also must file a statement certified by an employee that the required notice was provided to the insured.

In re Opinion 39 of the Committee on Attorney Advertising

(A-30/31/32-08)
12-17-08

Opinion 39 of the Committee on Attorney Advertising is vacated and the matter is referred jointly to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics and the Professional Responsibility Rules Committee for expedited review and modification of RPC 7.1(a)(2) and (3).

Maria Tartaglia v. UBS PaineWebber Incorporated and Herbert Janick

(A-107/108-06)
12-16-08

Tartaglia should have been given the benefit of an adverse inference charge relating to her spoliation of evidence laim; the trial court erred in determining that certain evidence could not be considered by the jury in relation to Tartaglia's claim that she had engaged in protected activity; the complained of comments by defense counsel in summation were improper; and summary judgment on Tartaglia's common law wrongful termination claim was improperly granted.

Riverside Chiropractic Group, a/s/o Megan Machado v. Mercury Insurance Company

A-3034-07T2
12-17-08

In this personal injury protection (PIP) action, the assignee of an insurance contract challenged the Alternative Procedure for Dispute Resolution Act's (APDRA), bar to appellate review, arguing that the statute was unconstitutional as applied. N.J.S.A. 2A:23A-18(b). We dismissed, holding that the statutory bar to appellate review was not unconstitutional as applied because the applicable insurance contract did not require the insured to file any claims he/she had in arbitration. The fact that the assignee in this case opted to arbitrate instead of sue amounted to a voluntarily waiver of the right to appellate review.
We further held that the facts before us did not give rise to our exercising our "supervisory function" to review the Law Division's actions.

Polarome International, Inc., formerly known as Polarome Manufacturing Co., Inc. v. Greenwich Insurance Company and Zurich Insurance Company

A-0566-07T1
12-17-08

Where complaints in two toxic-tort actions alleging personal injuries are ambiguous as to the dates of exposure and injury triggering coverage, the carriers may examine evidence extrinsic to the complaints to determine when the last pull of the "continuous trigger" of Owens-Illinois, Inc. v. United
Insurance Co., 138 N.J. 437 (1994), occurred in order to establish that they had no duty to indemnify, and thus, no duty to defend. Because the time of initial manifestation of the toxic-tort personal injuries at issue here predated the applicable coverage periods, neither insurer had a duty to defend or indemnify, even though further progression of the disease may have occurred while the relevant policies were in effect.

Larry Price v. Strategic Capital Partners

A-2494-07T2
12-16-08

Larry Price is a pro se litigant who frequently challenges the actions of the Union City Zoning Board. In this case, he challenged the Board's issuance of a density variance that permitted the trebling of the density of a high-rise building in a zone in which the zoning ordinance sought to prohibit the granting of any density variance. We affirmed the trial court's determination that a zoning ordinance cannot lawfully prohibit the granting of density variances, because such a prohibition conflicts with the specific statutory grant of authority to do so found in N.J.S.A. 40:55D-70(d)(5). We remanded the matter back to the Board for further consideration of whether the density problem, i.e., that it is not economic to build tall, low density buildings, was unique to this project or common to the zone and whether it is appropriate to treble the density in that particular zone. We also required that the Board provide a fuller explanation of the reasons for its actions.

Leonard Felicioni v. Administrative Office of the Courts, et als.

A-2716-07T1
12-15-08

Appellant, who is one of several victims of a fraudulent scheme perpetrated by a criminal defendant ordered to pay restitution to all of them, challenges the State's current system of paying restitution on a first-in-time rather than automatic pro-rata basis. We rejected his multi-faceted challenge, finding the method of distribution violates neither his substantive due process nor equal protection rights under the federal and State constitutions; nor his State constitutional rights under the Victims Rights Amendment (VRA), N.J. Const., art. I, ¶ 22; nor his statutory rights under New Jersey's Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -70, and Civil Rights Act, N.J.S.A. 10:6-1 to -2.

Praxair Technology, Inc. v. Director, Division of Taxation

A-6262-06T3
12-15-08

In administering N.J.S.A. 54:10A-2, a section of the Corporation Business Tax Act, the Director may not give retroactive application to the clarifying example in N.J.A.C. 18:7-1.9(b), i.e., to tax years antedating the promulgation in 1996 of the clarifying example dealing with the tax liability of foreign corporations that earn licensing fees from parent corporations in New Jersey.

Save Hamilton Open Save vs. Hamilton Township Planning Board, et al.

A-1795-07T2
12-12-08

The Phase II stormwater management regulations adopted by
the DEP do not include any provision for DEP review to determine compliance. Therefore, unless a developer is required to obtain a permit under another DEP regulatory program, such as the Freshwater Wetlands Protection Act, the determination of compliance with the Phase II regulations must be made by the planning board as part of its review of a land use application under the Municipal Land Use Law and the statewide rules that govern streets, water supply, sanitary sewer systems, and stormwater management, adopted pursuant to the Residential Site Improvement Standards Act.

Sealed Air Corporation vs. Royal Indemnity Company, et al.

A-5951-06T3
12-12-08

In this case, we examined whether a directors and officers
(D&O) insurance policy affords coverage for defense costs and damages arising from a suit alleging misrepresentations regarding contingent liabilities for pollution claims made in connection with a multi-step transaction to reorganize and merge businesses. We held that, based on the "substantial nexus" standard set forth in Am. Motorists Ins. Co. v. L-C-A Sales Co., 155, N.J. 29, 35 (1998), the complaint clearly arose from alleged violations of the Securities Exchange Act of 1934 and the rules promulgated there under, and not from intentional pollution. We found that the language of the pollution exclusion in the applicable insurance policy, as well as the reasonable expectations of the insured, prevented the insurer from disclaiming coverage.

Fernando Piniero, et al. v. New Jersey Division of State Police, et al.; Martin Temple, et al. v. Peter C. Harvey, et al.; David Kushnir, et al. v....

Fernando Piniero, et al. v. New Jersey Division of State Police, et al.
Martin Temple, et al. v. Peter C. Harvey, et al.
David Kushnir, et al. v. New Jersey Department of Law and Public Safety, et al.

A-2507-07T3
12-12-08

In this appeal, we were required to determine whether the contents of a four-way investigation report of the background check of Joseph Santiago, who was nominated by Governor James McGreevey for the position of Superintendent of the New Jersey State Police, was subject to discovery by plaintiffs, New Jersey State troopers, who alleged that they were retaliated against because of their involvement in preparing and compiling the information for the report. Three separate groups of State troopers sought discovery of the four-way investigation. We determined that two of the groups of State troopers did not have the requisite interest in the four-way investigation report to warrant disclosure of the report, and the third group, while having such an interest, was not entitled to the report as its interest did not outweigh the public's interest in keeping the report confidential. Consequently, we reversed the general equity judge who permitted discovery of a redacted version of the four-way investigation report.

Ricki R. Rogers v. Felipe Noguera

A-1531-07T2
12-12-08

The parties entered into a prenuptial agreement (agreement) prior to their 1981 marriage. In 1998, the Legislature adopted the Uniform Pre-Marital Agreement Act (the Act), N.J.S.A. 37:2-31 to -41. The agreement was governed by pre-Act case law articulated in D'Onofrio v. D'Onofrio, 200 N.J. Super. 361, 366 (App. Div. 1985), and Marschall v. Marschall, 195 N.J. Super. 16 (Ch. Div. 1984). Those pre-Act cases held that prenuptial agreements are valid and enforceable under certain conditions, but subject to modification at the time of enforcement if the spouse sought to be bound by the agreement will suffer a substantial diminution in his standard of living after the divorce.

Here, after lengthy evidentiary hearings, the trial court declared the entire agreement unenforceable and determined that defendant was entitled to seek equitable distribution and alimony. We modified the trial court's conclusion to allow defendant to seek alimony if and when he demonstrates substantially changed circumstances under the standard articulated in Lepis v. Lepis, 83 N.J. 139 (1980). The remainder of the agreement remains in full force and effect.

J.A v. A.T.

The Court held that application of the first filed doctrine to register and enforce a custody order issued by a Greek court would contravene public policy, despite the fact that there was evidence that plaintiff participated in the Greek proceeding through a representative and filed a counterclaim for custody in that action. We found that apart from the fact that the order granting custody to defendant was temporary, the record was devoid of evidence that the court considered any of the statutory factors outlined in N.J.S.A. 9:2-4(c) before reaching its decision. Thus, we concluded that "special equities" militated against according deference to the temporary custody determination by the Greek court.

Editor: Caitlin Yaeger

Bertha Bueno v. Board of Trustees, Teacher’s Pension and Annuity Fund, Division of Pensions and Benefits

A-0916-07T2
12-11-08

Where an applicant for public-employee ordinary disability retirement benefits is only disabled from performing the duties of her assigned public-employee position but the employer has no other work available for her in the general area of her ordinary employment, then the applicant must prove that she is disabled from performing duties in the general area of her ordinary employment for other employers and may even be required to prove that she is disabled from performing substantially different duties for other employers or is generally unemployable in order to qualify for ordinary disability retirement benefits.

Sophie Bubis v. Jack Kassin, et al.

A-5783-06T2
12-11-08

Owners of private property adjoining oceanfront property below the mean high water mark held by the State under the public trust doctrine may not limit the public's use of that property to enhance the enjoyment of their own property. However, such property owners have no obligation to allow public access to their own property above the mean high water mark that they maintain exclusively for their own recreational use.

Scott Evans v. Atlantic City Board of Education, et al.

A-1939-07T3
12-10-08

In this appeal, the court held that a sending-district representative on a receiving district's board of education was not entitled to vote on the appointment of the receiving board's solicitor. The court observed that N.J.S.A. 18A:38-8.1 enumerates those matters on which a sending-district representative is eligible to vote and held that the statute should be literally interpreted because its unambiguous language, as illuminated by its legislative history, reveals an intent to permit voting only on the matters expressly enumerated.

The Biber Partnership, P.C. v. Diamond Hill Joint Venture, LLC and McManus Design Group, Inc.

A-1766-07T1
12-10-08

The section of the New Jersey version of the Uniform Arbitration Act that authorizes consolidation of separate arbitration proceedings recognizes that, even in the absence of an express prohibition against consolidation in a contract providing for arbitration, the legitimate expectations of the contracting parties may limit a court's authority to order consolidation of arbitration proceedings.

&H Securities, Inc. v. Duane D. Pinkney, Marc J. Palladino, Michael Poisler and Advanced Integration Security, LLC

A-3642-07T3
12-09-08

An employee's claim under the Wage Act that is removed from the Department of Labor to the Superior Court for a jury trial is a Superior Court action, which is subject to the same rules of practice and procedure, including the court's authority to consolidate with other pending actions, as any other Superior Court action.

David A. Ames v. Dama Gopal

A-2522-07T1
12-09-08

Plaintiff was not entitled at trial to an instruction that a herniated disc constitutes a permanent injury, entitling him to non-economic damages. We distinguish Pardo v. Dominguez 382 N.J. Super. 489 (App. Div. 2006).

In Re Election Law Enforcement Commission Advisory Opinion No. 01-2008

A-2816-07T1
12-04-08

The Court affirmed an advisory opinion issued by the Election Law Enforcement Commission, concluding that an elected official being criminally prosecuted by the United States Attorney for alleged corruption in office may not use campaign funds to pay for legal defense costs.

Editor: Caitlin Yaeger

Antonia Verni, et al. v. Daniel R. Lanzaro, et al.

A-1816-07T3
12-03-08

The Court reversed a June 7, 2007 order sealing the settlement proceedings, the settlement documents, and all further proceedings in this personal injury action as contrary to the Rule 1:1-2 and the guidelines identified by the Supreme Court that guide judicial discretion in any decision to seal a court record.

Editor: Caitlin Yaeger

Wednesday, December 3, 2008

Garvin McKnight v. Office of the Public Defender

(A-109-07)
11-26-08

In a legal malpractice action brought by a criminal defendant
against the attorney who represented him or her in a criminal
case, the claim does not accrue and the statute of limitations
does not begin to run until the criminal defendant receives
relief through some form of exoneration.

P.V. v. Camp Jaycee

(A-31-07)
11-24-08

Although the Court recognizes the vitality of New Jersey’s own
policy of immunizing charities, in this case, it must yield to
the presumption favoring application of Pennsylvania law, which
has not been overcome.

Antonia Verni, et al. v. Daniel R. Lanzaro, et al.

A-1816-07T3
12-03-08

We reverse a June 7, 2007 order sealing the settlement
proceedings, the settlement documents, and all further
proceedings in this personal injury action as contrary to the
Rule 1:1-2 and the guidelines identified by the Supreme Court
that guide judicial discretion in any decision to seal a court
record.

Senator Nia H. Gill v. N.J. Department of Banking and Insurance

A-0886-07T1
11-28-08

The issue presented in this appeal is the right of GEICO,
which filed documents with the New Jersey Department of Banking
and Insurance, to intervene in a Government Records Council
proceeding held pursuant to the Open Public Records Act, in
which a third party seeks public disclosure of GEICO's
documents. GEICO moved to intervene, claiming that its
documents did not constitute public records, as they contained
confidential, proprietary information.
The GRC denied the motion to intervene and we reversed,
concluding that GEICO was entitled to participate in the GRC
proceeding to protect what it considers to be its confidential
and proprietary information.

Monday, November 24, 2008

Raymond Arthur Abbott, etc., et al. v. Fred G. Burke,

(M-969/1372-07)
11-18-08

The State’s application to have its new school funding formula
declared constitutional and plaintiffs’ cross motion seeking an
order to preserve the status quo cannot be resolved on an
undeveloped record. The matter must be remanded for further
proceedings.

Borough of Glassboro v. Fraternal Order of Police

11-17-08
(A-75-07)

The Court’s careful review of the record in light of the
standards governing judicial review of public employment
arbitration awards leads to the conclusion that the arbitrator
properly determined that the record did not adequately support
the elevation of Highley over Amico. Nonetheless, it was beyond
the arbitrator’s power to fashion a remedy that promoted Amico.

John A. Bart v. City of Paterson Housing Authority

11-21-08
A-5826-06T1

We reversed the Final Decision of the Government Records
Council that there had been a knowing and willful violation of
the Open Public Records Act (OPRA) and imposing a $1,000
sanction. Because claimant already had one document in his
possession when he demanded a copy under OPRA, he had not been
wrongfully denied access to the document.
Further, we declined to equate a written response that had
been prepared with the assistance of counsel to an OPRA request
to be so vague as to constitute a knowing and willful violation
of the statute.

Gobe Media Group, LLC v. Cisneros

11-20-08
A-3524-07T2

The question presented on appeal is whether a monetary
judgment entered in the Special Civil Part, when the business
entity was not represented by an attorney as required by Rule
1:21-1(c), renders the judgment void ab initio or voidable at
the election of the adverse party. We held that the judgment is
voidable at the election of the adverse party without
establishing a material irregularity in the trial proceeding or
that the judgment was otherwise erroneously entered. We also
held that our decision is applicable to the present case and
prospective cases, but not cases previously decided that are
beyond the time for reconsideration or direct appeal.

Steven Spaeth v. Vathsala Srinivasan

11-20-08
A-2834-07T1

At issue is whether a defendant, who answered a plaintiff's
complaint and counterclaimed without asserting the affirmative
defense of the promise to arbitrate, waived her contractual
right to arbitration. We held that under the circumstances,
where defendant did not initiate the litigation and actively
attempted to extricate herself therefrom, where minimal
discovery was exchanged, and where the six-month delay in
invoking the contractual right neither benefited defendant nor
caused demonstrable prejudice to plaintiff, defendant should not
be deprived of the arbitration remedy she bargained for.

Wednesday, November 19, 2008

Borough of Avalon v. New Jersey Department of Environmental Protection

11-19-08
A-3410-07T3

The DEP rules that require a municipality to allow public
access to tidal waterways and their shores "at all times" unless
it obtains the DEP's permission to close the area and that
require a municipality that seeks an appropriation from the
Shore Protection Fund to enter into a State Aid Agreement that
obligates the municipality to provide such additional parking
spaces and restroom facilities in proximity to the oceanfront as
the DEP may mandate are declared invalid.

ZRB, LLC v. New Jersey Department of Environmental Protection, Land Use Regulation

A-6046-06T3
11-17-08

The New Jersey Department of Environmental Protection
rejected appellant's application for a Statewide General Permit
No. 6 to fill wetlands and build a single-family subdivision on
its property. The application was rejected because the
Department found that the wetlands on the property constituted a
habitat for the barred owl, a species the State had designated
as threatened.
On appeal, we determined that pursuant to the Freshwater
Wetlands Protection Act and the New Jersey Endangered and
Nongame Species Conservation Act, the State has the authority to
protect threatened, as well as endangered, species. We also
concluded that the decision to deny appellant's application for
the permit was not arbitrary, capricious or unreasonable.

Mainland Manor Nursing & Rehabilitation Center v.New Jersey Department of Health & Senior Services

11-17-08
A-4438-06T2

If a health care facility's application for a certificate
of need is denied, and the facility fails to appeal from the
grant of a certificate of need to another medical facility for
the same medical service, an appeal from the denial of the
certificate may become moot if the successful applicant has
instituted the new medical service. If an Administrative Law
Judge makes findings of fact and conclusions of law which
indicate that the agency head's preliminary decision was
erroneous, the agency head must consider that decision de novo
in light of the Administrative Law Judge's findings and
conclusions.

Jeffrey Shectman v. Robert Bransfield, M.D.

11-13-08
A-3035-07T2

In this medical malpractice action, defendant was entitled
to have the jury instructed on medical judgment because the
expert testimony established that there were two generally
accepted courses of treatment that could have been employed and
the choice between the two was a matter of the physician's
judgment.

St. James AME Development Corporation v. City of

11-13-08
A-1029-07T3

A motion to dismiss a complaint with prejudice for failure
to answer interrogatories must be denied when the earlier order
to dismiss without prejudice is not served on the plaintiff.
Moreover, such a motion to dismiss with prejudice must also
be denied if fully responsive answers had been provided and a
motion to restore is pending. If there is a dispute regarding
the responsiveness of the answer, the judge must decide that
issue before addressing the motions to restore or to dismiss.

Wednesday, November 12, 2008

Thomas John Salzano v. North Jersey Media Group, Inc.,

11-12-08
A-6715-06T1

Plaintiff is the son of a former officer of NorVergence,
Inc., which is the subject of bankruptcy proceedings. The media
defendants reported on a complaint filed in federal court
against plaintiff by the trustee of NorVergence's assets. The
trustee claimed that NorVergence funds were fraudulently
transferred to plaintiff, and alleged that plaintiff "unlawfully
diverted, converted and misappropriated" NorVergence funds "for
his own personal benefit." The media defendants asserted in
their articles about the trustee's suit, among other things,
that plaintiff "stole" NorVergence funds. The trial judge
granted defendants' motion to dismiss the complaint, which pled
numerous causes of action, including defamation, for failure to
state a claim upon which relief may be granted.
In this appeal, the court reversed the dismissal of the
complaint, holding that defendants could not rely upon the fair
report privilege because the proceeding they reported on
consisted only of an initial pleading that had not been the
subject of judicial review. Absent the shield of the fair
report privilege, defendants could not demonstrate the
statements were true or nondefamatory. The court also held
that, although a private person, plaintiff was embroiled in a
public matter and must be held to the actual malice standard,
but the court also held that plaintiff should be permitted to
amend his complaint.

Grow Company, Inc. v. Dilip Chokshi and Pharmachem

11-12-08
A-4282-06T2

In this appeal, the court reviewed a partial summary
judgment that found the terms of an earlier settlement agreement
required a dismissal of plaintiff's claims against defendant
Dilip Chokshi, who was plaintiff's former employee, and
defendant Pharmachem Laboratories, Inc., with whom Chokshi
presently has a business relationship. The trial judge also
found that the settlement agreement entitled Chokshi to an award
of counsel fees, but did not quantify the amount due, choosing
instead to dismiss that claim without prejudice to be renewed in
a later suit. The court concluded that the disposition of the
fee issue was not a final determination and left interlocutory
the order under review. Although the court again condemned the
foisting of jurisdiction upon it in the absence of a final
order, as it had in Vitanza v. James, 397 N.J. Super. 516 (App.
Div. 2008), in these particular circumstances the court found it
equitable to grant leave to appeal out of time.
In reaching the merits, the court reversed the partial
summary judgment, holding that the settlement agreement was
capable of more than one plausible interpretation. The court
also declined to determine whether a former employer was limited
to a single suit against an allegedly disloyal former employee,
leaving that novel issue to further factual development in the
trial court.
Lastly, the court concluded that the trial judge had no
authority to compel plaintiff to post a supersedeas bond because
plaintiff had not sought a stay and because no money judgment
had been entered against plaintiff.

Rutgers-The State University v. Alter Fogel

11-07-08
A-1493-07T2

The venue section of the Federal Fair Debt Collection
Practices Act, 15 U.S.C.A. § 1692i, requires that debt
collection actions be filed either in the county where the
debtor lives or in the county where the debtor signed the
contract underlying the debt.

Monday, November 3, 2008

New Jersey Manufacturers Ins. Co. v. Horizon Blue

11-03-08
A-0712-07T3

The issue in this appeal is whether a health insurer whose
insured has designated the health insurance as primary under
N.J.S.A. 39:6A-4.3d, is required to participate in PIP
arbitration pursuant to N.J.S.A. 39:6A-5.1. We conclude that
this statutory arbitration provision does not apply to health
insurers.

New Jersey Division of Youth and Family Services v.

Following a colloquy among the trial court, counsel for
DYFS, the Law Guardian, and the natural mother pro se, the trial
court entered an order directing a change of custody of a child
from DYFS to his natural mother, when no exigent circumstances
existed. We reversed and remanded directing that the court
conduct a proper evidentiary hearing on the issue of change of
custody.

State v. Jeffrey Nemes

10-30-08
A-6320-07T4

An interlocutory order denying a motion to dismiss on
double jeopardy grounds is not appealable as a final judgment.

Estate of Cordero, et al. v. Christ Hospital

On appeal from a grant of summary judgment in favor of the
defendant hospital, plaintiffs contend the evidence was adequate
to permit a jury to find the hospital liable for an
anesthesiologist's negligence under a theory of "apparent
authority." There is apparent authority when "a hospital by its
actions, has held out" a doctor as its agent and "a patient has
accepted treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital." Basil v.
Wolf, 193 N.J. 38, 67 (2007) (quoting and approving Arthur v.
St. Peters Hosp., 169 N.J. Super. 575, 581 (Law. Div. 1979)).
Based on the absence of evidence that the hospital "actively
held out" or "misled" the patient "into believing" that the
anesthesiologist was its agent, or that patient was misled, the
trial court dismissed plaintiffs' claim.
The court held that when a hospital provides a doctor for a
patient and the totality of the circumstances created by the
hospital's action and inaction would lead a patient to
reasonably believe the doctor's care is rendered in behalf of
the hospital, the hospital has held out that doctor as its
agent. We also hold that when a hospital patient accepts a
doctor's care under such circumstances, the patient's acceptance
in the reasonable belief the doctor is rendering treatment in
behalf of the hospital may be presumed unless rebutted. Appellate Divison Docket A-1289-07T1

Philip D'Ambrosio v. Department of Health and Senior

10-29-08
A-0914-07T3

The Department of Health and Senior Services has the
authority under the 1984 Emergency Medical Services Act,
N.J.S.A. 26:2K-7 to -53 (the "EMS Act"), to regulate emergency
medical technicians, commonly known as "EMT-Bs", who provide
basic life support services, despite the fact that the
classifications in the EMS Act do not specifically list EMT-Bs
as a discrete subcategory of EMTs. The corresponding
Departmental regulations pertaining to EMT-Bs, N.J.A.C. 8:40A-
1.1 to -10.4, are therefore valid and applicable to appellant's
effort to obtain recertification to serve in this State as an
EMT-B.
Additionally, the authority of the Department of Health and
Senior Services to certify EMTs such as appellant who happen to
serve on local rescue squads is not affected by municipal
certification requirements for rescue squad members set forth in
the Highway Traffic Safety Act of 1987, N.J.S.A. 27:5F-13.1 to -
43 (the "Traffic Safety Act"). The Traffic Safety Act
supplements, but does not supplant, the regulation of EMTs that
is conducted by the Department of Health and Senior Services.

In the Matter of Thomas J. Kim, M.D. to Practice

10-28-08
A-1488-07T1

The authority of the New Jersey Board of Medical Examiners
includes the ability to grant licensure conditioned by a
reprimand. Because the Board is vested not only with the
greater power to deny, revoke, or suspend a physician's medical
license, N.J.S.A. 45:1-21, but also with the power to invoke the
lesser sanctions of warnings, reprimands, or censure, N.J.S.A.
45:1-22(a), we concluded that to limit the exercise of the power
to grant or deny licensure, separate from the imposition of a
lesser and perhaps more appropriate action, was irrational and
may thwart the effectiveness of the Board's fundamental dual
purpose -- to permit qualified physicians licensure while
protecting the State citizenry.

Fiona Bayne v. Earl Johnson

10-27-08
A-0974-06T1

We denied palimony to the claimant who lived with her
paramour and his wife for a substantial period of time based
upon absence of proof of a promise of lifetime support and also
because claimant left the relationship voluntarily.

Donald J. Trump v. Timothy L. O'Brien, et al.

10-24-08
A-3905-06T2

Following the publication of the biography, TrumpNation,
its subject, Donald Trump, sued its author, Timothy O'Brien, and
his publisher, claiming that O'Brien's report that Trump's net
worth was only $150 million to $250 million, not the billions
that Trump asserted, was defamatory. During discovery, Trump
sought the identification of the three sources of O'Brien's
information, along with notes of interviews with those sources.
O'Brien refused to produce the requested discovery, citing the
newsperson's privilege. The trial court, applying New York's
Shield Law, found the information unprotected and ordered
production of this and other information and documentation.
On appeal, we reversed, determining that the identity and
statements of the sources were protected by New York's Shield
Law. In doing so, we found that non-fiction books were
protected by that Law, the information contained in TrumpNation
was of public interest and thus "news," and that O'Brien's
sources were confidential. We also found that Trump had failed
to meet the burden required to defeat the qualified privilege
applicable to allegedly non-confidential materials. Although we
recognized that both the confidential and allegedly nonconfidential
materials that O'Brien refused to disclose would be
protected by New Jersey's Shield Law, we did not resolve the
conflict of law issue thus raised, finding it not to have
ripened.

Wednesday, October 22, 2008

Hina K. Patel v. New Jersey Motor Vehicle Commission

10-14-08
A-2911-07T1

New Jersey's unsafe driving statute, N.J.S.A. 39:4-97.2,
provides that the Motor Vehicle Commission shall assess the
driver points for a third or subsequent offense. The statute
also affords relief from the assessment of points when an
offense is committed more than five years after a prior offense.
In this appeal, we have construed that language to apply only to
offenses that occur after the third offense.

Monday, October 13, 2008

Lawrence DeNike v. Michael Cupo

9-24-08
A-61-07

Judges must avoid actual conflicts as well as the appearance of
impropriety to promote confidence in the integrity and
impartiality of the Judiciary. Unfortunately, the negotiations
between trial judge and lawyer in this case created an
appearance of impropriety. Stated simply, the conduct here fell
short of the high standards demanded of judges and fellow
members of the legal profession and had the capacity to erode
the public’s trust. Because any lesser remedy would allow
reasonable doubts to linger about the fairness of the outcome of
the case, the judgment of the Appellate Division is reversed and the matter is remanded for a new trial.

Phoenix Funding, Inc. v. Shartane and Robert Krute

10-10-08
A-1706-07T3

This case involves the Tax Sale Law, N.J.S.A. 54:5-1 to -
137. We consider whether a person who acquires an interest in
property that is the subject of an action to foreclose a tax
sale certificate may redeem without intervening in the
proceeding if the person has a "close personal relationship"
with the property owner. We conclude that N.J.S.A. 54:5-98,
N.J.S.A. 54:5-89.1 and Rule 4:64-6(b) require intervention.

State of New Jersey v. Anthony Alexander

10-10-08
A-6333-06T4

In this appeal, the court reversed the denial of postconviction
relief because trial counsel's representation of both
defendant and another individual, who allegedly participated in
crimes with defendant, placed counsel in a per se conflict of
interest. The court held that because the conflict arose
between the entry of a guilty plea but before sentencing, there
was no cause to disturb the plea, but that defendant was
entitled to be resentenced following a determination of what
might have occurred had defendant sought to cooperate with law
enforcement regarding his alleged cohort.

Francis and Aniela Sullivan v. Coverings & Installation, Inc., Frank F. Setola, and Cheryl A. Setola

10-08-08
A-6025-06T1

We held that plaintiffs were not required to establish
"good cause" for reinstatement of their complaint, which was
dismissed without prejudice for failure to permit defendants to
inspect their residence. Rule 4:23-5(a)(1) expressly permits a
party whose complaint has been dismissed without prejudice to
move, on notice, to vacate the dismissal at any time before the
entry of an order dismissing the complaint with prejudice. Because defendants never moved to dismiss the complaint with prejudice under Rule 4:23-5(a)(2), plaintiffs' complaint remained dismissed without prejudice. Consequently, when
plaintiffs moved to reinstate their complaint nearly one year
later, the court's inquiry was limited to determining whether
(1) the discovery violation resulting in the dismissal had been
cured, (2) the restoration fee had been paid, and (3) what, if
any, sanctions, counsel fees and costs, or both, should be
imposed as a condition of restoration.

Wednesday, October 8, 2008

Randy Senna V. Walter Florimont, et al.

(A-35-07)
9/22/08

Based on the content, form, and context of the challenged
speech, including the identity of the speaker and the intended
audience, the speech involved here did not touch on matters of
public concern. The false and defamatory statements of
defendants’ employees, impugning the honesty of a business
competitor, fall into the category of commercial speech that is
not entitled to heightened protection. The negligence standard
is the appropriate standard of care.

Monday, October 6, 2008

Zagami, LLC, d/b/a The Landmark American Tap and Grill, d/b/a Landmark Liquors v. Mary Ann Cottrell, et. al.

10/03/08
A-3948-07T3/A-4227-07T3 (consolidated)

We held that the defendants in this defamation action
brought by the owner of a bar are accorded absolute immunity,
under the litigation privilege, for oral and written statements
they made objecting to, and in connection with, the plaintiff's
municipal liquor license renewal proceeding. In extending the
privilege to these allegedly defaming defendants, we found the
administrative proceeding with its attendant safeguards of
notice, hearing, neutrality, availability of review on appeal,
and presence of retarding influences, sufficiently similar to
strictly judicial proceedings so as to protect the allegedly
defamed party from false or malicious charges and therefore
accord participants therein the same mantle of protection.

Saturday, August 30, 2008

Kotler v. National Railroad Passenger Corp.

08-29-08 Dmitriy Kotler v. National Railroad Passenger Corp.
A-5985-06T2

In a personal injury suit brought by a railroad employee
under the Federal Employers' Liability Act (FELA), a plaintiff's
receipt of collateral source benefits is inadmissible unless
plaintiff "opens the door" on direct examination by referring to
such benefits in a manner affecting his/her credibility. We
conclude that plaintiff did not "open the door" to the admission
of such evidence. Therefore, defense counsel's elicitation of
collateral source benefits evidence on cross-examination of
plaintiff and comments on that evidence in summation constitute
grounds for reversal of the no-cause verdict.

NJ Dept. of Children and Families' Institutional Abuse

8-27-08 NJ Dept. of Children and Families' Institutional Abuse
Inv. Unit v. S.P.
A-2522-06T2; and
NJ Dept. of Children and Families' Institutional Abuse
Inv. Unit v. G.W.
A-4807-06T2

1. In investigating allegations of abuse by school
personnel, the Institutional Abuse Investigation Unit (IAIU) of
the Department of Children and Families (DCF) must determine
whether the allegations are "substantiated" or "unfounded."
N.J.A.C. 10:129-1.3. In rendering an "unfounded" report, the
IAIU may express its concerns about "inappropriate" or
"unjustified" conduct by the staff member, but must do so based
upon facts that have been tested for accuracy or are clearly
corroborated. Such concerns cannot be based upon vague,
conflicting or otherwise inaccurate reports.

2. The IAIU is prohibited from pursuing the school
district to confirm or report its disciplinary or corrective
action against a staff member on whom the IAIU has rendered an
"unfounded" report. When a report is "unfounded," the school
district is not required to take any disciplinary or corrective
action against the staff member.

Lee v. First Union National Bank, Wachovia

8-27-08 Margaret Lee v. First Union National Bank, Wachovia
Bank, N.A., First Union Brokerage Services, Inc., and
Gregory Mack
A-1517-06T2

Plaintiff alleged she paid an employee of First Union
National and First Union Brokerage Services $2,000 in cash for
purchase of shares of a mutual fund and that he did not deposit
the money into her brokerage account, which caused an overdraft
which First Union covered by taking money from her checking
account and selling some of the mutual fund units. Plaintiff's
complaint alleged violation of the Consumer Fraud Act (CFA) and
common law conversion.

The trial judge granted summary judgment to defendants,
holding that the CFA was not applicable to a sale of securities
and the count for misappropriation was barred by the two-year
statute of limitations under the Blue Act, N.J.S.A. 49:3-71(g).

We reversed on the following grounds: (1) The transaction
is not exempt from the CFA prohibition on deceptive sales
practices because the claim relates to misrepresentation as to
performance of services and not the nature or existence of the
security; (2) N.J.S.A. 49:3-71(g) is not applicable because the
gravaman of this count of the complaint concerns the unlawful
"taking, detaining, or converting of personal property," which
is subject to the six-year statute of limitations.

Strahan v. Jean M. Strahan

08-26-08 Michael A. Strahan v. Jean M. Strahan
A-3747-06T4

In calculating child support for high income families, the
trial court must undertake a meaningful analysis of the
custodial parent's statement of the children's needs and make a
determination as to whether the expenses claimed by the
custodial parent are reasonable. We reiterate the "three pony
rule" in such cases; that is, "no child, no matter how wealthy
the parents, needs to be provided [with] more than three
ponies." Isaacson v. Isaacson, 348 N.J. Super. 560, 582 (App.
Div.), certif. denied, 174 N.J. 364 (2002) (quoting In re
Patterson, 920 P.2d 450, 455 (Kan. App. 1996)).

Burnett v. County of Bergen and Bergen County

08-22-08 Fred Burnett v. County of Bergen and Bergen County
Clerk's Office
A-2002-06T2

In this Open Public Records Act (OPRA) case, we address the
question of whether the county clerk may redact social security
numbers (SSNs) from masses of realty documents requested for the
purpose of creating a commercial database to be accessed by
subscribers. OPRA requires the government custodian of the
requested records to redact that portion of the documents
disclosing SSNs unless the SSNs are part of a record "required
by law to be made, maintained or kept on file by a public
agency." N.J.S.A. 47:1A-5a. SSNs are included in recorded
realty documents as required by law.
08-19-08 Thomas Best v. C&M Door Controls
A-3801-06T2

Plaintiff filed suit against his employer alleging causes
of action under the Prevailing Wage Act (PWA) and CEPA.
Defendant made a pre-trial offer of judgment in the amount of
$25,000, which was not accepted, and trial commenced. The jury
returned a verdict of $2,600 in plaintiff's favor on the PWA
claim, and a verdict of no cause on the CEPA claim. After the
verdict was returned, but prior to each side making its request
for counsel fees and costs, the Supreme Court's amendments to
the offer of judgment Rule (the Rule) became effective.

Plaintiff sought counsel fees as a prevailing party under
the PWA's fee-shifting provision. Defendant sought counsel fees
under CEPA's "frivolous litigation" provision, as well as the
Rule.

We concluded that defendant was not entitled to fees under
CEPA. We then concluded that the amended version of the Rule
applied because it was in effect when defendant made application
for its "allowances" under the Rule. As amended, the Rule
permits the trial judge to deny an allowance to a non-claimant
even if it obtained a "favorable" result if such an award
"conflicts" with the underlying policy of the fee-shifting
statute at issue.

We determined that an award to the defendant employer under
the Rule did not conflict with policies supporting the PWA, but
did conflict with the policies supporting CEPA. We remanded the
matter to the trial court to further consider defendant's
application under the Rule.

We also remanded the matter so that the trial judge could
reconsider his award to plaintiff, and limit the award to that
time reasonably spent in prosecuting plaintiff's PWA claim.

In concurring, Judge Stern did not necessarily agree that
the amended version of the Rule should apply, but nonetheless
reached the same result under the version of the Rule in
existence when the offer was made and the trial occurred.
Furthermore, while he agreed that the "policy embodied" in the
PWA is different than that "embodied in other fee-shifting
statutes," he believed the Rule "might well be inapplicable when
plaintiff prevails in a case commenced under another fee-
shifting statute."

Ibrahim v. Reda M. Aziz

08-19-08 Mary L. Ibrahim v. Reda M. Aziz
A-4447-05T2

When calculating child support, the trial court erred in
imputing income based on New Jersey wages to a parent who was
living and working in a foreign country where wages were
dramatically less than here. The family had been living in the
foreign country and was visiting New Jersey when the parents
separated. The father then returned to the foreign country and
was unable to obtain a visa to come back to the United States.
His child support payment should have been based on what he
could earn in the foreign country.

Tuesday, August 12, 2008

Pizzullo v. New Jersey Manufacturers Insurance Company

8-7-08 Pizzullo v. New Jersey Manufacturers Insurance Company
(A-21-07)

Under the unique factual record of this case, which demonstrates
that the Pizzullos requested certain coverage and New Jersey
Manufacturers promised to provide that coverage but then failed
to do so, New Jersey Manufacturers is not entitled to immunity
from suit under N.J.S.A. 17:28-1.9(a).

Simmermon v. Dryvit Systems, Inc

8-11-08 Simmermon v. Dryvit Systems, Inc. (A-55-07)

A Tennessee court is the proper forum to address whether James
Simmermon received sufficient notice of the nationwide class
action against Dryvit Systems, Inc., and whether prosecuting an
individual suit against Dryvit in New Jersey constituted an
effective opt-out of the class action. Only if a Tennessee
court decides that Simmermon is not bound by the class action
settlement may he proceed with his New Jersey action. However,
because it violated Rule 4:5-1(b)(2), Dryvit will be responsible
for Simmermon’s litigation expenses, including attorneys’ fees.

Attorney General's "Directive on Exit Polling:

8-06-08 In Re: Attorney General's "Directive on Exit Polling:
Media & Non-Partisan Public Interest Groups," Issued
July 18, 2007
A-0543-07T1

We uphold the validity of the Attorney General's Directive
dated July 18, 2007, permitting non-partisan public interest
groups to conduct exit polling within 100 feet of the outside
entrance to a polling place but prohibiting the distribution by
such non-partisan public interest groups within that same 100-
foot area of any materials such as voters' rights cards.

Angrisani v. Financial Technology Ventures,

8-07-08 Frank Angrisani v. Financial Technology Ventures,
L.P., et al.
A-5477-06T3

A party can be forced to arbitrate only those issues it has
specifically agreed to arbitrate. Therefore, where plaintiff
contemporaneously entered into an employment agreement, which
contained a provision for arbitration of disputes between
plaintiff and the employer, and an agreement with investors for
the purchase of stock in the employer, which did not contain any
arbitration provision, plaintiff cannot be forced to arbitrate
claims against the investors based on the stock purchase
agreement.

Harvey, et al. v. Township of Deptford

08-08-08 George Harvey, et al. v. Township of Deptford
A-3187-06T1

Plaintiff, a towing operator, sought mandamus against the
defendant municipality, compelling the public auction or removal
of vehicles he had towed and stored at the municipality's
request. He also sought monetary damages caused by the
municipality's failure to conduct public auctions within the
time limits contained in N.J.S.A. 39:10-A-1 to -7, and the
storage of the towed vehicles on his property. The trial judge
granted plaintiff partial summary judgment on liability, but
limited his monetary damages to $400 per vehicle, finding
N.J.S.A. 40:48-2.50 applicable to limit the municipality's
exposure.
We affirmed. We conclude that N.J.S.A. 40:48-2.50
expressly limits the amount that a towing operator may recover
against the municipality for the storage of vehicles towed at
the municipality's request. We further conclude that plaintiff
has no express or implied cause of action for monetary damages
based upon the municipality's violation of the time limits set
forth in N.J.S.A. 39:10A-1 to -7, and has no claim for monetary
damages as a corollary to his mandamus action.

Sebastian Fernandez v. Nationwide Mutual Fire

08-12-08 Sebastian Fernandez v. Nationwide Mutual Fire
Insurance Company
A-4849-06T1

The issue presented on appeal is whether a PIP carrier's
right to reimbursement for paid PIP benefits, pursuant to
N.J.S.A. 39:6A-9.1, has priority over an insured's right to be
made whole where the tortfeasor's insurance does not fully cover
the insured's personal injury damages. We concluded that the
decisions of Knox v. Lincoln Gen. Ins. Co., 304 N.J. Super. 431
(App. Div. 1997) and IFA Ins. Co. v. Waitt, 270 N.J. Super. 621
(App. Div.), certif. denied, 136 N.J. 295 (1994) are not in
conflict, but rather address different issues under the PIP
reimbursement statute. We determined that the issue presented
is controlled by Knox and held: that where a PIP carrier has
paid benefits to its insured, it is entitled to reimbursement of
those benefits from the insurance proceeds of a third-party
tortfeasor, pursuant to N.J.S.A. 39:6A-9.1, even if the limits
of the tortfeasor's insurance policy are insufficient to make
the insured whole.

Wednesday, August 6, 2008

In Re: Attorney General's "Directive on Exit Polling: Media & Non-Partisan Public Interest Groups," Issued July 18, 2007

08-06-08 A-0543-07T1

We uphold the validity of the Attorney General's Directive dated July 18, 2007, permitting non-partisan public interest groups to conduct exit polling within 100 feet of the outside entrance to a polling place but prohibiting the distribution by such non-partisan public interest groups within that same 100-foot area of any materials such as voters' rights cards.


Editor, Mitch Zuckerman

Dyana M. Espina v. Board of Review, New Jersey Department of Labor and Keybank National Association

08-01-08 A-3780-06T3

Pursuant to N.J.A.C. 12:17-9.11(b), an employee cannot be deemed to have abandoned her employment by failing to return to
work, until the expiration of five consecutive days from the last day of an approved leave of absence. Thus, claimant is not
disqualified for benefits as a "voluntary quit."

Felipe Hernandez v. Carmen Baugh

07-30-08 A-5752-06T2

Plaintiff sued defendant for legal malpractice in connection with his purchase, with his uncle, of a business. The uncle then removed plaintiff from the business; plaintiff sued his uncle and settled that litigation under a settlement agreement stating the settlement was "fair and reasonable . . . taking into account all relevant factors." The trial court dismissed plaintiff's malpractice action on the basis of Puder v. Buechel, 183 N.J. 428 (2005). We reversed, finding Puder distinguishable. Defendant's alleged malpractice was one of the relevant factors behind plaintiff's decision to settle the earlier litigation on the terms he did.

James Feigenbaum, et al. v. Frank Guaracini, Jr., et als.

07-29-08 A-0338-06T5

The question presented on appeal is whether a tenant's assignee can be held liable under the doctrine of equitable subrogation to the guarantor of the original tenant's obligation under the lease, for monies paid by the guarantor in settlement of the landlord's claim for damages on default of the lease, where the assignee did not have knowledge of the guaranty contract. We answered the question in the negative. In the opinion, we examined the principles governing contracts of indemnification, guaranty, and suretyship.

Ronald Jamgochian v. New Jersey State Parole Board

8-6-08 (A-63-07)

A community-supervised-for-life offender, who, for some time, has been released into the community, must be afforded due
process of law before the Parole Board can impose a curfew confining the offender to his home. The level of process will depend on a number of variables and the unique circumstances of each case. At a minimum, a supervised offender must be provided
reasonable notice and a meaningful opportunity to be heard.

Blase Toto, et al. v. Sheriff’s Officer Rolando Ensuar, et al.

8-4-08 (A-53-07)

When a public employee’s actions constitute willful misconduct, the plaintiff need not satisfy the verbal threshold of the New
Jersey Tort Claims Act and may instead recover the full measure of damages applicable to a person in the private sector. The
trial court’s failure to give that instruction to the jury was error. The failure to instruct the jury that the good faith defense incorporated into the Act does not apply to claims for false arrest or false imprisonment also was error and the error was clearly capable of producing an unjust result.

Beth Godfrey, et al. v. Princeton Theological Seminary

8-4-08 (A-64-07)

Plaintiffs’ case fell short of the proofs necessary to state a hostile work environment claim based on sexual harassment because they failed to satisfy the severe-or-pervasive prong of the test set forth in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). The Appellate Division majority correctly affirmed the trial court’s involuntary dismissal of the claims.

Jason Cutler v. Theodore Dorn

7-31-08 (A-51-07)

The threshold for demonstrating a religion-based, discriminatory hostile work environment is no more stringent than the theshold that applies to sexually or racially hostile workplace environment claims. Here, plaintiff’s case satisfied the standards for a hostile work environment claim to warrant, and subsequently uphold, a jury determination.

New Jersey Society for the Prevention of Cruelty to Animals, et.al. v. New Jersey Department of Agriculture, et. al.

7-30-08 (A-27-07)

The facial challenge to the regulations in their entirety is rejected. The Department of Agriculture, however, failed, in part, to carry out its mandate. The specific challenges to the reliance on “routine husbandry practices” as defined in the regulations, and to the reliance on “knowledgeable individual and in such a way as to minimize pain” are sustained. The specific challenges to the practices, with the exception of the practice of tail docking, are otherwise rejected.

Monday, July 28, 2008

In the Matter of the Application of Robert L. Taylor, etc.

7-28-08 (A-30-07)

N.J.S.A. 2A:158-7 authorizes the Assignment Judge to approve expenses of the prosecutor that exceed the funds appropriated by the county only when the expenses are “reasonably necessary.”



Editor, Mitch Zuckerman

Elizabeth Mason v. City of Hoboken

7-22-08 (A-22-07)

The Open Public Records Act and common law right of access actions filed in Superior Court have a 45-day statute of limitations. Requestors qualify for attorney’s fees under OPRA and the common law if they can show that the lawsuit was
causally related to the relief obtained and the relief had a basis in law. The burden of proof shifts to the agency if it failed to respond at all to a request within seven business days. Applying those standards here, plaintiff is not entitled to attorney’s fees.

In the Matter of the Estate of Madeleine Stockdale, Deceased

7-22-08 (A-121-06)

Actions arising from disputed wills and related documents designed to dispose of estate assets and which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part. Although a finding that a party in an estate has engaged in undue influence may also, consistent with common-law notions of making an injured party whole and deterring particularly egregious behavior, support an award of punitive damages, the circumstances in which a punitive damage award is permitted is limited. Because the Appellate Division based its analysis on the assumption that punitive damage remedy is broadly available, its judgment is affirmed with modifications.

Nicola Daoud v. Adnan Mohammad

07-24-08 A-5446-06T2

The judge in this commercial landlord/tenancy matter did not follow the administrative directives covering the use of interpreters and thus defendant was deprived of his right to a Marini hearing. Whenever a matter is on the record, non
English-speaking litigants are entitled to an interpreter provided by the court. The appeal of the judgment for possession of the store, however, is moot since the property has been re-rented. Defendant may seek relief in another forum.

Roy M. Victor v. State of New Jersey, New Jersey State Police, Sgt. Eric Estok, Dr. Donald Izzi, Capt. Salvatore Maggio, and Lt. Paul Wagner

07-24-08 A-6001-05T1

In plaintiff's complaint alleging discriminatory treatment based upon race and medical disability in violation of the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, he included an allegation of failure to accommodate plaintiff's
physical disability. As to that claim, we concluded plaintiff has an affirmative obligation to prove he suffered an adverse
employment action as a result of his employer's failure to accommodate his disability.

Failure to accommodate is not discrete from discrimination, but an act that may prove discrimination. More specifically, a
plaintiff must first show the three prima facie elements required in any LAD disability discrimination claim: that plaintiff was disabled yet qualified to perform the essential functions of the position of employment and suffered an adverse employment action because of the disability. The additional factors identified in Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 401-02 (App. Div. 2002), support the second element, that the employee could perform the essential functions of employment with reasonable accommodation. In other words, a plaintiff's proof of the lack of the employer's engagement in an interactive process to determine the need and availability of a reasonable accommodation, supplements the requisite presentation of a prima facie case of discrimination.

We reversed and ordered a new trial because the jury charge was legally insufficient and failed to require a finding that plaintiff suffered an adverse employment action.

Roy M. Victor v. State of New Jersey, New Jersey State Police, Sgt. Eric Estok, Dr. Donald Izzi, Capt. Salvatore Maggio, and Lt. Paul Wagner

07-24-08 A-6001-05T1

In plaintiff's complaint alleging discriminatory treatment based upon race and medical disability in violation of the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, he included an allegation of failure to accommodate plaintiff's
physical disability. As to that claim, we concluded plaintiff has an affirmative obligation to prove he suffered an adverse
employment action as a result of his employer's failure to accommodate his disability.

Failure to accommodate is not discrete from discrimination, but an act that may prove discrimination. More specifically, a
plaintiff must first show the three prima facie elements required in any LAD disability discrimination claim: that plaintiff was disabled yet qualified to perform the essential functions of the position of employment and suffered an adverse
employment action because of the disability. The additional
factors identified in Tynan v. Vicinage 13 of Superior Court,
351 N.J. Super. 385, 401-02 (App. Div. 2002), support the second
element, that the employee could perform the essential functions
of employment with reasonable accommodation. In other words, a
plaintiff's proof of the lack of the employer's engagement in an
interactive process to determine the need and availability of a
reasonable accommodation, supplements the requisite presentation
of a prima facie case of discrimination.

We reversed and ordered a new trial because the jury charge
was legally insufficient and failed to require a finding that
plaintiff suffered an adverse employment action.

Susan Olkusz and Richard Olkusz v. Hackensack Medical Center and Federal Insurance Company and Atlantic Mutual Insurance Company

07-22-08 A-2216-07T2

In this appeal, we are required to determine whether an amendment to N.J.S.A. 17:28-1.1, adopted by the Legislature on September 10, 2007, reversing the Supreme Court's holding in Pinto v. New Jersey Manufacturers Insurance Co., 183 N.J. 405
(2005), and prohibiting the use of step-down clauses in automobile insurance policies, should be applied retroactively.

The trial court held that the Legislature intended to apply this amendment retroactively. By leave granted, we now reverse. Absent a clear indication from the Legislature as to the effect of this statute, we hold that well-established principles of statutory interpretation require that we construe the statute's restriction on the common law right of freedom to contract prospectively. The statutory prohibition at issue cannot be viewed as "curative," because the holding in Pinto was not predicated on a misapprehension of established legislative policy.

In Re Highlands Water Protection and Planning Act Rules, N.J.A.C. 7:38-1 et seq.

07-22-08 A-0984-05T1

Although a challenge to the validity of an administrative regulation is ordinarily determined based solely on the record developed before the agency in considering adoption of the regulation, a court has the authority to remand for supplementation of the record, including the conduct of an evidentiary hearing, if it concludes that such proceedings are required for a proper determination of the challenge. The Farm Bureau has raised substantial questions regarding the validity of the septic density rule adopted by the DEP to govern development in the preservation area of the Highlands area that require such an evidentiary hearing. The water allocation rule also adopted by the DEP to govern development in the preservation area is valid.

Monday, July 21, 2008

Board of Education of the City of Sea Isle City, Cape May County v. William J. Kennedy

7-21-08 (A-37-07)

Not all controversies and disputes that may erupt between a local school district and a parent who is also a sitting board of education member concerning the special education program for the member’s own child should require the member’s removal from
office. In this matter, however, removal was necessary and appropriate because of the concrete pecuniary aspects to the dispute between the parties.

Edward R. McMahon v. City of Newark

7-17-08 (A-39-07)

When a taxpayer and a municipality have agreed in a detailed, arm’s length writing that their disputes are to be resolved in a forum other than the Tax Court, the forum selection agreement will take precedence and its terms must be honored. Because
plaintiff was entitled to have his case heard in the Superior Court in the first instance, the Tax Court lacked jurisdiction to determine the controversy.

Amerada Hess Corporation v. Burlington County Planning Board

7-16-08 (A-41-07)

If a county planning board fails to render a timely decision on a completed land use application within the timetable set forth in the County Planning Act (CPA), N.J.S.A. 40:27-6.7, the application is subject to automatic approval unless the board
can establish that the delay was inadvertent or unintentional.

Stephanie M. Hirl v. Bank of America

07-21-08 A-6459-06T1

In this appeal, we held that in order to invoke the remedial provision of the Electronic Fund Transfer Privacy Act (EFTPA), N.J.S.A. 17:16k-1 to -6, for unauthorized disclosure of financial records, a plaintiff must establish that the
information was disclosed from an account with electronic fund transfer capability. Here, that foundational requirement was not established.

Darren J. Schulman v. Scott B. Schulman, et al.

07-21-08 A-4674-06T1

In this case, we limit the Supreme Court's holding in Puder v. Buechel, 183 N.J. 428 (2005) by finding it inapplicable to the facts presented. Plaintiffs' shareholder derivative claims for legal malpractice and breach of fiduciary duty, as well as
their individual and derivative claims for fraud and breach of contract, are not subject to dismissal under Puder's rationale. We therefore reverse the trial judge's orders of dismissal, entered prior to discovery, and based solely upon the holding in Puder, and remand for further proceedings.

07-21-08 William E. Meyer, Esq. v. MW Red Bank, LLC and Red Bank Zoning Board of Adjustment

07-21-08 A-1984-06T3

In this appeal, Michael DuPont, Esq., Chairman of the Red Bank Zoning Board of Adjustment, disqualified himself from participating in the variance application of developer MW Red Bank, LLC (MW) because his law firm had previously represented Christopher Cole, an owner of one of the entities that comprises MW. We found that DuPont's decision to disqualify himself did not automatically create a corresponding obligation on the part of Lauren Nicosia, who replaced DuPont as the Acting Chair in
the variance application, to do likewise because of her father's "of counsel" status in DuPont's law firm. We distinguished our decision in Haggerty v. Red Bank Borough Zoning Bd. of Adjustment, 385 N.J. Super. 501 (App. Div. 2006), noting that DuPont's law firm had never represented MW and that the firm's last representation of Cole took place nearly two years before MW submitted its variance application to the zoning board.

Tuesday, July 15, 2008

Carole Brundage v. Estate of Carl V. Carambio

7-15-08 (A-56-07)

The behavior of plaintiff’s attorney, although certainly calculated to work an advantage for his client based on information that was uniquely his, approached but did not exceed the bounds of acceptable behavior identified by our ethical rules. It was a course of conduct the Court neither applauds nor encourages, but one that our rules do not prohibit. Thus, the imposition of a litigation sanction on the attorney’s client cannot be condoned.

New Jersey Division of Youth and Family Services v. E.P.

7-14-08 (A-112/113-06)

The Division of Youth and Family Services did not prove by clear and convincing evidence that termination of the mother’s parental rights would not do more harm than good. In the unique circumstances of this case, a parent-child relationship that
continued to provide emotional sustenance to the child should not have been severed based on the unlikely promise of a
permanent adoptive home.

Hunterdon Medical Center v. Township of Readington

7-14-08 (A-17-07)

Any medical or diagnostic service that a hospital patient may require, whether pre-admission, during a hospital stay, or post-
admission, presumptively constitutes a core “hospital purpose” under the tax exemption statute (N.J.S.A. 54:4-3.6). When an
off-site facility provides such services, the test for tax exemption also requires consideration of the degree to which the
off-site facility’s activities operationally are integrated and supervised by hospital personnel.

Richard A. Pulaski Construction Co., Inc. v. Air Frame Hangars, Inc.

7-1-08 (A-40-07)

Assuming, without deciding, that New Jersey common law may admit of a cause of action for prima facie tort, its availability is
limited exclusively to those instances that do not fall within a traditional tort cause of action. Because Pulaski had available
another cause of action, the separate claim for a prima facie tort must fail.

G.H. v. Township of Galloway & Township of Cherry Hill v. James Barclay, et al.

07-15-08 A-3235-06T1 & A-4036-06T1

Municipal ordinances prohibiting convicted sex offenders from living within specified distances of schools and other designated facilities are preempted by Megan's Law and are therefore invalid.

John Bustard, et al. v. Board of Review, et al.

07-15-08 A-5365-05T2

With the adoption of N.J.S.A. 43:21-5(d)(2) in L. 2005, c.103 -- an exception to the labor dispute disqualification provision of subsection (d)(1) -- applicable by its terms from December 1, 2004, the Board of Review is obliged to evaluate the parties' proofs in a first-instance interpretation and application of the newly enacted provision before it can determine whether claimants are eligiblefrom unemployment compensation benefits.

Carlos Serpa v. New Jersey Transit Rail Operations

07-11-08 A-4421-06T3

In this case a party sought to limit its duty to indemnify a public entity based on two statutes limiting recoveries against public entities.

The public entity settled a personal injury claim brought by a worker injured on the job and employed by the general
contractor. When the public entity sought contractual indemnification from the general contractor, the general
contractor contended that it was entitled to a deduction for the workers' compensation benefits it had paid to the injured
worker. While N.J.S.A. 59:9-2(e) allows a public entity to deduct from a judgment the amount of workers' compensation
benefits the plaintiff received for the injuries, that statute does not apply to settlements. When negotiating the settlement
sum, the parties would take into account the fact that if the case went to judgment the public entity would receive the
deduction.

Since the contract provided that the public entity was entitled to indemnification for the general contractor's
negligence and not for its own negligence, a jury trial was held to allocate responsibility for the accident between the public
entity and the general contractor, and the general contractor was found to be eighty-five percent at fault. As a result, the
general contractor must indemnify the public entity for eighty-five percent of the settlement sum. We reject the general
contractor's argument that since a public entity is only responsible for the damages attributable to its percentage of
negligence, under N.J.S.A. 59:9-3.1, the public entity's indemnification could not exceed fifteen percent of the
settlement. Affirmed.

Carlos Serpa v. New Jersey Transit Rail Operations

07-11-08 A-4421-06T3

In this case a party sought to limit its duty to indemnify a public entity based on two statutes limiting recoveries against public entities.

The public entity settled a personal injury claim brought by a worker injured on the job and employed by the general
contractor. When the public entity sought contractual indemnification from the general contractor, the general
contractor contended that it was entitled to a deduction for the workers' compensation benefits it had paid to the injured
worker. While N.J.S.A. 59:9-2(e) allows a public entity to deduct from a judgment the amount of workers' compensation
benefits the plaintiff received for the injuries, that statute does not apply to settlements. When negotiating the settlement
sum, the parties would take into account the fact that if the case went to judgment the public entity would receive the
deduction.

Since the contract provided that the public entity was entitled to indemnification for the general contractor's
negligence and not for its own negligence, a jury trial was held to allocate responsibility for the accident between the public
entity and the general contractor, and the general contractor was found to be eighty-five percent at fault. As a result, the
general contractor must indemnify the public entity for eighty-five percent of the settlement sum. We reject the general
contractor's argument that since a public entity is only responsible for the damages attributable to its percentage of
negligence, under N.J.S.A. 59:9-3.1, the public entity's indemnification could not exceed fifteen percent of the
settlement. Affirmed.

Gregory J. Forester, et al. v. Douglas H. Palmer, Joseph J. Santiago and City of Trenton

07-09-08 A-3690-07T3, A-3691-07T3

Although the 1987 amendment to Trenton's ordinance requiring all municipal officers and employees to be Trenton
residents, which added a provision for waiver of the residency requirement, is invalid, this amendment is severable from the
preexisting residency ordinance. Accordingly, Police Director Santiago, who is no longer a Trenton resident, must vacate the
position. However, to assure an orderly transition of responsibilities to his successor, Director Santiago will be allowed to remain in the position for an additional seventy-five days.

Auto One Insurance Co. v. American Millennium Insurance Co., et al.

07-09-08 A-0496-07T1

This case concludes that the driver of a vehicle who would be entitled to liability coverage from the owner's insurance
carrier pursuant to the "omnibus" provisions of N.J.S.A. 39:6B-1 is not also entitled to UM coverage pursuant to N.J.S.A. 17:28-
1.1a, if that driver is not otherwise entitled to UM coverage under the terms of the owner's insurance policy.

Distributor Label Products, Inc. d/b/a Certified Data Products v. Fleet National Bank, et al.

07-08-08 A-3260-06T5

This case concerns the liability of a drawee bank for checks with forged endorsements.

Plaintiff's employee had embezzled monies by writing checks to a legitimate vendor and then depositing the checks into his
personal account with another bank. Some of the checks were fraudulently endorsed in the name of the payee and others were
marked "for deposit only" with the account number. Since plaintiff failed to exercise ordinary care with respect to
supervising the employee thereby substantially contributing to the loss and the drawee was not negligent, plaintiff was
precluded from recovery under N.J.S.A. 12A:3-406. Plaintiff's recovery for those checks fraudulently endorsed in the name of
the payee was also barred by N.J.S.A. 12A:3-405.

Since no material issues of facts were present, the trial court's granting of summary judgment for the drawee bank was affirmed.

Fernando Roa, et al. v. Lafe and Marino Roa

07-07-08 A-2588-06T3

Without reaching the merits of plaintiff's complaint, we reversed the trial judge's grant of summary judgment prior to
discovery. We conclude that plaintiff may state a cause of action under the LAD's anti-retaliation provision, N.J.S.A.
10:5-12 (d), based upon post-termination conduct of his former employer that was not related to the workplace. We further
conclude that plaintiff may survive defendant's statute of limitations defense by application of the continuing violation
doctrine if he can prove the discriminatory retaliation occurred within two years of filing suit.

Thursday, July 10, 2008

Richard A. Pulaski Construction Co., Inc. v. Air Frame Hangars, Inc.

7-1-08 (A-40-07)

Assuming, without deciding, that New Jersey common law may admit of a cause of action for prima facie tort, its availability is limited exclusively to those instances that do not fall within a traditional tort cause of action. Because Pulaski had available another cause of action, the separate claim for a prima facie tort must fail.

Chubb Custom Insurance Company, et al. v The Prudential Insurance Company of America, et al.

6-26-08 (A-47-07)

Although a service of suit clause in an insurance policy is an agreement by the insurer to submit to personal jurisdiction in the court in which the insured has filed a coverage dispute, the clause does not preclude the insurer from instituting its own suit in the first instance, nor does it allow the insured to trump the insurer’s first filing with a later filing of its own. Both parties remain free to seek relief from inappropriate filings under doctrines of judicial economy, including the doctrine of forum non conveniens.

Melvin Rosen, et al. v. Smith Barney, Inc.

6-25-08 (A-49-07)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Lihotz’s majority opinion.

Raymond Van Duren v. Leigh Rzasa-Ormes

6-19-08 (A-52-07)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Parrillo’s opinion below.

Carol Bedford v. Anthony L. Riello, D.C.

6-18-08

N.J.A.C. 13:44E-1.1(a) permits manipulation of articulations beyond those of the spine when there is a causal nexus between a condition of the manipulated structure and a condition of the spine. Whether adjustment of a particular portion of the body is permissible as a “related structure” under the rule must be determined and demonstrated by the practitioner on a case-bycase basis, focusing on whether a condition to the adjusted structure bears a causal relationship to a condition of the spine.

Helen M. Devaney v. Francis A. L’Esperance

6-17-08

Cohabitation is one of the many factors a trial judge should consider in determining whether a plaintiff has proven a marital-type relationship to support a cause of action for palimony. In these highly personalized cases, it is conceivable that a plaintiff, even in the absence of cohabitation, may establish a marital-type relationship and prove a cause of action for palimony. In the present, however, there was sufficient credible evidence for the trial judge to reject plaintiff’s palimony claim.

Halina Jablonowska v. David P. Suther

6-10-07 (A-9-07)

Jablonowska’s negligent-infliction-of-emotional-distress claim, fashioned on the liability theory set out in Portee v. Jaffee, is independent of the requirements imposed by the Automobile Insurance Cost Recovery Act’s verbal threshold and, therefore, Jablonowska’s claim was improperly dismissed.

Luz M. Cruz v. Central Jersey Landscaping, Inc.

6-9-07 (A-34-07)

The 2004 amendment to the schedule of workers’ compensation benefits is to be applied prospectively. The higher benefits established by the amendment are to be awarded to claimants whose decedents died on or after the effective date of the
amendment.

Henry J. Shotmeyer, et al. v. New Jersey Realty Title Insurance Company

6-5-07 (A-125-06)

The title insurance policy obtained by the general partnership when it purchased the property lapsed when the property was voluntarily conveyed to the separate and distinct limited partnership formed by the same individuals, and the limited partnership did not have standing to sue under the policy.

Danielle M. Villa v. John F. Short

6-5-07 (A-7-07)

The homeowner’s policy language that excludes coverage for the “intentional or criminal acts of an insured person” operates to exclude coverage for all insureds under the policy, and not merely for the insured who committed the intentional or criminal act.

Phyllis Sinclair v. Merck & Co., Inc.

6-4-07 (A-117-06)

The Products Liability Act, which is the sole source of remedy for plaintiffs’ defective product claim, does not include the remedy of medical monitoring when no manifest injury is alleged.

Brian Scott Owens, Sr., et al. v. Gerald Feigin, M.D., et al.

6-3-08 (A-43-07)

Nothing in the language or legislative history of New Jersey’s Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, convincingly evidences that the Legislature meant to import the requirements for suit contained in the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, as necessary predicates for bringing a CRA claim. Therefore, the notice of claim requirement in the TCA does not apply to causes of action under the CRA.

Richard Romagnola v. Gillespie, Inc.

6-2-08 (A-57-07)

The Court applies Rule 1:1-2 to relax Rule 4:58-2, as amended effective September 1, 2004, in this rare instance where plaintiff fully complied with the letter and spirit of a Rule, but that Rule changed after plaintiff could no longer alter or modify his position to comply with the amended Rule. Application of the amended Rule would violate fundamental principles of fairness. Plaintiff’s entitlement to an award of remedies under the offer of judgment rule is to be gauged by the provisions of Rule 4:58-2 as it existed on the last day plaintiff could make a timely offer of judgment.

Gregory J. Forester, et al. v. Douglas H. Palmer, Joseph J. Santiago and City of Trenton

07-09-08 A-3690-07T3, A-3691-07T3

Although the 1987 amendment to Trenton's ordinance requiring all municipal officers and employees to be Trenton residents, which added a provision for waiver of the residency requirement, is invalid, this amendment is severable from the preexisting residency ordinance. Accordingly, Police Director Santiago, who is no longer a Trenton resident, must vacate the position. However, to assure an orderly transition of responsibilities to his successor, Director Santiago will be allowed to remain in the position for an additional seventy-five days.

Mitchell Zuckerman - Editor, NJ Personal Injury & Civil Cases Blog

Auto One Insurance Co. v. American Millennium Insurance Co., et al.

07-09-08 A-0496-07T1

This case concludes that the driver of a vehicle who would be entitled to liability coverage from the owner's insurance carrier pursuant to the "omnibus" provisions of N.J.S.A. 39:6B-1 is not also entitled to UM coverage pursuant to N.J.S.A. 17:28-1.1a, if that driver is not otherwise entitled to UM coverage under the terms of the owner's insurance policy.

Distributor Label Products, Inc. d/b/a Certified Data Products v. Fleet National Bank, et al.

07-08-08 A-3260-06T5

This case concerns the liability of a drawee bank for checks with forged endorsements.

Plaintiff's employee had embezzled monies by writing checks to a legitimate vendor and then depositing the checks into his personal account with another bank. Some of the checks were fraudulently endorsed in the name of the payee and others were marked "for deposit only" with the account number. Since plaintiff failed to exercise ordinary care with respect to supervising the employee thereby substantially contributing to the loss and the drawee was not negligent, plaintiff was precluded from recovery under N.J.S.A. 12A:3-406. Plaintiff's recovery for those checks fraudulently endorsed in the name of the payee was also barred by N.J.S.A. 12A:3-405. Since no material issues of facts were present, the trial court's granting of summary judgment for the drawee bank was affirmed.

Fernando Roa, et al. v. Lafe and Marino Roa

07-07-08 A-2588-06T3

Without reaching the merits of plaintiff's complaint, we reversed the trial judge's grant of summary judgment prior to discovery. We conclude that plaintiff may state a cause of action under the LAD's anti-retaliation provision, N.J.S.A. 10:5-12 (d), based upon post-termination conduct of his former employer that was not related to the workplace. We further conclude that plaintiff may survive defendant's statute of limitations defense by application of the continuing violation doctrine if he can prove the discriminatory retaliation occurred within two years of filing suit.

In the Matter of the Appeal by Earle Asphalt

06-30-08 A-2776-07T2

The 2005 amendment to the Campaign Contributions and Expenditure Reporting Act, which prohibits any state agency from awarding a contract with a value over $17,500 to a business entity that has contributed more than $300 during the preceding eighteen months to the Governor, a candidate for Governor or any State or county political party committee, is constitutional. A contractor is only entitled to the exemption from the disqualification from bidding on State contracts that the amendment imposes for a violation of this prohibition if it not only requests, but also receives, reimbursement of the disqualifying contribution within thirty days.

Leona C. Taddei, et al. v. State Farm Indemnity Co.

06-30-08 A-3806-06T2

A UM policyholder who sues the UM carrier and receives a jury verdict for his injuries in excess of the policy's UM limits is not entitled to judgment against the UM carrier for the amount of the judgment. The trial judge did not err in molding the verdict to conform with the coverage limits. Although a UM claimant can maintain an action against his or her carrier for extra-policy damages for breach of the coverage of good faith and fair dealing, plaintiff in this case never pled bad faith, and, even if pled and proven, the measure of damages would be the foreseeable consequential damages caused by breach of the covenant, not the amount awarded by the jury on the underlying injury claim.

Jen Electric, Inc. v. County of Essex

06-24-08 A-3957-07T1

In this case we affirm the dismissal of plaintiff's complaint and conclude that plaintiff does not have standing to challenge bidding specifications issued by Essex County because plaintiff was not a bidder or prospective bidder on the contract and is not a taxpayer in the County. We also affirm the denial of a motion to amend the complaint to add one of the bidders as a plaintiff because the bidder failed to challenge the bid specifications within the time required by N.J.S.A. 40A:11-13(e).

Tyrone Barnes v. Lydell B. Sherrer, Administrator at Northern State Prison

06-24-08 A-5520-06T1

In this opinion, we describe the proper procedures for filing an inmate lost property claim, which should be processed administratively, rather than through an action in the Special Civil Part. Because the procedures were not followed in this case, we remand the matter with instructions that administrative regulations be followed, and we retain jurisdiction.

New Jersey Shore Builders Association v. Township of Jackson & Builders League of South Jersey v. Egg Harbor Township, et al.

06-23-08 A-5805-06T3 & A-1563-07T2

This opinion addresses the authority of a municipality to require developers to set aside land for common open space or recreation, or make payments in lieu of those set-asides, as a condition of a development application. The Jackson Township trial court determined that the municipality's authority to make these exactions was limited to planned developments as defined in the Municipal Land Use Law. The Egg Harbor Township trial court concluded that the exactions were justified in other than
planned developments. We concluded that the Municipal Land Use Law does not empower municipal governments to require developers to set aside land for common open space or recreational areas, except with regard to applications for planned developments as
defined in the Municipal Land Use Law. Consequently, we affirmed the order of the trial court in the Jackson Township case, and reversed the order of the trial court in the Egg Harbor Township case.

Jill Golden, et al. v. GMAC Insurance Company

06-23-08 A-4124-06T1

Where tortfeasor driver was insured at the time of the accident but became an uninsured motorist more than five years later when his automobile insurance carrier was deemed insolvent, we held that plaintiff's UIM claim against her insurer accrued as of the date of the insurance carrier's insolvency, rather than at the date of the accident. Accordingly, the six-year statute of limitations began to run upon the insurance carrier's liquidation and plaintiff's UIM claim was timely.

Carl Johnson, et al. vs. Daniel Glassman, et al.

06-19-08 A-2074-06T2

In this opinion we discuss the requirement that a plaintiff in a shareholder derivative action plead "demand futility," i.e., that because of the corporate board's lack of independence and interest in the transactions at issue, it would have failed to act on the company's behalf if a demand on the board to do so had been made at the time that suit was filed. Although we rely on Delaware law in our decision, we note that New Jersey employs the same standards, albeit in a less well-developed manner.

McGovern v. Borough of Harvey Cedars, Board of Commissioners of the Borough of Harvey Cedars, and John Gerkens

06-19-08 A-0043-07T1

An ordinance banning construction close to the water's edge on Long Beach Island does not violate substantive due process and is not preempted by CAFRA.

Sanders v. Langemeier

06-19-08 A-4335-06T3

We held that an uninsured passenger who received emergency personal injury protection benefits under his driver's special automobile insurance policy was entitled to personal injury protection coverage from the UCJF for his non-emergency medical treatment.

Golden Door Charter School v. State-Operated School District of the City of Jersey City

06-17-08 A-0342-07T3

The State Board of Education concluded that N.J.S.A. 18A:36A-11b requires charter schools, not the school districts, to pay the cost of a regular course of home instruction offered to a handicapped student enrolled in a charter school. We affirm the Board's construction of the statute.

Christine Saba Fawzy v. Samih Pawzy

06-16-08 A-5337-06T1

The primary issue in this appeal is whether parties in a matrimonial action can agree to binding, non-appealable arbitration of child custody and parenting time issues. We conclude that such an agreement violates the court's parens patriae obligation to protect the best interests of the children and is void as a matter of law.

Deborah K. Pool v. Morristown Memorial Hospital, et al.

06-16-08 A-6183-06T2

Plaintiff, an injured employee who obtained workers' compensation benefits, brought an action against, among others, a treating doctor. Prior to the rendering of a jury verdict, plaintiff and the doctor entered into a high/low agreement, which guaranteed plaintiff $100,000 regardless of a "no cause" or a verdict in a lesser amount. The jury rendered a "no cause" verdict and defendant paid $100,000 to plaintiff as agreed. In subsequent proceedings, the trial judge held that the employer's workers' compensation lien did not attach to this payment. The court reversed, holding that the payment to an employee of the "low" defined by a high/low agreement, which agreement preceded a decision or verdict in favor of an alleged tortfeasor, is subject to the employer's statutory lien.

Kenia Alves v. Paul H. Rosenberg, M.D.

06-13-08 A-0015-07T1

In this medical malpractice action wherein no live witnesses testified, we held that the trial court erred in allowing the defense to read into the record extensive portions of the defendant's deposition testimony unrelated to the limited excerpts properly admitted by plaintiff in his case-in-chief under Rule 4:16-1. Neither Rule 4:16-1(b) ("And any other party may offer any other parts) nor the parallel doctrine of testimonial completeness, N.J.R.E. 106, allows the wholesale admission of inadmissible hearsay not necessary to supplement, explain or contextualize the admitted portion, or avoid misleading or confusing the trier of fact.

Kenia Alves v. Paul H. Rosenberg, M.D.

06-13-08 A-0015-07T1

In this medical malpractice action wherein no live witnesses testified, we held that the trial court erred in allowing the defense to read into the record extensive portions of the defendant's deposition testimony unrelated to the limited excerpts properly admitted by plaintiff in his case-in-chief under Rule 4:16-1. Neither Rule 4:16-1(b) ("And any other party may offer any other parts) nor the parallel doctrine of testimonial completeness, N.J.R.E. 106, allows the wholesale admission of inadmissible hearsay not necessary to supplement, explain or contextualize the admitted portion, or avoid misleading or confusing the trier of fact.

Block 268, LLC v. City of Hoboken Rent Leveling and Stabilization Board, et al.

06-12-08 A-2228-06T2

This opinion addresses whether plaintiff's multiple unit building, located in Hoboken, is entitled to the rent control exemption articulated in N.J.S.A. 2A:42-84.5. At the time defendants originally leased their unit, the building consisted
entirely of rental apartments. Title to the land passed to plaintiff in 2005, at which time, plaintiff converted several of the apartments into condominiums. Defendants contend that the transfer of title or the conversion of rental apartments into condominiums nullified plaintiff's statutory exemption from rent control ordinances.

We hold that the statutory exemption runs with the land, not with the owner. The conversion of the building's units to condominiums does not effect the building's status as a "multiple dwelling" and, in fact, enhances the property's marketability, in accordance with the legislative intent of N.J.S.A. 2A:42-84(b) and -84.6. Nor does the failure to provide mortgage information to the municipality when claiming the exemption affect the validity of the exemption. Rather, the mortgage affects only the duration of the exemption. Finally, the original letter to the Hoboken municipal construction official, claiming the exemption, satisfies the filing requirements of N.J.S.A. 2A:42-84.4. Although the letter did not directly indicate the author's relationship with the building's owner, it was reasonably clear that the author of the letter was the owner of the property or was claiming the
exemption on the owner's behalf.

Block 268, LLC v. City of Hoboken Rent Leveling and Stabilization Board, et al.

06-12-08 A-2228-06T2

This opinion addresses whether plaintiff's multiple unit building, located in Hoboken, is entitled to the rent control exemption articulated in N.J.S.A. 2A:42-84.5. At the time defendants originally leased their unit, the building consisted
entirely of rental apartments. Title to the land passed to plaintiff in 2005, at which time, plaintiff converted several of the apartments into condominiums. Defendants contend that the transfer of title or the conversion of rental apartments into condominiums nullified plaintiff's statutory exemption from rent control ordinances.

We hold that the statutory exemption runs with the land, not with the owner. The conversion of the building's units to condominiums does not effect the building's status as a "multiple dwelling" and, in fact, enhances the property's marketability, in accordance with the legislative intent of N.J.S.A. 2A:42-84(b) and -84.6. Nor does the failure to provide mortgage information to the municipality when claiming the exemption affect the validity of the exemption. Rather, the mortgage affects only the duration of the exemption. Finally, the original letter to the Hoboken municipal construction official, claiming the exemption, satisfies the filing requirements of N.J.S.A. 2A:42-84.4. Although the letter did not directly indicate the author's relationship with the building's owner, it was reasonably clear that the author of the letter was the owner of the property or was claiming the
exemption on the owner's behalf.

North Jersey Neurosurgical Associates, P.A., et al. v. Clarendon National Insurance Company, et al.

06-09-08 A-3735-06T3

The issue in this case deals with the choice of law principles concerning the payment of PIP benefits with respect to a New Jersey resident injured as a passenger in a car registered and insured in New York but treated in New Jersey. (Under New York law PIP coverage is provided by the host vehicle, while in New Jersey the injured patient is covered by his resident brother's carrier). An actual conflict of law exists both with respect to primary coverage and apportionment if both policies are primary. New Jersey law controls and there shall be an equal contribution by the carriers up to the limits of the New York policy. The issue of PIP coverage of an insured who is a resident of New Jersey where the policy was issued and treatment was provided, because of its greater interest in protecting the injured resident and assuring his or her medical care and payment of the New Jersey provider.

Roger Smith, et al. v. Alza Corp., et al.

06-09-08 A-4277-06T1

In this products liability action involving the diet drug Acutrim, we hold that an entity whose activities are limited exclusively to product packaging and labeling comes within the definition of "manufacture", N.J.S.A. 2A:58C-8, to whom strict liability for product defect may attach, and is not a "product seller", N.J.S.A. 2A:58C-8, who otherwise would qualify for statutory immunity under N.J.S.A. 2A:58C-9(d).
We also hold that under New Jersey's choice-of-law rules, the State's procedural and substantive law governs the claim of plaintiff, an Alabama resident, who purchased in Pennsylvania the over-the-counter drug that was labeled and packaged in bulk by the New Jersey-based defendant.

Roger Smith, et al. v. Alza Corp., et al.

06-09-08 A-4277-06T1

In this products liability action involving the diet drug Acutrim, we hold that an entity whose activities are limited exclusively to product packaging and labeling comes within the definition of "manufacture", N.J.S.A. 2A:58C-8, to whom strict liability for product defect may attach, and is not a "product seller", N.J.S.A. 2A:58C-8, who otherwise would qualify for statutory immunity under N.J.S.A. 2A:58C-9(d).
We also hold that under New Jersey's choice-of-law rules, the State's procedural and substantive law governs the claim of plaintiff, an Alabama resident, who purchased in Pennsylvania the over-the-counter drug that was labeled and packaged in bulk by the New Jersey-based defendant.

Division of Youth and Family Services v. J.L. and T.L., In the Matter of the Guardianship of O.L.

06-05-08 A-5490-06T4

In child abuse cases, the burden-shifting rule of In re D.T., 229 N.J. Super. 509 (App. Div. 1988), applies only where a limited number of people had access to the child at the time abuse definitively occurred. Otherwise, traditional res ipsa loquitur principles apply, and once DYFS establishes a prima facie case of abuse under N.J.S.A. 9:6-8.46a(2), the burden of going forward with evidence shifts to the defendants, but the burden of persuasion remains on DYFS.

B.H. v. State of New Jersey, et al.

6-03-08 A-2739-06T3

The Department of Human Services declared B.H. ineligible to receive Work First New Jersey/Temporary Assistance for Needy Families (WFNJ/TANF) benefits for her family because she also received benefits from the Subsidized Adoption Program (SAP) for her two adopted children. The decision was based on an instruction issued by the agency that SAP benefits were duplicative of the WFNJ/TANF benefits. We held the instruction cannot form the basis of the eligibility determination because it operates as a rule and was not adopted in accordance with the Administrative Procedure Act.

B.H. v. State of New Jersey, et al.

6-03-08 A-2739-06T3

The Department of Human Services declared B.H. ineligible to receive Work First New Jersey/Temporary Assistance for Needy Families (WFNJ/TANF) benefits for her family because she also received benefits from the Subsidized Adoption Program (SAP) for her two adopted children. The decision was based on an instruction issued by the agency that SAP benefits were duplicative of the WFNJ/TANF benefits. We held the instruction cannot form the basis of the eligibility determination because it operates as a rule and was not adopted in accordance with the Administrative Procedure Act.

George Frappier v. Eastern Logistics, Inc., et als.

5-30-08 A-4399-06T1

Frappier, a New Jersey resident, was injured in an accident in New York while driving a truck that he leased to Eastern Express, Inc. The rental and services were governed by an agreement entitled "independent contractor lease." Frappier filed a petition with the Division of Workers' Compensation naming Eastern Express, Inc. and Eastern Logistics, Inc. as his employers. Acuity Insurance Company, Inc. insures Eastern Logistics, Inc. and was providing a defense subject to a reservation of its right to disclaim coverage. By leave granted, Acuity appeals from an interlocutory
order of the Division estopping Acuity "from denying coverage for truck drivers." Because Acuity was not a party to the proceeding in the Division and the judge of compensation had not determined whether Frappier was an employee or independent
contractor at the time of the accident, we conclude that it was improper for the Division to exercise its ancillary authority to address insurance coverage.

Joseph Burke, et al. v. Sea Point Realtors, et al.

5-30-08 A-5652-06T1

Plaintiffs sought to purchase real property from the guardian of an incapacitated person that had been marketed for the guardian by defendant Sea Point Realty. Ultimately, the guardian sought approval to sell the property to defendants Thomas and Patricia Meyer without clearly disclosing to the Probate Part, in an action brought pursuant to R. 4:94-1 to -7, that the Meyers were the principals of Sea Point Realty. The guardian also did not give notice of the action to plaintiffs or any of the other disappointed offerors. The probate judge approved the sale.

Plaintiffs subsequently brought this action in the Law Division, alleging fraud and other similar claims and seeking damages. Summary judgment was entered in favor of the Meyers, Sea Point and the guardian, based upon, among other things, a determination that the probate proceedings were conclusive on the legitimacy of the sale to the Meyers. The court reversed, concluding that the order approving the transaction was not entitled to preclusive effect because the guardian had not
clearly indicated to the Probate Part that the purchasers were the principals of the real estate broker and because plaintiffs had not been given notice of the probate proceedings. As to the latter point, the court recommended consideration by the Civil
Practice Rules Committee of the rules regarding the persons entitled to notice of a suit brought pursuant to R. 4:94-1 to - 7.

Alexander Ivashenko, et al. v. Katelyn Court Company, Inc. et al.

5-30-08 A-6532-06T3

In 2001, plaintiffs brought a claim against their home builder under the New Home Warranty and Builders' Registration Act. One of plaintiffs' claims was related to a defective foundation wall. The Bureau of Homeowner Protection entered a decision, but gave plaintiffs the right to continue to monitor the wall for signs of movement or cracking. The wall continued to deteriorate and plaintiffs initiated a claim under the Act in 2004. Before that claim was adjudicated, they withdrew it and
filed suit in Superior Court against the builder and the architects.

The trial judge dismissed plaintiffs' claim on the grounds that the lawsuit was barred because of the Act's election of remedies provision. We reversed, finding that the plaintiffs' election to proceed under the Act was not knowing and voluntary,
and therefore the Act's election of remedies provisions did not preclude their Superior Court action.

John G. McElwee v. Borough of Fieldsboro

5-29-08 A-1230-06T3

We affirm the municipality's removal of appellant as a police officer, concluding that: 1) appellant's refusal to work the later shift on certain days and his failure to comply with a directive that he devote a substantial amount of his time to
patrol constitute serious misconduct; 2) the municipality's complaint was not barred by N.J.S.A. 40A:14-147 because the requirement that a complaint be filed within forty-five days after sufficient information is obtained to file the charges
does not apply when a complaint is based on misconduct; 3) the municipality was not precluded from filing the charges because it had not adopted internal affairs guidelines in accordance with N.J.S.A. 40A:14-181; and 4) progressive discipline is not required in this matter due to the seriousness of the charges.

John G. McElwee v. Borough of Fieldsboro

5-29-08 A-1230-06T3

We affirm the municipality's removal of appellant as a police officer, concluding that: 1) appellant's refusal to work the later shift on certain days and his failure to comply with a directive that he devote a substantial amount of his time to
patrol constitute serious misconduct; 2) the municipality's complaint was not barred by N.J.S.A. 40A:14-147 because the requirement that a complaint be filed within forty-five days after sufficient information is obtained to file the charges
does not apply when a complaint is based on misconduct; 3) the municipality was not precluded from filing the charges because it had not adopted internal affairs guidelines in accordance with N.J.S.A. 40A:14-181; and 4) progressive discipline is not required in this matter due to the seriousness of the charges.

Monday, June 23, 2008

John Cicchetti v. Morris County Sheriff’s Office

5-28-08 (A-102-06)

A law enforcement employee’s failure to disclose an expunged conviction does not prohibit the employee from pursuing a workplace discrimination complaint, but evidence of the conviction can be used to limit or potentially eliminate economic damages. The individual supervisory defendants do not bear any personal liability because the statutory basis for personal liability by an individual is limited to acts that constitute aiding or abetting, and this record reveals no act by either of the individual supervisory defendants sufficient to meet that statutory test.

Rutgers Casualty Insurance Company v. Robert LaCroix,

5-14-08 (A-128-06)

The Appellate Division correctly found error in the trial court’s determination that it lacked discretion to fashion a rescission remedy to provide minimal PIP benefits to an injured young driver, who was unaware that the automobile her father was allowing her to drive was insured as to every resident family member except her.