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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.