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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.