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Tuesday, January 27, 2009

01-22-09 Thomas Wilson v. Brick Township Zoning Board of Adjustment A-3622-07T3

01-22-09 Thomas Wilson v. Brick Township Zoning Board of Adjustment A-3622-07T3

We hold that the Legislature's use of the term "or" in N.J.S.A. 40:55D-70(c)(1)(c), which states that a variance may be
granted when strict application of any regulation "would result in peculiar and exceptional practical difficulties to, or
exceptional and undue hardships upon, the developer of such property. . . ." is significant. (Emphasis added). Because the
term "or" between the phrases "peculiar and exceptional practical difficulties" and "exceptional and undue hardships" is
disjunctive, a developer may seek a variance under either phrase, provided the other relevant criteria for a (c)(1) variance are met. To hold otherwise would render the phrase "peculiar and exceptional practical difficulties" superfluous.

01-21-09 612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority, et al.

01-21-09 612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority, et al.

We interpret portions of the Sewerage Authorities Law (SAL), N.J.S.A. 40:14A:1 through -45, and the Municipal and
Counties Utilities Authorities Law (MCUAL), N.J.S.A. 40:14B:1 through -78. The trial court erred when it concluded that only
the sewerage or utilities authority to which a housing development is directly connected is entitled to a sewerage
connection fee, even though such entity does not ultimately treat the effluent. We conclude the entity that actually treats the effluent is entitled to collect from a new user a nonduplicativ connection fee representing a fair contribution for the past capital costs of its treatment facility even though the actual connection is only indirect.

01-20-09 Orthopaedic Associates a/s/o Samuel Mdigos-Mulli v.

01-20-09 Orthopaedic Associates a/s/o Samuel Mdigos-Mulli v.
The Department of Banking and Insurance, et als. A-5591-06T2
In affirming the dismissal of an action collaterally challenging a PIP-benefits determination and attacking the overall fairness of the medical review organization (MRO) process under AICRA's dispute resolution process, we held that, because the impartiality of an MRO physician can be challenged as part of an action brought in the Law Division pursuant to
N.J.S.A. 2A:23A-13 for review of the dispute resolution professional's decision, the process itself was not inherently unfair.

01-16-09 Celanese Ltd. v. Essex County Improvement Authority

01-16-09 Celanese Ltd. v. Essex County Improvement Authority
We discuss the principles governing the construction of ambiguous clauses within a contract and conclude the trial court incorrectly resolved the matter by way of summary judgment.

01-15-09 Skulskie v. Ceponis A-2397-07T1

01-15-09 Skulskie v. Ceponis A-2397-07T1
In this subrogation matter, we reviewed the enforceability of a waiver of subrogation provision in a homeowner's policy in
the residential condominium context. The by-laws of the condominium association required the association to obtain
property and casualty insurance and further provided that the coverage must contain a waiver of subrogation. The by-laws also
provided that unit owners could, but were not obliged to, obtain coverage to insure their interests, but any insurance must
contain a waiver of subrogation. We enforced the waiver of subrogation in an action commenced by the insurer of an insured
condominium unit owner against an uninsured unit owner and affirmed the summary judgment entered in favor of the uninsured
unit owner.

01-15-09 Toto v. Princeton Township A-0216-07T3

01-15-09 Fernando Toto v. Princeton Township
We affirm the dismissal of plaintiff's hostile work environment claim brought under the New Jersey Law Against Discrimination, (LAD), N.J.S.A. 10:5-1 to 10:5-49, because it is barred by the statute of limitations. Plaintiff maintained that
he left the workplace due to its hostile work environment and that he refused to return to work because the employer had not
remediated the problem. Due to his failure to return to work, plaintiff was terminated from his position. Under these
circumstances, the statute of limitations ran from the date plaintiff left the workplace and not the later date when he was
terminated from the position. His last day in the workplace was the last time that he could have experienced the hostile work
environment, and that is the day the statute of limitations began to run on that claim. At the trial on plaintiff's failure to accommodate claim under the LAD, the trial court properly declined to admit into evidence a letter that contained both admissible material on the issue of notice and inadmissible material prejudicial to the defense, where the trial court allowed plaintiff to question the witness about the admissible portions of the letter. We affirm.

01-14-09 Deborah Heart & Lung v. Howard, J.D., et als.

01-14-09 Deborah Heart & Lung v. Heather Howard, J.D., et als.
We hold that a regulatory agency's (Dep't of Health and Senior Services) change in the manner of reporting to the public risk-adjusted mortality data on open heart surgery does not constitute administrative rulemaking, and amounts to no more
than informal agency action not subject to the statutory rulemaking procedures of the Administrative Procedure Act (APA)
or the Health Care Facilities Planning Act. Nonetheless, such agency action in this case was preceded by adequate notice to
the regulated class and an opportunity to be heard, sufficient to satisfy administrative due process.

01-12-09 Wilson v. Brown

01-12-09 Wilson v. Brown
A-5854-07T1/A-5883-07T1 (consolidated)
We hold that the e-mail communications between the Governor and Carla Katz requested by plaintiff are government records
pursuant to the Open Public Records Act. We also hold that the communications are protected from disclosure by executive
privilege. Plaintiff failed to demonstrate the requisite need to overcome the privilege.

1-27-09 Lourdes Medical Center of Burlington County v. Board

1-27-09 Lourdes Medical Center of Burlington County v. Board
of Review (A-70/71-07)
A loss of revenue attributable to the strike that does not result in a substantial curtailment of work at the hospital is not the equivalent of a “stoppage of work.” Thus, the Board of Review did not act arbitrarily or capriciously in concluding that Lourdes Medical Center did not suffer a “stoppage of work” within the intendment of N.J.S.A. 43:21-5(d). Accordingly, the striking nurses qualify for unemployment benefits.

1-22-09 Mazzacano v. Happy Hour Social and Athletic Club of

The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act permits a finding of liability when a licensed alcoholic beverage server allows a patron to become visibly intoxicated through the self-service of alcohol at a party. However, the
Act does not impose a separate duty to monitor alcohol ingestion or define negligence as the failure to monitor, and the Court
declines to impose a monitoring duty that is not set forth in the Act. In this civil action arising from the deaths of partyattendees
who were riding in a car driven by another attendee who became intoxicated at the party through the self-service of alcohol, there was sufficient evidence in the record to support the jury’s verdict that the server did not negligently provide alcohol to the driver when he was visibly intoxicated.

1-21-09 McKesson Corporation v. Hackensack Medical Imaging

Texas had personal jurisdiction to enter the default judgment against defendant, and that judgment is enforceable in New

1-15-09 IMO the Appeal by Earle Asphalt Company (A-37-08)

Judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Skillman’s written opinion. Chapter 51 of the Campaign Contributions and Expenditure Reporting Act is constitutional. The Department of Treasury properly rejected Earle Asphalt’s claim to an exemption from the disqualification because, even though the contractor undertook steps to obtain reimbursement of its disqualifying contribution within thirty days, it did not receive that reimbursement within that thirty-day period.

Tuesday, January 13, 2009

Harold Hoffman v.


On motion for summary judgment, Judge Martinotti in the Law
Division dismissed plaintiff's fraud claims, concluding that plaintiff did not establish an ascertainable loss. The judge also dismissed the counterclaim because defendant had not established plaintiff's malicious use or perversion of legal process. Both sides appeal, and we affirm.

Pan Chemical Corp. v. Hawthorne Borough


The Borough reasonably relied on the legislative definitions set forth in ISRA and applied them to determine whether an environmentally contaminated property was "in use" or "shut down" for taxation valuation purposes. ISRA provides a rational, objective standard in an environmental context by which one can determine whether property "in use" or "closed down" for purposes of triggering the obligation to remediate.

Nothing in the Supreme Court's opinion in Inmar, which preceded ISRA and its "ten percent standard," precludes a taxing municipality from utilizing that standard to determine whether a property is "in use" for the purpose of valuation.

Hermes Reyes, et al. v. Harry C. Egner, et al. v. Colombia Reyes v. Prudential Fox & Roach Realtors


In this premises liability case, we consider whether the
lessors of a beach house had a duty to correct or warn about what are claimed to be dangerous conditions of their property, presenting hazards that allegedly were not reasonably apparent to a short-term tenant and her guests. The tenant's elderly father, who had been vacationing at the house, was injured when he lost his balance while stepping onto an outside wooden platform. The platform was adjacent to the sliding glass door leading from the master bedroom to a rear deck. There was no handrail available to help plaintiff regain his balance, despite building code provisions that appear to mandate one. He and his wife thereafter filed a personal injury action against the lessors and the real estate broker that had facilitated the two week lease.

Because the trial court erroneously required plaintiffs to prove that the lessors had actively or fraudulently concealed the allegedly dangerous conditions, we vacate summary judgment entered in the lessors' favor. In doing so, we endorse and apply the principles expressed in Section 358 of the Restatement (Second) of Torts (1965), which does not require proof of such concealment by a lessor in order for liability to attach. We distinguish Patton v. The Texas Co., 13 N.J. Super. 42, 47 (App. Div.), certif. denied, 7 N.J. 348 (1951) (holding that a lessor is not liable for latent defects, absent "fraudulent concealment"), decided before the adoption of the Second Restatement and which is inconsistent with Section 358. We do so because this case, unlike Patton, involves a short-term rental, a context in which a lessee often has only a limited opportunity to discover hazardous conditions on the premises.

We affirm the grant of summary judgment to the real estate broker, declining to extend liability to the broker in this short-term rental context beyond the limits expressed in Hopkins v. Fox Lazo Realtors, 132 N.J. 426 (1993).

Doris Sexton v. County of Cumberland/Cumberland Manor


The alleged aggravation of an employee's pre-existing COPD caused by inhaling perfume sprayed into the air by a co-employee satisfies the "arising out of" employment criterion of N.J.S.A. 34:15-7 and is compensable. We rejected the judge of
compensation's conclusion that the COPD fell into the category of a proclivity of the employee, the aggravation of which while in the course of employment did not arise out of the employment.

Michael R. LaPlace v. Pierre Briere

Michael R. LaPlace v. Pierre Briere, individually and trading as Pierre Briere Quarter Horses, and Pierre Briere Quarter Horses, LLC, Charlene Bridgwood, Douglas Gultz and Sherry Gultz, husband and wife


This case concerns the application of bailment law and the tort of conversion to circumstances where a horse died at the defendant stables while being exercised by an unauthorized person. The record contains no evidence establishing the cause of the horse's death or proving that the exercising of the horse was done negligently.

We hold that the conduct of the unauthorized person, an experienced horsewoman, in exercising the horse without permission did not constitute the degree of dominion and control over the animal that would give rise to a claim of conversion against her. Although damage to a chattel is a factor to be considered in determining whether a conversion has occurred, here that factor was given no weight since no causal connection was shown between the exercising of the horse and its death.

Under bailment law, the death of the horse gave rise to a prima facie case of conversion and negligence against the stable as bailee. Here the stable rebutted that presumption by coming forward with proofs of the circumstances in which the horse died. Even if the stable were negligent in allowing an unauthorized person to exercise the horse, we cannot presume that its negligence was a proximate cause of the horse's death, because determining the cause of death was uniquely within the control of plaintiff, the only person who had the authority to order a necropsy of the horse.

Summary judgment for defendants is affirmed.

Friday, January 2, 2009

Tiffany N. Jastram v. Scott M. Kruse


The Appellate Division overstepped its bounds in this essentially reweighing the evidence and substituting judgment for that of the jury and the trial judge, without warrant to do so. The jury verdict is reinstated.

M.S. v. Millburn Police Department


The Court does not conclude, as the Appellate Division did, that N.J.S.A. 2C:58-3(c)(8) applies whenever a firearm seized pursuant to the Prevention of Domestic Violence Act of 1991 is not returned to the owner. Rather, the statute imposes a statutory bar to obtaining a gun permit only when a firearm seized in a domestic violence matter is not returned for a reason set forth in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21 (d)(3).

Paradise Park Homeowners Association, Inc. et al. v. Riverdale Management Associates, et al.


The Mobile Home Protection Act, N.J.S.A. 46:8C-2 to -21, grants mobile home park residents a right of first refusal triggered by the sale of the property. N.J.S.A. 46:8C-11 and N.J.S.A. 46:8C-12. Plaintiffs are an association of mobile home owners formed under the Act. Defendants are the former and present owners of this mobile home park. Under N.J.S.A. 46:8C-13(a), any sale "not made in contemplation" of changing the property's use as a private mobile home community is exempt from the right of first refusal. Defendants invoked this exemption when the park was sold. Plaintiffs sued to enforce their right of first refusal. On cross-motions for summary judgment, the trial court dismissed the complaint finding the sale exempt under N.J.S.A. 46:8C- 13(a).

We now reverse and hold that the term "in contemplation" in N.J.S.A. 46:8C-13(a) denotes a state of mind involving less commitment to action than an "intent." A seller invoking such an exemption must have a rational, good faith basis to believe, under all of the attendant circumstances, that the sale was not made "in contemplation" of changing the use of the property. Here, plaintiffs presented sufficient evidence to survive summary judgment.