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Monday, April 13, 2009

04-09-09 Bart v. Passaic County Public Housing A-5049-07T3

04-09-09 John A. Bart, Esq. v. Passaic County Public Housing
Agency
A-5049-07T3

The Government Records Council correctly found that the
custodian did not unreasonably deny access to government records
sought pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1
to -13, because the document request lacked specificity and
required the custodian to engage in legal research and analysis
in order to identify the records being sought.

04-08-09 3519-3513 REALTY, LLC V. LAW A-5326-07T3

04-08-09 3519-3513 REALTY, LLC V. MARY C. LAW
A-5326-07T3

Plaintiff limited liability company, the owner of a three-
unit building, was not entitled to invoke N.J.S.A. 2A:18-
16.1(1)(3) to evict the tenants in one of the units because a
limited liability company cannot "personally occupy" the unit.

04-08-09 In the Matter of Fair Lawn Borough... A-1611-07T3

04-08-09 In the Matter of Fair Lawn Borough, Bergen County,
Motion of Landmark at Radburn Seeking Amendment of
Dismissal of Fair Lawn's Third Found Fair Share Plan
Petition
A-1611-07T3

Construing the Fair Housing Act, N.J.S.A. 52:27D-301 to
-329, and regulations of the Counsel on Affordable Housing
(COAH), we confirmed COAH's authority to dismiss a
municipality's third round petition for substantive
certification of its affordable housing plan, based on the
municipality's persistent failure to comply with the terms of
its second round certification. Where a municipality has not
actually satisfied its previously-unmet need for affordable
housing, COAH need not allow the municipality to remove from its
plan a viable site that has been included for over a decade as
part of its vacant land adjustment.

4-03-09 Constantine v. Bass River, et al. A-5506-06T3

4-03-09 John Constantine v. Township of Bass River, et al.
A-5506-06T3

Plaintiff appealed from the trial court's dismissal of his
class action complaint in which he sought a declaration of
permissible fees that a municipality may charge for discovery
provided relative to matters in the municipal court. Plaintiff
also challenged the denial of his motions for bilateral class
certification and permission to file a second amended complaint.

While affirming dismissal of plaintiff's complaint because
it failed to present a cognizable claim for relief, we also
addressed an interlocutory order entered by the trial judge that
declared OPRA's "default" fee schedule, N.J.S.A. 47:1A-5(b), to
be the appropriate fees that a municipality may charge for
discovery in the municipal court. We also referred proper
consideration of the issue to the Attorney General, the
Legislature, and the Supreme Court's Committee on Municipal
Court Practice.

As a result of the dismissal of plaintiff's complaint, we
did not reach the issue of class certification or the denial of
leave to file an amended complaint.

04-02-09 In the Matter of Jasper Seating Company...A-4636-07T2

04-02-09 In the Matter of Jasper Seating Company, Inc.'s
Request for Reconsideration Regarding Request for
Proposal No. 07-X-37965
A-4636-07T2

Appellant appeals from the Final Agency Determination of
the Division of Purchase and Property to reject appellant's bid
as non-conforming for the State's purchase awards under its
publicly-bid contract for furniture because the bid included a
sticker reflecting a price increase. We affirm the Division's
determination. Under the public bidding standard adopted in
Meadowbrook Carting Co. v. Borough of Island Heights, 138 N.J.
307 (1994), once a deviation from the RFP has been identified,
the issue is whether the bid non-compliance constitutes a
material and hence non-waivable irregularity.

Riley v. Keenan, et als. A-6054-06T3

04-02-09 Laurie & Gregory Riley v. John Keenan, et als.
A-6054-06T3

The issue in this automobile negligence action is whether
an employer may be held liable for injuries to a third party
caused by an intoxicated driver acting outside the workplace and
outside the scope of his employment. Even assuming the
employee's work-related sleep deprivation, as claimed by
plaintiff, we see no reason to extend the notion of duty to, or
create a new theory of recovery against, an employer in
circumstances where the employer neither knew nor had control
over its employee's "incapacity", nor engaged in any affirmative
act to worsen the situation, and where the independent
intervening act of the employee's intoxication broke any causal
connection between work fatigue and the ensuing automobile
accident.

4-9-08 Township of West Orange v. 769 Associates, LLC (A-113-07)

4-9-08 Township of West Orange v. 769 Associates, LLC
(A-113-07)

Where a condemnation action is abandoned, a condemnee is
entitled to reasonable fees and expenses from the point at which
the property is formally targeted for condemnation. In respect
of the calculation of fees, the analysis, as in all other cases,
is governed by the reasonableness principles of RPC 1.5.
However, RPC 1.5(a)(4) has no role to play on the issue of the
condemnee’s entitlement to fees; that entitlement is triggered
by the abandonment itself. Nor is there warrant in an
abandonment case for a proportionality reduction under RPC
1.5(a)(4) based on a comparison of “the amount involved and the
results obtained.”

4-8-09 Real v. Radir Wheels and Conklin (A-26-08)

4-8-09 Lyle Real v. Radir Wheels, Inc. and Richard Conklin
(A-26-08)

Lyle Real pled and proved a textbook Consumer Fraud Act claim.
The trial court found by clear and convincing evidence that
Conklin intentionally engaged in unconscionable commercial
practices in connection with the advertisement and sale of
merchandise; Conklin satisfies the CFA definition of “person”
and the Corvette satisfies the CFA definition of “merchandise;”
and plaintiff suffered an ascertainable loss.

4-7-09 N.J. Division of Youth and Family Services v. G.M. (A-6-08)

4-7-09 N.J. Division of Youth and Family Services v. G.M.
(A-6-08)

The statutory framework of Title Nine provides that upon a
finding of abuse and neglect, the offending parent or guardian
is entitled to a dispositional hearing to determine whether the
children may safely return to his or her custody, and if not,
what the proper disposition should be. The case is remanded for
a hearing to determine the appropriate disposition pursuant to
N.J.S.A. 9:6-8.51.

Wednesday, April 1, 2009

4-1-08 Hirl v. Bank of America, N.A. (A-42-08)

4-1-08 Stephanie M. Hirl v. Bank of America, N.A. (A-42-08)

In the context of the Electronic Fund Transfer Privacy Act, the
word “account” cannot be isolated from the phrase “electronic
fund transfer.” Nor can the word “account” be read so as not to
exist within the disclosure authorization of N.J.S.A. 17:16K-3.
Thus, N.J.S.A. 17:16K-3 permits a financial institution to
disclose information to a third party as prescribed by the
statute relative to an electronic fund transfer or an account
with electronic fund transfer capability as elected by the
consumer. Accordingly, the Court adopts the Appellate
Division’s construction of the Act and N.J.S.A. 17:16K-3
substantially for reasons expressed in the written opinion
below.

04-01-09 In Re: Petition A-1318-07T1

04-01-09 In Re: Petition for Authorization to Conduct a
Referendum on the Withdrawal of the Borough of Oradell
from the River Dell Regional School District
A-1318-07T1

The Borough of Oradell has filed a petition for
authorization to conduct a referendum to withdraw from the River
Dell Regional School District. The Board of Review denied the
petition. On appeal, we affirmed. In addressing an issue of
first impression, we concluded that a board of review may
consider factors in addition to a school district's borrowing
margin in deciding whether the dissolution of a school district
will impose an excessive debt burden upon the constituent school
districts.

03-27-09 Highland Lakes Country Club and Community Association v. Nicastro, Sr., and Nicastro A-4260-07T1

03-27-09 Highland Lakes Country Club and Community Association
v. Frank W. Nicastro, Sr., and Lisa Ann Nicastro
A-4260-07T1

Third-party defendants, licensed land surveyors, appeal
from the denial of a motion to dismiss a third-party complaint
for failure to comply with the Affidavit of Merit Statute
(Statute), N.J.S.A. 2A:53A-26 to 29. The third-party plaintiffs
are defending against an action for trespass and a boundary
dispute by relying on the accuracy of a survey they obtained
from the third-party defendants. They have asserted no claim
against the surveyors that is not contingent upon their
liability to plaintiff, and plaintiff has not yet complied with
a discovery order to produce a survey calling the line shown on
defendants' survey into question. We conclude that application
of the Statute would be inconsistent with its overall purposes
under the present circumstances of this case.

03-26-09 539 Absecon Boulevard, LLC v. Shan Enterprises, et al. A-2250-06T1

03-26-09 539 Absecon Boulevard, LLC v. Shan Enterprises, et al.
A-2250-06T1

Plaintiffs purchased from defendants an operating 204-room
motel business, along with the land on which the seven-story
motel building was situated and an adjacent parcel. Plaintiffs
contended that the sellers violated the Consumer Fraud Act
("CFA"), N.J.S.A. 56:8-1 to -106, by misrepresenting to them the
sources and amounts of the past operating revenues for the
motel. After a bench trial, the Law Division granted plaintiffs
relief under the CFA, but dismissed their separate common-law
claims.

We reverse the judgment because we hold that the CFA does
not apply to this transaction, which was predominantly for the
sale of an ongoing business, and where the alleged fraud
concerned the business's revenues rather than misrepresentations
about the real estate.

03-25-09 Sutter, M.D., P.A., et al. v. Horizon Blue Cross Blue Shield of New Jersey, et al. A-3708-06T3

03-25-09 John Ivan Sutter, M.D., P.A., et al. v. Horizon Blue
Cross Blue Shield of New Jersey, et al.
A-3708-06T3

1. In determining whether a proposed settlement of a
class action is fair and reasonable, the trial court must
conduct a fairness hearing pursuant to Rule 4:32-2(e). Where the
facts underlying the proposed settlement are in dispute by
objectors to the settlement, the trial court must conduct a
testimonial hearing during which the parties and objectors have
the opportunity to present and cross-examine witnesses before
the court determines whether the proposal is fair and
reasonable.

2. In determining whether a class attorney's fee award is
reasonable, the trial court must consider the lodestar method
(based upon a reasonable hourly rate) or the percentage recovery
(or common fund) method (based upon a reasonable percentage of
the proposed settlement). In applying the percentage recovery
method, however, the trial court must review the reasonableness
of the fees awarded in light of the hourly rate, the complexity
of the legal issues involved and whether the case is tried or
settled.

3. The court cannot base a percentage recovery fee award
on a disputed valuation of the settlement.