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Monday, July 27, 2009

07-27-09 FEROLITO V. PARK HILL ASSOCIATION and PAGANO A-4985-07T1

07-27-09 ARNOLD P. FEROLITO V. PARK HILL ASSOCIATION and PAGANO
COMPANY
A-4985-07T1
The appeal is from an award of fees and costs for frivolous
litigation entered against a party pursuant to N.J.S.A. 2A:15-
59.1. We address the scope of a prevailing party's obligations
to give notice pursuant to Rule l:4-8 and to prove that the
litigant, who was represented by counsel, acted in bad faith.

Richard Sadowski
Assistant Editor

07-22-09 GOLDSMITH V. CAMDEN COUNTY SURROGATE'S OFFICE A-0628-08T3

07-22-09 CLIFF K. GOLDSMITH V. CAMDEN COUNTY SURROGATE'S OFFICE
A-0628-08T3
Plaintiff filed this putative class action complaint
alleging violations of OPRA and the common law right of access
to public records. He contended that the copying fees charged
by defendants were excessive. Plaintiff's complaint also
alleged a cause of action for "unjust enrichment."
Plaintiff filed his complaint four months after paying the
allegedly excessive fees. He thereafter voluntarily dismissed
his substantive claims under OPRA and the common law, but
alleged his equitable claim was not time-barred. The trial
judge dismissed the complaint, finding plaintiff's equitable
claims were subsumed by his OPRA and common law claims. As a
result, his complaint was time-barred under Rule 4:69-6(a), and
the holding in Mason v. City of Hoboken, 196 N.J. 51 (2008).
We agreed and affirmed. We concluded that plaintiff's
equitable claim that sought disgorgement of excess fees was
totally dependant upon his OPRA or common law access causes of
action. Therefore, having failed to file in a timely fashion,
the trial judge properly dismissed plaintiff's complaint.

Richard Sadowski
Assistant Editor

07-21-09 CHICAGO TITLE INSURANCE V. ELLIS A-5133-07T1

07-21-09 CHICAGO TITLE INSURANCE CO. V. DANIEL ELLIS, ET AL.
A-5133-07T1
The issue considered is whether defendants who received
fraudulently obtained money from their daughter must repay it to
the rightful owner even if they had no knowledge of the fraud
and even if they did not retain the money. We hold that
exercise of dominion or control over the money makes defendants
liable for conversion of the rightful owner’s personal property,
unless defendants were unaware of the fraud and received the
money in exchange for fair value.

Richard Sadowski
Assistant Editor

07-17-09 NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES V. A.P. and F.H., IN THE MATTER OF S.H. A-3564-07T4

07-17-09 NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES
V. A.P. and F.H., IN THE MATTER OF S.H.
A-3564-07T4
A parent's appeal of an order that dismisses a Title 9
action brought by DYFS before there has been an adjudication of
abuse and neglect and entry of a final order of disposition is
mooted by DYFS' filing of a Title 30 action for termination of
parental rights.

Richard Sadowski
Assistant Editor

07-16-09 MCKESSON WATER PRODUCTS V. DIRECTOR, DIVISION OF TAXATION

07-16-09 MCKESSON WATER PRODUCTS CO. V. DIRECTOR, DIVISION OF
TAXATION
A-5423-06T3
In this appeal, we are required to decide whether the Tax
Court correctly construed the term "nonoperational income," as
used in N.J.S.A. 54:10A-6.1(a), to determine whether plaintiff's
gain from a deemed asset sale under Internal Revenue Code
§338(h)(10) is subject to the New Jersey Corporation Business
Tax (CBT). As a corollary to this issue, the Director of
Taxation also sought a remand for the Tax Court to consider the
applicability of the "unitary business" principle, in light of
the United States Supreme Court's decision in Meadwestvaco Corp.
v. Illinois Department of Revenue, 553 U.S., ___, 128 S. Ct.
1498, 170 L. Ed. 2d 404 (2008).
We affirm substantially for the reasons expressed by the
Tax Court in McKesson Water Products Co., v. Director, Division
of Taxation, 23 N.J. Tax 449 (Tax 2007). We also deny the
Director's application for remand. Because the central issue in
this appeal is resolved based on purely statutory grounds, we
discern no legal basis to reach the constitutional issues
implicated in the unitary business principle.

Richard Sadowski
Assistant Editor

07-16-09 DYFS V. V.M. & B.G. - I/M/O GUARDIANSHIP OF J.M.G. A-4627-06T4

07-16-09 DYFS V. V.M. & B.G. - I/M/O GUARDIANSHIP OF J.M.G.
A-4627-06T4
In this Title 9 appeal, the majority concludes that DYFS
established abuse and neglect. The majority declined to address
the issue of whether in finding abuse and neglect, the trial
judge erred in considering defendant mother's refusal to consent
to a cesarean-section (c-section) as an element of abuse and
neglect. The majority was of the view that there was sufficient
evidence in the record to sustain the finding of abuse and
neglect making it unnecessary to address the c-section issue.
The panel agreed that the appeal was not moot as it reversed the
finding of abuse and neglect as to defendant father
notwithstanding that the parental rights of the parents were
terminated in a subsequent Title 30 proceeding presently under
review by this court.
The concurring opinion concludes that consideration of the
mother's refusal to consent to a c-section was error and should
be addressed. DYFS initially took the position that such
refusal was relevant to the issue of abuse and neglect but later
urged that the refusal was relevant to the issue of credibility
as the mother later indicated that she did not refuse the
procedure.

Richard Sadowski
Assistant Editor

7-23-08 Pellicer v. St. Barnabas Hospital (A-88/89/90/91-07)

7-23-08 Casey Pellicer, et al. v. St. Barnabas Hospital, et
al. (A-88/89/90/91-07)
The jury selection process resulted in a jury panel that could
not fairly and dispassionately evaluate the difficult and
emotionally-charged issues in this case. In addition, the trial
was tainted by cumulative error and concerns about the
improprieties that infected this trial call the verdict into
question because the historic and extraordinary damage award
cannot be separated from those errors.

Richard Sadowski
Assistant Editor

7-16-09 Fernandez v. Nationwide Mutual Fire Insurance (A-54-08)

7-16-09 Sebastian Fernandez v. Nationwide Mutual Fire
Insurance Company (A-54-08)
The judgment of the Appellate Division is affirmed substantially
for the reasons expressed in Judge Gilroy’s opinion.

Richard Sadowski
Assistant Editor

Wednesday, July 15, 2009

07-14-09 TYNES V. ST. PETER'S UNIVERSITY MEDICAL CENTER A-5267-07T2

07-14-09 MELISSA TYNES, ET AL. V. ST. PETER'S UNIVERSITY
MEDICAL CENTER, ET AL.
A-5267-07T2
The trial court erred by requiring plaintiff to show
"exceptional circumstances" for a discovery extension because
the court had not scheduled the matter for arbitration or trial;
however, the court's order denying the discovery extension and
dismissing plaintiffs' complaint with prejudice is affirmed
because plaintiffs failed to show "good cause" to extend the
time for discovery, as required by Rule 4:24-1(c).

Richard Sadowski
Assistant Editor

07-10-09 INTERNATIONAL SCHOOL SERVICES V. NJ DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT A-5722-07T3

07-10-09 INTERNATIONAL SCHOOL SERVICES, INC. V. NEW JERSEY
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
A-5722-07T3
Plaintiff International School Services, Inc. (ISS) is a
New Jersey corporation that employs teachers who work in schools
located in Asia and South America. None of the teachers work in
New Jersey. Plaintiff sought a declaratory judgment to determine
whether it was obligated to provide workers' compensation
insurance to its overseas employees pursuant to the New Jersey
Workers' Compensation Act, N.J.S.A. 34:15-1 to -142.
In determining whether an employer must provide workers'
compensation coverage, the trial court must analyze the
connection between plaintiff's overseas employees and New Jersey
in accordance with the standards set forth in Connolly v. Port

Richard Sadowski
Assistant Editor

Auth. of New York and New Jersey, 317 N.J. Super. 315, 319-20

Auth. of New York and New Jersey, 317 N.J. Super. 315, 319-20
(App. Div. 1998) (citing Larson's Workers' Compensation Law).
We reversed the trial court's order declaring that
plaintiff was obligated to provide workers' compensation
coverage for its overseas employees and remanded the matter for
further discovery respecting the overseas employees' contacts
with New Jersey and reconsideration in light of Connolly and
Larson's treatise.

Richard Sadowski
Assistant Editor

07-10-09 ALLSTATE INSURANCE V. FISHER A-4445-06T3

07-10-09 ALLSTATE INSURANCE CO. V. OTTO FISHER
A-4445-06T3
The failure of the motion judge to comply with Rule 1:7-4
requires that the uncontested summary judgment entered in
plaintiffs' favor be reversed and remanded; however, defendant's
dilatory conduct warrants that the vacating of the judgment be
conditioned on the payment of reasonable attorney's fees and
costs.

Richard Sadowski
Assistant Editor

7-15-09 Amalgamated Transit Union, Local 880 v. NJ Transit Bus Operations (A-20-08)

7-15-09 Amalgamated Transit Union, Local 880 v. New Jersey
Transit Bus Operations, Inc. (A-20-08)
Applying the “reasonably debatable” standard of review for
arbitration decisions, the Court defers to the arbitration
panel’s conclusion that the employee in this case, who was
terminated during his probationary period, did not have the
right to access the grievance provisions of the collective
bargaining agreement.

Richard Sadowski
Assistant Editor

7-9-09 Khan, et al. v. Singh (A-73-08)

7-9-09 Mohammed Khan, et al. v. Sunil K. Singh, M.D.
(A-73-08)
There was no foundational proof for the plaintiff’s experts’
testimony that it is common knowledge in the medical community
that the injury ordinarily occurs only because of negligence.
Although lack of experience alone does not necessarily preclude
an expert from offering such an opinion, the experts did not
point to any training, education, or medical literature as an
alternate source of support for their common knowledge
testimony. Even if the Court were to embrace the “conditional
res ipsa” theory, application of that charge is not supported by
this factual record.

Richard Sadowski
Assistant Editor

Tuesday, July 7, 2009

7-1-09 Fawzy v. Fawzy (A-38/39-08)

7-1-09 Christine Saba Fawzy v. Samih M. Fawzy (A-38/39-08)
The constitutionally protected right of parental autonomy
includes the right of parents to choose the forum in which to
resolve their disputes over child custody and parenting time,
including arbitration. An agreement to arbitrate must be in
writing or recorded and must establish that the parties are
aware of and have knowingly and voluntarily waived their rights
to a judicial determination. A record of documentary evidence
adduced during the proceedings must be kept; testimony must be
recorded; and the arbitrator must issue findings of fact and
conclusions of law in respect of the award. The arbitrator’s
award is subject to review under the Arbitration Act, N.J.S.A.
2A:23-B-1 to -32, except that judicial review is also available
if a party establishes that the award threatens harm to the
child.

Richard Sadowski
Assistant Editor

07-06-09 CASILLI V. SOUSSOU, ET ALS. A-5205-07T2

07-06-09 ARCANGELO & DENISE CASILLI V. GEORGE SOUSSOU, ET ALS.
A-5205-07T2
We hold that the unambiguous terms of an insurance policy's
exclusion clause denies coverage when use of a family memberowned
vehicle other than the "named insured's" "covered auto"
was involved, except when it was the "named insured's"
themselves who were using the family member-owned vehicle. We
found that excluding coverage for a separately-insured family
member's use of a non-covered auto is not uncommon, is legally
sound, and supported by policy.

Richard Sadowski
Assistant Editor

07-01-09 TAC V. NJ DEPT OF and ENVIRONMENTAL PROTECTION and NJ ECONOMIC DEVELOPMENT A-1044-08T1

07-01-09 TAC ASSOCIATES V. NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION and THE NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
A-1044-08T1
In this appeal, we invalidate N.J.A.C. 19:31-8.2, a
regulation promulgated by the New Jersey Economic Development
Authority (EDA) to implement certain sections of the Hazardous
Discharge Site Remediation Fund. We determine that the
regulatory definition for eligibility to a special revolving
fund, established by the Legislature for the purpose of
financing remediation activities, is inconsistent with the
statutory criteria in N.J.S.A. 58:10B-6(b)(4).

Richard Sadowski
Assistant Editor

07-01-09 HAND V. PHILADELPHIA INSURANCE A-1957-07T1

07-01-09 DONNA HAND V. PHILADELPHIA INSURANCE COMPANY
A-1957-07T1
Contrary to the result reached by our colleagues in Olkusz
v. Brown, 401 N.J. Super. 496 (App. Div. 2008), we conclude that
the Legislature implicitly intended the so-called "Scutari
Amendment," N.J.S.A. 17:28-1.1(f), to be applied retroactively.
However, under the facts of this case, we also conclude that to
do so would result in a manifest injustice to defendant insurer.

Richard Sadowski
Assistant Editor