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Wednesday, December 30, 2009

IN THE MATTER OF CENTEX HOMES, LLC PETITION FOR EXTENSION OF SERVICE AND/OR FOR EXEMPTION FROM MAIN EXTENSION RULES N.J.A.C. 14:3-8.1 ET. SEQ. PURSU

IN THE MATTER OF CENTEX HOMES, LLC PETITION FOR
EXTENSION OF SERVICE AND/OR FOR EXEMPTION FROM MAIN
EXTENSION RULES N.J.A.C. 14:3-8.1 ET. SEQ. PURSUANT TO
N.J.S.A. 48:2-27 AND N.J.A.C. 14:3-8.8(a)(4) OR
(a)(6). A-2207-07T3 12-30-09

Where the intent to incorporate smart growth land use
planning principles is not contained within the enabling of the
Board of Public Utilities (BPU), and where the BPU is not
specifically called upon by the State Planning Act, N.J.S.A.
52:18A-196 to -207, to incorporate the smart growth planning
principles contained therein, the BPU exceeded its authority
under N.J.S.A. 48:2-27 by promulgating a regulation that
prohibited public utilities from subsidizing new service
extensions in areas not designated for growth under the State
Planning Act.

NAJDUCH V. TOWNSHIP OF INDEPENDENCE PLANNING BOARD, A-2900-08T1

NAJDUCH V. TOWNSHIP OF INDEPENDENCE PLANNING BOARD, A-2900-08T1
12-30-09
A planning board only has jurisdiction to grant site plan
approval for a development project that is a permitted use in
the zoning district.

ANDREA ORZECH, ET AL. v. FAIRLEIGH DICKENSON UNIVERSITY A-5919-07T1 12-29-09

ANDREA ORZECH, ET AL. v. FAIRLEIGH DICKENSON
UNIVERSITY A-5919-07T1 12-29-09

A university's negligent failure to enforce its alcohol
policy and a student's violation of that policy do not negate
the student's status as a beneficiary of the university's
educational works. We therefore found that the wrongful death
claim resulting from the student's accidental fall to his death
from his dormitory window, while intoxicated, was barred by
charitable immunity, and we reversed the judgment against the
university.

Wednesday, December 23, 2009

G.D. v. BERNARD KENNY and THE HUDSON COUNTY DEMOCRATIC ORGANIZATION, INC. A-3005-08T3

G.D. v. BERNARD KENNY and THE HUDSON COUNTY
DEMOCRATIC ORGANIZATION, INC.
A-3005-08T3 12-21-09

Defendants, sued for defamation for preparing and
circulating flyers referring to plaintiff's criminal record, may
assert the defense of truth despite the fact that plaintiff's
conviction has been expunged.

DAVID JOHNSON V. MOLLY V.G.B. JOHNSON A-0704-08T1

DAVID JOHNSON V. MOLLY V.G.B. JOHNSON
A-0704-08T1 12-21-09

In this appeal from an order confirming an arbitral award
respecting custody and parenting time, we conclude that Fawzy v.
Fawzy, 199 N.J. 456 (2009), should be given pipeline retroactive
effect. As a result, we reverse and vacate the arbitral award
because the arbitration agreement prohibited a transcript of the
proceedings. Without an adequate record, the Family Part judge
could not evaluate the threat of harm to the children.

IN RE PETITION FOR REFERENDUM ON CITY OF TRENTON ORDINANCE 09-02 A-5864-08T3

IN RE PETITION FOR REFERENDUM ON CITY OF TRENTON
ORDINANCE 09-02
A-5864-08T3 12-17-09

The sale of such portion of the water utility system is not
subject to the Faulkner Act referendum provisions mandated by
N.J.S.A. 40:69A-185. The portion serves less than five percent
of the population of the municipality and is excepted from a
public vote by N.J.S.A. 40:62-3.1.

The portion of a municipal water system that lies outside
of the municipality and provides water services to adjoining
municipalities does not "serve" the municipality.

ANDREW FAUCETT V. DARIANNA VASQUEZ A-2945-08T1

ANDREW FAUCETT V. DARIANNA VASQUEZ
A-2945-08T1
12-17-09

A prior, post-judgment order entered in 2002 awarded
primary residential custody of these divorced parties' eleven-
year old son to the plaintiff/father. When he faced imminent
deployment to Iraq as an Army reservist, defendant/mother, who
shared legal custody of her son and exercised significant
parenting time under the order, moved for modification. She
sought immediate transfer of residential custody of her son and
child support, arguing that between herself and the child's
stepmother, she was presumed to have custody. Determining that
the child should not be uprooted in the middle of the school
year, the motion judge denied the mother's request without
prejudice, but nevertheless ordered a custody evaluation.
Defendant appealed.

We concluded that the "parental presumption" does not apply
under such circumstances and the mother was not entitled to
modification simply because the parent of primary residential
custody was about to be deployed for one year.

However, we also determined that the mother had established
a prima facie case of changed circumstances that affected the
welfare of her son. The judge properly ordered a custody
evaluation, and clearly anticipated further review. We
concluded that the motion judge should not have denied
defendant's motion, and reversed only as to that aspect of the
order.

Edward Zabilowicz v. Roslyne Kelsey (A-87-08)

Edward Zabilowicz v. Roslyne Kelsey (A-87-08)
12-17-09

In this automobile insurance case, under the plain
language of N.J.S.A. 39:6A-8(a), the limitation-on-
lawsuit threshold can be invoked only by a defendant
who is eligible to receive New Jersey PIP benefits.
Because the defendant’s out-of-state insurance policy
does not provide her with this State’s PIP benefits,
she is subject to suit for noneconomic damages without
restriction under that statute.

Praxair Technology, Inc. v. Director, Division of Taxation (A-91/92-08

Praxair Technology, Inc. v. Director, Division of
Taxation (A-91/92-08) 12-15-09

Praxair’s business arrangement with its corporate
parent gave rise to liability under the Corporation
Business Tax Act, N.J.S.A. 54:10A-2, for the years
1994-1996, before an example was added to the relevant
regulation, N.J.A.C. 18:7-1.9.

Wednesday, December 16, 2009

MING YU HE v. MILLER A-5685-07T3

MING YU HE v. ENILMA MILLER
A-5685-07T3 12-15-09

In earlier proceedings, the court reversed an order
granting a remittitur of the pain and suffering and per quod
components of a jury verdict. The Supreme Court reversed in
part and remanded to the trial judge for a complete and
searching analysis including a factual analysis of how the award
here was different or similar to others to which it was
compared. The trial judge thereafter considered two verdicts
produced by trials over which he presided, as well as verdicts
emanating from other courts, and adhered to his earlier ruling
that the award was excessive.

Pursuant to the Supreme Court's mandate, the court
reconsidered its earlier decision and found the trial judge's
analysis of the verdicts in other cases was inadequate and
inconsistent with the applicable jurisprudence. The court
concluded that -- although high and perhaps overly-generous -- a
pain and suffering award of $1,000,000 for a permanent injury
incurred by the forty-six year old plaintiff, who sustained four
herniated discs as a result of the defendant's negligence, was
not so wide of the mark as to constitute a manifest miscarriage
of justice.

Highland Lakes Country Club and Community Association v. Nicastro, Sr (A-10-09)

Highland Lakes Country Club and Community Association
v. Frank W. Nicastro, Sr., et al. (A-10-09) 12-8-09

Judgment of the Appellate Division is affirmed
substantially for the reasons expressed in Judge
Grall’s written opinion. Application of the Affidavit
of Merit Statute, N.J.S.A. 2A:53A-26 to -29, would be
inconsistent with its overall purposes under the
present circumstances of this case.

Monday, December 7, 2009

PAULA ALEXANDER, JOAN COLL, and CHERYL THOMPSON-SARD v. SETON HALL UNIVERSITY, JOHN J. MYERS, ROBERT SHEERAN, PAULA BULEY, KAREN E. BOROFF an

PAULA ALEXANDER, JOAN COLL, and CHERYL THOMPSON-SARD
v. SETON HALL UNIVERSITY, JOHN J. MYERS, ROBERT
SHEERAN, PAULA BULEY, KAREN E. BOROFF and JOSEPH
DEPIERRO
A-1251-08T3 12-07-09

There is no cause of action under the New Jersey Law
Against Discrimination (LAD) for discrimination in pay and
compensation benefits when the discrimination is based on
decisions ("discrete acts") which occurred outside the LAD two-
year statute of limitations. The fact the impact of the
discriminatory decision-making continued the pay disparity into
the two-year period before the complaint was filed is not
relevant. Using the guidance of the federal Title VII
jurisprudence, we follow the United States Supreme Court's
decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
618, 127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007), despite
Congress' subsequent adoption of the Lily Ledbetter Fair Pay Act
of 2009. The Legislature, not this court, must amend LAD to
achieve the result Congress adopted.

BOYLAN V. THE BOROUGH OF POINT PLEASANT BEACH A-0234-08T2

BOYLAN V. THE BOROUGH OF POINT PLEASANT BEACH
A-0234-08T2 12-04-09

Any ambiguity in the description of the boundaries of a lot
created by a subdivision, which is contained in the deed
conveying the lot, should be resolved by reference to the filed
subdivision map that shows the precise boundaries of the lot.

Wednesday, December 2, 2009

ALPERT, GOLDBERG, BUTLER, NORTON & WEISS, P.C., n/k/a Alpert Butler & Weiss, P.C., Plaintiff- Respondent, v. MICHAEL QUINN, MARITA QUINN and QUINN-

ALPERT, GOLDBERG, BUTLER, NORTON & WEISS, P.C.,
n/k/a Alpert Butler & Weiss, P.C., Plaintiff-
Respondent, v. MICHAEL QUINN, MARITA QUINN and QUINN-
WOODBINE REALTY & LEASING CO., L.L.C., Defendants-
Appellants
A-5503-07T2
11-24-09

We hold in this attorney-fee collection action the
following: (1) given the unique relationship between an
attorney and a client, the fiduciary duty owed by an attorney to
a client, and the need for a client to have complete information
at the time of retention concerning the fees, charges, and
obligations to be owed by a client to the attorney, R.P.C.
1.5(b) requires an attorney to present a client the attorney has
not regularly represented, in writing, at the time of retention,
all of the fees and costs for which the client will be charged,
as well as the terms and conditions upon which the fees and
costs will be imposed; (2) we adopt Williston's principles that
in order for a contract to properly incorporate by reference a
separate document, the document to be incorporated must be
described in such terms that its identity may be ascertained
beyond doubt and the party to be bound by the terms must have
had "knowledge of and assented to the incorporated terms"; (3)
the failure to conduct a case management conference pursuant to
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), in
a malpractice action does not toll the timeframes set forth in
the Affidavit of Merit statute; and (4) Rule 1:4-8(d)(2)
compensates a party, represented by an attorney or appearing pro
se, for the reasonable legal fees and expenses the party
actually incurred as a result of an adversary's frivolous claim
and, therefore, an attorney appearing pro se is not entitled to
fees unless the fees are actually incurred as opposed to
imputed.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.W.R., ET ALS. A-1060-08T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v.
P.W.R., ET ALS.
A-1060-08T4 11-19-09

The trial judge in this Title 9 action defaulted a
defendant because she did not attend the factfinding hearing
even though her attorney appeared to represent her interests.
The court concluded that, unless warranted by defendant's
failure to comply with a prior order and the potential for
default was adequately noticed, a judge is not authorized to
enter a default in this circumstance. In considering the
overall circumstances, however, the court determined that the
default had no meaningful impact on the proceedings and
affirmed.