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Wednesday, December 29, 2010

IN THE MATTER OF THE TRUSTS TO BE ESTABLISHED IN THE MATTER OF MARGARET A. FLOOD, DECEASED A-1643-09T

IN THE MATTER OF THE TRUSTS TO BE ESTABLISHED IN THE MATTER OF MARGARET A. FLOOD, DECEASED

A-1643-09T1 12-29-10

Even though the decedent had engaged in estate planning, she never executed a will. Nevertheless, the trial judge utilized the doctrine of probable intent to permit the establishment and funding of supplemental benefit trusts for decedent's two disabled daughters to insulate their inheritances from reimbursement liens. The court reversed, holding that the doctrine of probable intent is a rule of will construction which cannot be used to create a testamentary disposition when a decedent dies intestate.

D. RUSSO, INC., d/b/a HOTT 22, EXPO VIDEO UNLIMITED, LLC AND BOKRAM, INC., d/b/a VIDEO EXTRA V. TOWNSHIP OF UNION A-0763-09T1

D. RUSSO, INC., d/b/a HOTT 22, EXPO VIDEO UNLIMITED, LLC AND BOKRAM, INC., d/b/a VIDEO EXTRA V. TOWNSHIP OF UNION A-0763-09T1 12-29-10

A party who brings an action under the New Jersey Civil Rights Act that results in a change in defendant's conduct may qualify, under the catalyst theory, as a "prevailing party" entitled to attorney's fees and costs, even though the action is dismissed as moot rather than being concluded by a judgment in plaintiff's favor.

MANGER V. MANGER A-2919-09T1

MANGER V. MANGER A-2919-09T1 12-27-10

As recognized in Johnson v. Johnson, ___ N.J. ___ (2010), parties in a matrimonial proceeding may agree to arbitrate disputed issues and may identify the manner in which the arbitration will proceed by designating the Alternate Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, or the Uniform Arbitration Act (Arbitration Act), N.J.S.A. 2A:23B-1 to -32. If the parties fail to designate a statute, the arbitration will proceed according to the Arbitration Act.

EDWARD STONEY V. JOSEPH P. McALEER and ABERDEEN TWP. A-1187-09T2

EDWARD STONEY V. JOSEPH P. McALEER and ABERDEEN TWP. A-1187-09T2 12-21-10

While that portion of plaintiffs' LAD complaint alleging that defendants issued summonses to them for violating Township ordinances in retaliation for their suit against the Townshipwas barred by the two-year limitations period, their claim that the prosecution in municipal court violated the LAD was not time-barred, the complaint having been filed within two years of the municipal court proceeding. The prosecution in municipal court was a separate event, not a continuing effect of the original summonses.

COMMUNICATIONS WORKERS OF AMERICA VS. ROUSSEAU A-4194-07T3

COMMUNICATIONS WORKERS OF AMERICA VS. ROUSSEAU A-4194-07T3 12-17-10

In this Open Public Records Act (OPRA) appeal, we hold that the agreements relating to investments made by the Division of Investment in private equity funds with money from State- employee pension funds are not government records under OPRA because these agreements, either in whole or in substantial part, contain proprietary commercial or financial information, trade secrets, or information that would provide competitors an unfair competitive advantage. We also hold that the common law right to access public documents does not require access by plaintiffs to these agreements because the State's interest and intervenors' interest in confidentiality outweighs plaintiffs' interest.

COMMERCE BANCORP V. INTERARCH AND KLUMB A-2832-09T

COMMERCE BANCORP V. INTERARCH AND KLUMB A-2832-09T3 12-16-10

We hold that a corporation that voluntarily indemnifies its agent under the New Jersey Business Corporation Act, N.J.S.A. 14A:1-1 to 16-4, upon advice of counsel and after its own due diligence investigation, may not sue, six years later, for restitution of that payment made after a civil jury verdict finding the corporate agent had acted in bad faith and outsidethe scope of her agency. We find, under the plain meaning of N.J.S.A. 14A:3-5(2), that such an adverse civil verdict creates no statutory presumption against indemnification.

ESTATE OF STEPHEN J. KOMNINOS, THOMAS J. KOMNINOS, WINIFRED KOMNINOS, Individually as Administrators, and as Administrators ad prosequendum of the ES


ESTATE OF STEPHEN J. KOMNINOS, THOMAS J. KOMNINOS, WINIFRED KOMNINOS, Individually as Administrators, and as Administrators ad prosequendum of the ESTATE OF STEPHEN J. KOMNINOS v. BANCROFT NEUROHEALTH, INC., et al.

A-4041-09T2 12-13-10

The Charitable Immunity Act, N.J.S.A. 2A:53A-7, bars a plaintiff from bringing negligence claims against a nonprofit provider of services for the developmentally disabled and persons affiliated with that nonprofit provider. The present lawsuit was brought by the parents of a developmentally disabled young adult who died after choking on a bagel while in the company of defendant's staff member.

As reflected in the decedent's individual habilitation plan ("IHP") and the provider's charter, the provider supplies its disabled clientele with vocational and life skills training encompassed within the meaning of "educational" and "charitable" purposes immunized under the Act. In addition, we conclude that the decedent was a "beneficiary" of the provider's services at the time of his fatal incident, despite plaintiffs' contentions that the incident was outside of the scope of his beneficiary status.

MARIONI v. 94 BROADWAY, INC. et al. A-1492-09T3

MARIONI v. 94 BROADWAY, INC. et al. A-1492-09T3 12-9-10

In a prior appeal, the court reversed the denial of plaintiff's application for specific performance and remanded for an adjustment of the compensation to be paid by plaintiff to regain the property -- a task complicated by the fact that the interloping purchaser had substantially renovated and leased the property. Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588 (App. Div.), certif. denied, 183 N.J. 581 (2005). The Chancery judge thereafter conducted a hearing to determine how best to "reassemble Humpty Dumpty," id. at 622, and fixed the compensation due from plaintiff to the interloping purchaser. The court reversed because the trial judge's final adjustment required plaintiff to pay an entrepreneurial profit inconsistent with the interloper's position as a constructive trustee.

IN THE MATTER OF THE ISSUANCE OF ACCESS CONFORMING LOT PERMIT NO. A-17-N-N040-2007 BY THE NEW JERSEY DEPARTMENT OF TRANSPORTATION FOR BLOCK 136, LOTS

IN THE MATTER OF THE ISSUANCE OF ACCESS CONFORMING LOT PERMIT NO. A-17-N-N040-2007 BY THE NEW JERSEY DEPARTMENT OF TRANSPORTATION FOR BLOCK 136, LOTS 2 AND 3 IN MAHWAH TOWNSHIP, NEW JERSEY A-0605-09T3 12-9-10

The APA confers a right upon any objector with a sufficient interest in issuance of a highway access permit to qualify as an "interested person" within the intent of N.J.S.A. 52:14B-3.1(a) to submit relevant "data, views or arguments" to the DOT and a corresponding obligation upon the DOT to consider those materials. Even when an evidentiary hearing is not required, an administrative agency may be required to set forth basic findings of fact and conclusions of law for the purpose of informing interested parties and any reviewing tribunal of the basis on which the final decision was reached.

Lula M. Henry v. New Jersey Department of Human Services (A-69-09)

Lula M. Henry v. New Jersey Department of Human Services (A-69-09)

There is no equitable basis on which to extend the statute of limitations on Henry’s retaliation claim. That cause of action accrued at or before the date she resigned in 2004, after being told that if she had not complained, she may have been reclassified. However, a hearing is required to determine whether the discovery rule applies to the discrimination claim. When Henry requested reclassification, she was given a reason that had nothing to do with discrimination, which may have misled her into not pursuing the issue. She is entitled to assert that she had no reasonable suspicion of discrimination until 2006.

David Johnson v. Molly V.G.B. Johnson (A-91-09)

David Johnson v. Molly V.G.B. Johnson (A-91-09)

The principles established in Fawzy were intended to be applicable to all child custody arbitrations, including those conducted under the Alternative Procedure for Dispute Resolution Act. The record created by the arbitrator in this matter, which included a recitation of all evidence considered, a recapitulation of every interview and observation he conducted, a full explanation of the underpinnings of the award, and a separate opinion on reconsideration, satisfies the spirit of Fawzy and is an acceptable substitute for a verbatim transcript.

Monday, December 6, 2010

KYLE J. MOSTELLER V. GELLA NAIMAN AND COYNE TREE SERVICE, INC. A-2546-09T2

KYLE J. MOSTELLER V. GELLA NAIMAN AND COYNE TREE SERVICE, INC.

A-2546-09T2 12-03-10

Defendant negligently removed six mature trees, which the parties thereafter discovered had been situated on plaintiff's adjoining property, which he leased to two tenants.

The trial court correctly ruled that a diminution-of- market-value measure of damages, rather than a replacement-cost measure, would be sufficient to compensate plaintiff for his loss. Plaintiff failed to demonstrate that the trees had special or peculiar value to him, as required under Huber v. Serpico, 71 N.J. Super. 329, 345 (App. Div. 1962). In addition, the trial court's chosen method of calculating damages avoided economic waste, given that the estimated costs to replace the trees nearly exceeded plaintiff's costs to purchase the premises approximately a year earlier.

STATE V. RICHARD LYONS A-4893-09T2

STATE V. RICHARD LYONS A-4893-09T2 11-30-10

We reversed an order dismissing two counts of an indictment charging defendant with offering and distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), which was accomplished by defendant's placement of the images in his shared folder on a peer-to-peer file sharing network, which defendant knew made the images available over the Internet to all other users of the network. We rejected the argument that defendant's "passive" conduct was only an omission to prevent others from accessing his computer files, which is not criminalized by N.J.S.A. 2C:24-4b(5)(a).

ATFH REAL PROPERTY, LLC v. WINBERRY REALTY PARTNERSHIP A-1189-09T1

ATFH REAL PROPERTY, LLC v. WINBERRY REALTY PARTNERSHIP A-1189-09T1 11-30-10

In this action to foreclose a tax sale certificate, one member of the defendant-partnership, who was not an attorney, filed an answer. Rather than deem the matter uncontested in light of Rule 1:21-1(c), the judge indulged the partner and considered his arguments regarding the alleged insufficiency of service of process and the merits. The judge ultimately found the answer failed to contest the grounds for foreclosure and struck it. Following entry of final judgment, the defendant- partnership through counsel sought relief pursuant to Rule 4:50,arguing among other things that the trial court had not acquired jurisdiction due to the ineffective service of process. The trial judge granted relief on the conditions that the defendant- partnership (a) reimburse plaintiff for its counsel fees and other expenses and (b) indemnify plaintiff from any future claims resulting from the fact that that the plaintiff had contracted to sell the property to a third person after entry of judgment.

In the defendant-partnership’s appeal concerning the conditions imposed, the court affirmed, concluding that the slim grounds upon which relief was sought justified the imposition of conditions and that the conditions were not punitive but appropriately addressed the potential prejudice to plaintiff. In addition, the court held that even though the manner in which the partnership appeared in the case was impermissible, the partnership nonetheless appeared; accordingly, service of process pursuant to Rule 4:4-4(c) was sufficient.

N.J. DIV. OF YOUTH AND FAMILY SERVICES V. N.D. AND E.W., I/M/O T.W.A-0553-09T2

N.J. DIV. OF YOUTH AND FAMILY SERVICES V. N.D. AND E.W., I/M/O T.W.A-0553-09T2 11-29-10

This appeal is from an order entered in protective services litigation that did not comport with due process or the provisions of Title 9 or Title 30 granting and limiting the authority of the Division of Youth and Family Services in custody matters. We detail the deviations to avoid repetition and remand for further proceedings.

This order of disposition was entered in an action for abuse and neglect under Title 9. It transfers custody of a child from his mother to his father for an indefinite period of time, cf. N.J.S.A. 9:6-8.51, and is based on a finding that the modification is in the child's best interests under the standards applicable in private custody disputes, N.J.S.A. 9:2- 4. Although there was a stipulation to circumstances warranting services under Title 30, it did not justify entry of an order under Title 9 without a finding of abuse or neglect or adequate notice and opportunity to present evidence relevant to the child's safety in his mother's care. N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382 (2009).

JOHN SEALS AND JULIA SEALS v. COUNTY OF MORRIS, ET AL. A-5433-08T3/A-0475-09T3

JOHN SEALS AND JULIA SEALS v. COUNTY OF MORRIS, ET AL. A-5433-08T3/A-0475-09T3 (consolidated) 11-24-10

In these appeals, we considered the liability of a utility company and the County of Morris for injuries sustained by a motorist whose vehicle struck a utility pole after veering off a county road. The motion judge denied summary judgment, concluding that the Court's decision in Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1984), did not apply to the utility company under the particular facts of the case and, as to the County, the immunity provisions of the Tort Claims Act did not apply. The judge reasoned that liability on the part of both defendants must be resolved by applying ordinary negligence principles and disputed factual issues precluded the grant of summary judgment.

We reversed the denial of summary judgment to the utility company, finding that under Contey and N.J.S.A. 48:3-17.1, it owed no legal duty to plaintiff. We vacated the denial of summary judgment to the County and remanded for further proceedings. We concluded the arguments that the County may be liable for or immune from plaintiff's claim have not been sufficiently developed. We affirmed the denial of summary judgment to plaintiff.

MATTHEW G. CARTER APTS. VS. KATHY RICHARDSON A-1992-09T3

MATTHEW G. CARTER APTS. VS. KATHY RICHARDSON A-1992-09T3 11-24-10

Plaintiff/landlord served a written notice to cease upon defendant/tenant regarding her habitual late rental payments. After receipt, defendant paid her rent in a timely fashion for the next four months. She was then eight days late with the rent, and plaintiff served a "1st violation." Defendant paid on time the next month, but was two days late in paying the rent the following month. Plaintiff served a notice to quit and refused to accept any further rental payments which were tendered in a timely fashion and ultimately escrowed with defense counsel. In sum, defendant was late in the payment of her rent a total of ten days during the eleven-month period.

The trial judge granted plaintiff judgment of possession finding a cause of action was proven under N.J.S.A. 2A:18- 61.1(j) (defendant had "after written notice to cease, . . . habitually and without legal justification failed to pay rent which [wa]s due and owing") because a second late payment was made after receipt of the notice to cease.

While we reaffirmed our prior holding in Ivy Hill Park v. Abutidze, 371 N.J. Super. 103 (App. Div. 2004), that general equitable defenses are not available to defeat the landlord's cause of action for habitual late payment of rent, we nevertheless reversed, finding that under the factual circumstances, plaintiff had failed to prove the statutory cause of action.

DYFS V. J.D. AND J.B. I/M/O GUARDIANSHIP OF J.B., J.D. AND J.D. A-1163-09T4

DYFS V. J.D. AND J.B. I/M/O GUARDIANSHIP OF J.B., J.D. AND J.D.

A-1163-09T4 11-22-10

In this procedurally unique matter, we examine the trial court's application of the Supreme Court's holding in New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009). For reasons other than those determined by the trial judge, we affirm the order granting custody of the child to the non-offending parent after removal.

In our discussion, we concluded the Family Part erred in reopening the litigation sua sponte following publication of our opinion New Jersey Division of Youth & Family Services v. G.M., 398 N.J. Super. 21 (App. Div. 2008). Because the offending parent had not appealed or otherwise challenged the ordergranting custody, the court lacked authority to unilaterally revisit its determination.

In the course of the reopened proceeding, the Supreme Court's G.M. opinion was issued. The trial judge's decision to ignore the precedent under the "law of the case" doctrine was error.

DYFS V. J.D. AND J.B. I/M/O GUARDIANSHIP OF J.B., J.D. AND J.D. A-1163-09T4

DYFS V. J.D. AND J.B. I/M/O GUARDIANSHIP OF J.B., J.D. AND J.D.

A-1163-09T4 11-22-10

In this procedurally unique matter, we examine the trial court's application of the Supreme Court's holding in New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009). For reasons other than those determined by the trial judge, we affirm the order granting custody of the child to the non-offending parent after removal.

In our discussion, we concluded the Family Part erred in reopening the litigation sua sponte following publication of our opinion New Jersey Division of Youth & Family Services v. G.M., 398 N.J. Super. 21 (App. Div. 2008). Because the offending parent had not appealed or otherwise challenged the ordergranting custody, the court lacked authority to unilaterally revisit its determination.

In the course of the reopened proceeding, the Supreme Court's G.M. opinion was issued. The trial judge's decision to ignore the precedent under the "law of the case" doctrine was error.

GENSOLLEN v. PAREJA A-0401-10T3

GENSOLLEN v. PAREJA A-0401-10T3 11-19-10

The court granted leave to appeal in this personal injury action to consider the extent to which a party may inquire into an expert's finances and litigation history in gathering information to prove at trial the expert's positional bias. Because defendants' expert acknowledged at his deposition that more than ninety-five percent of his litigation work was for defendants, the court held the trial judge abused his discretion in compelling the expert to create and produce, at his own cost, documentation more precisely defining the percentage of his work that is defendant-related, the frequency with which he has found plaintiffs to have sustained permanent injuries, and the amount of income derived from performing independent medical examinations.

SPECTRASERV, INC. V. MIDDLESEX COUNTY UTILITIES AUTHORITY, ET AL. A-1080-09T2

SPECTRASERV, INC. V. MIDDLESEX COUNTY UTILITIES AUTHORITY, ET AL.

A-1080-09T2 11-18-10

County Utilities Authority is not liable to its general contractor for attorney's fees under OPRA where the request for public documents was overbroad, non-specific and encompassed both privileged and confidential (trade secret) materials. Moreover, in light of pending construction litigation between the parties in the Law Division, the government agency's proposed compromise to coordinate the production of non-exempt documents to satisfy both the contractor's OPRA request and its discovery demands in the ongoing lawsuit was a reasonable solution under N.J.S.A. 47:1A-5(g), that accommodated the interests of the requestor in securing public information on a timely basis, and the agency is not having its operations substantially disrupted.

Joyce Quinlan v. Curtiss-Wright Corporation (A-51-09)

Joyce Quinlan v. Curtiss-Wright Corporation (A-51-09) 12/2/2010

The jury charge on plaintiff’s retaliation claim was not in error and the jury’s verdict in favor of plaintiff on that count was amply supported by the evidence. In addition, on the record presented, there was sufficient evidence of egregiousness to permit or to support the punitive damages awarded to plaintiff.

Paula Alexander , et. al. v. Seton Hall University (A-87-09)

Paula Alexander , et. al. v. Seton Hall University (A-87-09) 11/23/2010

The payment of unequal wages on the discriminatory basis of age or sex is proscribed by New Jersey’s Law Against Discrimination (LAD), and each payment of such discriminatory wages constitutes an actionable wrong that is remediable under the LAD. The two-year statute of limitations applies to such violations by merely cutting off the untimely portion of such claims, thereby limiting the damages recoverable for past discriminatory compensation. As a result, plaintiffs’ complaint was timely in respect of the allegedly discriminatory wages they received during the two years immediately prior to the filing of their complaint.

The Committee to Recall Robert Menendez v. Nina Wells (A-86-09)

The Committee to Recall Robert Menendez v. Nina Wells (A-86-09) 11/18/2010

The matter is ripe for adjudication and the text and history of the Federal Constitution, as well as the principles of the democratic system it created, do not allow the states the power to recall U.S. Senators. Those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional.

Wednesday, November 17, 2010

JOAN MCGEE V. TOWNSHIP OF EAST AMWELL A-1233-09T2

JOAN MCGEE V. TOWNSHIP OF EAST AMWELL

A-1233-09T2 11-16-10

On this appeal from a final decision of Government Records

Council (GRC or the Council) under Open Public Records Act (OPRA

or the Act), N.J.S.A. 47:1A-1 to -13, we conclude that records

created by a former public official are subject to the

"deliberative process privilege" under OPRA. In addition, where

an employee now claims that she has waived her privilege as to

her "personnel records" but did not raise the issue before the

Council, we remand this matter to the Council to determine

whether the employee waived the confidentiality under the

"personnel records" exception or whether there are

countervailing concerns or policies that would preclude release

of such records.

WASHINGTON COMMONS, LLC VS. CITY OF JERSEY CITY, ET AL A-0779-09T1

WASHINGTON COMMONS, LLC VS. CITY OF JERSEY CITY, ET AL

A-0779-09T1 11-12-10

We hold that a violation of a condition to a variance

constitutes a violation of the land use ordinance itself,

enforceable by the municipality by way of complaint for

injunctive relief, specific performance, or other appropriate

action.

Here, because Jersey City chose to enforce its Board of

Adjustment's resolution (requiring a developer to convey fee

simple title to seven affordable housing units to the City for

$1.00 each) via motion rather than complaint, we vacated the Law

Division's enforcement order. Should the City pursue the matter

further, given the developer's failure to identify any material

fact in the Board's resolution that remains unresolved, we

suggested that the matter may be disposed of in a summary

manner, Rule 4:67-1(b), with the filing of a complaint

accompanied by the appropriate request for relief. R. 4:67-2.

JAMES RACANELLI v. COUNTY OF PASSAIC, ET AL. A-5350-08T3

JAMES RACANELLI v. COUNTY OF PASSAIC, ET AL.

A-5350-08T3 11-10-10

The notice of claim provisions of the Tort Claims Act,

N.J.S.A. 59:1-1 to 12-3 do not apply to actions brought under

the Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 to -8; and plaintiff was not barred from pursuing his

CEPA claim in the Law Division because he did not raise his

whistle-blowing claim in an administrative challenge to his

layoff.

LEONARD L. FREDERICK, ET AL. v. MAXWELL BALDWIN SMITH, ET AL. A-1620-09T2

LEONARD L. FREDERICK, ET AL. v. MAXWELL BALDWIN SMITH,

ET AL.

A-1620-09T2 11-09-10

Plaintiffs were defrauded by defendant Maxwell Baldwin

Smith, who convinced them to invest in a fictitious entity, and

requested that their financial contributions be paid into his

personal account with defendant Merrill Lynch, Pierce, Fenner &

Smith. After discovering the fraud, plaintiff brought this

action, which included a claim that Merrill Lynch was negligent

in failing to monitor Smith's account for indicia of fraud. The

court affirmed the dismissal of this claim due to the absence of

any relationship between plaintiffs and Merrill Lynch, thereby

extending the courts' "reluctance to impose a duty of care on

banks in respect of a total stranger," Brunson v. Affinity Fed.

Credit Union, 199 N.J. 381, 403 (2009), to brokerage firms

MENDEZ V. SOUTH JERSEY TRANSPORTATION, ET AL. and FELIX V. MENDEZ, ET AL. A-3403-09T2/A-3409-09T2

MENDEZ V. SOUTH JERSEY TRANSPORTATION, ET AL. and

FELIX V. MENDEZ, ET AL.

A-3403-09T2/A-3409-09T2 (consolidated) 11-04-10

We consider whether "extraordinary circumstances" existed

for the extension of the ninety-day Tort Claims deadline,

N.J.S.A. 59:8-9, where plaintiffs' attorneys waited until they

viewed the videotape depicting events relating to the motor

vehicle accident, which they diligently requested, before filing

the claims notices. The motion judge found such circumstances

did exist. We agree.

Robert R. Dean, et al. v. Barrett Homes, Inc. et al. (A-15-09)

Robert R. Dean, et al. v. Barrett Homes, Inc. et al.

(A-15-09) 11-15-10

The economic loss rule embodied in the Products

Liability Act precludes recovery of damages for harm

that the EIFS caused to itself. The purpose of the

Act to provide a remedy for harm that a defective

product causes to people or property. There is no

room to expand it to create a new remedy for the cost

of replacing the product based on assertions that it

failed to perform as expected. However, because the

EIFS was not fully integrated into the structure,

plaintiffs retain a cause of action against the

product’s manufacturer to the extent that the product

caused damage

In the Matter of the Civil Commitment of W.X.C. (A-33-09)

In the Matter of the Civil Commitment of W.X.C.

(A-33-09) 11-9-10

The Court concludes that the Sexually Violent Predator

Act (SVPA) is remedial and regulatory in nature, and

that its incidental effects, including the use of

confinement as part of the treatment methodology, do

not alter the essential character of the statute. The

Court thus declines to conclude that the SVPA is

transformed into a punitive, and therefore

unconstitutional, enactment merely because it applies

to some individuals, like defendant, who were not

provided with specialized treatment prior to civil

commitment.

Tuesday, November 2, 2010

WELLS FARGO BANK, NA v. JAYNE A. GARNER A-4250-08T2

WELLS FARGO BANK, NA v. JAYNE A. GARNER A-4250-08T2

In a foreclosure matter, an order granting summary judgment, striking defendant's contesting answer, entering default and returning the matter to the Office of Foreclosure is interlocutory. Final judgment fixes the amount due after which defendant will have the right to appeal.10-27-10

IN THE MATTER OF ANTHONY HEARN, DEPARTMENT OF EDUCATION A-5780-07T1

IN THE MATTER OF ANTHONY HEARN, DEPARTMENT OF EDUCATION

A-5780-07T1 10-27-10

Upon successful appeal to the Civil Service Commission of disciplinary action taken against him under the State's workplace anti-discrimination policy applicable to all employees, a State employee was entitled to recover his reasonable attorney's fees under the regulatory provisions of Title 4A of the New Jersey Administrative Code. A mandatory fee-shifting regulation applied to the employee in this case although he was not in the permanent career service.

SUSSEX COMMONS ASSOCIATES, ET ALS. V. RUTGERS, THE STATE UNIVERSITY, ET ALS. A-1567-08T3

SUSSEX COMMONS ASSOCIATES, ET ALS. V. RUTGERS, THE STATE UNIVERSITY, ET ALS.

A-1567-08T3 10-25-10

Plaintiffs filed a formal request under OPRA with the Custodian of Records for Rutgers, the State University, seeking access to eighteen categories of documents concerning the Environmental Law Clinic operated by Rutgers Law School in Newark. The request sought documents related to the Clinic's finances and its representation of two private citizens' groups that were opposing plaintiffs' proposed development of an outlet mall.

The trial court ruled that the Clinic was not subject to OPRA and dismissed plaintiffs' complaint. We reverse the trial court's ruling exempting the Clinic from the provisions of OPRA and remand for the court to determine whether the specific documents requested by plaintiffs are exempt from disclosure under the definition of "government record" in N.J.S.A. 47:1A- 1.1. The trial court shall also review and decide plaintiffs' requests under our State's common law right of access.

DYFS v. T.S. and DYFS v. K.G.IN THE MATTER OF THE GUARDIANSHIP OF M.S. A-5902-08T3/A-5903-08T3

DYFS v. T.S. and DYFS v. K.G.IN THE MATTER OF THE GUARDIANSHIP OF M.S. A-5902-08T3/A-5903-08T3 (consolidated) 10-25-10

In this termination of parental rights challenge involving a now twelve-year-old girl, an unusual culmination of post trial events, when taken together, called into question whether the defendant mother had removed the harm precluding reunification and whether the possible detriment posed by keeping the parent- child relationship intact was outweighed by the potential benefits of terminating the mother's parental rights. We are persuaded the additional facts, although not present at the time of trial, must nevertheless be assessed by the trial court before a judgment of guardianship can be entered. We vacated the judgment and remanded to the trial court for further review regarding the evidence bearing on prongs two and four of the best interest test.

STEVEN SANTANIELLO V. NJ DEPT. OF HEALTH & SR. SERVS. A-4948-08T1

STEVEN SANTANIELLO V. NJ DEPT. OF HEALTH & SR. SERVS. A-4948-08T1 10-22-10

We hold that regulations of the Department of Health and Senior Services governing the recertification of EMT-Paramedics do not impermissibly delegate the Department's oversight authority to private hospitals from which the applicant must obtain an endorsement and to which the applicant must demonstrate his or her proficiency skills for pre-hospital care.

We also hold that the challenged regulations are not overly vague and do not violate due process by not providing for a pre- denial hearing.

BONNIER CORPORATION d/b/a BONNIER CORPORATION V. JERSEY CAPE YACHT SALES, INC. A-2404-09T2

BONNIER CORPORATION d/b/a BONNIER CORPORATION V. JERSEY CAPE YACHT SALES, INC.

A-2404-09T2 10-13-10

Plaintiff, a Delaware corporation headquartered in Florida and the publisher of numerous special-interest national magazines, filed a collection action in the Law Division againstdefendant, a New Jersey yacht retailer, after defendant failed to pay for certain advertising published nationally in one of plaintiff's magazines. The trial court granted defendant's motion to dismiss plaintiff's complaint for lack of standing because plaintiff had not obtained a certificate of authority to do business in New Jersey pursuant to N.J.S.A. 14A:13-11.

Because the limited record as developed in the trial court does not establish that plaintiff is engaged in intrastate business within New Jersey, as defined by Eli Lilly & Co. v. Sav-On Drugs, Inc., 366 U.S. 276, 280, 81 S. Ct. 1316, 1319, 6 L. Ed. 2d 288, 291-92 (1961), plaintiff could not be constitutionally obligated under the Commerce Clause to obtain a certificate of authority because of its purely interstate business activities. Consequently, the dismissal of the complaint is reversed and the matter is remanded for further proceedings.

BRADFORD SCOTT v. NEW JERSEY DEPARTMENT OF CORRECTIONS A-3332-08T2

BRADFORD SCOTT v. NEW JERSEY DEPARTMENT OF CORRECTIONS A-3332-08T2 10-13-10

We hold, after a review of regulatory history, that an inmate who has sustained a "permanent loss of contact visits" as the result of committing two or more zero tolerance offenses may apply to the Administrator for reinstatement of such visits after completing all consecutive sanctions imposed.

IN THE MATTER OF THE ADOPTION OF N.J.A.C. 5:96 AND 5:97 BY THE NEW JERSEY COUNCIL ON AFFORDABLE HOUSING A-5382-07T3, ET ALS.

IN THE MATTER OF THE ADOPTION OF N.J.A.C. 5:96 AND 5:97 BY THE NEW JERSEY COUNCIL ON AFFORDABLE HOUSING A-5382-07T3, ET ALS. 10-08-10

COAH's "Growth Share" methodology for allocating the prospective need for affordable housing in the revised third round rules is invalid. Therefore, COAH is ordered to adopt new third round rules that use a methodology for determining prospective need similar to the methodology used in the prior rounds rather than a growth share methodology. The parts of the revised third round rules that authorize bonus credits for rental units that were never built and that do not provide sufficient incentives for the construction of inclusionary developments are also invalid. The other parts of the revised third round rules challenged in these appeals, including those dealing with the calculation and allocation of present need and prior round obligations, are sustained.

SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. V. HUDSONEAST PAIN MANAGEMENT OSTEOPATHIC MEDICINE AND PHYSICAL THERAPY, ET AL. A-0433-09T

SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. V. HUDSONEAST PAIN MANAGEMENT OSTEOPATHIC MEDICINE AND PHYSICAL THERAPY, ET AL. A-0433-09T1 10-07-10

We hold that a private automobile insurer providing PIP coverage is not entitled to declaratory relief compelling expansive discovery from assignee health care providers in its internal investigation of suspected insurance fraud. Neither the PIP statute's limited discovery provision, N.J.S.A. 39:6A- 13(g), nor the cooperation clause of the insurance policies in which medical providers are assigned the rights of the insureds, support the imposition of a corresponding duty on the assignees to produce extensive documentation beyond that authorized in the PIP statute.

We also found no entitlement to the requested information under the umbrella of statutory schemes mandating that insurance carriers investigate putative fraud. Such discovery may be appropriate in an insurer's private cause of action under the Insurance Fraud Protection Act (N.J.S.A. 17:33A-1 to -30), seeking to recover compensatory damages for violations by medical providers of statutes or regulations governing their profession. Here, however, the insurer filed a declaratory judgment action exclusively for the purpose of obtaining information to further its investigation, alleging no violation of governing law and seeking no compensatory damages as a result thereof.

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. C.H. A-4786-08T1

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. C.H.

A-4786-08T1 10-05-10

An ALJ found that a parent's corporal punishment of a four- year-old who reported to a neighbor that there was no electricity in their home was insufficient to sustain an allegation of abuse under N.J.S.A. 9:6-8.21(c). The Director disagreed, finding that given the reason for inflicting the corporal punishment, the fact that the child was struck multiple times, and the parent's history of questionable corporal punishment, the abuse had been substantiated. We affirmed and agreed the Director properly considered the parent's past admitted history of corporal punishment inflicted upon the child.

Saturday, October 30, 2010

SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. V. HUDSONEAST PAIN MANAGEMENT OSTEOPATHIC MEDICINE AND PHYSICAL THERAPY, ET AL. A-0433-09T1

SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. V. HUDSONEAST PAIN MANAGEMENT OSTEOPATHIC MEDICINE AND PHYSICAL THERAPY, ET AL. A-0433-09T1 10-07-10

We hold that a private automobile insurer providing PIP coverage is not entitled to declaratory relief compelling expansive discovery from assignee health care providers in its internal investigation of suspected insurance fraud. Neither the PIP statute's limited discovery provision, N.J.S.A. 39:6A- 13(g), nor the cooperation clause of the insurance policies in which medical providers are assigned the rights of the insureds, support the imposition of a corresponding duty on the assignees to produce extensive documentation beyond that authorized in the PIP statute.

We also found no entitlement to the requested information under the umbrella of statutory schemes mandating that insurance carriers investigate putative fraud. Such discovery may be appropriate in an insurer's private cause of action under the Insurance Fraud Protection Act (N.J.S.A. 17:33A-1 to -30), seeking to recover compensatory damages for violations by medical providers of statutes or regulations governing their profession. Here, however, the insurer filed a declaratory judgment action exclusively for the purpose of obtaining information to further its investigation, alleging no violation of governing law and seeking no compensatory damages as a result thereof.

Raymond Marcinczyk v. State of New Jersey Police Training Commission (A-19-09)

Raymond Marcinczyk v. State of New Jersey Police Training Commission (A-19-09)

The agreement that plaintiff Raymond Marcinczyk was required to sign before attending police academy training, in which he agreed that he would not assert any claims for injuries or other damages sustained as a result of the training, was invalid because it contravened public policy as expressed in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. A public entity cannot condition the provision of a public service on the recipient’s execution of a waiver of liability.

Wednesday, October 6, 2010

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. C.H. A-4786-08T1

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES v. C.H.

A-4786-08T1 10-05-10

An ALJ found that a parent's corporal punishment of a four-

year-old who reported to a neighbor that there was no

electricity in their home was insufficient to sustain an

allegation of abuse under N.J.S.A. 9:6-8.21(c). The Director

disagreed, finding that given the reason for inflicting the

corporal punishment, the fact that the child was struck multiple

times, and the parent's history of questionable corporal

punishment, the abuse had been substantiated. We affirmed and

agreed the Director properly considered the parent's past

admitted history of corporal punishment inflicted upon the

child.

Arthur Andersen, LLP v. Federal Insurance Company, et al. A-2155-08T1

Arthur Andersen, LLP v. Federal Insurance Company, et al.

A-2155-08T1 09-30-10

Although Arthur Andersen, LLP neither owned nor leased any

space at the World Trade Center or the Pentagon on September 11,

2001, it filed a claim with its insurers for $204 million in

business losses, contending that such losses were caused as a

result of the property damage to the WTC and the Pentagon and

covered under the Contingent Business Interruption (CBI) clause

and the Interdependency clause of its policy. The loss claimed

was a generalized revenue shortfall that represented the

difference between expected revenue trends and actual revenue

earned in the three and one-half months that followed the

terrorist attacks. Andersen appealed from orders granting

summary judgment to the insurer. We affirm.

Because Andersen failed to show that its claimed business

loss was caused by damage to property that prevented a client

from accepting its services, its loss was not covered under the

CBI provision of its policy. We also reject Andersen's argument

that it had an "insurable interest" in the World Trade Center

and therefore conclude that its claim was not covered under the

Interdependency provision of the policy.

W.J.A. v. D.A. A-0762-09T3

W.J.A. v. D.A.

A-0762-09T3 09-27-10

In this appeal from the grant of summary judgment

dismissing plaintiff's defamation action, we determine whether

Internet postings by defendant accusing plaintiff of sexually

molesting him and another male are the type of defamatory

statements for which damages may be presumed and therefore do

not require proof of actual harm to reputation. The motion

judge concluded that although the Internet postings were

defamatory per se, the statements were akin to libel rather than

slander, and as such, plaintiff was required to prove actual

injury to reputation, which plaintiff admittedly had not done.

We reversed. Although acknowledging a trend away from the

notion of presumed damages in defamation cases, we concluded

that existing law in this state still remains that actionable without proof of actual harm to reputation.

Melissa Lee v. Carter-Reed Company, L.L.C. (A-38-09)

Melissa Lee v. Carter-Reed Company, L.L.C. (A-38-09) 9-30-10

Based on a review of the record, Melissa Lee’s claims,

Carter Reed’s defenses, and the applicable substantive

law, and in light of the analysis of the predominance,

superiority, and manageability factors of Rule 4:32-

1(b) (3), the trial court mistakenly exercised its

discretion in not certifying the class of New Jersey

Relacore purchasers on Lee’s Consumer Fraud Act claim.

In the Matter of D.C. & D.C., Minors (A-71-09)

In the Matter of D.C. & D.C., Minors (A-71-09) 9-29-10

Under the Child Placement Bill of Rights Act, N.J.S.A.

9:6B-1 to -6, visitation between siblings placed

outside the home is presumed in the period before

adoption, and the Division has an independent

obligation to facilitate visitation. To oppose

visitation, the Division must prove it is contrary to

the child’s welfare under the standards provided in

the Child Placement Bill of Rights Act. After

adoption, adoptive parents are free, within the same

limits as biological parents, to raise their child as

they see fit. Parental autonomy is not absolute,

however. A biological or adoptive family may be

ordered to permit third-party visitation where

necessary to avoid harm to the child.

Saturday, September 25, 2010

BOROUGH OF SAYREVILLE VS. 35 CLUB, L.L.C. ET AL. A-3537-08T

BOROUGH OF SAYREVILLE VS. 35 CLUB, L.L.C. ET AL.

A-3537-08T1 9-17-10

Defendant operated a sexually oriented business featuring

live nude erotic dancing. Applying N.J.S.A. 2C:34-7 and the

licensing requirements of the Borough's local ordinance, the

trial court permanently enjoined defendant from operating this

business at this location. The court also ordered that the

injunction be recorded in the office of the county registrar of

deeds as a restriction on the use of this property in

perpetuity.

Applying the Court's decision in Township of Saddle Brook

v. A.B. Family Center, Inc., 156 N.J. 587 (1999), we reverse.

We also hold that the internet is not a reasonably viable

alternative forum for this constitutionally protected form of

expression. Finally, we disapprove of the trial court's

consideration of Staten Island as an alternative suitable forum

under the test articulated by the Court in Saddle Brook.

Judge Skillman concurs in our decision to reverse and

remand under Saddle Brook, including the rejection of the

internet as an alternative forum, but dissents with respect to

our rejection of Staten Island as an alternative suitable site.

City of Long Branch v. Jui Yung Liu, et al. (A-9-09)

City of Long Branch v. Jui Yung Liu, et al. (A-9-09) 9-21-10

In this eminent domain action, the trial court

properly determined that the expanded dry beach

(previously tidally flowed) that was produced by the

government-funded beach replenishment program fell

within the public trust doctrine and was not the

property of the upland owners, the Lius. Therefore,

the Lius were not entitled to compensation for

property they did not own. In addition, the jury

determination that a reasonably willing purchaser

would not have paid substantially more for the

property with the furnishings, fixtures, and equipment

was not a miscarriage of justice. The Court rejects

the Lius’ contention that they did not receive just

compensation for their property.

Wednesday, September 15, 2010

Gina Stelluti v. Casapenn Enterprises, LLC d/b/a Powerhouse Gym (A-43-09)

Gina Stelluti v. Casapenn Enterprises, LLC d/b/a

Powerhouse Gym (A-43-09)

8-5-10

The Court affirms the judgment of the Appellate

Division, which upheld the dismissal of plaintiff Gina

Stelluti’s negligence claims against defendant

Powerhouse Gym for injuries she sustained on exercise

equipment. It is not contrary to the public interest,

or to a legal duty owed, to enforce the pre-injury

waiver of liability agreement that Stelluti entered

into with Powerhouse Gym, which limited the gym’s

liability for injuries arising from a patron’s

participation in instructed activity and voluntary use

of the gym’s equipment.

Robertet Flavors, Inc. v. Tri-Form Construction, Inc. (A-70/71-08

Robertet Flavors, Inc. v. Tri-Form Construction, Inc.

(A-70/71-08) 8-3-10

Courts confronted with spoliation in commercial

construction litigation should consider the identity

of the spoliator; the manner in which the spoliation

occurred; the prejudice to the non-spoliator and

whether that party bears any responsibility for the

loss of spoliated evidence; and the alternate sources

of information available to the non-spoliator. Courts

should balance all of those considerations in crafting

an appropriate remedy consistent with fundamental

fairness.

US BANK, N.A. V. NIKIA HOUGH, ET AL. A-5623-08T3

US BANK, N.A. V. NIKIA HOUGH, ET AL.

A-5623-08T3 09-14-10

This is a real property foreclosure action. The primary

question presented is whether a commercial lender, which makes a

loan secured by a mortgage on an affordable housing unit in

excess of the amount permitted by N.J.A.C. 5:80-26.8(b), is

prohibited from seeking to foreclose upon the mortgage. We

answered the question in the affirmative, holding that the

mortgage is void pursuant to N.J.A.C. 5:80-26.18(e).

A secondary question raised in the appeal is whether

N.J.A.C. 5:80-26.18(e) also prohibits the lender from seeking to

collect upon the underlying debt instrument. We answered that

question in the negative, holding that the regulation does not

bar the lender from seeking to collect upon the underlying

obligation.

MARY HINTON, ET AL. V. EILEEN D. MEYERS ESTATE OF YAA AYANNAH BOSOMPEM, ET AL. V. EILEEN D. MEYERS, ET AL. A-5700-08T1

MARY HINTON, ET AL. V. EILEEN D. MEYERS

ESTATE OF YAA AYANNAH BOSOMPEM, ET AL. V. EILEEN D.

MEYERS, ET AL.

A-5700-08T1 09-07-10

In this appeal, we consider whether the third element of a

claim for negligent infliction of emotional distress under

Portee v. Jaffee, 82 N.J. 88 (1980), "observation of the death

or injury at the scene of the accident," is satisfied with proof

of knowledge or awareness of death or injury but without

contemporaneous sensory perception. We determined that such

proof does not satisfy the third element and affirmed the trial

court order granting summary judgment dismissing plaintiff's

Portee claim, as well as its order denying plaintiff's motion

for reconsideration.

HAVEN SAVINGS BANK V. KATHLEEN M. ZANOLINI, ET AL. NEW YORK COMMUNITY BANK V. DONIE RAY ANDERSON A-3962-08T1/A-4069-08

HAVEN SAVINGS BANK V. KATHLEEN M. ZANOLINI, ET AL.

NEW YORK COMMUNITY BANK V. DONIE RAY ANDERSON

A-3962-08T1/A-4069-08T1

09-07-10 (consolidated)

Attorney-in-fact Global Discoveries, Ltd., appealed a final

order awarding it fees less than the thirty-five percent fees

specified in contingent-fee agreements with defendants Kathleen

M. Zanolini and Donie Ray Anderson in connection with Global's

efforts to recover excess funds from Sheriff's sales of the

defendants' properties. Because such agreements are governed by

section 106 of the New Jersey Uniform Unclaimed Property Act,

N.J.S.A. 46:30B-1 to -109, we applied N.J.S.A. 46:30B-106 to the

contingent fee agreements. We determined that such agreements

are specifically authorized by that section, which allows

thirty-five percent contingent fees where the agreement is

executed before property has been deemed abandoned and turned

over by the holder to the State Treasurer. We affirmed the

portion of the order respecting fees due from Zanolini's

unclaimed property, because the agreement did not state the

amount of the net recovery to Zanolini as N.J.S.A. 46:30B-106

requires. However, we reversed the order respecting Anderson

because the contingent fee agreement conformed entirely with

N.J.S.A. 46:30B-106 and we remanded the matter to the General

Equity judge for entry of a judgment in favor of Global pursuant

to its contingent fee agreement providing a thirty-five percent

contingent fee.

HUNTERDON MEDICAL CENTER v. READINGTON TOWNSHIP A-4262-08T3

HUNTERDON MEDICAL CENTER v. READINGTON TOWNSHIP

A-4262-08T3

08-31-10

We hold, pursuant to principles articulated by the Supreme

Court in Hunterdon Medical Center v. Township of Readington, 195

N.J. 549 (2008), that Hunterdon Medical Center is entitled to an

exemption, pursuant to N.J.S.A. 54:4-3.6, from local property

taxes imposed on its physical therapy service, operated by the

Medical Center at an off-site facility approximately nine and

one-half miles from the hospital.

MARY L. WALKER V. ROUTE 22 NISSAN, INC. AND CARMELO GIUFFRE, ET AL A-2942-08T2

MARY L. WALKER V. ROUTE 22 NISSAN, INC. AND CARMELO

GIUFFRE, ET AL

A-2942-08T2 08-31-10

This appeal involves a class action filed by plaintiff

under the Consumer Fraud Act (CFA) and the Truth-in-Consumer

Contract, Warranty and Notice Act (TCCWNA). We affirm the

court's decision to decertify the class, to grant summary

judgment finding defendant liable under the CFA and TCCWNA under

plaintiff's remaining personal claims, to award plaintiff

compensatory damages under the CFA, and to impose a civil

penalty on defendant under the TCCWNA.

We reverse the court's award of counsel fees under the CFA

because the court determined the reasonable hourly rate

plaintiff's counsel was entitled to receive based on the judge's

personal experiences. We thus remand for the court to determine

a reasonable hourly rate after making the findings required

under Rendine v. Pantzer, 141 N.J. 292, 337 (1995). We also

reverse the court's decision to enhance plaintiff's counsel's

lodestar by forty-five percent and remand for the court to

reconsider whether a fee enhancement is warranted after applying

the factors identified by the United States Supreme Court in

Perdue v. Kenny A., ____ U.S. ____, 130 S. Ct. 1662, 1669, 176

L. Ed. 2d 494, 501-02 (2010).

MARK TANNEN V. WENDY TANNEN, ET ALS. A-4185T1/4211-07T1

MARK TANNEN V. WENDY TANNEN, ET ALS.

A-4185T1/4211-07T1 08-31-10 (consolidated)

Defendant/wife was the beneficiary of a discretionary

support trust settled by her parents. She and her parents were

the trustees of the trust.

The judge handling the divorce action ordered

plaintiff/husband to name the trust (and other family trusts) as

third-party defendants in the litigation. The trusts

participated in the trial.

At the conclusion of the trial, limited to the financial

issues of alimony, equitable distribution and child support, the

judge imputed income from the trust to defendant, and ordered

the trustees to make a monthly payment to her. He then further

ordered the trust to continue making payments for shelter-

related expenses that it historically had made. The judge then

computed plaintiff's alimony obligation based upon this imputed

income stream.

We concluded that defendant's beneficial interest in the

discretionary support trust was not an asset held by her for

purposes of the alimony statute, and therefore no income should

have been imputed to her. However, we recognized that the

current Restatement (Third) of Trusts, extensively relied upon

by the trial judge, has changed the law, and that pursuant to

its terms, defendant has an enforceable interest in the trust

income. As a court of intermediate appellate jurisdiction, we

refused to apply the terms of the current Restatement, which

have not been adopted in any reported appellate or Supreme Court

opinion in New Jersey.

We also reversed other provisions of the judgment of

divorce regarding computation of the alimony award, the child

support award, and equitable distribution.

Tuesday, September 14, 2010

KENNETH VAN DUNK, SR. and DEBORAH VAN DUNK v. RECKSON ASSOCIATES and JAMES CONSTRUCTION COMPANY, INC. A-3548-08T2

KENNETH VAN DUNK, SR. and DEBORAH VAN DUNK v. RECKSON

ASSOCIATES and JAMES CONSTRUCTION COMPANY, INC.

A-3548-08T2

08-30-10

A single act which an employer knew to be dangerous to an

employee can satisfy the "intentional wrong" exception to the

Workers' Compensation bar, precluding summary judgment, for a

contractor where a supervisor sent an employee into a trench

under construction knowing the risks of danger.

YELLEN V. KASSIN A-5596-08T3

YELLEN V. KASSIN

A-5596-08T3 08-27-10

In this appeal, we held that the evidence did not support a

finding of reciprocal prescriptive easements. In doing so, we

emphasized that the hostility element still requires use of

another's property under a claim of right to an interest in the

property.

CUPIDO V. PEREZ A-4557-08T2

CUPIDO V. PEREZ

A-4557-08T2 08-27-10

The question presented is whether an out-of-state resident

whose automobile is insured by an insurance company, which,

although not authorized to transact either private passenger

automobile or commercial motor vehicle insurance business in

this State, controls affiliate companies that are authorized to

transact commercial motor vehicle business in the State, is

subject to the limitation-on-lawsuit threshold pursuant to

N.J.S.A. 17:28-1.4, commonly referred to as the deemer statute. We answered the question in the affirmative.

CAST ART INDUSTRIES, LLC, ET AL. V. KPMG, LLP A-2479-08T2

CAST ART INDUSTRIES, LLC, ET AL. V. KPMG, LLP

A-2479-08T2 08-26-10

The phrase "at the time of the engagement by the client" in

N.J.S.A. 2A:53-25(b)(2)(a), which set forth one of the

prerequisites under the Accountant Liability Act for imposition

of a duty of care upon an auditor to a non-client, refers to the

entire period from when an accountant is retained to when an

audit report is issued. The evidence in this case satisfied all

the prerequisites of the Act for imposition of a duty of care to

a non-client. The determination of whether misstatements in an

auditor's report are material involves both quantitative and

qualitative considerations. Although an auditing firm's

internal rules may be admissible as evidence of whether

reasonable care was exercised, such internal rules may not be

relied upon to establish a higher standard of care than the

common law standard of reasonable care under all the

circumstances. If the evidence supports a finding that

accounting malpractice was a substantial factor in the

destruction of the business of a party entitled to rely upon an

auditor's report, the value of the destroyed business may be an

appropriate measure of damages.

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS THROUGH CERTIFICATES, 2006-EQ1 v. MARK M.

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE

STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS

THROUGH CERTIFICATES, 2006-EQ1 v. MARK M. WILLIAMS and

MRS. MARK M. WILLIAMS and STATE OF NEW JERSEY

A-6185-08T2 08-25-10

In our opinion, we examined the provisions of the

Judiciary's newly enacted residential mortgage Foreclosure

Mediation Program (FMP). We considered whether a mortgagor, who

was unrepresented and unassisted by a housing counselor during

the mediation session, was entitled to an extension of the

period of redemption.

MICHAEL B. FRANCOIS v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM A-0687-08T2

MICHAEL B. FRANCOIS v. BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM

A-0687-08T2 08-23-10

Petitioner who was on "mobility assignment" from the New

Jersey Economic Development Authority (EDA) to the Port

Authority of New York and New Jersey (PA) from May 2003 to

December 2005 and who was paid by the EDA while the EDA was

being reimbursed by the PA for petitioner's salary and benefits,

and while petitioner was doing work beneficial to the State of

New Jersey, was entitled to PERS pension service credits for the

period of assignment notwithstanding his resignation at age

fifty-five when he could take an early retirement without

penalty and acceptance of the same job as a Port Authority

employee at that time. His employer's failure to follow the

technical requirements and prerequisites for the assignment

cannot prejudice the petitioner who relied on the benefits.

However, petitioner is not entitled to the salary credits

received while at the PA to the ewould have earned with the EDA.

BONNIE ANDERSON, ET AL. VS. A.J. FRIEDMAN SUPPLY CO., INC., ET AL. VS. GOODYEAR TIRE AND RUBBER COMPANY, ET AL. A-5892-07T1

BONNIE ANDERSON, ET AL. VS. A.J. FRIEDMAN SUPPLY CO.,

INC., ET AL. VS. GOODYEAR TIRE AND RUBBER COMPANY,

ET AL.

A-5892-07T1 08-20-10

In this asbestos litigation, plaintiffs Bonnie and John R.

Anderson, husband and wife, alleged that Bonnie contracted

mesothelioma from either one or both of two exposures to

asbestos at the refinery owned by defendant Exxon Mobil

Corporation. The first was bystander exposure from laundering

John's asbestos-laden work clothes during his employment with

Exxon from 1969 to 2003. The second was direct exposure during

Bonnie's employment with Exxon from 1974 to 1986.

Exxon appeals from a judgment in favor of plaintiffs,

awarding $7 million to Bonnie and $500,000 per quod to John.

Exxon contends, among other arguments, that the action was

barred by the exclusive remedy provisions of the Workers'

Compensation Act (WCA), N.J.S.A. 34:15-1 to -69.3. We reject

that argument as it pertains to the bystander exposure. We hold

that Exxon owed a duty to Bonnie (as a member of John's

household) to exercise reasonable care to provide a workplace

free of asbestos, which could cause bystander exposure to the

household members of its employees.

We also hold that pursuant to the dual persona doctrine,

Bonnie could recover in tort if she could prove that (1) her

mesothelioma was caused from exposures while she was not

employed by Exxon, or (2) Bonnie's bystander exposure was the

substantial cause of her mesothelioma.

KORAL MOORE V. WOMAN TO WOMAN OBSTETRICS & GYNECOLOGY A-0953-09T1

KORAL MOORE V. WOMAN TO WOMAN OBSTETRICS & GYNECOLOGY

A-0953-09T1 08-18-10

Plaintiffs, an infant and the child's parents, filed a

complaint alleging medical malpractice and seeking damages for

wrongful birth and life. This is an appeal from orders

compelling arbitration of all three plaintiffs' claims against a

defendant doctor and his practice group, which rendered care to

the mother during her pregnancy. We conclude that agreements to

arbitrate pre-dispute medical malpractice claims are not

unenforceable as a matter of law, and provide direction for the

reconsideration of plaintiffs' claim that this contract of

adhesion requiring arbitration is unenforceable under the

circumstances present in this case.