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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.

MARY E. CAIN AND JAMES D. CAIN V. MERCK & CO., INC. f/k/a SCHERING-PLOUGH CORPORATION A-2138-08T2

MARY E. CAIN AND JAMES D. CAIN V. MERCK & CO., INC.

f/k/a SCHERING-PLOUGH CORPORATION

A-2138-08T2 08-17-10

We construe N.J.S.A. 14A:5-28(4) of the New Jersey Business

Corporate Act as allowing shareholders with a proper purpose to

inspect the minutes of the board of directors and executive

committee. However, this right of inspection is limited to

those portions of the minutes that are pertinent to the

shareholder's proper purpose and should not be confused with a

discovery order. Further, unsubstantiated allegations of

mismanagement do not constitute a proper purpose; rather, a

shareholder who asserts investigation of mismanagement as a

proper purpose must come forward with specific, supported and

credible allegations of mismanagement in order to be entitled to

the inspection.

JACQUELINE BETANCOURT V. TRINITAS HOSPITAL A-3849-08T2

JACQUELINE BETANCOURT V. TRINITAS HOSPITAL

A-3849-08T2 08-13-10

Although this appeal raises a significant issue regarding

the conflict between a patient and healthcare providers

regarding the continuation of medical treatment where the

patient is in a persistent vegetative state, we grant

plaintiff's motion to dismiss the appeal as moot. We conclude

that the following factors support such dismissal: 1) the

patient is deceased and the results of this appeal will not

affect his rights; 2) there is a dispute between the parties as

to the decedent's condition at the time medical treatment was

withdrawn; 3) the record is inadequate to address the issues in

dispute; 4) the prospect of a malpractice action by plaintiff

against the healthcare providers, as well as the substantial

outstanding medical bills, create issues that are unlikely to

reoccur.

ESTATE OF ANNA RUSZALA BY MARIE MIZERAK, (Executrix) V. BROOKDALE LIVING COMMUNITIES, ET AL. IDA AZZARO, As Proposed Administrator Ad Prosequendum

ESTATE OF ANNA RUSZALA BY MARIE MIZERAK, (Executrix)

V. BROOKDALE LIVING COMMUNITIES, ET AL.

IDA AZZARO, As Proposed Administrator Ad Prosequendum

for the Estate of Pasquale Azzaro V. BROOKDALE LIVING

COMMUNITIES, ET AL.

A-4403-08T1/A-4404-08T1 08-10-10 (consolidated)

In these consolidated appeals we must decide whether § 2 of

the Federal Arbitration Act (FAA), 9 U.S.C.A. § 2, preempts the

public policy expressed in N.J.S.A. 30:13-8.1. We reverse the

court's finding that the FAA is inapplicable. We affirm,

however, the trial court's determination that these residency

agreements were contracts of adhesion. Under the doctrine of

substantive unconscionability, we strike as unenforceable the

provisions in the arbitration clause that restrict discovery,

limit compensation for non-economic damages, and outright

preclude punitive damages. Finally, we remand the Azzaro matter

to the trial court to determine whether a valid contract was

formed between the parties.

08-09-10 WILLIAM HAMMER v. DOUGLAS W. THOMAS, ET AL. PROFORMANCE INSURANCE CO. v. NEW JERSEY MANUFACTURERS INS. CO., ET AL. A-0209-08T2/A-07

WILLIAM HAMMER v. DOUGLAS W. THOMAS, ET AL.

PROFORMANCE INSURANCE CO. v. NEW JERSEY MANUFACTURERS

INS. CO., ET AL.

A-0209-08T2/A-0742-08T2 08-09-10 (consolidated)

In this declaratory judgment action instituted by the

injured motorist's UM carrier, we affirm the trial court's grant

of summary judgment in favor of the tortfeasor's automobile

insurance provider who declined coverage based on the policy

exclusion for any insured "[w]ho intentionally causes bodily

injury or property damage." We hold that the policy was not

ambiguous and that the standard to be applied is that set forth

in Voorhees v. Preferred Mutual Insurance Co., 128 N.J. 165

(1992) and its progeny relating to automobile, homeowners and

related liability policies, and not that set forth in the

workers' compensation case of Charles Beseler Co. v. O'Gorman &

Young, Inc., 188 N.J. 542 (2006).

I/M/O XANADU PROJECT AT THE MEADOWLANDS COMPLEX; APPLICATION OF BENIHANA MEADOWLANDS CORPORATION FOR A SPECIAL CONCESSIONAIRE PERMIT A-2702

I/M/O XANADU PROJECT AT THE MEADOWLANDS COMPLEX;

APPLICATION OF BENIHANA MEADOWLANDS CORPORATION FOR A

SPECIAL CONCESSIONAIRE PERMIT

A-2702-08T2 08-06-10

We conclude that the Director of the Division of Alcoholic

Beverage Control properly concluded that: (1) the State or its

political subdivision entered into a contract with the applicant

Benihana Meadowlands Corp. authorizing the sale of alcoholic

beverages on the property; (2) the property, Xanadu, on which

the sale will take place is State property; and (3) Benihana is

fit to serve alcoholic beverages. N.J.A.C. 13:2-5.2. We affirm

the final decision of the Director and ABC.

DYFS v. I.H.C. and D.C. A-2208-09T

DYFS v. I.H.C. and D.C.

A-2208-09T4 08-05-10

In this abuse or neglect case, we hold that N.J.R.E. 404(b)

did not bar consideration of the father's acts of domestic

violence against his ex-wife and the children of that marriage

about seven years earlier to prove risk of harm to the children

of this marriage. We also hold that domestic violence that

presents risk to children in an abuse or neglect case can be

broader than the meaning of that term under the Prevention of

Domestic Violence Act. As testified by the experts, the

father's coercive control of the mother, together with both

parents' denial of and failure to treat their psychological

conditions, posed a risk of harm to the children. In reaching

these holdings, we address and distinguish DYFS v. H.B., 375

N.J. Super. 148 (App. Div. 2005), and DYFS v. S.S., 372 N.J.

Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

JEFFREY LIPKOWITZ, M.D., ET AL. V. HAMILTON SURGERY CENTER, LLC, ET AL. A-4489-08T1

JEFFREY LIPKOWITZ, M.D., ET AL. V. HAMILTON SURGERY

CENTER, LLC, ET AL.

A-4489-08T1 08-04-10

In this appeal we construe the term "financial detriment"

as found in the New Jersey Uniform Securities Law (USL),

N.J.S.A. 49:3-47 to -76, which requires that claimants prove

that they suffered a "financial detriment." N.J.S.A. 49:3-71

(b)(1). We hold that the USL indicates a legislative intent to

place investors in the same position they were in before making

the investments, not a preference of giving them the benefit of

their bargains.

PARIS WILSON, ET AL. V. CITY OF JERSEY CITY, ET AL. A-4044-08T2

PARIS WILSON, ET AL. V. CITY OF JERSEY CITY, ET AL.

A-4044-08T2 08-04-10

Plaintiffs are the victims of a brutal assault that

occurred in their Jersey City home. They seek remedies from

certain public employees and employers for several putative

failures to rescue in a timely fashion. In particular,

plaintiffs allege that negligence by 9-1-1 call takers, a

dispatcher, and police officers resulted in death and serious

injury that could have been avoided. The governmental agents

and agencies claim immunity pursuant to the Tort Claims Act and

N.J.S.A. 52:17C-10(e).

We affirm in part and reverse in part the Law Division,

which had found immunity in favor of the public employees and

entities. We reject the argument that N.J.S.A. 52:17C-10(e)

provides blanket immunity for 9-1-1 call takers and others

connected with public safety answering points.

MMU OF NEW YORK, INC., As Assignee of 200 OCEAN BOULEVARD ASSOCS., L.P. V. GRIESER A-2484-08T3

MMU OF NEW YORK, INC., As Assignee of 200 OCEAN

BOULEVARD ASSOCS., L.P. V. GRIESER

A-2484-08T3 08-04-10

A court has inherent equitable authority, even in the

absence of express statutory authorization, to allow a credit to

a judgment debtor for the fair market value of the debtor's

property that is executed upon and then purchased by a judgment

creditor at a sheriff's sale for a nominal amount.

SHANA FAITH MASSACHI, as Administratrix and Administratrix Ad Prosequendum of the Estate of Sohayla Massachi, deceased v. CITY OF NEWARK

SHANA FAITH MASSACHI, as Administratrix and

Administratrix Ad Prosequendum of the Estate of

Sohayla Massachi, deceased v. CITY OF NEWARK POLICE

DEPARTMENT

A-5252-07T1

08-04-10

We decide a question left unresolved in our prior opinion

in this case, Massachi v. AHL Services, Inc., 396 N.J. Super.

486, 508 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008),

and now decide that N.J.S.A. 52:17C-10, commonly known

as the 9-1-1 immunity statute, does not provide immunity to a

public entity's emergency communications center for its

employees' bungled response to a call for emergency police

assistance. Their negligent mishandling of the call, and

failure to properly dispatch police, contributed to the murder

of a young woman by her former boyfriend.

TOM JUZWIAK V. JOHN/JANE DOE A-2302-09T2

TOM JUZWIAK V. JOHN/JANE DOE

A-2302-09T2

08-03-10

Plaintiff sued for intentional infliction of emotional

distress and harassment following the receipt of three e-mails

and served a subpoena on Yahoo! to learn the true identity of

the author. "John Doe" moved to quash the subpoena. We

reversed the trial court's order denying "John Doe's" motion.

NEW JERSEY ASSOCIATION OF SCHOOL ADMINISTRATORS v. BRET SCHUNDLER, Commissioner of Education of the State of New Jersey A-2101-08T2

NEW JERSEY ASSOCIATION OF SCHOOL ADMINISTRATORS v.

BRET SCHUNDLER, Commissioner of Education of the State

of New Jersey

A-2101-08T2 08-03-10

Plaintiffs challenge regulations adopted by the

Commissioner of Education in 2008 entitled "Fiscal

Accountability, Efficiency and Budgeting Procedures," N.J.A.C.

6A:23A-1.2 to -22.15. We reject the argument that the

regulations are an impermissible taking, unconstitutionally

vague, a violation of equal protection and ultra vires. We

agree, however, as opposed to N.J. Ass'n v. Davy, 409 N.J.

Super. 467 (App. Div. 2009), that certain of the regulations

violate the tenure statute, N.J.S.A. 18A:28-5, and are thus

invalid.

Judge Grall concurs in part and dissents in part.

MELODY CURZI VS. RAYMOND L. RAUB, III, ET AL. DENNIS LOSCO, ET AL. VS. RAYMOND L. RAUB, III, ET AL. RAYMOND L. RAUB, III, ET AL. VS. MELODY CURZ

MELODY CURZI VS. RAYMOND L. RAUB, III, ET AL.

DENNIS LOSCO, ET AL. VS. RAYMOND L. RAUB, III, ET AL.

RAYMOND L. RAUB, III, ET AL. VS. MELODY CURZI, ET AL.

A-5380-06T1 07-30-10

Under the Right to Farm Act, N.J.S.A. 4:1C-1 to -10.4, the

county agriculture development board, not the Superior Court,

had jurisdiction over plaintiff's private nuisance claims

against a farmer for placing box trailers end-to-end along their

property lines because under all of the circumstances, it was

reasonably debatable that the conduct constituted an acceptable

agricultural practice.

DANIEL REICH, D.M.D. V. BOROUGH OF FORT LEE ZONING BOARD OF ADJUSTMENT, ET AL. A-1677-08T1

DANIEL REICH, D.M.D. V. BOROUGH OF FORT LEE ZONING

BOARD OF ADJUSTMENT, ET AL.

A-1677-08T1 07-29-10

In this action in lieu of prerogative writs, plaintiff

periodontist appeals from an order of the Law Division affirming

the Zoning Board's decision interpreting the simultaneous

occupation of the dental office by him and the existing

endodontist to be an expansion of the nonconforming use, and

denying plaintiff's variance application. The court found the

Board did not act arbitrarily, dismissed with prejudice

plaintiff's complaint, and entered judgment in favor of the

Board.

We reverse. The record does not support the Board's

finding that there was an expansion of the nonconforming use or,

even assuming otherwise, that plaintiff failed to meet the

positive and negative criteria for variance relief.

JAMES GANNON, ET AL. V. AMERICAN HOME PRODUCTS, INC. ET ALS. A-3936-07T2

JAMES GANNON, ET AL. V. AMERICAN HOME PRODUCTS, INC.

ET ALS.

A-3936-07T2 07-29-10

Defendants were granted summary judgment in this products

liability vaccine case involving Orimune, an oral polio vaccine

administered to plaintiff in the 1970's. See Rivard v. Am. Home

Prods., Inc., 391 N.J. Super. 129 (App. Div. 2007) (in which we

detailed the history of the development of Orimune and affirmed

the denial of summary judgment on the causation issue).

Plaintiff had also filed suit against the United States in

federal district court, alleging negligence by the government in

the screening of Orimune and in insuring regulatory compliance.

That suit resulted in judgment in favor of the United States,

the judge determining that plaintiff had failed to prove Orimune

caused cancer in humans.

Defendants sought summary judgment on two fronts: they

alleged plaintiff had failed to adequately identify their

particular vaccine as the one he received; and, they

supplemented their initial motion with a copy of the district

court's opinion and argued that plaintiff was precluded from

proving causation in this case. The judge granted summary

judgment for both reasons.

We reversed. On the product identification issue, we

concluded the judge had misapplied the Brill standard, and that

plaintiff had raised a genuine factual dispute that precluded

summary judgment. On the collateral estoppel issue, we

discussed several exceptions to the rigid application of the

doctrine, and, under the circumstances of this case and given

the lack of any motion record on the issue, we concluded that it

was inappropriate to grant summary judgment on this ground.

WELLS REIT II - 80 PARK PLAZA, LLC v. DIRECTOR, DIVISION OF TAXATION // CHICAGO FIVE PORTFOLIO, LLC v. DIRECTOR, DIVISION OF TAXATION A-5276-07T

WELLS REIT II - 80 PARK PLAZA, LLC v. DIRECTOR,

DIVISION OF TAXATION // CHICAGO FIVE PORTFOLIO, LLC v.

DIRECTOR, DIVISION OF TAXATION

A-5276-07T3; A-3381-08T3 07-28-10

In this opinion, we address conflicting Tax Court decisions

regarding a 2006 legislative amendment (L. 2006, c. 33) to New

Jersey's realty transfer fee on property purchases over

$1,000,000, also known as the "Mansion Tax," N.J.S.A. 46:15-7.2.

This amendment, codified as N.J.S.A. 46:15-7.4, provides a

refund of the Mansion Tax to contracts for commercial properties

that were "fully executed before July 1, 2006," provided that

the deed was transferred on or before November 15, 2006. Two

published Tax Court opinions, Wells Reit II-80 Park Plaza, LLC

v. Director, Div. of Taxation, 24 N.J. Tax 98 (2008), and

Chicago Five Portfolio, LLC v. Div. of Taxation, 24 N.J. Tax 342

(2008), came to different interpretations of the phrase "fully

executed before July 1, 2006."

We hold that: (1) N.J.S.A. 46:15-7.4 is not an "exemption"

from the Mansion Tax, but rather a refund provision; (2) as

such, the section should be construed in favor of the taxpayer;

and (3) the plain meaning and common usage of the phrase "fully

executed before July 1, 2006," means a real estate contract that

is signed and binding upon the parties before July 1, 2006,

whether or not there are subsequent amendments to the terms.

Thus, we affirm Chicago Five Portfolio, LLC v. Div. of Taxation

and reverse Wells Reit II-80 Park Plaza, LLC v. Director of

Taxation.

IN THE MATTER OF THE SUSPENSION OF THE TEACHING CERTIFICATE OF MELISSA VAN PELT, GRAY CHARTER SCHOOL, NEWARK, ESSEX COUNTY A-5889-08T2

IN THE MATTER OF THE SUSPENSION OF THE TEACHING

CERTIFICATE OF MELISSA VAN PELT, GRAY CHARTER SCHOOL,

NEWARK, ESSEX COUNTY

A-5889-08T2 07-27-10

We affirmed the Commissioner of Education's decision

suspending appellant's teaching certificate for one year after

appellant resigned her teaching position at a charter school

immediately prior to commencement of the school term, in

violation of the terms of her employment agreement. In so

doing, we affirmed the Commissioner's determination that

N.J.S.A. 18A:26-10, which governs the suspension of a teacher's

certificate for wrongfully ceasing to perform his or her duties,

and N.J.S.A. 18A:28-8, which requires tenured teachers to give

sixty days written notice of their intention to resign from a

teaching position, equally apply to teaching staff members of

charter schools as to teaching staff members of public schools.

S.D. v. M.J.R. A-6107-08T2

S.D. v. M.J.R.

A-6107-08T2 07-23-10

In this action pursuant to the Prevention of Domestic

Violence Act (PDVA), we held that the Free Exercise Clause of

the First Amendment does not require a Family Part judge to

exempt defendant, a practicing Muslim, from a finding that he

committed the predicate acts of sexual assault and criminal

sexual contact and thus violated the PDVA. We also found that

the judge was mistaken in failing to enter a final restraining

order in the matter.

CORNETT V. JOHNSON & JOHNSON, ET AL. A-4694-08T1/A-5539-08T1

CORNETT V. JOHNSON & JOHNSON, ET AL.

A-4694-08T1/A-5539-08T1 07-23-10 (consolidated)

At issue is whether state law claims against a manufacturer

of a medical device that has been given premarket approval by

the U.S. Food & Drug Administration (FDA) are federally

preempted as well as time-barred.

We affirm in part and reverse in part the Law Division's

Rule 4:6-2(e) dismissal of plaintiffs' master complaint alleging

strict product liability, breach of express and implied

warranty, and derivative claims for alleged defects in

defendant's Cypher coronary stent as federally preempted by the

Medical Device Amendments of 1976 (MDA or Act), 21 U.S.C.A.

§§360c-360m, to the Food, Drug, and Cosmetic Act (FDCA), 21

U.S.C.A. §§301-399. Although the MDA contains an express

preemption provision against state standards for devices that

would be stricter than the requirements applicable to such

devices under the Act, it preempts only state claims that apply

substantive standards of liability different from the device-

specific federal requirements. Therefore, a state cause of

action is not preempted where it imposes only requirements that

are "parallel," rather than additional, to the existing federal

requirements under the MDA and FDCA. Additionally, a state

claim can be impliedly preempted if it could not be articulated

but for the existence of a federal requirement that was

allegedly violated.

Here, claims under New Jersey's Product Liability Act,

N.J.S.A. 2A:58C-1 to -11 (PLA), for design defect, punitive

damages and failure to warn based solely on the product's

labeling, are federally preempted as they impose different

requirements than the FDA. However, the remainder of their

failure to warn claims concerning both approved and off-label

uses, as well as their claims for manufacturing defect and

breach of express warranty, and derivative claims, as pled, are

parallel to and are not expressly or impliedly preempted by the

MDA.

Additionally, we affirm the Law Division's dismissal of one

of plaintiffs' 48 cases, as it correctly applied Kentucky's

statute of limitations, rather than New Jersey's, under

applicable choice of law principles. In any event, Cornett's

case was time-barred under either statute of repose since,

pursuant to this State's equitable discovery rule, a consensus

of the medical community is not required and, under these facts,

a lay person could have reasonably suspected a possible

connection between the stent and decedent's sub acute stent

thrombosis that developed five months after the Cypher's

implantation and eventually lead to his death just weeks later.