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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.