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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.