Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Monday, March 21, 2011

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. VS. OFRA DIMANT, ET AL. A-3180-09T2

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET

AL. VS. OFRA DIMANT, ET AL.

A-3180-09T2

We uphold the dismissal with prejudice of the DEP's lawsuit

seeking to hold a dry cleaning establishment responsible for

groundwater contamination on neighboring property. Spill Act

strict liability requires proof of some nexus between use or

discharge of a hazardous substance and its contamination of the

surrounding area. In other words, there must be some resultant

damage from the discharge that triggers the need for

remediation. In this case, the DEP failed to prove that any

discharge from defendant's operation of PCE, a volatile organic

compound that evaporates quickly when exposed to air, interacted

with the environment to cause injury necessitating the

incurrence of regulatory response costs. 03-18-11

PASCACK COMMUNITY BANK VS. UNIVERSAL FUNDING, LLP UNIVERSAL FUNDING, LLP VS. ANTHONY E NESTICO A-2501-09T3

PASCACK COMMUNITY BANK VS. UNIVERSAL FUNDING, LLP

UNIVERSAL FUNDING, LLP VS. ANTHONY E NESTICO

A-2501-09T3

This case presents the competing interests of two secured

creditors - a factoring company and a bank that issued a line of

credit - in the accounts receivable of a debtor. After the

debtor defaulted, the bank sought to collect the amount due and

owing to it on the letter of credit from the factoring company,

arguing that the factoring company collected proceeds of the

accounts receivable after the bank had perfected its security

interest. The trial court granted summary judgment to the bank

and entered judgment against the factoring company for the full

amount due. We reverse because the competent evidence was

insufficient to support an award of summary judgment to the

bank. In addition, a review of the facts in light of the

perfection and priority rules of the Uniform Commercial Code

reveals the existence of genuine issues of fact. 03-17-11

Thursday, March 17, 2011

RAB Performance Recoveries, L.L.C. v. AMINATA GEORGE A-2849-09T1

RAB Performance Recoveries, L.L.C. v. AMINATA GEORGE A-2849-09T1

In a case arising under the Door-to-Door Retail Installment Sales Act of 1968 (DDRISA), N.J.S.A. 17:16C-61.1 to -61.9, we held that where a seller subject to DDRISA failed to give abuyer the required written notice as to how the buyer could cancel the contract, the buyer's prompt telephone notice of her decision to cancel the contract was effective under the statute. 3-15-11

RAB Performance Recoveries, L.L.C. v. AMINATA GEORGE A-2849-09T1

RAB Performance Recoveries, L.L.C. v. AMINATA GEORGE A-2849-09T1

In a case arising under the Door-to-Door Retail Installment Sales Act of 1968 (DDRISA), N.J.S.A. 17:16C-61.1 to -61.9, we held that where a seller subject to DDRISA failed to give abuyer the required written notice as to how the buyer could cancel the contract, the buyer's prompt telephone notice of her decision to cancel the contract was effective under the statute. 3-15-11

PAULINE JENNINGS v. THE BOROUGHOF HIGLANDS, ET AL. A-0941-09T1

PAULINE JENNINGS v. THE BOROUGHOF HIGLANDS, ET AL. A-0941-09T1

Harmonization of the Municipal Land Use Law with the Condominium Act invests a condominium association, not individual condominium unit owners, with the right to participate in a zoning protest petition pursuant to N.J.S.A. 40:55D-63. Also, the obligation of a governing body to review a report of a planning board pursuant to N.J.S.A. 40:55D-26(a) requires, at minimum, an acknowledgment on the record that the report was reviewed. 3-14-11

TOWNSHIP OF WHITE v. CASTLE RIDGE DEVELOPMENT CORPORATION A-2790-09T3

TOWNSHIP OF WHITE v. CASTLE RIDGE DEVELOPMENT CORPORATION

A-2790-09T3

We interpret a provision in a developer's agreement to impose a maintenance obligation, including snow and ice removal, on the developer for a development roadway not yet dedicated to or accepted by the township.

We also reject the developer's argument that such a provision is void for public policy because the township is collecting property tax revenue on the completed houses in the development. Prior to accepting dedication of the road pursuant to a municipality's zoning ordinance, and unless a "private community" is involved, N.J.S.A. 40:67-23.3, the road remains the private property of the developer and the township has no responsibility for the maintenance of private property. 3-11-11

NICHOLAS SAFFOS v. AVAYA INC., ET AL. A-3189-08T2

NICHOLAS SAFFOS v. AVAYA INC., ET AL. A-3189-08T2

Defendants urged that the trial judge erred by refusing to vacate the jury's punitive-damage award or, alternatively, by failing to remit that amount to a sum equal to the compensatory damages. Plaintiff cross-appealed the remittitur of the punitive-damage award to five times the compensatory award. We found no abuse of discretion in the remittitur of the $10 million punitive-damage award or the use of a multiplier of five times the compensatory damages as allowed by the Law Against Discrimination (LAD), N.J.S.A. 10:5-3, and the Punitive Damages Act (PDA), N.J.S.A. 2A:15-5.14(b). However, we concluded thatthe award of $250,000 for emotional distress damages should be excluded from the multiplier on substantive due process grounds because plaintiff suffered no physical consequences from the distress caused by the discrimination and the loss of his job and did not seek medical or psychological treatment, creating the inference that the large award for emotional-distress damages contained some punitive component, as recognized by the United States Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S. Ct. 1513, 1525, 155 L. Ed. 2d 585, 606-07 (2003).

With respect to the award of attorney's fees, we excluded hours from the lodestar that were devoted to an unsuccessful motion to bar defense counsel from representing Avaya because the hours were not a productive use of time, Rendine v. Pantzer, 141 N.J. 292, 335 (1995), but otherwise affirmed the amount of the lodestar. Finally, we determined that plaintiff's counsel was not entitled to a contingency-fee enhancement because counsel's retainer agreement provided for an hourly fee of $325 plus a 100% fee enhancement, or one-third of the amount recovered, whichever was higher. In this case, the alternative fees provided by the retainer agreement in excess of the lodestar make an additional twenty-five-percent contingency-fee enhancement inconsistent with the purposes served by such enhancements under Rendine. 3-08-11

ESTATE OF NAITIL DESIR, ET AL. v. JEAN ROBERT VERTUS, ET AL. VS. EARL EASTERLING, ET AL. A-2132-09T2

ESTATE OF NAITIL DESIR, ET AL. v. JEAN ROBERT VERTUS, ET AL. VS. EARL EASTERLING, ET AL.

A-2132-09T2

In this negligence action, we hold that one who has reason to believe that an intruder on his premises poses a danger to others owes a duty of reasonable care to a friend whom he brings to the danger by a request for assistance. 3-07-11

JOSEPH VAS v. JOSEPH J. ROBERTS, JR., ETC. A-0399-09T3

JOSEPH VAS v. JOSEPH J. ROBERTS, JR., ETC. A-0399-09T3

Speaker of the New Jersey General Assembly suspended a member's salary and benefits while still holding office but following his indictment for crimes of public corruption. The Assemblyman filed this direct appeal, arguing that the Speaker's unilateral action in withholding a member's constitutionally- guaranteed salary was not legally authorized and therefore ultra vires.We hold that although the Speaker's action was not a final decision of a "state administrative officer" within the meaning of Rule 2:2-3(a)(2), and therefore should have been brought in the Law Division as an action in lieu of prerogative writs (mandamus) pursuant to Rule 4:69-1, we nevertheless elect to exercise our original jurisdiction, Rule 2:10-5, to address a strictly legal issue of general public interest and to avoid further litigation. On the merits, we conclude that the Speaker's unilateral action was without any constitutional or statutory authority and clearly contravened the Assembly's own internal rules for disciplining its members. 3-04-11

MID-ATLANTIC SOLAR ENERGY INDUSTRIES ASSOC. v. CHRIS CHRISTIE, GOVERNOR OF THE STATE OF NEW JERSEY A-3374-09T4

MID-ATLANTIC SOLAR ENERGY INDUSTRIES ASSOC. v. CHRIS CHRISTIE, GOVERNOR OF THE STATE OF NEW JERSEY A-3374-09T4

IN RE COMPREHENSIVE ENERGY EFFICIENCY AND RENEWABLE ENERGY RESOURCE ANALYSIS FOR 2009-2012, REVISED 2010 BUDGETS A-4047-09T4

IN RE COMPREHENSIVE ENERGY EFFICIENCY AND RENEWABLE ENERGY RESOURCE ANALYSIS FOR 2009-2012, REVISED 2010 BUDGETS (SECOND REVISION)

A-5948-09T4

IN RE P.L. 2010, CH. 19, APPLICATION OF CLEAN ENERGY FUNDS TO GENERAL FUND FOR FISCAL YEAR 2010 A-5949-09T4

The Legislature has authority through enactment of an Appropriations Act to supersede the provisions of the Electric Discount and Energy Competition Act that limit the uses of money collected under the social benefits charge to the purposes set forth in that Act and instead transfer a portion of the money into the General Fund. 3-04-11

STATE OF NEW JERSEY v. BOYCE SINGLETON, JR. A-1782-08T4

KATHLEEN JONES, ET AL. v. GEORGE W. HAYMAN, ET AL. A-3173-09T3

KATHLEEN JONES, ET AL. v. GEORGE W. HAYMAN, ET AL. A-3173-09T3

In this appeal, we consider under what circumstances a plaintiff, who brings an action pursuant to statutes containing fee-shifting provisions, may be deemed a prevailing party under the catalyst theory when the underlying action is dismissed as moot without a final judicial determination on the merits of the case. Under Mason v. City of Hoboken, 196 N.J. 51, 70-79 (2008), and as more recently reaffirmed and explained in our opinion in D. Russo, Inc. v. Township of Union, 417 N.J. Super. 384 (App. Div. 2010), in order to be awarded counsel fees under the catalyst theory, a plaintiff must demonstrate (1) a factual causal nexus between the litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiff had a basis in law.

The trial court erred by accepting at face value the factual allegations and legal positions advanced by defendants in their certifications, without affording plaintiffs the opportunity to challenge the veracity of the allegations proffered in an evidentiary hearing. The "basis in law" prong should be construed as providing a check against groundless orharassing litigation, and in a manner that promotes the public policy underpinning fee-shifting statutes. 02-25-11

IN RE ADOPTION OF REGIONAL AFFORDABLE HOUSING DEVELOPMENT PROGRAM GUIDELINES BY THE COUNCIL ON AFFORDABLE HOUSING A-0970-09T3

IN RE ADOPTION OF REGIONAL AFFORDABLE HOUSING DEVELOPMENT PROGRAM GUIDELINES BY THE COUNCIL ON AFFORDABLE HOUSING A-0970-09T3 2-24-11

An agency pronouncement may be a "statement of general applicability and continuing effect that implements or interprets law or policy," and therefore must be adopted in conformity with the rule-making procedures of the APA, even though it is not binding upon regulated parties. The Regional Affordable Housing Development Guidelines adopted by COAH to prescribe standards and conditions for regional planning, under which a municipality subject to the jurisdiction of a regional planning entity may transfer up to 50% of its affordable housing obligation to another municipality in the region, are administrative rules that should have been adopted under the APA's rule-making procedures.

YA GLOBAL INVESTMENTS, L.P. v. JULIANN HACKETT CLIFF, ET AL. A-3033-09T2

YA GLOBAL INVESTMENTS, L.P. v. JULIANN HACKETT CLIFF, ET AL.

A-3033-09T2 02-23-11

The trial judge correctly ruled as a matter of law that defendants, New York State residents with no contacts with New Jersey, were not parties to a contract signed by plaintiff and Seaway Valley Capital Corporation and thus were not bound by the contract's forum selection clause agreeing to suit in Hudson County, New Jersey. Discovery was not necessary to resolve the legal issue.

IN THE MATTER OF THE PARENTAGE OF A CHILD BY T.J.S. AND A.L.S. A-4784-09T4

IN THE MATTER OF THE PARENTAGE OF A CHILD BY T.J.S. AND A.L.S.

A-4784-09T4 2-23-11

We hold that the provisions of the Parentage Act, N.J.S.A. 9:17-39 to -59, conferring paternity upon a husband either presumptively, where the child is born to the wife during marriage, N.J.S.A. 9:17-43(a), or by operation of law, where the wife is artificially inseminated with donor sperm, N.J.S.A. 9:17-44, do not extend to automatically confer maternity on an infertile wife whose husband has a child via in vitro fertilization of a gestational carrier. Sections 43(a) and 44 do not offend constitutional principles of equal protection because their different treatment of infertile married men and women is grounded in real physiological differences between the sexes and is necessary to protect the interests of the gestational carrier. Absent legislative reform, the infertile wife's sole means of obtaining parentage to her husband's child remains through adoption.

FRANCIS J. McGOVERN, JR., ESQ v. RUTGERS, ET AL. A-2531-09T1

FRANCIS J. McGOVERN, JR., ESQ v. RUTGERS, ET AL. A-2531-09T1

Construing the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, we conclude: 1) a public body violates the requirements of the Act by routinely scheduling a five-minute public session, followed by a closed session of indeterminate duration, followed by another public session; 2) the Rutgers Board of Governors is not a "board of education" within the meaning of N.J.S.A. 10:4-12(a), and is therefore not required to set aside a portion of its meetings for publiccomment; and 3) the notice issued to advise the public of an upcoming special meeting contained an insufficient description of the matters that were expected to be discussed in closed session. 2-18-11

SOCIETY OF THE HOLY CHILD JESUS d/b/a OAK KNOLL SCHOOL v. CITY OF SUMMIT A-1126-09

SOCIETY OF THE HOLY CHILD JESUS d/b/a OAK KNOLL SCHOOL v. CITY OF SUMMIT

A-1126-09T3 2-17-11

Plaintiff is a non-profit entity affiliated with the Holy Roman Catholic Church and operates the Oak Knoll School of the Holy Child, a Catholic institution that provides an education for both boys and girls from kindergarten through the sixth grade, and for girls from the seventh through twelfth grades. Plaintiff owns property adjacent to the school which it utilizes for school purposes, including the offices of the facilities director. The property had been exempt from taxation pursuant to N.J.S.A. 54:4-3.6, and it undisputed that the property, as used, continues to qualify for exemption under that statute.

Pursuant to Summit's zoning ordinance, however, educational institutions are not permitted uses in the zone, although they are recognized as permitted conditional uses. Plaintiff, however, had never sought a variance from certain standards applicable to conditional uses. In 2005, Summit revoked the tax exemption on the property.

In a reported decision, Soc'y of the Holy Child Jesus v. Summit City, 23 N.J. Tax 528, 530 (Tax 2007), the tax court judge analogized the situation to that presented in a number of reported decisions dealing with favorable tax treatment pursuant to the Farmland Assessment Act, N.J.S.A. 54:4-23.1 to -23.23. Those cases essentially concluded that a taxpayer may be denied a reduction in taxes if the property is in violation of the municipal zoning ordinance. See, e.g., Cheyenne Corp. v. Twp. of Byram, 248 N.J. Super. 588, 595 (App. Div. 1991), certif. denied, 137 N.J. 312 (1994).

We reversed. We concluded that the exemption provided by N.J.S.A. 54:4-3.6 does not require, as a prerequisite, compliance with the municipal zoning ordinance.

INVESTORS SAVINGS BANK v. WALDO JERSEY CITY, LLC, ET AL.

INVESTORS SAVINGS BANK v. WALDO JERSEY CITY, LLC, ET AL.

A-6201-09T3Plaintiff commenced this action, seeking damages based upon defendants' alleged default on a loan agreement; defendants filed a counterclaim, alleging plaintiff's material breach of the loan agreement. The trial judge dismissed the counterclaim by enforcing a contract provision, which proclaimed the loan agreement was to be "free from any right of setoff, counterclaim or other defense." Because this waiver provision was not intended to extinguish defendants' claims -- only relegate them to a separate suit -- the court found it conflicted with the rules of procedure and was, thus, unenforceable. 2-17-11

AMB PROPERTY, LP ET AL. v. PENN AMERICA INSURANCE COMPANY, ET AL A-1248-09T2

AMB PROPERTY, LP ET AL. v. PENN AMERICA INSURANCE COMPANY, ET AL

A-1248-09T2

An insured who funds its liability insurance policy through a premium financing agreement, which authorizes the lender to act as the insured's attorney-in-fact, is bound by the lender's subsequent action in effectuating cancellation of the policy for the insured's non-payment of premium, despite the fact that the power of attorney issued pursuant to the Insurance Premium Financing Company Act, N.J.S.A. 17:16D-1 to -16, did not conform to the technical requirements of the Power of Attorney statute, N.J.S.A. 46:2B-8.9, in that it was not signed and acknowledged by the insured.

We also held that, even assuming the power of attorney could only have been created if validly acknowledged, the insurer nevertheless had the right to rely on it in canceling the policy because of the lender's apparent authority to act on behalf of the insured. 02-14-11

Town of Kearny v. Discount City of Old Bridge, et al. (A-76-09)

Town of Kearny v. Discount City of Old Bridge, et al. (A-76-09)

A non-record owner of property is not entitled to individualized notice that redevelopment is being considered but only to newspaper publication. If that party does not object or challenge the blight designation at the hearing or in a timely action in lieu of prerogative writs, the issue is foreclosed. In addition, a leasehold interest is an “interest in land” that, standing alone, can be condemned. In that instance, the lessee has the same rights as any other condemnee, including the right to bona fide negotiations. Because bona fide negotiations did not occur here, the condemnation complaint must be dismissed.

Lawrence B. Seidman, et al. v. Clifton Savings Bank, S.L.A., et al. (A-100-09)

Lawrence B. Seidman, et al. v. Clifton Savings Bank, S.L.A., et al. (A-100-09)

On the record presented in this case, plaintiff Seidman failed to satisfy his burden to overcome the effect of the business judgment rule and to demonstrate that the stock option grants and restricted stock awards given to the directors of defendant Bancorp under the 2005 Equity Incentive Plan constituted corporate waste.

Laura Higgins, et al. v. Mary F. Thurber, et al. (A-12-10)

Laura Higgins, et al. v. Mary F. Thurber, et al. (A-12-10)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Fisher’s opinion below. Although a potential claim sounding in legal malpractice may have been raised in the probate proceeding, it cannot be said that plaintiffs had a “full and fair opportunity to litigate those claims or that it would otherwise be equitable to bar this subsequent suit” under the entire controversy doctrine.

Tina Kieffer, et al. v. Best Buy, et al. (A-104-09)

Tina Kieffer, et al. v. Best Buy, et al. (A-104-09)

All Cleaning Solutions Company had no contractual obligation to indemnify American Industrial Cleaning Company or Best Buy in the absence of a legal determination that All Cleaning caused, by its “negligence, omission, or conduct,” the injuries suffered by plaintiff.

IMO Provision of Basic Generation Service for the Period Beginning June 1, 2008 (A-75-0

IMO Provision of Basic Generation Service for the Period Beginning June 1, 2008 (A-75-09)

The Board of Public Utilities was not entitled to rely on the comments of private parties to satisfy its basic administrative law obligation to act with transparency through the provision of prior notice and opportunity for comment. As a matter of due process the Court must vacate the decision authorizing the pass-through of costs to ratepayers pending a new BPU proceeding addressing the subject.