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Friday, July 29, 2011

Whirlpool Properties v. Div. of Taxation (A-25-10) (066595) 7-28-11

7-28-11 Whirlpool Properties, Inc., v. Director, Div. of Taxation (A-25-10) (066595)

For corporate taxpayers having a substantial nexus to New Jersey, the Throw-Out rule may apply constitutionally only to untaxed receipts from states that lack jurisdiction to tax the corporation due to insufficient connection with the corporation or due to congressional action such as 15 U.S.C.A. §§ 381- 84(commonly referred to as “P.L. 86-272”), but not to receipts that are untaxed because to impose an income tax.

7-28-11 J.D. v. M.D.F. (A-115-09)(065499)

7-28-11 J.D. v. M.D.F. (A-115-09)(065499)

In this domestic violence matter,the trial courtfailed to sufficiently articulate its findings and conclusions and the record contains insufficient evidence to sustain the determination to enter a Final Restraining Order. The matter is remanded to the trial court for a re-hearing to protect M.D.F.’s due process rights and to permit the trial court to evaluate the testimony and the evidence.

Luchejko v. City of Hoboken (A-38-10)(066580) 7-27-11

7-27-11 Richard Luchejko v. City of Hoboken (A-38-10)(066580)

The Appellate Division properly analyzed the facts of this case and concluded that the use of the condominium complex is residential and, therefore, no sidewalk liability attaches for the injury to plaintiff.

Paper Corporation v. New Community Corporation (A-41/42-10; 066531) 7-25-11

7-25-11 Paper Corporation v. New Community Corporation, et al. (A-41/42-10; 066531)

In this dispute between two business entities regarding purchase prices and payment for products, the trial court’s findings that were central to its evaluation of the buyer’s Consumer Fraud Act counterclaim fail for want of sufficient credible evidence in the record, and the appellate panel erred I deferring to those findings and, by extension, in affirming the trial court’s conclusions. Furthermore, the panel erred in its analysis of the seller’s breach of contract claim by imposing a duty of written notice of non-delivery on the buyer that is found neither in the Uniform Commercial Code nor in the course of dealing between the parties.

Jersey Division of Youth and Family Services v. R.D. (A-2-10; 066070) 7-20-11

7-20-11 Jersey Division of Youth and Family Services v. R.D. (A-2-10; 066070)

Unless the parties are on notice that Title Nine abuse or neglect proceedings are to be conducted under the clear and convincing evidence standard constitutionally required for guardianship/termination of parental rights proceedings under Title Thirty and appropriate accommodations are made for the fundamentally different natures of these proceedings. Title Nine determinations cannot be given preclusive effect in later Title Thirty proceedins.

TRIARSI VS. BSC GROUP SERVICES A-5047-09T1 07-26-11

07-26-11 JOSEPH J. TRIARSI, ET AL. VS. BSC GROUP SERVICES, LLC, ET AL.

A-5047-09T1

We affirmed the dismissal of two counts of a three-count complaint alleging that an insurance broker and its agent failed to prevent the cancellation of a life insurance policy, and then failed to assist with its reinstatement. All three counts had been dismissed for failure to serve a timely affidavit of merit. The first count alleged breach of a fiduciary duty. The second alleged professional negligence. We determined that the count alleging the breach of fiduciary duty was essentially the same as the professional negligence count, relying on Aden v. Fortsh, 169 N.J. 64, 78-79 (2001), and that an affidavit of merit was required for both.

We reversed the dismissal of the third count, which alleged a breach of a "special relationship" based upon the insurance agent having "assume[ed] duties in addition to those normally associated with the agent-insured relationship" by conduct that invited plaintiff's detrimental reliance. Finding that the claim does not require proof of a deviation from a professional standard of care, but rather proof of the parties' conduct, we concluded that an affidavit of merit was not required.

We rejected plaintiff's assertion that there were "extraordinary circumstance" warranting a dismissal without prejudice, largely because plaintiff's counsel made a "judgment call" that an affidavit of merit was not required for the first two counts.

JECKER VS. HIDDEN VALLEY A-3898-09T3 07-26-11

07-26-11 STEVEN JECKER VS. HIDDEN VALLEY, INC., ET AL. A-3898-09T3

Plaintiffs filed suit under the Uniform Fraudulent Transfer Act (the UFTA), N.J.S.A. 25:2-7 to -19, seeking to impose a constructive trust on the proceeds from the sale of a ski resort, Hidden Valley, Inc. (Hidden Valley), to a group of investors. The principal of Hidden Valley held two mortgages and other security interests on all assets of the ski resort. The mortgages and security interests were recognized and preserved during bankruptcy reorganization that pre-dated plaintiffs' claims.While plaintiffs' lawsuits against Hidden Valley were pending, the principal foreclosed on his mortgages, was the sole bidder at the sheriff's sale, and ultimately transferred the resorts assets. The trial judge concluded that plaintiffs failed to prove any fraudulent intent.

We affirmed, but for other reasons. We concluded that under the UFTA, the foreclosure was not a "transfer" of an "asset" of the debtor. And, the subsequent sale had none of the "badges of fraud" discussed in Gilchinsky v. Nat'l Westminster Bank N.J., 159 N.J. 463 (1999).

PRICE VS. MARTINETTI A-1834-10T3 07-25-11

07-25-11 LARRY PRICE VS. MARTIN T. MARTINETTI, ET AL. A-1834-10T3

A landowner who obtains the land use approvals required for a development project, and subsequently obtains the land use approvals required for a different form of development project on the site, does not lose the benefit of the approvals authorizing construction of the originally planned project.

FUTTERMAN VS. BOARD OF REVIEW A-3888-09T2 07-25-11

07-25-11 JOAN B. FUTTERMAN VS. BOARD OF REVIEW, ET AL. A-3888-09T2

The principal issue presented in this case is whether a State employee who is obligated by a union contract to take several mandatory furlough days may qualify for unemployment benefits by scheduling several days in a single work week. We affirm the Board of Review's denial of benefits and hold that the employee is ineligible for unemployment compensation because (1) she was bound by the terms of her union contract, which was freely and voluntarily negotiated, see N.J.S.A. 34:13A-5.3 (granting union representatives the authority "to act for and negotiate agreements" for all bargaining unit employees), and (2) she did not do everything necessary and reasonable to remainemployed, see In re Adoption of N.J.A.C. 12:17-9.6 by the N.J. Dep't of Labor, 395 N.J. Super. 394, 401 (App. Div. 2007).

Friday, July 22, 2011

TOSCANO V. TOWNSHIP OF CHERRY HILL A-5372-09T1 May 26, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5372-09T1

GERALDINE TOSCANO and

DONALD TOSCANO,

Plaintiffs-Appellants,

v.

TOWNSHIP OF CHERRY HILL,

COUNTY OF CAMDEN, STATE OF

NEW JERSEY,

Defendants-Respondents.

May 26, 2011

Argued February 15, 2011 - Decided

Before Judges Carchman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1599-10.

Joseph A. Lombardo argued the cause for appellant Geraldine Toscano (Console & Hollawell, P.C., attorneys; Richard J. Hollawell, on the brief).

Laura A. Schaff, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Schaff, on the brief).

Joshua A. Friedman, Assistant County Counsel, argued the cause for respondent County of Camden (Michael G. Brennan, County Counsel, attorney; Mr. Friedman, on the brief).

PER CURIAM

Plaintiff Geraldine Toscano appeals the denial of her application for leave to file a late notice of claim against defendants County of Camden and State of New Jersey. We reverse and remand for further proceedings consistent with this opinion.

I.

We discern the following facts and procedural history from the record on appeal.

Toscano alleges that she was injured when she fell on a "broken and decrepit portion of the sidewalk" located on Kings Highway in the Township of Cherry Hill. She fell on September 15, 2009, and filed a notice of tort claim on October 28, 2009. Because she believed that the sidewalk was owned and maintained by Cherry Hill, she only named Cherry Hill in the notice.

After filing the notice, Toscano telephoned Cherry Hill to inquire if she needed to do anything further. Her call was never returned. On November 10, 2009, Cherry Hill's claims administrator, Scibal Associates, Inc. (Scibal), sent Toscano a letter acknowledging receipt of the notice. Toscano telephoned Scibal on December 18, 2009, and February 18, 2010, to ascertain whether there was anything more she needed to do. Scibal did not respond to either inquiry.

On February 22, 2010, Scibal wrote a letter to Camden County and the State, notifying them of the claim and enclosing a copy of the notice of claim. The letter asserted that the sidewalk at issue was not Cherry Hill's responsibility, but was instead on or adjacent to land controlled by Camden County and the State. A copy of the letter was sent to Toscano.

Toscano retained counsel on March 10, 2010. Suit was filed against Cherry Hill, Camden County, and the State on March 26, 2010.1Toscano filed a motion for leave to file a late claim against Camden County and the State on April 7, 2010, requesting oral argument if the motion were to be opposed. Camden County and the State opposed Toscano's motion, and also filed cross-motions seeking dismissal of the complaint as to them for failure to file a timely notice of claim.

The motion judge decided the motions on the papers on May 7, 2010, despite the requirement of Rule 1:6-2(d) that oral arguments be granted on such motions. He denied Toscano's motion and granted the cross-motions for dismissal. The judge's oral opinion set forth the arguments of the parties, but did not articulate the reasons for his conclusion that Toscano "failed to establish the existence of extraordinary circumstances."

Toscano filed a motion for reconsideration on May 27, 2010. The motion was opposed by Camden County and the State. Although Toscano again requested oral argument, the judge again decided the motion on the papers. After setting forth the arguments of the parties and the law with respect to motions for reconsideration, the judge simply concluded that Toscano "had not demonstrated that the [c]ourt overlooked facts or erred in making its judgment."

This appeal followed.

II.

On appeal, Toscano argues that the motion judge abused his discretion in denying her application for leave to file a late notice of claim. Camden County and the State argue that the judge properly exercised his discretion.

The substantive legal standards applicable in this case were discussed at length in our opinion in Leidy v. County of Ocean, 398 N.J. Super. 449, 455-57 (App. Div. 2008):

Claims against public entities are governed by the Tort Claims Act. N.J.S.A. 59:8-1 to -11. A party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created:


(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.


There is an exception to the ninety-day notice rule. N.J.S.A. 59:8-9 provides:


A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.


[N.J.S.A. 59:8-9 (emphasis added).]


Thus, although the decision to grant a plaintiff permission to file late notice of a tort claim "'is a matter left to the sound discretion of the trial court,'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp [v. Amedio, 164 N.J. 111, 120 (2000))], this "discretion is limited to cases in which the claimant's affidavit shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial[] prejudice[]' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403) (alterations in original). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary circumstances' . . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).


The "extraordinary circumstances" requirement was not part of the original Act, and mere "sufficient reasons" sufficed to warrant relief from the statutory time bar. The "extraordinary circumstances" language was added by amendment in 1994, L. 1994, c. 49, § 5, in order to raise the bar for the filing of late notice from a fairly permissive standard to a more demanding one. [T]he amendment may have signaled the end to a rule of liberality in filing. Notably, the 1994 amendment does not define what circumstances are to be considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented.


[(Citations and internal quotation marks omitted).]


There is no question that, as to Camden County and the State, Toscano did not serve a notice of tort claim within the ninety-day period required by N.J.S.A. 59:8-8(a). The ninety-day period expired on December 12, 2009. The record reflects that Camden County and the State did not receive a copy of Toscano's notice to Cherry Hill until shortly after Scibal sent them the February 22, 2010 letter enclosing the notice. The question before us is whether the motion judge abused the discretion accorded him by N.J.S.A. 59:8-9 in denying leave to file a late notice. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 136 (1988).

In Mendez v. South Jersey Transportation Authority, 416 N.J. Super. 525, 533 (App. Div. 2010), we observed that:

[A] reviewing court is to "examine more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Lowe v. Zarghami, 158N.J. 606, 629 (1999) (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994)) (internal quotations omitted).

We also observed that:

In determining whether extraordinary circumstances exist, "a judge must consider the collective impact of the circumstances offered as reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).


We have also held that where discovering the identity of a responsible party is not thwarted by the original defendants, the issue becomes "whether plaintiff was diligent and made reasonable efforts to discover the identity of the true tortfeasor." Leidy v. County of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008). A key factor in determining whether a plaintiff acted with diligence in pursuing his or her claim is the promptness in contacting and retaining counsel to pursue plaintiff's rights. Lowe, supra, 158 N.J. at 626-30.


[Mendez, supra, 416 N.J. Super. at 533.]


Here, the record reflects that Toscano made the arguably reasonable assumption that the sidewalk where she fell was owned by Cherry Hill, and filed a notice of claim less than forty-five days after the accident. She attempted to contact Cherry Hill to ascertain whether she should take further action, but received no response. On November 10, 2009, within the ninety day period, Scibal advised Toscano that it had received the claim and asked her to provide medical releases and the identities of her treating physicians, but did not, at that point, question Cherry Hill's responsibility for the site of the accident.

Having been informed by the November 10 letter that all contact should be through Scibal, Toscano continued her efforts to ascertain whether she needed to take any further action by contacting Scibal twice, once on December 18 and again on February 18, 2010. Although she received no direct response to her inquiry, it would appear that the February 18 contact prompted Scibal to send out its February 22 letter, which asserted that Camden County and the State were responsible for the sidewalk. After receiving that letter, Toscano retained counsel on March 10 and commenced legal proceedings shortly thereafter.

Our review of the record, as outlined above, suggests that Toscano exercised a palpable degree of diligence and that she may have been led into believing that she had sent the claim to the right public entity by Scibal's letter acknowledging the claim and asking for medical information. See Leidy, supra, 398 N.J. Super. at 458 (discussing the requirement that the identity of the correct party be "obscured" as part of a showing of "extraordinary circumstances").2

Our disposition of this appeal is hampered by the fact that the motion judge did not offer any explanation of the reasoning behind his exercise of discretion to deny leave to file a late claim. In the absence of such an explanation, we cannot determine whether there was an abuse of discretion. This is especially problematic here in that we must review the judge's exercise of discretion "more carefully" because permission to file a late claim was denied. Mendez, supra, 416 N.J. Super. at 533.

Consequently, we reverse the orders on appeal and remand to the Law Division for further consideration of Toscano's application for leave to file a late claim. We direct the judge assigned to hold oral argument on the motions, Rule 1:6-2(d), and to hold a plenary hearing to the extent deemed necessary to resolve any disputed issues of fact. The judge should also comply with Rule 1:7-4(a) with respect to findings of fact and conclusions of law. We do not retain jurisdiction.

Reversed and remanded.

1 Toscano's husband was named as plaintiff for purposes of a per quad claim.

2 We note that responsibility for the area where Toscano fell is apparently still in some dispute. Cherry Hill, through Scibal, contends that it is not responsible. In its brief in the Law Division, Camden County disclaimed responsibility. The State's brief did not take a position.

ZAMBRANA V. NATIONAL CONTINENTAL/PROGRESSIVE INS.A-3903-09T3 May 26, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3903-09T3

CONSTANZA ZAMBRANA, AS

ADMINISTRATRIX OF THE

ESTATE OF SANTOS SOLANO,

AND INDIVIDUALLY,

Plaintiff-Appellant,

v.

NATIONAL CONTINENTAL/

PROGRESSIVE INSURANCE COMPANY,

Defendant-Respondent.

May 26, 2011

Argued December 8, 2010 - Decided

Before Judges Gilroy, Ashrafi and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5919-09.

Evelyn Padin argued the cause for appellant.

John F. Gaffney argued the cause for respondent (Hueston, McNulty, P.C., attorneys; Mr. Gaffney, on the brief).

PER CURIAM

This is an uninsured motorist coverage (UM) action. Plaintiff Constanza Zambrana, as the administratrix of the Estate of Santos Solano (her husband), and individually, appeals from the February 9, 2010 order that granted summary judgment to defendant National Continental/Progressive Insurance Company. Plaintiff also appeals from the April 22, 2010 order denying her motion for reconsideration.1We affirm.

I.

On November 24, 2009, plaintiff filed a complaint in the Law Division seeking to compel defendant to pay UM benefits for the death of her husband who was shot while operating a livery cab by a third party assailant. Defendant filed a motion seeking to dismiss the complaint for failure to state a claim upon which relief could be granted. Because the parties submitted matters outside the complaint, both in support of and in opposition to the motion, including discovery from a prior lawsuit between the parties, the court considered the motion as one for summary judgment. Following oral argument on February 9, 2010, the trial court entered an order supported by an oral decision granting summary judgment dismissing the complaint. On April 22, 2010, the court entered an order denying plaintiff's motion for reconsideration.

II.

Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record discloses the following. Solano owned and operated a livery cab in the City of Newark. Solano's motor vehicle was insured by defendant under a business automobile insurance policy that provided among other insurance coverages, single limit first party UM and underinsured motorist (UIM) coverage in the amount of $500,000 per accident. As to UM and UIM coverage, the policy provided that:

1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle" or an "underinsured motor vehicle." The damages must result from "bodily injury" sustained by the "insured," or "property damage" caused by an "accident[."] The owner's or driver's liability for these damages must result from the ownership, maintenance or use of an "uninsured motor vehicle" or an "underinsured motor vehicle[."]


On October 9, 2004, shortly after 3:00 a.m., Solano was operating his automobile in Newark. At approximately the same time, two Newark police officers were in pursuit of a stolen vehicle. During the pursuit, the two vehicles stopped, and the occupants of the vehicle being pursued engaged the police in a shootout, resulting with one police officer being shot, along with one of the men in the second vehicle. After the shootout, three or four men got back into their vehicle and left the scene at a high rate of speed. As Solano was operating his automobile northbound on North 7th Street, a motor vehicle, believed to have been the one involved in the shootout with the police officers, passed Solano at a high rate of speed. Gun shots emanated from the second vehicle. At approximately 4:16 a.m., the police found Solano dead from a gunshot wound in his automobile at the intersection of Sixth Avenue and North 7th Street. As to Solano's automobile, investigating Detective Murad Muhammad noted that it had "a perforated bullet hole to the rear left side of the vehicle" as well as "lower damages to the left side doors from what appeared to be consistent [with] a motor vehicle accident."

On November 24, 2009, plaintiff filed her complaint. In January 2010, defendant moved to dismiss the complaint. On February 9, 2010, Judge Tolentino granted summary judgment, reasoning in relevant part that the undisputed evidence established that Solano died from a gunshot wound, and thus, his death was not caused by the use of an uninsured vehicle. On April 22, 2010, the court denied plaintiff's motion for reconsideration.

On appeal, plaintiff argues that the trial court erroneously relied in part upon the Supreme Court's decision in Livsey v. Mercury Ins. Group,197 N.J. 522 (2009), contending that the facts in Livsey are distinguishable from those in the present matter. Plaintiff contends that defendant is obligated to provide UM coverage because her husband's fatal injuries "were a proximate cause of an accident which arose out of the ownership, maintenance or use of an automobile." We disagree.

III.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill, supra, 142 N.J. at 523. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

N.J.S.A. 17:28-1.1 governs statutorily-mandated UM coverage benefits. The statute provides in pertinent part:

no motor vehicle liability policy or renewal . . . insuring against loss resulting from liability imposed by law for bodily injury or death, sustained by any person arising out of the ownership, maintenance or use of a motor vehicle, shall be issued in this State with respect to any motor vehicle registered or principally garaged in this State unless it includes coverage in limits for bodily injury or death as follows:

. . . .


(2) an amount or limit . . . for payment of all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured motor vehicle, or hit and run motor vehicle . . . because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle anywhere within the United States or Canada.


[N.J.S.A. 17:28-1.1a(2) (emphasis added).]


Courts apply a two-prong test in determining whether an insured is entitled to UM benefits: "first, the insured must demonstrate that his or her injuries were caused by an 'accident[';] and, second, the insured must prove that the accident arose from the ownership, maintenance, operation or use of an uninsured vehicle." Livsey, supra, 197 N.J. at 531. We conclude that the trial court correctly appliedLivsey's two-prong test and denied UM coverage.

In Livsey, the plaintiff was returning to her car after grocery shopping, when she was shot. Id. at 525-26. Witnesses saw a car flee the scene, but it was never established who fired the shot or whether the occupants of the fleeing car were involved. Id. at 526. Plaintiff sought UM motorist coverage from her automobile insurance carrier, but the claim was denied. The trial court granted the insurer's motion for summary judgment; and we reversed. Id. at 527.

On certification granted, the Supreme Court framed the issue as whether "UM coverage extends to injuries suffered as a result of a drive-by shooting." Id. at 530. In analyzing the issue, the Court applied the aforestated two-prong test. With respect to the first prong, the Court held that "there can be little doubt that plaintiff's injury--being struck by a bullet from a drive-by shooting--qualifies as an 'accident' under the UM statute." Id. at 532. However, the Court determined that the plaintiff failed to establish the second prong, that is, that "there was a sufficient nexus between the accident and the ownership, maintenance, operation or use of an uninsured vehicle." Ibid. Indeed, the Court held that the nexus between the accident and the ownership maintenance, operation or use of the uninsured vehicle must be "substantial" for the insurer to be obligated to provide UM coverage. Id. at 533; accord Vasil v. Zullo, 238 N.J. Super. 572, 578 (App. Div. 1990); Cerullo v. Allstate Ins. Co.,236 N.J. Super. 372, 377 (App. Div. 1989); Sciascia v. Am. Ins. Co., 183 N.J. Super. 352, 359 (Law Div. 1982), aff’d o.b., 189 N.J. Super. 236(App. Div. 1983).

In Vasil, the plaintiff's husband, Daniel Vasil, was a passenger in a car operated by Carmen Zullo. 238 N.J. Super. at 574. There was an incident of road rage involving a second automobile. Id. at 574-75. Vasil stepped out of Zullo's vehicle to confront the driver of the other vehicle. A few moments later, Vasil returned to Zullo's automobile and subsequently died from a stab wound, purportedly inflicted by an occupant of the other car. Id. at 575. The police were unable to locate the other vehicle or its occupants. Ibid. In upholding the dismissal of plaintiff's claim for UM benefits, we cited Cerullo and Sciascia for the proposition that "an intentional assault committed by an occupant of an uninsured or hit and run vehicle does not 'arise out of the ownership, maintenance or use' of the vehicle." Id. at 578 (quoting N.J.S.A. 17:28-1.1a.).

In Cerullo, the plaintiff, while operating his automobile, "cut off" a second vehicle. 236 N.J. Super. at 373-74. When the plaintiff's automobile was stopped, a passenger from the other vehicle approached the plaintiff's automobile and punched him through an open window.Ibid. The plaintiff brought suit against his insurer, seeking UM benefits. Id. at 374. We reversed the trial court's grant of summary judgment to plaintiff. Id. at 378. In reaching this conclusion, we examined the policy behind UM benefits and reasoned that

if UM coverage applies to injuries sustained through an intentional criminal attack effected through an instrumentality (in this case a fist) other than an automobile, then UM coverage, conceived as a first party substitute for third party liability coverage, would provide substantially greater coverage than the third party coverage it replaces.


[Id. at 377.]


Simply stated, we found "no legislative intent to establish UM coverage as a form of general crime insurance based on an indirect nexus between an automobile and the criminal act." Id. at 378.

In Sciascia, plaintiff's deceased was shot and killed by a passenger in an uninsured motor vehicle as the decedent stood outside his automobile. 183 N.J. Super. at 353-54. The administrator of the decedent's estate instituted suit against the decedent's insurer, seeking payment of UM benefits. Id. at 354. The trial court granted summary judgment to the insurer reasoning in pertinent part that "[t]he deliberate firing of a shotgun by [a] passenger . . . from a moving [uninsured] vehicle . . . cannot be considered to have arisen out of the use of [the] vehicle. There was no substantial connection between the insured's death and the use of the uninsured automobile." Id. at 358-59.

Plaintiff argues that the trial court erred in granting summary judgment because this case is distinguishable from Livsey. Plaintiff contends that Solano was operating his vehicle when he was shot; whereas, the plaintiff in Livsey was not inside her vehicle when shot. We reject the argument.

Plaintiff is focusing on the wrong vehicle. The statutory language of N.J.S.A. 17:28-1.1a(2) provides that UM benefits apply only when the insured's injury is "caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle." (emphasis added). Therefore, whether Solano was inside his vehicle at the time of the shooting is not dispositive.

Plaintiff also asserts there is evidence to suggest that a collision had occurred between Solano's motor vehicle and the uninsured automobile. Even assuming this to be the case as we must on a motion for summary judgment, we disagree that this factor, without more, is sufficient to withstand summary judgment. There is no evidence suggesting that Solano's death was caused by a car accident. Rather, as noted by the trial court, the undisputed evidence in the form of Solano's death certificate shows that he died from gunshot wounds. Because Livseyestablishes that a drive-by shooting does not "arise out of the ownership, maintenance, operation or use of an uninsured vehicle," and because the only evidence is that Solano died from a gunshot wound, we conclude that summary judgment was correctly granted.

Affirmed.

1 Plaintiff's notice of appeal (NOA) indicates that she appeals from the April 22, 2010 order only. Rule 2:5-1(f) is generally read to provide that "only the judgments or orders or parts thereof designated in the [NOA] are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2011). An exception, however, is where the civil case information statement (CIS) places the adversary on notice of the intended scope of appeal. If the appellant appeals from an order not referenced in the NOA, the appeal from that order will be deemed appropriate provided appellant indicated his or her intent in the CIS to appeal from that order. SeeAhammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007). Plaintiff's appeal falls within the exception.

Tuesday, July 19, 2011

In the Matter of Nicholas R. Foglio (A-16-10; 066482) 7-19-11

In the Matter of Nicholas R. Foglio, Fire Fighter (M2246D), Ocean City (A-16-10; 066482)

An appointing authority that chooses to bypass a candidate that ranked higher on a competitive civil service examination must provide a statement of “legitimate” reasons for the bypass. Where, as here, the reason advanced was boilerplate, equally applicable to any bypass case and utterly lacking in specific explanatory language, it was not sufficient to satisfy the appointing authority’s reporting obligation.

Allen v. V and A Brothers (A-30-10; 066568) 7-7-11

7-7-11 W. Allen v. V and A Brothers, Inc., et al. (A-30-10; 066568)

(1) Employees and officers of a corporation may be individually liable under the Consumer Fraud Act (CFA) for acts they undertake through the corporate entity; and (2) the individual defendants are not collaterally estopped from relitigating the quantum of damages attributable to the CFA violations.

Schools Services v. West Windsor (A-114-09; 066060) 7-6-11

7-6-11 Schools Services, Inc. v. West Windsor Township (A-114-09; 066060)

West Windsor Township properly denied a property tax exemption to International Schools Services, Inc. (ISS), a nonprofit entity, for the tax years 2002 and 2003 because the commingling of effort and entanglement of activities and operations by ISS and its profit-making affiliates was significant and substantial, with the benefit in the form of direct and indirect subsidies flowing only one way – from ISS to the for-profit entities.

Passaic Valley Sewerage Commissioners v. St. Paul Fire and Marine Insurance (A-97-09; 065793) 6-21-11

6-21-11 Passaic Valley Sewerage Commissioners v. St. Paul Fire and Marine Insurance Company (A-97-09; 065793)

Under the terms of a policy that defines “loss” as “money damages,” an insurer has no obligation to indemnify its insured for the value of a settlement consisting of services and transferred assets.

Abouzaid v. Mansard Gardens Associates (A-5-10; 066223) 6-21-11

6-21-11 Magdy Abouzaid, et al. v. Mansard Gardens Associates, LLC, et al. (A-5-10; 066223)

Because a plaintiff’s claim for negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88 (1980), may involve physical sequelae and, therefore, is potentially covered by a “bodily injury” provision of a defendant’s commercial general liability insurance policy, the burden of defense must be borne by the insurer until the question of physical injury clearly drops out of the case.

Kovalcik v. Somerset County Prosecutor’s Office (A-43-10; 066529) 6-21-11

6-21-11 Vasil Kovalcik v. Somerset County Prosecutor’s Office (A-43-10; 066529)

The judgment is affirmed to the extent that it concluded that the documents are not exempt as protected by an order of confidentiality. The judgment is reversed to the extent that it held that the documents are also not exempted personnel records. That aspect of the matter is remanded to the trial court for further proceedings during which the parties shall be given an adequate opportunity to marshal sufficient proofs as t the nature of the contents of the particular documents and the specific educational requirements for employment as a detective in the Prosecutor’s Office to enable the court to apply the statute in accordance with the analysis the Court has set forth.

Nuckel v. Borough of Little Ferry Planning Board (A-3/4-10; 066096) 6-16-11

6-16-11 Nuckel v. Borough of Little Ferry Planning Board (A-3/4-10; 066096)

A (d)(1) variance under N.J.S.A. 40:55D-70 is required because the proposed driveway constitutes a second principal use, which is prohibited by the zoning ordinance. Because the proposed driveway will reduce the buffers between the nonconforming use and a conforming use, a (d)(2) variance will also be necessary unless the planning board determines that the intensification of the nonconformity is insubstantial.

Wood v. New Jersey Manufacturers Insurance Company (A-44-10; 066643) 6-14-11

6-14-11 Wood v. New Jersey Manufacturers Insurance Company (A-44-10; 066643)

The right to trial by jury attaches to a Rova Farms claim that an insurer in bad faith failed to settle a claim within the policy limits.

Donelson v. DuPont Chambers Works (A-112-09; 065628) 6-9-11

6-9-11 Joseph A. Donelson v. DuPont Chambers Works (A-112-09; 065628)

Given the facts before the Court, lost wages are recoverable in a Conscientious Employee Protection Act (CEPA) case, even in the absence of a constructive discharge.

In the Matter of Richard J. Simon (D-51-10; 067340) 6-9-11

6-9-11 In the Matter of Richard J. Simon, An Attorney at Law (D-51-10; 067340)

An attorney who sues a current client to recover a fee for legal services in an effort to withdraw from representation violates RPC 1.7(a)(2). Respondent is reprimanded for his unethical conduct.

Risko v. Thompson Muller Automotive Group (A-27-10; 066502) 6-7-11

6-7-11 Risko v. Thompson Muller Automotive Group, Inc. (A-27-10; 066502)

Essentially for the reasons expressed in Judge Carchman’s dissent, a new trial on damages is warranted based on the cumulative effect of counsel’s comments during summation, which suggested that jurors would be reported for violating the law if they rejected the notion that the case could be worth more than $1 million.

County of Hudson v. State of New Jersey, Department of Corrections (A-74-09; 064676) 6-7-11

6-7-11 County of Hudson v. State of New Jersey, Department of Corrections (A-74-09; 064676)

Contract claims against the State must be asserted through the timely service of a notice of claim, pursuant to the Contractual Liability Act, N.J.S.A. 59:13-1 to -10. Only following the expiration of the time period imposed by the Act may a contract claim become the subject of a complaint or, if appropriate, be added to an existing complaint. The County of Hudson’s amended complaint against the State, through which expanded claims were added, was properly dismissed for failure to comply with the statutory notice requirement.

Much Media v. Shellee Hale (A-7-10; 066074) 6-7-11

6-7-11 Much Media, LLC, et al. v. Shellee Hale (A-7-10; 066074)

Although New Jersey’s Shield Law allows news reporters to protect the confidentiality of sources and information gathered through their work, online message boards are not similar to the types of news entities listed in the statute; therefore, defendant Shellee Hale was not entitled to claim the privilege in this defamation case that is grounded in comments she posted on an Internet message board.

LOCAL BAKING PRODUCTS VS. KOSHER BAGEL MUNCH A-3923-09T2 07-19-11

07-19-11 LOCAL BAKING PRODUCTS, INC. VS. KOSHER BAGEL MUNCH, INC.

A-3923-09T2

The Telephone Consumer Protection Act (TCPA or the Act), 47 U.S.C.A. § 227, enacted by Congress in 1991, prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . ." 47 U.S.C.A. § 227(b)(1)(C). The Act provides for a "[p]rivate right of action" and fixes the damages for each violation at $500 or actual damages, whichever is greater. 47 U.S.C.A. § 227(b)(3).

The narrow issue raised on this appeal is whether a plaintiff may maintain a class action to enforce the private cause of action. We conclude that a class action may not be maintained. The proposed class action does not meet the "superiority" prong of Rule 4:32-1(b)(3), governing class actions.

STATE OF NEW JERSEY BY THE COMMISSIONER OF TRANSPORTATION VS. 200 ROUTE A-6208-08T1 07-19-11

07-19-11 STATE OF NEW JERSEY BY THE COMMISSIONER OF TRANSPORTATION VS. 200 ROUTE 17 L.L.C

A-6208-08T1

In this condemnation case, we hold that the State is required to compensate a property owner for the land and improvements in their present condition, and the trier of fact may consider the reasonable probability of future renovations and approvals required to improve the property to its highest and best use, discounted by the value of the risks and costs of making such improvements.

GUPTA VS. ASHA ENTERPRISES A-3059-09T2 07-18-11

07-18-11 DURGESH GUPTA, ET AL. VS. ASHA ENTERPRISES, L.L.C. d/b/a MOGHUL EXPRESS & CATERING, CO.

A-3059-09T2

In this opinion, we discuss whether vegetarian Hindus, mistakenly served meat-filled samosas, can recover damages for their emotional distress and the costs that they would incur in obtaining purification of their souls in India. We affirmed the dismissal of plaintiffs' claims for products liability, consumer fraud and negligent infliction of emotional distress. However, we recognized their claim for breach of express warranty, and we held that damages for emotional distress, if proven, were available. We held additionally that, to prevail on their claimfor purification costs, plaintiffs would have to establish that such damages were reasonably foreseeable to the contracting parties at the time that the sale of the samosas took place.

CAPE MAY HARBOR VILLAGE AND YACHT CLUB VS. SBRAGA A-6122-09T1 07-14-11

07-14-11 CAPE MAY HARBOR VILLAGE AND YACHT CLUB ASSOCIATION, INC. VS. DEBORAH L. SBRAGA, ET AL.A-6122-09T1

Applying the reasonableness standard, we held that an amendment to a declaration of covenants and restrictions governing a private residential community that prohibited leasing to third parties, adopted nine years after the homeowner challenging the amendment bought into the community and fourteen years after the original declaration was recorded, (1) did not constitute an impermissible restriction on the alienation of a fundamental property right, (2) satisfied the test of reasonableness by applying to the facts of the case factors prescribed by the Restatement of Property, and (3) was enforceable against the aggrieved homeowner.

OPEN MRI AND IMAGING OF ROCHELLE PARK MERCURY INSURANCE COMPANY A-5760-09T2 07-14-11

07-14-11 OPEN MRI & IMAGING OF ROCHELLE PARK a/s/o CARMEN HERNANDEZ VS. MERCURY INSURANCE COMPANY

A-5760-09T2

Mercury Insurance Group denied Open MRI's assigned PIP claim for medical services on the ground that the insured's policy limits had been exhausted. Open MRI demanded arbitration pursuant to the Alternative Procedure for Dispute Resolution Act, seeking an award reforming Mercury's policy to permit payment. The arbitrator ruled that there was no legal basis for payment, and she lacked the power to reform Mercury's policy. An award in Mercury's favor was thus entered. Open MRI then instituted an action in the Law Division seeking an order summarily vacating the arbitrator's award and granting reformation. The judge granted the relief sought.

On appeal, we determined that the bar on appeals provided by N.J.S.A. 2A:23A-18b was inapplicable when the relief sought in arbitration (reformation) was beyond the power of the arbitrator to award, and the Law Division action was, in essence, a de novo proceeding as to which a right of review exists in order for us to carry out our supervisory powers. We also held that reformation was not available, and recognized that remedies available to a successful claimant for denial of PIP benefits were limited to interest and attorney's fees.

LIVECCHIA VS. BOROUGH OF MOUNT ARLINGTON A-4501-09T2 07-13-11

07-13-11 GAYLE ANN LIVECCHIA VS. BOROUGH OF MOUNT ARLINGTON A-4501-09T2

In this matter arising under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, we affirmed the order of the Government Records Council, determining that when balancing the competing interests of access and redaction of records toprotect a person's right of privacy, the destination location of cellular calls made by municipal employees using government- issued cellular phones was not encompassed by a reasonable right to privacy protecting telephone numbers and persons called, warranting the release of the information.

GUAMAN VS. VELEZ A-1870-10T2 07-12-11

07-12-11 MANUEL GUAMAN, ET AL. VS. JENNIFER VELEZ, ET AL. A-1870-10T2

M-3432-10

Plaintiffs, representatives of a putative class of legal, resident immigrants who have resided in this country for less than five years, sought emergent injunctive relief staying the enforcement of N.J.A.C. 10:78-3.2. That regulation adopted the standard of eligibility for federal Medicaid benefits containedin the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), 8 U.S.C.A. §§ 1601 to 46, and applied it to New Jersey's FamilyCare Program, a State-funded Medicaid program. Pursuant to PRWORA, legal, resident immigrants who have not resided in this country for at least five years essentially are ineligible for federally-funded Medicaid benefits.

Plaintiffs argued that N.J.A.C. 10:78-3.2, and a concurrent Medicaid Communication issued by the Division of Medical Assistance and Health Services, violated the FamilyCare program's enabling legislation, as well as the federal and State constitutions on equal protection grounds.

Applying the standards for preliminary injunctive relief set forth in Crowe v. DiGioia, 90 N.J. 126, 132-34 (1982), we denied plaintiffs' request, concluding that they failed to demonstrate a well-settled legal right to the relief sought, and a reasonable probability of ultimate success.

MAHWAH REALTY ASSOCIATES VS. TOWNSHIP OF MAHWAH A-1726-10T1 07-05-11

07-05-11 MAHWAH REALTY ASSOCIATES, INC., ET AL. VS. TOWNSHIP OF MAHWAH, ET AL.

A-1726-10T1

In this appeal, the court considered whether the adoption of an ordinance inconsistent with a municipality's master plan met the requirements of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, and specifically, whether the governing body's reasons for adopting the ordinance were "set forth in a resolution and recorded in its minutes," N.J.S.A. 40:55D-62a. Because the minutes summarized the argument heard by the governing body and memorialized the governing body's vote on the ordinance and its adoption of a resolution, which detailed its reasons for adopting the ordinance, the court held that the governing body's actions met the statute's requirements and reversed the trial court's contrary conclusion.

MESSICK VS. BOARD OF REVIEW A-3849-09T2 06-30-11

06-30-11 JUDITH A. MESSICK VS. BOARD OF REVIEW, ET AL. A-3849-09T2

Internal appeals to the Board of Review from Appeal Tribunal determinations on unemployment compensation claims are plenary and de novo. The Board of Review is empowered to make new findings of fact, and may conduct new evidentiary proceedings.

Appeals from the Board of Review to the Appellate Division are governed by the substantial evidence rule and the principle of deference to the Board of Review's subject matter expertise.

IN THE MATTER OF THE ADOPTION OF N.J.A.C. 7:15-5.24(b) AND N.J.A.C. 7:15-5.25(e) A-3262-08T1 06-29-11

06-29-11 IN THE MATTER OF THE ADOPTION OF N.J.A.C. 7:15-5.24(b) AND N.J.A.C. 7:15-5.25(e)

A-3262-08T1

We uphold the validity of two provisions of the DEP's Water Quality Management Planning Rules. The first regulation, N.J.A.C. 7:15-5.24, prohibits the extension of sewage lines in environmentally sensitive areas. The other regulation, N.J.A.C. 7:15-5.25(e), sets a minimum nitrate level for septic system discharge.

We reject the developer's contention that these provisions are ultra vires and constitute non-water related land use regulation, and conclude that the rules are authorized by a host of statutes that empower DEP to set water quality standards and in doing so to consider related environmental, social and land use policies. The agency's decision, that structuring sewage lines to limit the density of development in environmentally sensitive areas is the most efficient and beneficial way to address water quality concerns in environmentally sensitiveareas, represents a valid and reasonable exercise of the DEP's statutory authority.

CALCO HOTEL MANAGEMENT GROUP VS. GIKE A-2308-10T4 06-28-11

06-28-11 CALCO HOTEL MANAGEMENT GROUP VS. PATRICIA GIKE A-2308-10T4

We affirm the grant of summary judgment to the owners of a hotel solely as to the finding that the renter of a hotel room is an "occupant" under the regulatory scheme contained in the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-l to -28, and its regulations, N.J.A.C. 5:10-1.1 to -28.1. The renter may, therefore, be responsible for violation penalties as a result of the fire code hazard created by her guest even though the renter never entered the room and was not present when the conduct occurred. Because we are not convinced this finding in itself mandates the renter be strictly liable for compensatory damages to the room as a matter of law, summary judgment is not appropriate at this juncture on this issue. Accordingly, we remand for further briefing and consideration as to whether, and to what extent, the regulations impose a private cause of action for civil damages. We do not retain jurisdiction.

CANTER VS. LAKEWOOD OF VOORHEES A-1759-10T1 06-28-11

06-28-11 SANFORD CANTER VS. LAKEWOOD OF VOORHEES, ET AL. A-1759-10T1

This is a nursing home negligence action. Defendant Seniors Healthcare, Inc. is a limited partner of a New Jersey limited partnership that owns the nursing home. Plaintiff sought to hold Seniors Healthcare liable for the limited partnership's negligence through corporate veil-piercing principles.

By leave granted, Seniors Healthcare appeals from the denial of its motions for partial summary judgment and reconsideration on the issues of whether corporate veil-piercing principles apply to a New Jersey limited partnership, or alternatively, whether there is a genuine issue of material fact as to whether plaintiff established the veil-piercing factors.

We hold that equitable principles, such as veil piercing, may apply to a New Jersey limited partnership but in limited circumstances, such as where a limited partner takes or attempts action not within the safe harbor of N.J.S.A. 42:2A-27b, or dominates and uses the limited partnership to perpetrate a fraud, injustice, or otherwise circumvent the law. Because the record does not establish such circumstances, we reverse.

VOELLINGER VS. DOW A-5768-09T3 06-22-11

06-22-11 STEPHEN VOELLINGER, ET AL. VS. PAULA T. DOW, ETC. A-5768-09T3

In this appeal, the court examined whether or to what extent the Division of Criminal Justice may be liable for losing or destroying evidence properly seized years earlier during a criminal investigation. Although the court affirmed the dismissal of plaintiffs' action, the court rejected the trial judge's determination that plaintiffs were limited to seeking replevin and concluded that the judge should have found that a gratuitous bailment was created that imposed a gross negligence standard, which the Division did not breach as a matter of law.

J.M.S. AND G.S. AND S.S. VS. J.W. AND E.W. A-0938-10T3 06-20-11

06-20-11 J.M.S. AND G.S. AND S.S. VS. J.W. AND E.W. A-0938-10T3

Plaintiffs are the paternal grandparents of two children adopted by defendants. This appeal requires us to consider plaintiffs' request for grandparent visitation where (1) plaintiffs were the children's temporary foster parents for almost two years; (2) the children were later adopted by defendants who are relatives of the children's mother; and (3) defendants afforded plaintiffs visitation for two years following the adoptions and then terminated visitation for personal reasons. We conclude that the Adoption Act, N.J.S.A. 9:3-38 to -56, does not bar plaintiffs from seeking visitation under the grandparent visitation statute, N.J.S.A. 9:2-71, as the motion judge found largely in reliance upon In re Adoption of a Child by W.P., 163 N.J. 158 (2000). W.P. addressed the issue of grandparent visitation in the context of a nonrelative adoption and, therefore, is not dispositive of plaintiffs' claims. We therefore reverse the order granting summary judgment to defendants dismissing plaintiffs' complaint and remand for further proceedings.

BROCKWELL AND CARRINGTON CONTRACTORS VS. KEARNY BOARD FOR EDUCATION AND HALL CONSTRUCTION A-1806-10T4 6-20-11

6-20-11 BROCKWELL & CARRINGTON CONTRACTORS, INC. VS. KEARNY BOARD FOR EDUCATION AND HALL CONSTRUCTION, INC., ET AL. A-1806-10T4

In this appeal from a public bidding dispute regarding a school building project, the central issue is the construction and application of N.J.A.C. 17:19-2.13(c). This regulation provides in pertinent part that, "[a] firm shall not be awarded a contract which, when added to the backlog of uncompleted construction work . . . would exceed the firm's aggregate rating." The dispute is whether this requirement applies to subcontractors as well as general contractors. We hold that the regulation applies to both subcontractors and contractors pursuant to the Public Schools Contract Law (PSCL), N.J.S.A. 18A:18A-1 to -59, and the Educational Facilities Construction and Financing Act (EFCFA), N.J.S.A. 18A:7G-1 to -48.

DEROSA VS. ACCREDITED HOME LENDERS A-3727-09T3 06-14-11

06-14-11 PATRICK DEROSA, ET AL. VS. ACCREDITED HOME LENDERS, INC., ET AL.

A-3727-09T3

The Millville Dallas Airmotive Plant Job Loss Notification Act, N.J.S.A. 34:21-1 to -7 (the New Jersey WARN Act or the Act), generally provides that under certain conditions employees are entitled to notice, or alternatively, severance pay, in theevent of a transfer or termination of operations, or a mass layoff by an employer. On this appeal, we consider the novel question of whether the Act applies to parent and affiliated companies. We conclude that consistent with its federal analogue, The Worker Adjustment and Retraining Notification Act of 1988 (the federal WARN Act), 29 U.S.C.A. §§ 2101 to -2109, the New Jersey Act does apply to parent and affiliated companies, and in reaching this conclusion, we adopt the "five- factor" test enunciated in 20 C.F.R. § 639.3(a)(2).

On motion for summary judgment, the motion judge dismissed plaintiffs' complaint. We reversed and remanded for a hearing on the application of the Act consistent with our holding.

O'BRIEN VS. TELCORDIA TECHNOLOGIES A-4021-07T3 06-13-11

06-13-11 SHARON KELLY O'BRIEN VS. TELCORDIA TECHNOLOGIES, INC. A-4021-07T3

In this case alleging age discrimination in employment occurring as the result of a force reduction, we discuss the current state of federal law regarding mixed motive analysis as initially articulated in Price Waterhouse.

SHAKOOR SUPERMARKETS VS. OLD BRIDGE TOWNSHIP PLANNING BOARD A-3765-09T3 06-13-11

06-13-11 SHAKOOR SUPERMARKETS, INC. VS. OLD BRIDGE TOWNSHIP PLANNING BOARD, ET AL.

A-3765-09T3 In this case, we review the sufficiency of a public notice for an application for preliminary and final site plan approval. In Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996), the public notice was challenged because it failed to inform the public that the commercial lots planned for a commercial zone were to be used as "a conditional use K-Mart shopping center," and was found insufficient. This case presents the question whether public notice of an application for site plan approval that included the construction of "a main retail store of 150,000 [square feet]" was legally insufficient because the application failed to identify the store as a Walmart. We conclude that the notice was sufficient.

NOSTRAME VS. SANTIAGO A-2298-10T2 06-10-11

06-10-11 FRANK J. NOSTRAME VS. NATIVIDAD SANTIAGO, ET AL. A-2298-10T2

An attorney who is discharged by his client may not maintain an action for tortious interference with contract against the successor attorney unless that attorney used wrongful means, such as fraud or defamation, to induce the client to discharge the original attorney.

LAPIDOTH VS. TELCORDIA TECHNOLOGIES A-1545-09T1 06-09-11

06-09-11 SARA LAPIDOTH VS. TELCORDIA TECHNOLOGIES, INC. A-1545-09T1

We reverse the grant of summary judgment to defendant- employer, holding that although plaintiff's year-long maternity leave was not covered by the federal Family and Medical Leave Act, 29 U.S.C.A. §§ 2612 to 2654, or the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16, a reasonable employee could interpret the two letters sent by defendant authorizing plaintiff's tenth maternity leave as a promise of reinstatement.

RYAN VS. MARIE A-1342-09T3 06-07-11

06-07-11 AMY RYAN VS. GINA MARIE, L.L.C., ET AL. A-1342-09T3

Defendant purchased in 2005 the apartment building in which plaintiff had resided since 1993. After defendant assumed ownership, plaintiff learned that from the time of her initial occupancy, her rent exceeded what was permissible under Hoboken's rent control ordinance. We reversed the trial court's holding that defendant was liable for the entire excess and remanded the matter for further proceedings with respect to defendant's contract claim against the prior owner and its third-party claims against others in the chain of title.

HOFFMAN VS. SUPPLEMENTS TOGO MANAGEMENT A-5022-09T3 05-13-11

05-13-11 HAROLD M. HOFFMAN, ETC. VS. SUPPLEMENTS TOGO MANAGEMENT, LLC, ET. AL.

A-5022-09T3

We reverse the trial court's enforcement of a forum selection clause within the internet webpage of the defendant product sellers, where the webpage was structured in a manner that "submerged" the clause so that it would not appear on a potential purchaser's computer screen unless he or she scrolls down to display it before adding a product to his or her electronic "shopping cart."