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Friday, September 30, 2011

GEORGE C. RILEY VS. NEW JERSEY STATE PAROLE BOARD A-1004-09T1

GEORGE C. RILEY VS. NEW JERSEY STATE PAROLE BOARD A-1004-09T1

Retroactive application of the Sex Offender Monitoring Act to persons who committed sex offenses before its enactment violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions. Dissent by Judge Parrillo. 9-22-11

Monday, September 19, 2011

TADEUSZ JATCZYSZYN VS. MARCAL PAPER MILLS, INC., ET AL. A-0938-09T1


In this product liability action, the trial court granted defendants' summary judgment motion and dismissed plaintiff's case after excluding plaintiff's expert report as a net opinion. We reverse because the deficiency in the expert's report was caused by the trial court's error in denying plaintiff the 450 days of discovery he is entitled to receive under Track III. R. 4:24-1(a).

Initially filed in the Law Division, the case was temporally removed to the United States District Court by one of the named defendants. The federal court thereafter granted plaintiff's motion to remand the case to the Law Division. Under the facts presented here, the Law Division erred by not tolling the running of the discovery period under Track III during the time the case was under the exclusive jurisdiction of the federal court. 9-09-11

DONALD J. TRUMP VS. TIMOTHY L. O'BRIEN, ET AL. A-6141-08T3


We affirm the trial court's order of summary judgment in favor of defendants Timothy L. O'Brien, the author of the book TrumpNation, The Art of Being The Donald, and his publishers, determining that Trump failed to demonstrate by clear and convincing evidence that O'Brien acted with actual malice when he reported that three unnamed sources had estimated Trump's net worth as between $150 million and $250 million, not the $5 to $6 billion that Trump claimed. In doing so, we focus principally on when an inference of actual malice may arise when an allegedly false report is published solely in reliance on confidential sources. 9-07-11

AXA AND EDUARDO KIEFFER VS. HIGH POINT INSURANCE COMPANY TAMESHA BROWN VS. FIRST TRENTON INDEMNITY COMPANY SANDRA KOZUSKO VS. NEW JERSEY MANUFACTURER

In these consolidated appeals, plaintiffs challenge provisions in their respective auto insurance policies excluding coverage for the diminution in the value of their autos damaged as a result of vehicular mishaps. Plaintiffs claim the exclusion provisions are ambiguous, contrary to the reasonable expectations of insureds, unconscionable, and also contrary to public policy.

We conclude the exclusion provisions are specific, plain, and clear, and provide no basis for plaintiffs to reasonably expect that diminution-in-value coverage is included in the policies. Additionally, we hold that exclusion of diminution- in-value coverage is not contrary to public policy. 8-30-11

IN THE MATTER OF SUZANNE HESS A-2408-09T1


This case involved a public employee who appealed from the final decision of the Board of Trustees of the Public Employees' Retirement System, which denied her application for deferred retirement benefits pursuant to N.J.S.A. 43:15A-38. We determined that the Board erred in ruling that appellant'sdeferred retirement benefits were forfeited as a result of her conviction of two counts of assault by auto. We conclude that where the removal from employment for cause is based on charges of misconduct or delinquency not related to the employee's official duties, the public employee is entitled to his or her vested deferred retirement allowance. 8-30-11

CECELIA MAVICA INGRAHAM VS. ORTHO-McNEIL PHARMACEUTICAL, ET AL. A-2216-10T2


Although the employment relationship is a factor to be considered, Taylor v. Metzger, 152 N.J. 490, 511 (1998), the elements of proof on a claim of intentional infliction of emotional distress, in accordance with Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366 (1988), are not altered by the "power dynamics of the workplace." Plaintiff's evidence that defendant supervisor directed her to remove pictures and ballet slippers of her deceased teenage daughter from her cubicle at work, and that she not talk about her daughter to co-workers, did not rise to the level of extreme and outrageous conduct, "to be regarded as atrocious, and utterly intolerable in a civilized community." Also, plaintiff's evidence was not sufficient to prove that the employer acted intentionally or recklessly to cause her emotional distress. 8-25-11

ALFRED HEHRE VS. ROBERT DEMARCO, JR., ET AL A-2812-10T4

Plaintiff was injured in a car accident while being driven to a school-sponsored track meet by a fellow student-athlete. He sued the track coach, Holy Spirit High School, and the Catholic diocese of Camden, claiming these defendants failed to provide him with a safe means of transportation to the school- sponsored event and, under principles of agency, were vicariously liable for the driver's negligence.

By leave granted from the trial court's denial of defendants' motion for summary judgment based on the Charitable Immunity Act, we hold that the exemption to immunity provided in N.J.S.A. 2A:53A-7(c)(2) applies only to a "trustee, director, officer, employee, agent, servant or volunteer" of a charitable entity who causes "damage as the result of the negligent operation of a motor vehicle." By its plain and clear language, N.J.S.A. 2A:53A-7(c)(2) does not vitiate the immunity otherwise granted by the Legislature in N.J.S.A. 2A:53A-7(a) to an associated charitable entity. 8-18-11

DRINKLER BIDDLE & REATH LLP VS. NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF LAW A-2387-09T3


In this appeal, plaintiff Drinker Biddle & Reath LLP sought access to unfiled discovery (the deposition transcripts of three experts) in an environmental lawsuit brought by the New Jersey Department of Environmental Protection against ExxonMobil Corp. pursuant to OPRA. We hold that N.J.S.A. 47:1A-9b exempts unfiled discovery from public disclosure. However, we reverse and remand for the trial court to conduct the appropriate balancing test to determine whether the transcripts are accessible under the common-law right-of-access. 8-18-11

SENTINEL INSURANCE COMPANY, LTD. VS. EARTHWORKS LANDSCAPE CONSTRUCTION, L.L.C., ET AL. A-0748-10T1


This case involved a declaratory judgment action seeking to void a workers' compensation insurance policy on the grounds of misrepresentation. We determined that the Law Division judge did not err in dismissing the complaint without prejudice and transferring the issue to the Division of Workers' Compensation for determination by it in connection with the adjudication of the compensation claim. 8-16-11

IN RE ADOPTION OF HIGHLANDS REGIONAL MASTER PLAN A-1054-08T1


The Highlands Act authorizes the Highlands Council to adopt a transfer of development rights program for the Highlands Region that does not strictly conform with the provisions of the State Transfer of Development Rights Act. 8-15-11

IN RE HIGHLANDS MASTER PLAN, EXECUTIVE ORDER 114, ETC. A-1026-08T1


The Highlands Council was not required to follow the rule- making procedures of the APA in adopting the regional master plan for the Highlands Region. The Council on Affordable Housing violated the APA by adopting a resolution and accompanying "Guidance document" that substantially changed the affordable housing obligations of municipalities in the Highlands Region without complying with the rule-making procedures of the APA. 8-15-11

MARTIN O'BOYLE VS. DISTRICT I ETHICS COMMITTEE, ET AL. A-4599-09T4


Rule 1:20-3(h) provides that in cases where a grievance that was found by the district ethics committee to allege unethical behavior was docketed and dismissed following an investigation, a grievant may appeal that decision to the Disciplinary Review Board. In contrast, Rule 1:20-3(e)(3) allows the secretary of a district ethics committee to decline to docket a grievance against an attorney which the secretary, with the concurrence of a public member, has determined fails to allege conduct violative of the Rules of Professional Conduct. The issue presented in this appeal is whether Rule l:20-3(e)(6), which precludes an appeal of an undocketed grievance, violates a grievant's right to due process or equal protection of the laws. As the plaintiff-grievant fails to assert a viable constitutional basis for his challenge, we affirm the Law Division's dismissal of his complaint. 08-12-11

Sheila Aronberg, etc., et al. v. Wendell Tolbert, et al. (A-9-10; 066414)


When an uninsured motorist’s cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31- 1 to -6.

Blanca Gonzalez v. Wilshire Credit Corporation, et al. (A-99-09; 065564)


The post-foreclosure-judgment agreements in this case constitute a stand-alone extension of credit. In fashioning and collecting on such a loan, a lender or its servicing agent cannot use unconscionable practices in violation of the Consumer Fraud Act.

Debra Ann Lombardi v. Christopher J. Masso, et al. (A-28/29-10; 066488)

Debra Ann Lombardi v. Christopher J. Masso, et al. (A-28/29-10; 066488)

In this case alleging breach of contract and fraud in a real estate transaction, the Appellate Division correctly determined that the trial court’s original summary judgment order dismissing several of the defendants was issued in error, the trial judge was well within his discretion in revisiting and vacating the interlocutory summary judgment order, and the law of the case doctrine did not apply to bar reconsideration under these circumstances.

In the Matter of Gerald M. Saluti, an Attorney at Law (D-70-10; 067548)

In the Matter of Gerald M. Saluti, an Attorney at Law (D-70-10; 067548)

The action of the Supreme Court to suspend Gerald M. Saluti from the practice of law for failure to comply with fee arbitration committee determinations qualifies as an exception to the automatic stay provision of the U.S. Bankruptcy Code and Saluti is suspended from practice pending his compliance.

Fair Share Housing Center, Inc. v. N.J. State League of Municipalities (A-36-10; 066228)


The League of Municipalities is a “public agency” under the Open Public Records Act and must provide access to “government record[s]” that are not subject to an exemption.

Robert Buck v. James R. Henry, M.D. (A-10-10; 065860)


The case is remanded for a Ferreira conference. Buck acted in good faith in filing affidavits of merit from two different medical specialists; and if the conference had been conducted as required and the trial court found deficiencies, Buck would have had additional time to submit an affidavit that conforms to N.J.S.A. 2A:53A-41. In the future, a physician8-8-11

8-1-11

7-28-11

7-28-11

defending against a medical malpractice claim, who admits treating the plaintiff, must include in his answer the medical specialty, if any, in which he was involved when rendering treatment to the plaintiff.