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Saturday, December 29, 2012

Preparing for the Criminal and Traffic Case

video

Preparing for the Criminal and Traffic Case

FRANCIS CHIARELLO VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES RETIREMENT SYSTEM A-1199-11T1


FRANCIS CHIARELLO VS. BOARD OF TRUSTEES, PUBLIC
EMPLOYEES RETIREMENT SYSTEM
A-1199-11T1
Appellant sought an ordinary disability retirement from one
PERS position with the intention to retain an elected office,
another PERS position, in reliance on N.J.S.A. 43:15A-47.2,
which authorized a multiple PERS member's retention of an
elected office upon retirement from another PERS position. The
court held, among other things, that appellant was not required
to terminate his mayoral position even though N.J.S.A. 43:15A-
47.2 was repealed before his retirement application was ruled
upon. The court reasoned that simple fairness and the principle
that favors prospective application of statutes required that
appellant's eligibility to retain his position as mayor should
be governed by the laws existing at the time of the application,
particularly when appellant applied for a disability retirement
four months before the repeal. The court, however, remanded for
a determination of whether appellant could be totally and
permanently disabled from one position without being similarly
disabled from the other. 12-20-12 

L & W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES VS JOE DESILVA T/D/B/A DESILVA CONTRACTORS, ET AL. A-2960-10T2


 L & W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES VS
JOE DESILVA T/D/B/A DESILVA CONTRACTORS, ET AL.
A-2960-10T2
The Construction Lien Law, N.J.S.A. 2A:44A-1 to -38, and
Craft v. Stevenson Lumber Yard, Inc., 179 N.J. 56, 63 (2004),
impose an obligation upon a materials supplier that files a
construction lien to show that it applied payments correctly
against several open accounts of a contractor that purchased
materials for different building jobs. This opinion elaborates
upon that obligation and holds that, when the contractor has not
provided specific, reliable instructions as to the allocation of
its payment based on the source of the payment funds, or when a
reasonable supplier should suspect that the contractor has not
used an owner's funds to pay for materials supplied for that
owner, then the supplier must make further inquiry and attempt
to verify the source of the payment funds so that it can
allocate them to the correct accounts. 12-19-12

Monday, December 10, 2012

STEPHEN E. BURKE VS. RAYMOND BRANDES, ET AL. A-3051-11T3


STEPHEN E. BURKE VS. RAYMOND BRANDES, ET AL.
          A-3051-11T3
Reversing the Law Division, we held that a request of the Governor's Office for records concerning EZ Pass benefits afforded to retirees of the Port Authority, including correspondence between the Office of the Governor and the Port Authority, was not "overbroad" under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.  12-07-12  

IN THE MATTER OF THE VETO BY GOVERNOR CHRIS CHRISTIE OF THE MINUTES OF THE NEW JERSEY RACING COMMISSION FROM THE JUNE 29, 2011 MEETING AND THE ALLOCATION ACTION TAKEN AT THAT MEETING BY THE NEW JERSEY RACING COMMISSION A-6028-10T3


IN THE MATTER OF THE VETO BY GOVERNOR CHRIS CHRISTIE OF THE MINUTES OF THE NEW JERSEY RACING COMMISSION FROM THE JUNE 29, 2011 MEETING AND THE ALLOCATION ACTION TAKEN AT THAT MEETING BY THE NEW JERSEY RACING COMMISSION
A-6028-10T3
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The Thoroughbred Breeders' Association of New Jersey (the TBA) appealed from Governor Chris Christie's veto of the minutes of a meeting of the New Jersey Racing Commission. The Commission decided to distribute $15 million collected by the Casino Redevelopment Authority (CRDA) for the purpose of augmenting "purse monies" at New Jersey racing venues. The TBA challenged the constitutionality of the legislative scheme, adopted as part of the creation of the Atlantic City Tourism District, that expressly permitted the Commission to request the monies for this purpose and the CRDA to distribute them, but, at the same time, preserved the Governor's power to veto the Commission's minutes, thereby rendering any action taken null and void.
We examined the various constitutional arguments made by the TBA and rejected them.
The TBA also argued that, even if the legislative scheme was constitutional and the Governor's veto permissible, his action was arbitrary, capricious and unreasonable. We concluded that our usual standard of review applicable to executive agency action did not apply to the discretionary actions of the Governor pursuant to an express legislative grant. 12-07-12

ENID SANTIAGO VS. NEW YORK & NEW JERSEY PORT AUTHORITY, ET AL. A-5773-10T1


ENID SANTIAGO VS. NEW YORK & NEW JERSEY PORT
          AUTHORITY, ET AL.
A-5773-10T1
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Plaintiff, a provisional police officer with the Port Authority Police Department, was terminated after what, she alleged, was a sham internal affairs investigation. She alleged violations of the LAD, CEPA and the Civil Rights Act (CRA). The judge dismissed the complaint, finding lack of subject matter jurisdiction based upon plaintiff's failure to provide notice prior to filing suit as required by N.J.S.A. 32:1-163 (requiring sixty days notice prior to filing suit).
Plaintiff argued that because New Jersey and New York adopted "complimentary" legislation addressing workplace discrimination and whistleblowing, and because no notice was required under New Jersey's Tort Claims Act prior to filing suit under the LAD, CEPA or the CRA, she need not have provided pre- suit notice to the Port Authority.
We affirmed. Without reaching a conclusion as to plaintiff's "complimentary" legislation argument, we decided that the Port Authority's waiver of sovereign immunity and limited consent to suit was expressly conditioned on pre- litigation notice. Given the failure to provide such notice, the court lacked subject matter litigation, regardless of the nature of plaintiff's claims. 12-05-12  

FRANK R. CIESLA O/B/O THE VALLEY HOSPITAL VS. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL. A-5309-10T1


FRANK R. CIESLA O/B/O THE VALLEY HOSPITAL VS. NEW JERSEY
          DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL.
          A-5309-10T1
We affirm the Government Records Council's ("GRC's") ruling that a draft report prepared by staff within the Department of Health concerning a hospital's then-pending, but ultimately withdrawn, application for a Certificate of Need comprises "deliberative material." Such material is excluded from the statutory definition of an obtainable "government record" under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1.1. We hold that the OPRA exemption for deliberative material is absolute, despite prior opinions that have suggested or presumed that the OPRA exemption is qualified.
We further hold that the GRC's jurisdiction is confined to OPRA matters and that it lacks authority to adjudicate common- law claims for access to public records. Under the common law, the deliberative process privilege is not absolute but qualified. Exercising our original jurisdiction, we reject appellant's common-law claim for access to the Department's draft report because the asserted need for disclosure does not
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outweigh  the  strong  public  policy  in  promoting  robust  and
confidential internal advice to a governmental decision-maker. 
12-04-12  

Saturday, December 1, 2012

AUGUSTINE W. BADIALI VS. NEW JERSEY MANUFACTURERS INSURANCE GROUP A-2795-11T3


AUGUSTINE W. BADIALI VS. NEW JERSEY MANUFACTURERS
INSURANCE GROUP
A-2795-11T3
In a prior appeal, the court considered whether defendant
New Jersey Manufacturers Insurance Group (NJM), an uninsured
motorist (UM) insurer -- barred by its policy from rejecting an
arbitration award under $15,000 -- was entitled to reject a
$29,148.62 award when only liable to pay half. In adhering to
D'Antonio v. State Farm Mut. Auto. Ins. Co., 262 N.J. Super. 247
(App. Div. 1993), which considered the same situation in an
underinsured motorist (UIM) setting, the court concluded that
the insurer was bound to the award and, therefore, affirmed a
judgment that precluded NJM's demand for a trial de novo.
Badiali v. N.J. Manufacturers Ins. Grp., No. A-4870-09 (App.
Div. Feb. 28, 2011). In this subsequent action, plaintiff
sought damages from NJM, arguing that NJM litigated in bad faith
in advocating that its policy did not preclude a rejection of
the arbitration award.
The court affirmed the summary judgment entered in favor of
NJM, holding that NJM's position was fairly debatable because it
found support in an earlier unpublished decision of this court.

RAYMOND TARABOKIA, JR., ET AL. VS. STRUCTURE TONE A-3822-11T2


RAYMOND TARABOKIA, JR., ET AL. VS. STRUCTURE TONE
A-3822-11T2
We affirmed the summary judgment dismissal of a negligence
action by an employee of a subcontractor against the general
contractor for a work-site injury, finding, under the
circumstances presented, that the scope of the duty owed by the
general or prime contractor does not encompass the manner and
means of using equipment selected, supplied and controlled by
the subcontractor.  11-16-12 

DEUTSCHE BANK NATIONAL TRUST COMPANY VS. CONRAD D. RUSSO AND IRENE RUSSO A-2437-11T1


DEUTSCHE BANK NATIONAL TRUST COMPANY VS. CONRAD D.
RUSSO AND IRENE RUSSO
A-2437-11T1
We affirmed the trial court's order denying the foreclosure
defendants' 2011 motion to vacate a default judgment that was
entered in 2009. Defendants contended that plaintiff lacked
standing because it filed the foreclosure complaint before
obtaining an assignment of the mortgage, although it obtained an
assignment before the judgment was entered. Defendants further
argued that because plaintiff lacked standing, the trial court
lacked subject matter jurisdiction over the case. We concluded
that, due to defendants' unexcused, years-long delay in
asserting the standing defense, dismissal of the foreclosure
complaint would not be an appropriate remedy. Therefore, in this
context, lack of standing would not constitute a meritorious
defense for purposes of the motion to vacate the foreclosure
judgment. We also held that, in our State court system, standing
is not a jurisdictional issue. Therefore, a foreclosure judgment
obtained by a party that lacked standing is not "void," and
defendants' reliance on Rule 4:50-1(d)(judgments void for lack
of jurisdiction) was misplaced.  11-14-12 

CRYSTAL ICE-BRIDGETON, LLC VS. CITY OF BRIDGETON, ET AL. A-1687-11T1


CRYSTAL ICE-BRIDGETON, LLC VS. CITY OF BRIDGETON, ET
AL.
A-1687-11T1
In affirming summary judgment to various municipal
defendants and a private contractor, we analyzed whether a
property owner was entitled to notice before the contractor
demolished the remainder of the owner's fire-damaged building.
We concluded that the notice requirements contained in N.J.A.C.
5:23-2.32(b)(2) and the summary hearing safeguards provided in
N.J.S.A. 40:48-2.5(f)(2) were inapplicable because the municipal
fire chief, acting pursuant to N.J.S.A. 40A:14-54.1, had "sole
authority" to direct the ongoing fire operations, including the
demolition of the building, in order to protect the lives and
property endangered by the fire, and he had not yet declared the
fire to be out. We also ruled that the municipal defendants,
and the private contractor who acted at their direction, were
immune from liability in these circumstances pursuant to the
Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.  11-13-12 

ARLENE KANDRAC, ET AL. VS. MARRAZZO'S MARKET AT ROBBINSVILLE, ET AL


ARLENE KANDRAC, ET AL. VS. MARRAZZO'S MARKET AT
ROBBINSVILLE, ET AL.
In this appeal from an order granting summary judgment, we
consider whether a commercial tenant in a multi-tenant shopping
center owes a duty to its patrons to maintain an area of the
parking lot that the landlord is contractually obligated to
maintain. We hold that, although the determination of a duty
remains a fact-sensitive issue, as a general rule, the
commercial tenant does not have such a duty. 11-05-12 

DAVID L. HAWK VS. NEW JERSEY INSTITUTE OF TECHNOLOGY, ET AL. A-2059-11T3


 DAVID L. HAWK VS. NEW JERSEY INSTITUTE OF TECHNOLOGY,
ET AL.
A-2059-11T3
A tenured professor at New Jersey Institute of Technology (NJIT)
brought an action in the General Equity Part seeking to enjoin
pending "detenure" proceedings against him, claiming deprivation
of procedural due process in the university's internal
investigation of his conduct. The action was dismissed for
failure to exhaust administrative remedies, and we affirmed.
The assertion of a constitutional claim is but one factor
to be considered in determining whether judicial intervention is
justified, and in order to be relieved of the exhaustion
requirement, that claim must be a colorable one and not
dependent on facts to be developed at the administrative
proceeding, or capable of being vindicated therein.
Here, plaintiff's constitutional claim does not rise to the
level to warrant interlocutory judicial interference. The full
panoply of procedural due process rights does not attend the
administrative investigative stage and the process actually
afforded plaintiff pre-hearing was more than adequate. 10-29-12

NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY VS. JOSEPH MARCANTUONE, ET AL. A-1868-10T3


 NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY VS. JOSEPH
MARCANTUONE, ET AL.
A-1868-10T3
Plaintiff New Jersey Schools Development Authority provided
the funding for the City of East Orange to acquire by
condemnation environmentally contaminated real property owned by
defendants Joseph Marcantuone and Robert Gieson. Pursuant to
Housing Authority of New Brunswick v. Suydam Investors, 177 N.J.
2 (2003), funds representing the estimated cost of remediation
of the land were held in escrow pending a final determination on
liability under the New Jersey Spill Compensation and Control
Act, N.J.S.A. 58:10-23.11 to -23.24.
Relying on our decision in White Oak Funding, Inc. v.
Winning, 341 N.J. Super. 294 (App. Div.), certif. denied, 170
N.J. 209 (2001), the trial court held defendants were not liable
as a matter of law for the cost of remediation because they were
not "in any way responsible" for the contamination. The court
also held that defendants were not the current owners of the
property at the time the contamination was discovered because
plaintiff had previously been vested with title as condemnor
under N.J.S.A. 20:3-19.
We reverse the trial court and hold that our decision in
White Oak was in part implicitly superseded by the 2001
amendments to the Spill Act creating the "innocent purchaser"
defense codified at N.J.S.A. 58:10-23.11g(d)(5). We remand for
the court to determine whether defendants can establish, by a
preponderance of the evidence, the four elements of the
"innocent purchaser" defense. We also hold that in a postcondemnation
proceeding to determine Spill Act liability under
Suydam, defendants are deemed the "current owners" of the
property, notwithstanding N.J.S.A. 20:3-19. 10-29-12

A.D.P. VS. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY A-4806-10T4


A.D.P. VS. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY
A-4806-10T4
Plaintiff, a long-term employee, voluntarily disclosed to
her employer that she was an alcoholic and was going to an inpatient
rehabilitation program. At the time of her disclosure,
plaintiff's job performance was satisfactory and she was not the
subject of any pending or threatened employment or disciplinary
action. Upon her return, the employer required her to agree to
conditions, including total abstinence and random alcohol
testing for a minimum of two years, as a condition of
employment. These conditions were not imposed pursuant to a
"last chance agreement" but, rather, were required by
ExxonMobil's Alcohol and Drug Use Policy. Her employment was
terminated nearly one year later when a breathalyzer test
revealed alcohol use. She filed suit, alleging discrimination
based upon her disability and wrongful termination.
In this appeal, we consider whether summary judgment was
properly granted to the employer. Viewing the record with
favorable inferences drawn in favor of the plaintiff, the
imposition of these conditions and the termination of
plaintiff's employment pursuant to the employer's policy
constituted direct evidence of discrimination. As a result, the
burden of persuasion shifted to the employer, requiring it to
show that the employment actions taken would have occurred even
if it had not considered plaintiff's disability, see McDevitt v.
Bill Good Builders, Inc., 175 N.J. 519, 525 (2003), a burden it
failed to satisfy as a matter of law. We therefore conclude
that summary judgment dismissing plaintiff's disability
discrimination claim was inappropriate. 10-26-12 

FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK A-1147-11T1


FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK
A-1147-11T1
We reversed the trial court's award of alimony, holding
defendant's long-term scheme to embezzle more than $345,000 from
the joint marital business while serving as the business's
bookkeeper, led to plaintiff's fault-based claim for divorce,
caused more than a mere economic impact upon the marital assets,
and demonstrated the rare case of egregious fault justifying
consideration of whether defendant's marital misconduct obviated
an award of alimony. 10-19-12 

Valeria Headen v. Jersey City Board of Education (A- 17-11; 068598)


 Valeria Headen v. Jersey City Board of Education (A-
17-11; 068598)
The Civil Service Act’s paid vacation leave provisions
apply to career service, non-teaching staff employees
of school districts that have opted to be part of the
civil service system, including ten-month employees
such as Valeria Headen. Because the Act and its
implementing regulations establish a floor for the
amount of leave to be provided to such employees and a
collectively negotiated agreement provided Headen with
more than the minimum paid vacation leave to which she
was entitled under the Act, this matter was properly
dismissed. 11-15-12

In the Matter of The Parentage of a Child By T.J.S. and A.L.S., h/w (A-130-10; 067805)


In the Matter of The Parentage of a Child By T.J.S.
and A.L.S., h/w (A-130-10; 067805)
The judgment of the Appellate Division is affirmed by
an equally divided Court. Absent adoption, the Act
does not recognize an infertile wife as the legal
mother of her husband’s biological child born to a
gestational carrier. The Act does no violate the
right to equal protection under Article I, paragraph I
of the New Jersey Constitution because the
distinctions drawn between an infertile husband and an
infertile wife are grounded in actual reproductive and
biological differences, which the Legislature may
consider in defining alternative means of creating
parenthood. 10-24-12 

Monday, October 29, 2012

FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK A-1147-11T1


FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK
A-1147-11T1
We reversed the trial court's award of alimony, holding
defendant's long-term scheme to embezzle more than $345,000 from
the joint marital business while serving as the business's
bookkeeper, led to plaintiff's fault-based claim for divorce,
caused more than a mere economic impact upon the marital assets,
and demonstrated the rare case of egregious fault justifying
consideration of whether defendant's marital misconduct obviated
an award of alimony.

In the Matter of The Parentage of a Child By T.J.S. and A.L.S.,


In the Matter of The Parentage of a Child By T.J.S.
and A.L.S., h/w (A-130-10; 067805)
The judgment of the Appellate Division is affirmed by
an equally divided Court. Absent adoption, the Act
does not recognize an infertile wife as the legal
mother of her husband’s biological child born to a
gestational carrier. The Act does no violate the
right to equal protection under Article I, paragraph I
of the New Jersey Constitution because the
distinctions drawn between an infertile husband and an
infertile wife are grounded in actual reproductive and
biological differences, which the Legislature may
consider in defining alternative means of creating
parenthood.  10-24-12 

Thursday, October 18, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. L.J.D.IN THE MATTER OF THE GUARDIANSHIP OF A.T.D., A MINOR A-5896-10T3


NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.
          L.J.D.IN THE MATTER OF THE GUARDIANSHIP OF A.T.D., A
          MINOR
          A-5896-10T3
We examine a young mother's challenges to a judgment of guardianship terminating her parental rights. Appellant was fourteen when her son was born and she was a child in the custody of the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency. Appellant's placement required her child to be placed in the Division's custody.
Significant is Appellant's challenge that the Division failed to extend reasonable efforts to provide services to aid correction of circumstances necessitating her child's placement. Claiming her age caused the child's removal, appellant suggests the Division must continue services that previously were unsuccessful because of her youth.
In making the required fact-sensitive review of whether the services extended were reasonable, we believe the Division's burden, in this exceptional instance, is a heightened one, dictated by the special circumstance posed by a child-parent's young age. We conclude the Division's efforts must include satisfactory services to aid the development of the child- parent's maturation and necessary skills to adequately parent his or her child. The balancing test considers, on the one hand, the child-parent's abilities, motivations, capabilities and other familial resources to reach this goal, and, on the other hand, the infant's need for achieving stability and permanency within a reasonable time period. 10-17-12  

LEE HOAGLAND AND DENISE HOAGLAND v. CITY OF LONG BRANCH A-0538-11T2/A-1583-11T2


LEE HOAGLAND AND DENISE HOAGLAND v. CITY OF LONG BRANCH
          A-0538-11T2/A-1583-11T2(CONSOLIDATED)
In this case, we consider whether plaintiffs, who had been the subject of eminent domain actions the municipality later abandoned, could recover compensation over and above the litigation expenses they were paid under N.J.S.A. 20:3-35. We hold that, because the municipality followed all the statutory requirements in bringing and later abandoning the actions, there was no "temporary taking" of plaintiffs' properties under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50. We also reject
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plaintiffs' contention that a temporary taking occurred when the trial judge found the municipality had the authority to take possession of their properties. Finally, we hold that a taking did not occur under general constitutional principles. We therefore affirm the trial court's grant of summary judgment to the municipality. 

Sunday, October 14, 2012

DEUTSCHE BANK TRUST COMPANY AMERICAS, F/K/A BANKER’S TRUST COMPANY, AS TRUSTEE VS. YONY R. ANGELES A-2522-11T1


DEUTSCHE BANK TRUST COMPANY AMERICAS, F/K/A BANKER’S TRUST COMPANY, AS TRUSTEE VS. YONY R. ANGELES A-2522-11T1
Defendant in this foreclosure case cited our decision in Deutsche Bank National Trust Co. v. Mitchell, 422 N.J. Super. 214 (App. Div. 2011), in support of his challenge to the Chancery judge's refusal to allow him to raise the issue of standing based on a late assignment of mortgage. We affirmed, holding that defendant, who did not contest the foreclosure, waited too long to raise the issue of standing. He raised the issue for the first time more than three years after default on the mortgage, and after entry of final judgment, mediation, sheriff's sale, and hardship stay of eviction. 10-11-12 

WILLIAM C. BUCHANAN VS. JEFFREY LEONARD, ESQ. AND MORGAN, MELHUISH, MONAGHAN, ARVIDSON, ABRUTYN & LISOWSKI, ESQS., A PARTNERSHIP A-2243-11T4


WILLIAM C. BUCHANAN VS. JEFFREY LEONARD, ESQ. AND
          MORGAN, MELHUISH, MONAGHAN, ARVIDSON, ABRUTYN &
          LISOWSKI, ESQS., A PARTNERSHIP
          A-2243-11T4
The litigation privilege does not preclude a client from asserting a legal malpractice claim against the attorney who represented him in a prior malpractice action where the attorney provided the client's insurance carrier a memo seeking settlement authorization, in which the attorney stated the client had committed a criminal act, thereby allegedly causing the carrier to withdraw coverage. 10-09-12  

NATURAL MEDICAL, INC., ET AL. VS. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL. A-3406-10T1


NATURAL MEDICAL, INC., ET AL. VS. NEW JERSEY
          DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL.
          A-3406-10T1
We hold that the Department of Health did not act arbitrarily, unreasonably or in contravention of the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to
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-16 (Act), in limiting the initial permitting to the statutorily-mandated minimum of six alternate treatment centers (ATCs) to cultivate and distribute marijuana. The Act further requires that the first six ATCs are to be operated by non- profit entities. Appellants, a for-profit corporation and its principal, did not have an unqualified right to apply for permits to operate ATCs and to have their applications processed and evaluated irrespective of need. 10-04-12  

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. S.N.W. IN THE MATTER OF A.W. AND E.W. A-0504-11T4


 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES  VS.
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S.N.W.
IN THE MATTER OF A.W. AND E.W.
A-0504-11T4
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The mere fact that a parent appeared inebriated is not necessarily determinative of whether that parent was providing a minimum degree of care. As a result, the court vacated an order based solely on a determination that the parent had abused or neglected her twenty-month old and five-month old children by appearing inebriated. The court concluded that the trial judge failed to determine the parent's degree of culpability, particularly in light of uncertainty about whether the parent had exceeded the prescribed amount of Xanax she was then taking and whether that circumstance prevented her from being able to provide a minimum degree of care. 10-02-12 

GASKILL VS. CITI MORTGAGE A-5832-10T2


GASKILL VS. CITI MORTGAGE
          A-5832-10T2
     Plaintiffs sought to cancel a judgment obtained prior to
filing a petition in bankruptcy pursuant to N.J.S.A. 2A:16-49.1.
Although the judgment creditor had not levied on the real
property owned by plaintiffs prior to the bankruptcy filing and
the judgment was eligible for cancellation, plaintiffs had
failed to list the judgment creditor or the judgment in their
petition.  Therefore, the judgment creditor had no knowledge of
the bankruptcy filing or the discharge in bankruptcy and no
opportunity to enforce its judgment post-discharge and before
plaintiffs filed their complaint to cancel the judgment.  We
held that the motion judge properly tolled the period in which
the judgment creditor could seek to enforce its judgment until
one year following conclusion of this litigation.  We reasoned
that the statutory remedy provided by N.J.S.A. 2A:16-49.1
assumes knowledge by the judgment creditor of the bankruptcy
proceedings and the discharge in bankruptcy.  Here, it was
undisputed that the judgment creditor had no knowledge of the
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bankruptcy proceeding before plaintiffs filed to cancel the
judgment. 
09-28-12  

KELLY RAMOS VS. HERBERT FLOWERS, ET AL. A-4910-10T3


KELLY RAMOS VS. HERBERT FLOWERS, ET AL.
          A-4910-10T3
Plaintiff, who asserts that he was in the process of filming a documentary about gang activity in a public area, filed suit against the police officer whom he alleges ordered him to stop filming, claiming that the officer violated his free-speech rights under Article I, paragraphs 6 and 18 of the New Jersey Constitution, as well as the First Amendment to the United States Constitution. He brought the suit under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. The Law Division granted defendant's motion for summary judgment and dismissed the complaint, finding that qualified immunity barred the free-speech claims. We reversed.
We determined that the affirmative defense of qualified immunity is available in actions brought under the Civil Rights Act, just as it is in actions brought under 42 U.S.C.A. § 1983. However, as is the case with § 1983, it is only applicable to claims for money damages and does not apply to injunctive relief.
We further determined that the motion judge erred in applying the defense on summary judgment because the alleged actions of defendant, taken in the light most favorable to
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plaintiff, violated plaintiff's free-speech rights, which we held were well-established at the time of the incidents that gave rise to plaintiff's claims. Under those circumstances, qualified immunity is not applicable.
We remanded claims involving allegations of an unlawful arrest for further consideration and the articulation of reasons for the dismissal of those claims. 09-21-12  

KATHERINE MILNE VS. ROBERT GOLDENBERG A-4062-10T4


KATHERINE MILNE VS. ROBERT GOLDENBERG
          A-4062-10T4/A-4319-10T4/A-4594-10T4 (CONSOLIDATED)
In this matrimonial matter the parties raised several challenges to four Family Part orders. Two significant issues warrant publication of our opinion. First, we examined the scope of the hearing regarding a report by a guardian ad litem (GAL) as required by Rule 5:8B. The trial judge limited the evidentiary hearing to examination, including cross-examination, of the GAL, after rejecting plaintiff's request to testify and allow an adjournment to obtain an expert opinion. We determined the trial judge employed too restrictive an interpretation of Rule 5:8B, and clarified the parties' ability to contest the facts presented by a GAL.
Second, we reversed as error the trial court's appointment of a parenting coordinator (PC) without conforming to the Supreme Court Guidelines implementing the PC Pilot Program as he believed the Guidelines applied only to pilot counties, which did not include Essex County. We held that although parties to a matrimonial dispute may agree to accept defined obligations regarding use of a PC, which do not violate the public policy of this State, any Family Part judge ordering the appointment of a PC must comply with the Supreme Court's established Guidelines. 09-12-12  

BARBARA GONZALEZ, ET AL. VS. STATE OF NEW JERSEY APPORTIONMENT COMMISSION, ET AL. A-0747-11T4


BARBARA GONZALEZ, ET AL. VS. STATE OF NEW JERSEY
          APPORTIONMENT COMMISSION, ET AL.
          A-0747-11T4; A-0869-11T4(CONSOLIDATED)
     In this appeal, we affirm the order dismissing a complaint
filed by numerous individuals and groups challenging the
legislative reapportionment map approved by the State of New
Jersey Apportionment Commission. 
09-10-12  

JOHN MULLEN AND HOWARD LEVINE VS. THE IPPOLITO CORPORATION, ET AL. A-5823-10T3


JOHN MULLEN AND HOWARD LEVINE VS. THE IPPOLITO
          CORPORATION, ET AL.
A-5823-10T3
          Plaintiffs, the owners of a single-family house
adjacent to a preexisting nonconforming motel, filed an action
in lieu of prerogative writs seeking mandamus relief against the
Borough of Point Pleasant Beach and its zoning, construction,
and dune protection officials.  Plaintiffs claimed that, over a
period of years, the municipal defendants ignored their numerous
complaints that the motel was expanding its physical footprint
and intensifying its business operations, all in violation of
municipal zoning and dune protection ordinances.
     The trial court granted the municipal defendants' motion
for summary judgment finding that plaintiffs' complaint was
untimely under Rule 4:69-6a, and for failure to exhaust
administrative remedies under Rule 4:69-5.  Relying on Garrou v.
Teaneck Tryon Co., 11 N.J. 294 (1953), we now reverse and hold
the trial court should not have dismissed plaintiffs' complaint
against the municipal defendants. 
09-10-12  

D.W. v. R.W. (A-4-11;


D.W. v. R.W. (A-4-11; 068214)
          Neither the trial court nor the Appellate Division
          referenced the applicable statutory provision,
          N.J.S.A. 9:17-48, which addresses the circumstances
          that warrant an order of genetic testing when
          parentage is in doubt.  Even under the most generous
          view of the facts from Mark or Diane’s perspective,
          there is an absence of good cause to deny genetic
          testing. 
10-10-12  

New Jersey Department of Environmental Protection v. Ofra Dimant (A-2-11


New Jersey Department of Environmental Protection v.
          Ofra Dimant (A-2-11; 067993)
          To obtain damages under the Spill Act, the DEP must
          demonstrate, by a preponderance of the evidence, a
          reasonable connection between the discharge, the
          discharger, and the contamination at the damaged site.
          The proofs failed to establish a sufficient nexus
          between the groundwater contamination and Sue’s
          discharge during its operation. 
9-26-12   

Steven J. Winters v. North Hudson Regional Fire and Rescue, et al. (A-45/46/47-10;


 Steven J. Winters v. North Hudson Regional Fire and
          Rescue, et al. (A-45/46/47-10; 066968)
          When an employee and employer engage the system of
          public employee discipline established by law and the
          employee raises a claim that employer retaliation at
          least partially motivated the decision to bring the
          charge or the level of discipline sought, both the
          employee and employer must live with the outcome,
          including its potential preclusive effect on related
          employment-discrimination litigation as a matter of
          the equitable application of estoppel principles.
9-13-12  

Friday, August 31, 2012

IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE COMPANY/SEPCO CORPORATION IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE COMPANY/MINE SAFETY APPLIANCES COMPANY A-3850-10T1/ A-5191-10T1


 IN THE MATTER OF THE LIQUIDATION OF INTEGRITY
          INSURANCE COMPANY/SEPCO CORPORATION
          IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE
          COMPANY/MINE SAFETY APPLIANCES COMPANY
          A-3850-10T1/ A-5191-10T1 (CONSOLIDATED)
          In these appeals from the denial of toxic tort claims
     asserted against Integrity Insurance Company in Liquidation
     by Sepco Corporation and Mine Safety Appliances Company, we
     applied choice of law principles to the insurance contracts
     at issue and concluded that the trial court properly held
     that the law of New Jersey applied to the question of the
     allocation of coverage among excess insurance policies
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potentially covering the claims for which recovery was
     sought.  We further affirmed the court's determination
     that, under New Jersey's pro rata approach to allocation,
     which takes account of the insurer's time on the risk and
     the degree of risk that was assumed, Integrity's excess
     policies were not triggered by these claims.  We rejected
     the insureds' argument that an "all sums" allocation,
     recognized by the courts of California and Pennsylvania,
     which permits the insured to recover in full under any
     triggered policy that it chooses, was applicable, thereby
     triggering Integrity's coverage. 
08-23-12