New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htmKenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Wednesday, June 27, 2012

MERRILL LYNCH, ET AL. VS. CANTONE RESEARCH, INC., ET AL. A-2680-10T1; A-2682-10T1; A-2699-10T1(CONSOLIDATED)


MERRILL LYNCH, ET AL. VS. CANTONE RESEARCH, INC., ET AL.
  A-2680-10T1; A-2682-10T1; A-2699-10T1(CONSOLIDATED)

In these consolidated appeals, we affirm four orders entered in the Law Division, enjoining defendants from pursuing their third-party claims against plaintiffs in two investor- initiated FINRA arbitrations, as well as denying defendants' cross-motions to compel plaintiffs to arbitration.   We hold that the Law Division has the authority to determine "gateway" issues such as whether an arbitration agreement exists between the parties, and whether FINRA's Customer Code and Industry Code compel plaintiffs to arbitrate defendants' third- party claims for contribution and indemnification. 06-27-12

RICHARD GREENBERG VS. NEW JERSEY STATE POLICE TROOPER NICHOLAS J. PRYSZLAK, ET AL. A-5925-10T1


RICHARD GREENBERG VS. NEW JERSEY STATE POLICE TROOPER NICHOLAS J. PRYSZLAK, ET AL.   A-5925-10T1

Following a dispute between plaintiff and defendant Oil Station, Inc. (OSI), which had performed an oil change on plaintiff's vehicle and allegedly damaged the vehicle's battery
in the process, plaintiff closed the bank account on which he had made the original payment of $129.44 and provided OSI a check for $31.02, the amount which plaintiff felt was due.  OSI contacted the State Police, which conducted an investigation and
ultimately concluded there was probable cause to believe plaintiff violated the bad check statute, N.J.S.A. 2C:21-5.  Plaintiff was arrested in his home and held at a state police
barracks until he agreed to pay the full amount OSI claimed was due.

 Plaintiff commenced this action, alleging false arrest, false imprisonment, various constitutional violations, and other common law torts.  The trial judge granted summary judgment in favor of the State Police and the other State defendants, as well as OSI and its representative.  The court reversed, concluding that an arrest within the home was unlawful absent an arrest warrant or exigent circumstances -- both of which were
absent -- or consent, which turned on disputed questions of fact that could not be decided at the summary judgment stage.  The court also held there were genuine questions of material fact regarding the State defendants' claim that probable cause to arrest existed and on the defense of qualified immunity, thereby precluding summary judgment.

 In addition, the court reversed the summary judgment entered in favor of OSI and its representative because that judgment was based on the trial judge's dismissal of the claims
against the State defendants.  The court also found there was evidence to support plaintiff's theory that OSI and its representative conspired with the State defendants to falsely arrest and imprison plaintiff because, among other things, OSI had previously enlisted the aid of the State Police in the collection of OSI's unpaid bills. 06-26-12

JEREMY S. PITCOCK VS. KASOWITZ, BENSON, TORRES, and FRIEDMAN, L.L.P. A-5036-10T2


JEREMY S. PITCOCK VS. KASOWITZ, BENSON, TORRES, & FRIEDMAN, L.L.P.
  A-5036-10T2

Under the "most significant relationship" test that now controls the resolution of choice-of-law questions in tort actions, plaintiff's malicious use of process claim based on a
lawsuit filed against him in New York arising out of the termination of his partnership in a New York law firm is barred by New York's one-year limitations period applicable to such actions. 06-25-12

ASDAL BUILDERS, LLC, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. A-2392-10T1


ASDAL BUILDERS, LLC, ET AL. VS. NEW JERSEY 
  DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL.
  A-2392-10T1

 We published that portion of our lengthy opinion reviewing the final decision of the Commissioner of the Department of Environmental Protection (DEP), regarding the renovation and construction of structures located in a floodway, which addressed penalty assessments imposed pursuant to the DEP's authority designated in the Environmental Enforcement Enhancement Act (EEEA), L. 2007, c. 246.  The enactment of the EEEA eased the penalty assessment procedure by granting the DEP direct authority to impose assessments rather than pursue an injunction and penalties through an action filed in Superior Court.  N.J.S.A. 58:16A-63(a) (2004), amended by L. 2007, c. 246 (Jan 4, 2008).  

 We reversed and vacated the EEEA assessments, finding they applied to alleged violations that pre-existed the statute's adoption, which were being challenged on appeal, and could not be considered "on-going." 06-25-12

IN THE MATTER OF THE BOARD’S MAIN EXTENSION RULES N.J.A.C. 14:3-8.1 ET SEQ.A-1626-10T2; A-1640-10T2; A-2026-10T2; A-2227- 10T2(CONSOLIDATED)


IN THE MATTER OF THE BOARD’S MAIN EXTENSION RULES
 N.J.A.C. 14:3-8.1 ET SEQ.A-1626-10T2; A-1640-10T2; A-2026-10T2; A-2227-
10T2(CONSOLIDATED)

In this appeal, we addressed the question of whether, and to what extent, our 2009 opinion in In re Centex Homes, LLC, 411 N.J. Super. 244 (App. Div. 2009) should have retroactive effect. In Centex, we invalidated as ultra vires the 2005 Board of Public Utilities (BPU) regulations known as the Main Extension Rules, N.J.A.C. 14:3-8.1 to -8.13, deeming the Extension Rules an "extreme departure" from the procedures that had been extant for nearly a century. 

 Despite our sweeping invalidation of the Extension Rules, BPU chose to afford our Centex decision only pipeline retroactivity, confining the benefit of Centex to only eighteen developers, and denying the benefit of Centex to hundreds of others.  

 In the present appeals, which we consolidated for purposes of disposition, we conclude that because our opinion in Centex did  not  announce  a  new  rule  of  law,  but  instead accomplished the reinstatement of a well-accepted and well-understood century-long procedure, the pipeline retroactivity ordered by BPU was error.  We held that complete retroactivity of Centex was required. 06-22-12

IN THE MATTER OF THE CIVIL COMMITMENT OF D.Y. SVP-491-08 A-4296-09T2


IN THE MATTER OF THE CIVIL COMMITMENT OF D.Y.  SVP-491-08
 A-4296-09T2

We hold there is no constitutional right to self-representation at a commitment hearing, held pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, under either the Sixth Amendment or Due Process Clause of the Fourteenth Amendment. 06-21-12

J.E.V. VS. K.V.

J.E.V. VS. K.V.


A-2933-09T2

In this appeal, we reaffirm established principles governing the award of limited duration alimony, which consider the length of the marriage, the period of economic dependency during the marriage, and the skills and education necessary to return to the workforce rather than the marital lifestyle and the ability to replicate the marital lifestyle at the end of the chosen term. Once the trial judge found that the mental illness affecting the supported spouse would not interfere with her ability to obtain and sustain employment, we affirmed a ten-year limited duration alimony award. 06-21-12

IN THE MATTER OF THE PETITION OF RICHARD G. MURPHY, II, FOR MANDATORY RELIEF FOR PUBLIC SERVICE ELECTRIC AND GAS COMPANY’S OVERCOLLECTION OF “STRANDED COST” SURCHARGES PURSUANT TO N.J.S.A. 48:3-61 A-4758-10T2




The Electric Discount and Energy Competition Act (EDECA), N.J.S.A. 48:3-49 to -98.4, allows an electric utility company to recover certain "stranded costs" by imposing market transition charges (MTC) and transition bond charges (TBC) upon its customers. While EDECA allows the Board of Public Utilities to periodically review the amount of the MTC the company has collected, it does not require the Board to reconsider its prior order fixing the amount of the company's "stranded costs." Furthermore, EDECA precludes the Board from re-evaluating the amount of the "stranded costs" the company may recover through the TBC. 06-20-12

N.G. VS. J.P. A-3247-10T3

N.G. VS. J.P. A-3247-10T3


In this appeal from the issuance of a final restraining order (FRO) under the Prevention of Domestic Violence Act, we affirmed the exercise of jurisdiction even though the parties, who are adult siblings, have not resided together since 1960,when they both were children. We agreed with the judge's determination that the harassment of plaintiff by defendant over the intervening decades -- although sporadic – conferred jurisdiction on the Family Part to issue the FRO, in light of the fact that the present incidents arose directly from the parties' acrimonious family relationship and their status as former household members. 06-18-12

S.J. VS. DIVISION OF MEDICAL ASSISTANCE, ET AL. R.H. VS. JENNIFER VELEZ, ETC. C.B. VS. JENNIFER VELEZ, ETC. A-5714-10T1; A-5803-10T2; A-5804-10T1 (CONSOLIDATED


S.J. VS. DIVISION OF MEDICAL ASSISTANCE, ET AL.
R.H. VS. JENNIFER VELEZ, ETC.
C.B. VS. JENNIFER VELEZ, ETC.  
A-5714-10T1; A-5803-10T2; A-5804-10T1 (CONSOLIDATED)

In these consolidated administrative appeals that involve publicly-funded medical assistance programs, we affirm decisions of the Director of the Division of Medical Assistance and Health Services.  Specifically, we uphold the Director's determinations to deny appellants' applications to continue to receive healthcare benefits after becoming ineligible due to increased incomes. 06-13-12

S.K. VS. J.H. A-1358-11T2


S.K. VS. J.H. A-1358-11T2

Plaintiff brought this suit pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, as a result of being atrociously assaulted by defendant, who, along with
plaintiff, was on a trip to Israel with approximately forty others. In seeking to prove the existence of a "dating relationship," plaintiff was able to show only that, on the
evening of the assault, she and defendant sat together, danced together, and were together for a few hours at the bar. The trial court found a "dating relationship" and entered a final
restraining order.

 In considering defendant's appeal, the court deferred to the trial judge's finding that the parties' interactions constituted a "date" but rejected the argument that this one
date constituted the "dating relationship" required by the Act. Although the Legislature did not expressly define what it meant by a "dating relationship," the court found from the majority of those other states that have defined the term that a "dating relationship" is a romantic social relationship, which is further defined by its frequency and duration but which excludes casual or ordinary fraternization between two individuals in a
business or social context.  As a result of this generally accepted meaning of "dating relationship," the court held that a single date was insufficient and reversed. 06-06-12

HOUSE OF FIRE CHRISTIAN CHURCH VS. ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON, ET AL. A-6128-10T1

HOUSE OF FIRE CHRISTIAN CHURCH VS. ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON, ET AL. A-6128-10T1

We dismiss the appeal because the order appealed from is interlocutory, the trial court improvidently certified the order as final, and the unresolved issues are best fully addressed in the Law Division before appellate review is undertaken. In balancing the needs of the individual litigants against the firm judicial policy of avoiding piecemeal litigation, we conclude that the public interest is best served by the matter returning to the Law Division for a complete and final disposition of all issues as to all parties. 06-01-12

IN RE PELVIC MESH/GYNECARE LITIGATION A-5685-10T4


IN RE PELVIC MESH/GYNECARE LITIGATION 
A-5685-10T4

The trial court exceeded its discretion in this multi-plaintiff, jointly case-managed litigation by ordering that defendants were barred from retaining as an expert witness or
consulting with any physician who has at any time treated one or more of the several hundred plaintiffs.  The "litigation interests" of a current or past patient are not synonymous with the "medical interests" of patients, which physicians are ethically bound to pursue and support.  Defendants' proposed protocol and protective order would address any potential issue of physician-patient privilege, which was essentially waived in this litigation.  

Judge Sabatino's concurrence would reverse the trial court's order on the ground that the disqualification provisions are overbroad and unduly burdensome on the defense, particularly in light of the number of potential defense experts that were or will be disqualified. 06-01-12

CATHERINE ZEHL VS. CITY OF ELIZABETH BOARD OF EDUCATION, ET AL. A-1296-11T3


CATHERINE ZEHL VS. CITY OF ELIZABETH BOARD OF EDUCATION, ET AL.
 A-1296-11T3

This interlocutory appeal, where we review the propriety of the appointment of a discovery master based on extraordinary circumstances under Rule 4:41-1, requires us to reconcile and harmonize two significant policies:  1) the continuing need for and use of available tools and procedures to ensure that litigation is conducted in an orderly and efficient manner to achieve a just result; and 2) the recognition and safeguarding of unfettered judicial access for litigants prosecuting remedial actions brought pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.  

   While these two policies generally partner well, where the posture of the litigation warrants the use of a discovery master, these policies may conflict.  We conclude that in
actions brought pursuant to the LAD and CEPA, in finding extraordinary circumstances as grounds for appointing a discovery master, the trial judge must consider the remedial
nature of the LAD and CEPA litigation as well as the ability of litigants to absorb the costs of such relief.  The judge must consider that the appointment of a discovery master in fee- shifting remedial cases, which by their very nature oftentimes involve litigants with limited resources, may impose a cost burden on litigants that creates a de facto bar to their access to the justice system.  The trial judge failed to consider these factors here.  We reverse and remand. 05-31-12   

MANAHAWKIN CONVALESCENT VS. FRANCES O'NEILL AND FRANCES O'NEILL, ETC., VS. BROADWAY HEALTH CARE MANAGEMENT, LLC, ET AL. A-0841-11T4


MANAHAWKIN CONVALESCENT VS. FRANCES O'NEILL AND
FRANCES O'NEILL, ETC., VS. BROADWAY HEALTH CARE
MANAGEMENT, LLC, ET AL.
 A-0841-11T4

The complaint captioned Manahawkin Convalescent v. Frances O'Neill was dismissed.  This appeal pertains to the third-party action filed by Frances O'Neill, in her capacity as Executrix of the Estate of Elise Hopkins v. Broadway Health Care Management, LLC, et al.

The issue presented in this appeal is whether the Rehabilitation and Nursing Home Admission Agreement required to be signed prior to plaintiff's mother Elise Hopkins' admission to Manahawkin Convalescent Center violated the Nursing Home Act,
N.J.S.A. 30:13-1 to -17, the Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 to -18, and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.  The narrower issue is whether the nursing home's lawsuit filed against the
plaintiff as the responsible party, to collect the outstanding debt owed for services rendered for her mother's care, violates the Consumer Fraud Act.

We recognized the long-standing "learned professional" exception to the Consumer Fraud Act that proscribes consumer protection actions against certain types of professionals or
industries that are regulated by separate state or federal agencies, where such regulation could conflict with regulation under the CFA. The Supreme Court held in certain instances separate agencies with concurrent regulatory jurisdiction and control may create conflicting determinations, rulings and regulations affecting the identical subject matter.  

Hospital billing activities have been found to be within the learned professional exception due to state and federal regulations associated with the receipt of Medicaid and Medicare
funding.  Applying that rule of law here, we determine that defendant's nursing home is similarly regulated and as such, their billing services fall within the "learned professional"  exception of the CFA. 5-31-12

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. T.S. IN THE MATTER OF I.S. AND V.S. A-3012-10T3


NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. T.S. IN THE MATTER OF I.S. AND V.S.  A-3012-10T3

In a case where the court finds no abuse or neglect and the children are living with a parent, a court may not continue the care and supervision by the Division of Youth and Family Services, over the parent's objection, without conducting a summary hearing, on adequate notice, to determine whether the Division's intervention, pursuant to N.J.S.A. 30:4C-12, is in the children's best interests and to identify necessary services. 05-31-12

ROBERT B. BEIM, ET AL. VS. TREVOR R. HULFISH, ET AL. A-5947-10T4


ROBERT B. BEIM, ET AL. VS. TREVOR R. HULFISH, ET AL.  A-5947-10T4

As a matter of first impression, we hold that under New Jersey's Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, pecuniary injuries may include a diminishment in a prospective inheritance caused by increased estate taxes incurred due to the premature death of a decedent. 05-29-12

SWARNLATA KHANDELWAL, ET AL. VS. ZURICH INSURANCE CO., ET AL. VS. LALITKUMAR KHANDELWAL A-2620-10T2


SWARNLATA KHANDELWAL, ET AL. VS. ZURICH INSURANCE CO., ET AL. VS. LALITKUMAR KHANDELWAL A-2620-10T2

In the context of automobile insurance provided for car rentals, we held that an intra-family exclusion is void as against public policy even though it is included in an optional,
separate policy rather than the basic coverage policy that comes with the rental. 05-29-12

IN THE MATTER OF MARTIN CARLUCCIO, SAFETY SPECIALIST TRAINEE, DMV (S0599J), MOTOR VEHICLE COMMISSION A-5219-09T1


IN THE MATTER OF MARTIN CARLUCCIO, SAFETY SPECIALIST
TRAINEE, DMV (S0599J), MOTOR VEHICLE COMMISSION
A-5219-09T1

Appellant was disqualified from a list of eligible candidates for the position of Safety Specialist Trainee with the Motor Vehicle Commission (MVC) because of a 1999 conviction for attempted aggravated assault.  Appellant appealed to the
Civil Service Commission and argued, among other things, that the Rehabilitated Convicted Offender Act (the RCOA), N.J.S.A. 2A:168A-1 to -16, controlled, and a certificate issued by the State Parole Board pursuant to the RCOA presumptively demonstrated his rehabilitation and eligibility for employment. 
 
 The Civil Service Commission denied appellant's appeal, concluding that the RCOA did not apply because the position permitted "access to sensitive information that could threaten
the public health, welfare, or safety," N.J.S.A. 2A:168A- 7(c)(1), and therefore was not "public employment" subject to the provisions of the RCOA.

 Appellant sought reconsideration and furnished, among other things, a certificate issued by the Parole Board pursuant to the RCOA that was specific to the position of Safety Specialist
Trainee.  The motion was denied.

 We discussed the recent amendments to the RCOA, and specifically concluded that "[n]otwithstanding any law to the contrary," N.J.S.A. 2A:168A-7(a), a certificate issued pursuant to N.J.S.A. 2A:168A-8 is the legislatively-chosen mechanism to "reliev[e] disabilities, forfeitures or bars" to public employment arising from certain prior criminal convictions.  Because the Commission failed to consider the effect of the Parole Board's determination and the preeminent role the Legislature delegated to the Parole Board under the RCOA, we remanded the matter for further proceedings. 05-25-12

CORRECTIONAL MEDICAL SERVICES, INC. VS. STATE OF NEW JERSEY, ET AL. A-5334-10T4


CORRECTIONAL MEDICAL SERVICES, INC. VS. STATE OF NEW
JERSEY, ET AL.
 A-5334-10T4

We hold that documents generated by the State in connection with its investigation of compliance by Correctional Medical Services (CMS) with the terms of its contract with the State, its determination to assess liquidated damages against CMS, and its computation of such damages are not protected from discovery in a breach of contract action instituted by CMS by either the deliberative process or the official information privileges. 05-22-12
 

MARTIN E. O'BOYLE VS. BOROUGH OF LONGPORT, ET AL. A-2698-10T2


MARTIN E. O'BOYLE VS. BOROUGH OF LONGPORT, ET AL.
 A-2698-10T2

In this case we find that the common interest doctrine applies in the context of the work product privilege, protecting letters and CDs exchanged between counsel from disclosure under OPRA and the common law right of access. 05-21-12

JOSEPHINE GABRIELE, ET AL. VS. LYNDHURST RESIDENTIAL COMMUNITY, L.L.C., ET AL. A-5257-10T3


JOSEPHINE GABRIELE, ET AL. VS. LYNDHURST RESIDENTIAL COMMUNITY, L.L.C., ET AL. A-5257-10T3

A general employee exclusion from insurance coverage for personal injury to an employee of "any insured" arising out of or in the course of, or as a consequence of, employment by any insured, excludes coverage to an additional insured for personal injury or death of an employee of the named insured.  When an endorsement to an insurance policy restricts the coverage provided by the basic policy, the endorsement is generally controlling. 05-18-12

DOCK STREET SEAFOOD, INC., ET AL. VS. CITY OF WILDWOOD, ET AL. A-4411-10T4


DOCK STREET SEAFOOD, INC., ET AL. VS. CITY OF WILDWOOD, ET AL.  A-4411-10T4

In this inverse condemnation action involving a property in a redevelopment zone, plaintiff appeals from a judgment in favor of defendant following a bench trial.  Judge Michael Winkelstein found plaintiff's failure to file a redevelopment application
for its property precluded its inverse condemnation claims and purported comments by individual municipal officials that no building permits would be issued to the property owners did not excuse plaintiff's obligation to exhaust administrative remedies; plaintiff's continued use of the property for the same purpose as when purchased and its rejection of an offer to purchase by the redeveloper belied its claim of destruction of all beneficial use; and defendant's inability to redevelop the area despite diligent attempts did not significantly interfere with plaintiff's property rights.  We affirm substantially for
the reasons set forth by Judge Winkelstein in his comprehensive written opinion and supplemental letter opinion, which we now publish. 05-18-12

NORTH HALEDON FIRE COMPANY NO. 1, JOHN BLEEKER AND DANIEL STEVENSON VS. BOROUGH OF NORTH HALEDON AND LINCOLN NATIONAL CORPORATION D/B/A LINCOLN FINANCIAL GROUP A-2918-10T4


NORTH HALEDON FIRE COMPANY NO. 1, JOHN BLEEKER AND DANIEL STEVENSON VS. BOROUGH OF NORTH HALEDON AND LINCOLN NATIONAL CORPORATION D/B/A LINCOLN FINANCIAL GROUP A-2918-10T4

The Emergency Services Volunteer Length of Service Award Program Act, N.J.S.A. 40A:14-183 to -193, allows a county or municipality to make annual contributions to active volunteer members of emergency service organizations operating under their respective jurisdictions if the member earns points for participating in certain activities. The Act permits a county or municipality to require members of its volunteer fire department
to earn a minimum number of points for fire department responses as a condition for the annual contribution; however, the municipality did not impose such a condition in its implementing ordinance. 05-16-12

IN THE MATTER OF THE APPEAL OF LANGAN ENGINEERING & ENVIRONMENTAL SERVICES, INC. A-2145-11T3


IN THE MATTER OF THE APPEAL OF LANGAN ENGINEERING &
ENVIRONMENTAL SERVICES, INC.
 A-2145-11T3

A section of the Campaign Contributions and Expenditure Reporting Act, N.J.S.A. 19:44A-20.14, provides that a business entity is disqualified from the award of a state contract if the
firm has made a political contribution within the eighteen-month period immediately preceding the "commencement of negotiations." In the context of publicly-bid contracts, we construe the term "commencement of negotiations" to be the date the bid was submitted. 05-15-12

EDIE BRITMAN SAURO VS. FRANK SAURO IN THE MATTER OF BUDD LARNER, P.C. A-2735-09T3


EDIE BRITMAN SAURO VS. FRANK SAURO IN THE MATTER OF BUDD
LARNER, P.C.
 A-2735-09T3

   The law firm of Budd Larner, P.C., one of three firms that represented plaintiff during this protracted matrimonial case, appeals the Family Part's equitable distribution award,
arguing that the manner in which the court allocated the parties' marital assets negatively affected the firm's attorney charging lien pursuant to N.J.S.A. 2A:13-5.

Invoking its parens patriae responsibility, the Family Part established a college trust account by allocating money that would have otherwise been subject to equitable distribution,
took action to ensure that defendant honored his support obligation, and set aside a modest amount to permit plaintiff to acquire skills to enter the labor force independent of defendant's support.

We affirm and hold that the Family Part's actions were within its discretionary authority and in keeping with its parens patriae responsibility.  Dedicating these funds towards a
specific future purpose before the entry of final judgment was not inconsistent with the protections afforded to attorneys in N.J.S.A. 2A:13-5.  The lien attaches only to funds available to the parties at the time of the final disposition of the case. 05-14-12

GREGORY LASKY AND ADVOCATES FOR DISABLED AMERICANS (AFDA) VS. BOROUGH OF HIGHTSTOWN A-5256-10T1


GREGORY LASKY AND ADVOCATES FOR DISABLED AMERICANS
(AFDA) VS. BOROUGH OF HIGHTSTOWN
 A-5256-10T1

In a public accommodation disability discrimination claim against a municipality under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, alleging an overall lack
of access, we hold that an advance request for an accommodation from the disabled individual is not a precondition to filing suit.

 We distinguish, as requiring such notice, those claims alleging a failure to reasonably accommodate and account for making specific adaptations required by the individual's
disability, that is not equivalent to a facility's general unavailability on prohibited grounds. 05-11-12

GREGORY LASKY AND ADVOCATES FOR DISABLED AMERICANS (AFDA) VS. MOORESTOWN TOWNSHIP A-2742-10T3


GREGORY LASKY AND ADVOCATES FOR DISABLED AMERICANS
(AFDA) VS. MOORESTOWN TOWNSHIP
 A-2742-10T3

In upholding a jury verdict finding a public entity not liable under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, for denying plaintiff, a paraplegic, access to its park, we held that the trial court properly charged the jury with governing legal principles.  One such principle is that for facilities preexisting 1992, the effective date of Title II's implementing regulations, a public entity may satisfy the ADA by adopting a variety of measures less costly than structural change, including assigning aides to assist disabled persons in accessing services.  Nor does a facility not accessible without assistance necessarily violate the LAD, which requires a "reasonable accommodation."  Thus, the question of whether the plaintiff was discriminated against by being denied "reasonable access" to the park was one for the jury to resolve. 05-11-12

CARMENA STONEY AND LINDA VANDEUSEN VS. MAPLE SHADE TOWNSHIP A-1777-10T3


CARMENA STONEY AND LINDA VANDEUSEN VS. MAPLE SHADE
TOWNSHIP
A-1777-10T3

At issue is whether a trial court may deny injunctive relief upon a jury finding of access discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

 We hold that although injunctive relief is authorized by both the ADA and LAD, it does not automatically follow from a breach of either statute.  Instead, where a party has
demonstrated actual success on the merits, a court must balance three factors to determine whether injunctive relief is appropriate: (1) the threat of irreparable harm to the movant;
(2) the harm to be suffered by the non-moving party if the injunction is granted; and, most significantly, (3) the public interest at stake, which strongly favors mandating
accessibility. 

 Moreover, irreparable harm to the disabled individual from a denial of access should be presumed in cases involving facilities built or "altered" after January 26, 1992, the
effective date of Title II's implementing regulations, which mandate compliance with specific architectural standards. 05-11-12

D. S. VS. CELGENE CORPORATION AND CVS/CAREMARK CORPORATION A-2685-10T2



D. S. VS. CELGENE CORPORATION AND CVS/CAREMARK
CORPORATION
 A-2685-10T2

Plaintiff filed a complaint alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, well beyond CEPA's one-year limitation period, N.J.S.A. 34:19-5, and while he had a breach of contract action based on the same facts pending in Texas.  Primarily because plaintiff's delay is attributable to his initial selection of the Texas forum and his subsequent decision to pursue a remedy for a CEPA violation in New Jersey after an unfavorable choice of law determination by a court in Texas, we conclude that the doctrines of substantial compliance and equitable tolling do not permit him to proceed in New Jersey. 05-09-12

ETHEL GRAY VS. CALDWELL WOOD PRODUCTS, ET AL. A-0120-11T1


ETHEL GRAY VS. CALDWELL WOOD PRODUCTS, ET AL. 
 A-0120-11T1

In this action, plaintiff was injured as a result of a slip and fall on ice on the sidewalk in front of defendant's vacant commercial building.  In the appeal, the court considered
whether the commercial property owner owed a duty to the plaintiff.  The trial court entered summary judgment in favor of defendant finding that sidewalk liability did not apply because, as a vacant building, the property was not being used at the time of the accident.  In reversing, the court determined that the commercial property was subject to sidewalk liability
because the property had the capacity to generate income and did, in fact, spread the risk of loss by maintaining commercial property insurance. The court also held that defendant had a duty to remove snow and ice from sidewalks abutting its property.
05-07-12


ADELE KONOP, ET AL. VS. ELLEN J. ROSEN, M.D. A-2908-10T1


ADELE KONOP, ET AL. VS. ELLEN J. ROSEN, M.D.
 A-2908-10T1

 In this medical malpractice action, the factual support for plaintiff's expert's opinion regarding defendant's deviation rested solely upon a notation that appeared in a hospital
consultation report prepared, not by defendant, but by a resident doctor in the emergency room.  Following a N.J.R.E. 104 hearing, the judge concluded that the notation should be
redacted from the report because it was hearsay, not subject to any exception.  He subsequently granted defendant summary judgment.

 We reversed, concluding that there was sufficient circumstantial evidence to permit a reasonable jury to conclude by a preponderance of the evidence that the notation was a
statement attributable to defendant, thus admissible under N.J.R.E. 803(b)(1) ("[a] statement offered against a party which is . . . the party's own statement").  

 We further concluded that although N.J.R.E. 104(a) reserves to the judge determinations as to whether preliminary "condition[s]" of "admissibility," as opposed to relevancy, have
been fulfilled, when the only condition of admissibility is resolution of a single disputed fact, the exercise of the judge's discretion is limited.  In such circumstances, the judge
is not the ultimate fact finder, but, rather, must decide only whether the evidence is sufficient to allow a jury to decide the disputed fact in favor of the proponent of the evidence. 04-25-12

MYRON COWHER VS. CARSON & ROBERTS, ET AL. A-4014-10T1



MYRON COWHER VS. CARSON & ROBERTS, ET AL. 
 A-4014-10T1

Reversing summary judgment in favor of plaintiff's employer and two co-workers, we hold that plaintiff, a non-Jew, presented a prima facie case of discrimination on the basis of perceived religious affiliation through videotapes and admissions establishing that the co-workers had regularly uttered anti-Semitic epithets and engaged in other anti-Semitic conduct directed at plaintiff.  In reaching that conclusion, we found a presumption to exist that defendants' conduct was spurred by plaintiff's perceived status as a Jew.  

We also found prima facie evidence that defendants' conduct was severe or pervasive enough to make a reasonable person believe that the conditions of plaintiff's employment were altered and that the working environment had been made hostile or abuse.  We held in that regard that the conduct should be evaluated from the perspective of a reasonable Jew, and that the fact that plaintiff was not Jewish was relevant only to his damages.
04-18-12

JAMES BROOKS VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM A-3778-10T3


JAMES BROOKS VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
 A-3778-10T3

A school custodian who suffered a total and permanently disabling shoulder injury while carrying a 300-pound weight bench when the other persons who were assisting him suddenly dropped their side of the bench experienced a "traumatic event" that qualifies him for an accidental disability pension under the tests set forth in Richardson. 04-17-12

POTOMAC INSURANCE COMPANY OF ILLINOIS VS. PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, ET AL. A-3164-09T2


POTOMAC INSURANCE COMPANY OF ILLINOIS VS. PENNSYLVANIA
MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, ET AL. 
 A-3164-09T2

In this opinion, we determined that one co-insurer's settlement of coverage litigation with the insured does not necessarily bar another co-insurer's claim against the settling co-insurerfor defense costs in the underlying action.  However, we also hold that the attorneys who filed and defended the coverage suit had an obligation under the entire controversy doctrine to disclose the potential claim for defense costs by the non-party co-insurer.  

In this case, the attorney who filed the coverage action on behalf of the insured was retained and controlled by the co-insurer which subsequently filed the action seeking contribution to defense costs.  Consequently, we reversed that portion of the order on appeal that awarded counsel fees to that insurer in the subsequent action, based upon the failure to disclose the potential subsequent action. 4-13-12