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Monday, August 19, 2013

Willingboro Mall v. 240/242 Franklin Avenue (A-62-11; 069082)

Plaintiff expressly waived the mediation-communication privilege and disclosed privileged communications. The oral settlement agreement reached by the parties is upheld. Going forward, however, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable. 8-15-13

Cole v. Jersey City Medical Center (A-6-12; 070542)

Evaluating the totality of the circumstances and applying a fact-sensitive analysis, Liberty’s active participation in the litigation for twenty-one months before invoking the arbitration provision on the eve of trial constituted a waiver of its right to arbitrate.   8-14-13

Waksal v. Div. of Taxation (A-103-11; 069599)

In accordance with the plain language of N.J.S.A.54A:5-1c, the worthless nonbusiness debt at issue is not a “sale, exchange or other disposition of property.” Section 5-1c does not integrate into the Act every provision of the Internal Revenue Code governing capital gains and losses, and 26 U.S.C.A. § 166(d)(1)(B) does not constitute a federal “method of accounting” for purposes of this case. 8-13-13

Emma v. Evans (A-112-11; 070071)

In a dispute to rename a child of divorced parents, the party seeking to alter the surname jointly given to the child at birth bears the burden of proving by a preponderance of the evidence that the change is in the child’s best interest. Irrespective of whether the parents were married at the time of the child’s birth, the best-interests-of-the-child test should be applied in a renaming dispute without a presumption in favor of the custodial parent’s decision to change the jointly given surname of the child. 8-12-13

Hirsch v. Amper Financial Services (A-9-12; 070751)

Although traditional contract principles may in certain cases warrant compelling arbitration absent an arbitration clause, the intertwinement of the parties and claims in a dispute, viewed in isolation, is insufficient to warrant application of equitable estoppel to compel arbitration. 8-7-13

Norfolk Southern Railway v. Intermodal Properties (A-117-11; 070240)

Norfolk Southern’s proposed use meets the requirement of N.J.S.A. 48:3-17.7 that the taking be “not incompatible with the public interest.” Intermodal may not invoke the prior public use doctrine because it lacks the power to condemn and its proposed use is neither prior nor public. As used in N.J.S.A. 48:12-35.1, “exigencies of business” does not necessitate an urgent need for land in order to justify a taking. Rather, it limits a railroad’s power to condemn to those circumstances where the general needs or ordinary course of business require it. 8-6-13

Ten Stary Dom Partnership v. Mauro (A-52-11; 069079)

Defendant satisfied the positive and negative criteria and is therefore entitled to a bulk variance from a frontage zoning requirement. The trial court’s affirmance of the Board’s denial of the variance without prejudice violated the principle of res judicata. 8-5-13

Longo v. Pleasure Productions (A-37-11; 069257)

In cases arising under CEPA, an upper management jury charge is required to support an award of punitive damages against an employer, which can only be awarded if the jury finds wrongful conduct under the clear and convincing evidence standard. 7-24-13

TSI East Brunswick v. Zoning Bd. of Adjustment of Twp. of East Brunswick (A-124-11; 070383)

The relaxed standard of proof established in Coventry
Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994), applies to the evaluation of the negative criteria in an application for a conditional use variance. The enhanced quality of proofs standard established in Medici governing use variances is
inapplicable to an application for a conditional use variance. 7-23-13

Battaglia v. United Parcel Service (A-86/87-11; 069405)

Under the LAD, an employee who voices complaints and allegedly suffers a retaliatory employment action need only demonstrate a good-faith belief that the complained-of conduct violates the LAD. An identifiable victim of actual discrimination is not required. An LAD plaintiff may only recover an award for future emotional distress if evidence of permanency is offered in the form of an expert opinion. In order to succeed on a fraud-based CEPA claim, a plaintiff must reasonably believe that the complained-of activity was occurring and was fraudulent. 7-17-13

In re Plan for the Abolition of the Council on Affordable Housing (A-127-11/A-14-12; 070426)

Because COAH is “in, but not of,” an Executive Branch department, the plain language of the Reorganization Act, which extends the Chief Executive’s authority only to agencies that are “of the executive branch,” N.J.S.A. 52:14C-3(a)(1), does not encompass, and thus
does not authorize the Governor to abolish, an independent agency like COAH. To abolish independent agencies, the legislative and executive branches must enact new laws that are passed by the Senate and Assembly and signed by the Governor. 7-10-13

Shelton v. (A-123-10; 068404)

The TCCWNA covers the sale of tangible and intangible property. Plaintiffs are “consumers” within the scope of the TCCWNA because the certificates acquired by them through the website are “property . . . primarily for personal, family, or household purposes.” The certificates purchased from are “consumer contracts” and the standard terms provided on the certificates are
“notices” subject to the TCCWNA. 7-9-13

Monday, August 12, 2013

Harvey Cedars v. Karan (A-120-11; 070512)

A property’s fair market value should be used as the benchmark in computing “just compensation” in a partial-takings case. Non-speculative, reasonably calculable benefits that increase the property’s value at the time of the taking should be considered in determining just compensation regardless of whether those benefits are enjoyed to a lesser or greater degree by others in the community. Because the Borough was prohibited from presenting evidence of such benefits, and the trial court erroneously charged the jury as to the calculation method for just compensation, a new trial is required. 7-8-13

Sipko v. Koger (A-38/102-11; 068417)

George’s gift of Koger stock to Robert was unconditional and therefore irrevocable. Robert’s transfers of KDS and KPS stock are void for lack of consideration. 7-2-13

Ruroede v. Borough of Hasbrouck Heights (A-95-11; 069484)

The Law Division should have reviewed the evidence to determine whether sufficient, competent evidence supported the charges against Kelly Ruroede. The evidence was competent, and it was sufficient to support the ultimate facts necessary to sustain the Borough’s charges that Ruroede engaged in inappropriate conduct unbecoming a police officer, warranting his termination. 7-1-13

Kane Properties v. Hoboken (A-96/97-11; 069676)

The appearance of impropriety standard governs the evaluation of a municipal attorney’s conflict of interest. The City Council’s decision is set aside because it was tainted by its attorney’s conflict of interest. In these unusual circumstances, to balance the rights of the parties and recognize the proper roles of the relevant decision-making bodies, the Court remands this matter to the Law Division for a de novo review of the Zoning Board’s resolution, and directs the court to entertain the City Council’s arguments or supplements to the record that bear upon its own expertise and knowledge of the zoning scheme and give due consideration to the City Council’s evaluation of the proposed use variances. 6-26-13

Price v. Himeji, Union City Zoning Bd. of Adjustment (A-46-11; 068971)

Evaluation of the particularly suitable standard is fact-specific and site-sensitive, requiring a finding that the general welfare would be served because the proposed use is peculiarly fitted to the particular location. Although the availability of alternative locations is relevant to this analysis, it does not bar a finding of particular suitability. In light of the thorough record and detailed resolution, the Appellate Division’s decision to exercise its original jurisdiction was proper, as was its decision to reinstate the Board’s resolution granting Himeji’s application. 6-25-13

Town of Kearny v. Brandt (A-60/61-11; 068992)

The ten-year period of the statute of repose commenced when the first Temporary Certificate of Occupancy was issued for the Town’s public safety facility. When the claims against a defendant are dismissed on statute of repose grounds, fault may be apportioned to the dismissed defendant under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law. 6-20-13

In the Matter of the Liquidation of Integrity Insurance Company/The Celotex Asbestos Trust (A-50-11; 068970)

Under the doctrine of collateral estoppel, the orders entered in the prior federal court proceedings, which found that there was one occurrence from which all pending and future claims derive and that Celotex failed to provide notice of occurrence to post-1982 excess insurers, bar the proofs of claim filed by the Trust. 6-19-13

DYFS v. I.S. (A-81-11; 069672)

Where abuse or neglect is not found, a trial court cannot maintain jurisdiction under Title 9 and must dismiss that portion of the complaint. Title 30 provides alternative means for providing services to children in need and does not require the Division to meet the same burden as that imposed in proceedings under Title 9. Although FM custody proceedings should occur separately from child-protection proceedings, consolidation is permitted when the individual circumstances of the case require it and no harm results. 6-12-13

Angland v. Mountain Creek Resort (A-57-11; 069461)

The Ski Act is intended to address duties and responsibilities between ski area operators and skiers and it does not apply to claims made between skiers. Testing the record against the applicable common law recklessness standard of care, enough evidence exists to require plaintiffs’ claim to be determined by a jury. 6-6-13

Estate of Naitil Desir v. Vertus (A-3-11; 067899)

This business owner owed no duty of care to his neighbor under the facts contained in this record, which included the business owner leaving his premises to request that a neighbor use his phone to call the premises, who told the neighbor what he had observed before he left the premises, but who failed to prevent the neighbor from going to the scene where he encountered a fleeing robber who shot him. 5-20-13

Northgate Condominium Association, Inc. v. Hillsdale Planning Board (A-5-11; 067794)

The developer’s notice of public hearings, although using lot numbers that were not included on the official tax map, did not thereby misidentify the lot to be developed, complied with the provisions of the Municipal Land Use Law, and conferred jurisdiction on the Planning Board. Plaintiff fails to point to anything in the record supporting its claim that the project design of the internal roadway did not comply with density requirements under the Residential Site Improvement Standards. 5-13-13

Nicholas v. Mynster (A-6/7-11; 068439/068440)

Under a plain textual reading of N.J.S.A. 2A:53A-41,which requires that plaintiffs’ medical expert must “have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty” as defendant physicians, plaintiffs cannot establish the standard of care through an expert who, although credentialed by a hospital to treat the same condition, does not practice in the same specialties as defendant physicians. 4-25-13

New Jersey Dep’t of Envtl. Protection v. Robert and Michelle Huber (A-116-10; 065540)

The exception to the warrant requirement for administrative inspections of commercial property in a closely regulated business recognized in New York v.Burger, 482 U.S. 691 (1987), does not apply to a regulatory inspection of residential property under the FWPA. Land subject to FWPA restrictions, which by law must be recorded, is subject to the statutory, reasonable right of entry and inspection. In exercising that right, the DEP must comply with its processes, which require presentation of credentials before seeking consent to entry at reasonable times. If entry is denied, the Commissioner may order that entry be provided and the DEP is entitled to judicial process to compel access to the property subject to the permit. Here, even excluding Nystrom’s testimony about his inspection, there was sufficient evidence to sustain the finding of a violation of the FWPA. 4-4-13

Borough of East Rutherford v. East Rutherford PBA Local 275 (A-24-11; 068872)

The arbitration award is sustained because it was not procured by undue means, the Arbitrator did not exceed her authority, the award was not contrary to existing law or public policy, and the award was a reasonably debatable interpretation of the CBA. 3-19-13

In the Matter of the Letter Decision of the Committee on Attorney Advertising, Docket No. 47-2007 (A-14-08; 062134)

RPC 7.5 is amended to permit a law firm trade name so long as it describes the nature of the legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results. The name must be accompanied by the name of the attorney responsible for the management of the organization. The term “Alpha” in the Center’s name is impermissible under revised RPC 7.5 and current RPC 7.1. The remainder of the name, coupled with the name of a managing New Jersey attorney, satisfies revised RPC 7.5. 

D.D. v. Univ. of Medicine & Dentistry of N.J. and Rutgers (A-29/30-11; 068812)

Neither attorney inattention nor incompetence constitutes an extraordinary circumstance sufficient to excuse failure to comply with the ninety-day filing deadline under the TCA; plaintiff’s medical proofs were insufficient to meet the extraordinary circumstances standard; and the doctrine of substantial compliance cannot serve to relieve a claimant of the TCA’s written-notice requirement.  3-12-13

Nostrame v. Santiago, et al. (A-40-11; 068651)

Competition for clients among attorneys must be conducted in adherence to the Rules of Professional Responsibility and the means used to induce a client may be neither improper nor wrongful. Any claim that an attorney has engaged in behavior that would constitute a form of tortious interference with the attorney-client relationship of another must be specifically pleaded. Plaintiff’s complaint lacks that specificity, and the Court rejects plaintiff’s application to be permitted to engage in discovery in the hope of finding the requisite factual basis for his claim as both unnecessary and unwarranted.3-11-13

612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority (A-13-11; 067931)

Each sewerage authority that serves a property for the purpose of handling and treating sewage, whether through a direct or indirect connection, may charge a non-duplicative connection fee that reflects the use of its system and contributes toward its system’s cost. In this case, the connection fee was paid into an escrow account by plaintiff 612 Associates, which created an interpleader action that relieved it of any further obligation, therefore the trial court’s apportionment of the fee between the parties was not an abuse of discretion. 3-7-13

IMO Advisory Letter No. 7-11 of the Supreme Court Comm. on Extrajudicial Activities (A-12-11; 068633)

A fully informed and reasonable person could question a judge’s ability to be impartial in ruling on matters concerning law enforcement colleagues of the judge’s child. Thus, consistent with the canons of the Code of
Judicial Conduct, a municipal court judge whose child becomes a police officer in the same municipality may not hear any cases involving that police department. The judge also may not supervise other judges who hear those cases. 3-6-13

DYFS v. A.L. (A-28-11; 068542)

The finding of abuse and neglect under Title 9 cannot be sustained because the Division failed to show actual harm or demonstrate imminent danger or a substantial risk of harm to the newborn child, which N.J.S.A. 9:6-8.21(c)(4)(b)specifically requires. 2-6-13

Jersey Central Power & Light v. Melcar Utility (A-96-10; 067444)

N.J.S.A. 48:2-80(d), on its face, provides no right to a trial by jury. It is unusual in that it is binding on litigants who are effectively suing in negligence under a statutory standard of care for a claim rooted in common-law negligence causing damage to property. The Court has no recourse except to declare the statute as written to be constitutionally flawed. 1-24-13

Prime Accounting Dep’t v. Carney’s Point (A- 32-11; 068380)

Bocceli’s misdesignation of the plaintiff did not deprive the Tax Court of subject-matter jurisdiction. The tax appeal complaint was timely, accurately described the property, and put the Township and the public on notice that the 2008 assessment for the property was disputed by the taxpayer. The defect in the complaint did not prejudice the Township and can be corrected by an amended complaint that relates back to the filing of the original complaint. 1-17-13

Headen v. Jersey City Board of Education (A- 17-11; 068598) REVISED – Originally filed 11-15-12

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 plaintiff 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, her claims were properly dismissed. 1-11-13

Thursday, August 1, 2013


2053 Woodbridge Ave.
Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.

The offices are located on the 1st floor of the building.
2 rooms office  
office room # 6 approx 12.4 x 9.4       
and front room appr 8 x 9 -office room # 5
plus use of reception room  16.6 x 7.2
and use of storage area in basement
$600 per month  [was $700]
Call 732-572-0500
    Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law.