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Monday, October 28, 2013

DR. & MRS. JOHN PETROZZI, ET AL. VS. CITY OF OCEAN CITY, ET AL.


 DR. & MRS. JOHN PETROZZI, ET AL. VS. CITY OF OCEAN CITY, ET AL.

A-1633-11T4/A-1677-11T4 (CONSOLIDATED)

In this action by Ocean City beachfront property owners for breach of easement agreements obligating the township to maintain a dunes height restriction, we hold that the municipality's failure to perform its part of the bargain is due to reasonably unforeseen circumstances beyond its control (passage of CAFRA amendments regulating dune maintenance) so as to relieve Ocean City of its contractual duty.

Even though Ocean City may not be liable for breach of contract under the doctrine of impracticability of performance, we nevertheless hold that the homeowners are not left without a remedy in the interest of fairness, since plaintiffs surrendered their right to compensation (through eminent domain condemnation) in reliance on Ocean City's promise to protect their ocean views. We go on to explain the proper measure of restitutionary damages, necessarily limited to the harm that flows naturally only from the increased height and to include the principles recently espoused in Borough of Harvey Cedars v. Karan, 124 N.J. 384 (2013). 10-28-13

GLENN HEDDEN VS. KEAN UNIVERSITY, ET AL.


GLENN HEDDEN VS. KEAN UNIVERSITY, ET AL.

A-4999-12T2

We hold that an e-mail from the head women's basketball coach at Kean University to the University's general counsel was protected by the attorney-client privilege even though she later disclosed it to the NCAA during its investigation into certain practices of the University's athletic program. In the organizational context, the University is considered the client and holder of the privilege, which cannot be waived by an employee who is neither an officer nor director of the entity, and who was not acting under the direction or with the express approval of the University in releasing the document.

Judge Guadagno dissents, finding, based on his review, that the e-mail was not seeking legal advice from counsel; was not made in confidence because another University employee was copied on the document; and that, in any

event, any privilege that may have attached was waived when the University failed to object to the employee's disclosure to the NCAA. 10-24-13

JACQUELIN ARROYO VS. DURLING REALTY, LLC.

 JACQUELIN ARROYO VS. DURLING REALTY, LLC. A-0967-12T2

In this negligence case, plaintiff was injured after she slipped on a telephone calling card that had been discarded on the sidewalk outside of defendant's convenience store. The trial court granted defendant summary judgment, which we affirm.

We reject plaintiff's argument that defendant is liable under the "mode of operation" theory of liability recognized in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003), and in other customer self-service cases. The present case is dissimilar to the successful mode-of-operation cases in several respects. In particular, the phone card had to be presented to a cashier after it was taken from a self-service rack, making the nexus between the rack and the eventual presence of the card on the sidewalk extremely attenuated. Also, the card stored minutes or value and thus was not debris that would invariably be discarded when its purchaser left the store.

It cannot be reasonably asserted that the store's "method of doing business," see Nisivoccia, 175 N.J. at 564, created the sidewalk hazard. What the purchaser chose to do with the card upon leaving the store was not an integral feature of the store's retail operation. Hence, ordinary principles of premises liability, including plaintiff's obligation to show defendant's actual or constructive notice of a dangerous sidewalk condition, apply.

The trial court properly rejected plaintiff's proffered report from a construction consultant, which included criticisms of defendant's maintenance and trash removal practices. The expert's criticisms comprised inadmissible "net opinions" that were not based on objective standards. Instead, the opinions were based upon the expert's personal experiences, without sufficient substantiation or competent proof that they were prevailing or common in the field. 10-23-13


 

Monday, October 21, 2013

Borough of Saddle River v. 66 East Allendale, LLC


 Borough of Saddle River v. 66 East Allendale, LLC
 (A-126-11; 070525)

 The jury heard evidence about the probability of a
zoning change that should have been ruled on by the
judge in advance and outside of the jury’s presence.
A new trial on just compensation is required because
the jury was allowed to hear speculative evidence that
undermined the soundness of its property valuation
determination. 10-21-13

Sunday, October 20, 2013

PATRICIA SOLIMAN ET AL. VS. THE KUSHNER COMPANIES, INC, ET AL. A-5397-10T2

 PATRICIA SOLIMAN ET AL. VS. THE KUSHNER COMPANIES, INC, ET AL.

A-5397-10T2

This appeal involves four consolidated law suits brought by employees of tenants and members of their families, including minors, against the landlord and managers of this commercial office building, as well as a number of other companies responsible for installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms, two male and two female. Plaintiffs allege intentional and negligent infliction of emotional distress, common law invasion of privacy, and invasion of privacy under N.J.S.A. 2C:58D-1(b). They seek common law compensatory damages, punitive damages under the Punitive Damages Act, and statutory damages under N.J.S.A. 2C:58D-1(c).

The Law Division granted defendants' motions for summary judgment and dismissed plaintiffs' cause of action as a matter of law. We reverse the Law Division's order dismissing the counts in their complaints grounded on invasion of privacy. As a threshold issue, plaintiffs must show defendants' actions to clandestinely monitor their activities in a gender-restricted bathroom is subject to liability because it is the type of intrusion that a reasonable person would find to be highly offensive.

Consistent with the approach endorsed by the Supreme
Court in Rumbauskas v. Cantor, 138 N.J. 173 (1995), we also hold that a plaintiff in a cause of action predicated on the tort of invasion of privacy, grounded in the subcategory of "invasion of intrusion on the plaintiff's physical solitude or seclusion," which includes the

characteristics of unconsented prying, may recover compensatory damages for "personal hardships," similar in kind and scope to those codified in N.J.S.A. 10:5-3, if plaintiffs can show a causal link between defendants' intrusion and these "personal hardships." 10-17-13










 

KELLY GREENE VS. AIG CASUALTY COMPANY


KELLY GREENE VS. AIG CASUALTY COMPANY
 A-2990-12T3

We held that defendant had the right to present expert
testimony concerning his heroin addiction and withdrawal
symptoms and the potential impact of his physical and
psychological condition on the reliability of his
confession. The expert may explain how heroin withdrawal
could have affected the defendant during the police
interrogation, but may not opine that the defendant's
confession was unreliable or was false, because such
testimony would usurp the jury's role. While the expert
may rely in part on hearsay to explain his opinions,
N.J.R.E. 703, there must be some legally competent evidence
that defendant was in fact suffering from withdrawal at the
time he made the confession. 10-16-13

Wednesday, October 9, 2013

ALLSTATE NEW JERSEY INSURANCE COMPANY, ET AL. VS. GREGORIO LAJARA, ET AL. A-5684-11T4


ALLSTATE NEW JERSEY INSURANCE COMPANY, ET AL. VS.
GREGORIO LAJARA, ET AL.
A-5684-11T4
In this interlocutory appeal, we affirm the trial court's order striking a jury demand in a private civil action under the Insurance Fraud Prevention Act (Act), N.J.S.A. 17:33A-1 to -30. We previously held that a right to trial by jury does not apply to a civil action under the Act by the Commissioner of Banking and Insurance. State v. Sailor, 355 N.J. Super. 315, 323-24 (App. Div. 2001).
We analyze the statute in view of established principles of statutory construction, and reject defendants' argument that the Act impliedly establishes a right to a jury trial. We distinguish Zorba Contractors, Inc. v. Housing Authority of Newark, 362 N.J. Super. 124 (App. Div. 2003), which found an implied jury trial right under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -109. We also conclude that there is no constitutional right to trial by jury under the fraud prevention law because the equitable nature of the statutory right to relief was unknown at common law before adoption of the State Constitutions. 10-09-13

Anthony D’Agostino v. Ricardo Maldonado (068940; A-82/83-11)


Anthony D’Agostino v. Ricardo Maldonado
(068940; A-82/83-11)
Maldonado’s execution of the transaction at issue gave rise to an unconscionable commercial practice under N.J.S.A. 56:8-2. Notwithstanding the trial court’s
restoration of plaintiffs’ equity in their home, the transfer of that equity to Maldonado constituted an ascertainable loss within the meaning of N.J.S.A.
56:8-19, and the trial court’s determination of damages was within its discretion. 10-3-13

Wednesday, October 2, 2013

I/M/O NEW JERSEY D.E.P. CONDITIONAL HIGHLANDS APPLICABILITY DETERMINATION,PROGRAM INTEREST NO. 435434 A-3236-10T1


I/M/O NEW JERSEY D.E.P. CONDITIONAL HIGHLANDS 
APPLICABILITY DETERMINATION,PROGRAM INTEREST NO. 435434 
A-3236-10T1 
This appeal arises from the second challenge to JCP&L's construction of a 230 kV/12.5 kV electrical substation in Tewksbury Township by the Friends of Fairmount Historic District (FFHD). In its last appeal, FFHD appealed from a final determination of the Board of Public Utilities that the substation was necessary to address repeated power outages in Tewksbury caused by an increased demand and we affirmed. In this case, FFHD appeals from a final agency decision of the Department of Environmental Protection (DEP), which determined that the construction of the substation was exempt from the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35, pursuant to N.J.S.A. 13:20-28(a)(11). That exemption applies to "the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines . . . by a public utility . . . ." We affirm. 09-26-13 

IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities


IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities (A-23-10/A-26-11; 066271) 
The judge’s acting and comedy career is incompatible with the Code of Judicial Conduct and therefore he may not serve as a municipal court judge while continuing with that career. 9-19-13  

In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing


In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing 
(A-90/91/92/93/94-10; 067126) 
The Third Round Rules are at odds with the FHA, which incorporated the Mount Laurel II remedy. Although that remedy imposed thirty years ago should not be viewed as a constitutional straightjacket to legislative innovation of a new remedy responsive to the constitutional obligation, the FHA remains the current framework controlling COAH’s actions. With respect to the current version of the FHA, the Third Round Rules are ultra vires. 9-26-13