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Thursday, November 13, 2014

STRATEGIC ENVIRONMENTAL PARTNERS, LLC VS. NEW JERSEY v DEPARTMENT OF ENVIRONMENTAL PROTECTION A-5283-12T3

 STRATEGIC ENVIRONMENTAL PARTNERS, LLC VS. NEW JERSEY v DEPARTMENT OF ENVIRONMENTAL PROTECTION 
A-5283-12T3 
This case involves an emergency order issued by the Commissioner of the Department of Environmental Protection pursuant to N.J.S.A. 13:1E-9.5(c) and -125.9. The order enjoined the owner of a solid waste landfill located in the Township of Roxbury from accepting any material onto the landfill, and authorized the Department to immediately seize control of the landfill to abate an alleged imminent threat to the environment arising from continued emissions of hydrogen sulfide. 
We concluded that the Department exceeded its authority under N.J.S.A. 13:1E-125.4 by seizing control of the landfill without first obtaining judicial approval, and erred in basing the emergency order on past hydrogen sulfide emissions by applying a statutory emissions standard that did not yet exist until the applicable statute was enacted the same morning the order was issued. We also concluded the Department had not made the requisite showing to justify an emergency order under N.J.S.A. 13:1E-125.9. Accordingly, we vacated the emergency order and remanded to the trial court for further proceedings. 

We specifically rejected the landfill owner's contention that the new statute on which the Department relied constituted unconstitutional special legislation, and declined to address other constitutionally-based challenges to the Department's actions. 

EDUCATION LAW CENTER ON BEHALF OF ABBOTT V. BURKE PLAINTIFF SCHOOLCHILDREN VS. NEW JERSEY STATE BOARD OF EDUCATION AND CHRISTOPHER D. CERF, COMMISSIONER, NEW JERSEY DEPARTMENT OF EDUCATION A-2816-12T3


 EDUCATION LAW CENTER ON BEHALF OF ABBOTT V. BURKE PLAINTIFF SCHOOLCHILDREN VS. NEW JERSEY STATE BOARD OF EDUCATION AND CHRISTOPHER D. CERF, COMMISSIONER, NEW JERSEY DEPARTMENT OF EDUCATION 
A-2816-12T3 

The New Jersey State Board of Education had statutory authority and did not act arbitrarily and capriciously in amending and repealing certain regulations promulgated under the Charter School Program Act of 1995 to permit existing, successful charter schools in under-performing school districts to open satellite locations within the same districts. 

Tuesday, September 23, 2014

BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS A-3252-12T1

 BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS 
A-3252-12T1 
We affirm the summary judgment dismissal of plaintiff's LAD complaint, alleging claims of hostile work environment and constructive discharge. Plaintiff experienced racial discrimi-nation by a fellow employee assigned to train him. When the incidents were disclosed to defendant, its mechanisms, including a formal anti-harassment and anti-discrimination policy, a developed complaint procedure and an investigation process, effectively resolved the discriminatory treatment identified by plaintiff and he precluded any further racial harassment. However, plaintiff maintains as a result of his disclosures, co-workers avoided him, which he insisted caused his constructive discharge. 

We held plaintiff's complaints of perceived ostracism by fellow employees after he reported a co-worker's acts of racial discrimination are insufficient to support LAD claims of hostile work environment, retaliation or impose vicarious liability on the employer. 

BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS A-3252-12T1

 BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS 
A-3252-12T1 
We affirm the summary judgment dismissal of plaintiff's LAD complaint, alleging claims of hostile work environment and constructive discharge. Plaintiff experienced racial discrimi-nation by a fellow employee assigned to train him. When the incidents were disclosed to defendant, its mechanisms, including a formal anti-harassment and anti-discrimination policy, a developed complaint procedure and an investigation process, effectively resolved the discriminatory treatment identified by plaintiff and he precluded any further racial harassment. However, plaintiff maintains as a result of his disclosures, co-workers avoided him, which he insisted caused his constructive discharge. 

We held plaintiff's complaints of perceived ostracism by fellow employees after he reported a co-worker's acts of racial discrimination are insufficient to support LAD claims of hostile work environment, retaliation or impose vicarious liability on the employer. 

Monday, September 15, 2014

IN THE MATTER OF AN INITIATIVE PETITION FOR THE ADOPTION OF AN ORDINANCE TO AMEND THE JACKSON TOWNSHIP ADMINISTRATIVE CODE A-0517-13T1

IN THE MATTER OF AN INITIATIVE PETITION FOR THE ADOPTION OF AN ORDINANCE TO AMEND THE JACKSON TOWNSHIP ADMINISTRATIVE CODE 
A-0517-13T1 

This appeal involves a governing body's pre-election challenge to an ordinance proposed in an initiative petition. The trial court declared a section of the ordinance unlawful but, notwithstanding a severance clause in the ordinance, declined to sever the unlawful section and order that the excised ordinance be placed on the ballot. We affirm. We conclude that the trial court had the authority to hear the pre-election challenge to the proposed ordinance. We further conclude that the court did not have the authority to revise the ordinance and order that the altered ordinance be placed on the ballot. 

ERIC G. HANISKO VS. BILLY CASPER GOLF MANAGEMENT, INC., ET AL. A-5053-12T4

ERIC G. HANISKO VS. BILLY CASPER GOLF MANAGEMENT, INC., ET AL. 
A-5053-12T4 
In this appeal, we revisit the application of the special employer-special employee relationship addressed in Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967), and, in doing so, affirm the grant of summary judgment to defendants. Plaintiff, the superintendent of a golf club, sustained injuries in his employer-provided residence. Applying the Blessing factors, we found plaintiff was employed by both the management company that managed the golf club, and the golf club. We rejected plaintiff's contention that judicial estoppel precluded 

the golf club from asserting the exclusivity provisions of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, as a bar to plaintiff's action in Superior Court against the golf club. In addition, we found no error in the trial court's consideration, for summary judgment purposes, the fully executed employment agreement, which was not turned over to plaintiff during the course of discovery. We agreed, as the motion judge found, the parties did not dispute the authenticity of the document. 

PRINCETON SOUTH INVESTORS, LLC VS. FIRST AMERICAN TITLE INSURANCE INSURANCE COMPANY A-0850-12T3

PRINCETON SOUTH INVESTORS, LLC VS. FIRST AMERICAN TITLE INSURANCE INSURANCE COMPANY 
A-0850-12T3 

In a dispute over title insurance coverage, we held that a municipality's pending tax appeal, concerning the alleged under-assessment of plaintiff's property, did not render plaintiff's title unmarketable or constitute a defect in or an encumbrance on the title. In addition, based on the language of the title insurance policy, we held that the claim was not covered. 

ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. A-1113-12T4

 ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. 
A-1113-12T4 

This is a suit on a surety bond. Dobco, Inc. (Dobco) appeals from a final judgment denying its motion for partial summary judgment against Colonial Surety Company (Colonial), surety for J. Strober & Sons, LLC (Strober), Dobco's subcontractor, and granting Colonial's motion for summary judgment dismissing Dobco's claims against Colonial. The Law Division dismissed Dobco's claims against Colonial under the bond on the ground that the bond did not name Dobco as the obligee and because Dobco had rejected the bond as not in the form required by its subcontract with Strober. We deem neither of those facts material because we conclude that in entering into its surety contract with Strober, Colonial obligated itself to issue a performance bond to Dobco in the form annexed to the Dobco/Strober subcontract. Accordingly, we reverse. 

Davis v. Brickman Landscaping, Ltd. (A-22/23/24-12

Davis v. Brickman Landscaping, Ltd. 
(A-22/23/24-12; 071310) 

Plaintiffs were required to establish the applicable standard of care through expert testimony. The standard of care set forth by plaintiffs’ expert constituted an inadmissible net opinion because it lacked objective support. Summary judgment in defendants’ favor was appropriate because, as a result of plaintiffs’ failure to support their asserted standard of care, they were unable to establish the required elements of their negligence claim. 

Thomas Saccone v. Board of Trustees of the Police and Firemen’s Retirement System (A-49-12;

Thomas Saccone v. Board of Trustees of the Police and Firemen’s Retirement System (A-49-12; 071841) 

The disabled child of a retired member of the PFRS may have his or her survivors’ benefits paid into a first-party SNT created for him or her under 42 U.S.C.A. § 1396p(d)(4)(A). 

Stephanie Washington v. Carlos A. Perez (A-10-13;

 Stephanie Washington v. Carlos A. Perez (A-10-13; 072522) 

Given the significant distinctions between fact and expert witnesses, and the array of reasons why a party may choose not to call a previously designated expert witness to testify, an adverse inference charge should rarely be invoked to address the absence of an expert. 

Tahir Zaman v. Barbara Felton (A-60-12; 072128)

Tahir Zaman v. Barbara Felton (A-60-12; 072128) 
The Court affirms the jury’s determination that Felton knowingly sold her property to Zaman. It reverses the portion of the Appellate Division’s opinion that affirmed the trial court’s dismissal of Felton’s claim that the parties’ agreements gave rise to an equitable mortgage. The Court remands to the trial court for application of the eight-factor standard for the determination of an equitable mortgage set forth by the United States Bankruptcy Court in O’Brien v. Cleveland, 423 B.R. 477, 491 (Bankr. D.N.J. 2010) and, in the event that the trial court concludes that an equitable mortgage was created by the parties, for the adjudication of two of Felton’s statutory claims based on alleged violations of consumer lending laws, as well as several other claims not adjudicated by the trial court. The Court concurs with the trial court and Appellate Division that Felton has no claim under the Consumer Fraud Act, that this case does not implicate In re Opinion No. 26, and that Felton’s remaining claims were properly dismissed. 

Robert Lavezzi v. State of N.J. (A-29-13;

Robert Lavezzi v. State of N.J. (A-29-13; 072856) 
Pursuant to the Wright standard, the State is obligated to defend and indemnify the Prosecutor’s Office employees at this early stage of the litigation because, based on the limited record before the Court, this case arises from the performance of their law enforcement duties. 

ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. A-1113-12T4

ALLIED BUILDING PRODUCTS CORP. VS. J. STROBER & SONS,LLC, ET AL. 
A-1113-12T4 
This is a suit on a surety bond. Dobco, Inc. (Dobco) appeals from a final judgment denying its motion for partial summary judgment against Colonial Surety Company (Colonial), surety for J. Strober & Sons, LLC (Strober), Dobco's subcontractor, and granting Colonial's motion for summary judgment dismissing Dobco's claims against Colonial. The Law  Division dismissed Dobco's claims against Colonial under the bond on the ground that the bond did not name Dobco as the obligee and because Dobco had rejected the bond as not in the form required by its subcontract with Strober. We deem neither of those facts material because we conclude that in entering into its surety contract with Strober, Colonial obligated itself to issue a performance bond to Dobco in the form annexed to the Dobco/Strober subcontract. Accordingly, we reverse. 

NEW CENTURY FINANCIAL SERVICES, INC., VS. AHLAM OUGHLA/ MSW CAPITAL, LLC, VS. AZEEM H. ZAIDI A-6078-11T4

NEW CENTURY FINANCIAL SERVICES, INC., VS. 
AHLAM OUGHLA/ MSW CAPITAL, LLC, VS. AZEEM H. ZAIDI 
A-6078-11T4/A-6370-11T1(CONSOLIDATED) 
In these two appeals we consider the proofs necessary for plaintiffs to prevail on summary judgment in an action to collect an assigned debt on a closed and charged-off credit card account. 
In considering whether plaintiffs established prima facie proof of their claims of ownership of the defendant's charged-off debt and the amount due the card issuer when it charged off the account, we hold that lack of notice to the debtor of the sale of the debt does not affect the validity of the assignment; the assignment need not specifically reference defendant's name or account number and instead may refer to an electronic data file containing that information; a plaintiff need not procure an affidavit from each transferor in its chain of assignments and may instead establish prima facie proof of ownership on the basis of business records documenting its ownership; and that an electronic copy of the periodic billing statement for the last billing cycle is prima facie proof of the amount due on the account at charge off. Applying those standards to the facts presented on the motions, we affirm one judgment and reverse the other. 

KATHLEEN KRUPINSKI N/K/A KATHLEEN GOCKLIN VS. MICHAEL KRUPINSKI A-2300-12T2

KATHLEEN KRUPINSKI N/K/A KATHLEEN GOCKLIN VS. MICHAEL KRUPINSKI 
A-2300-12T2 
Defendant appeals from the order of the Family Part denying his motion to terminate his obligation to pay permanent alimony. Although the motion judge found defendant's retirement created "changed circumstances" under Lepis, the judge did not consider whether plaintiff can maintain her former marital lifestyle after she began receiving her equitable distribution share of defendant's pension. Although under N.J.S.A. 2A:34-23(b), the share of retirement benefits that has been equitably distributed is not "income" to plaintiff for purposes of determining alimony, defendant must be given the opportunity to prove that the value of plaintiff's share of his retirement benefit was enhanced by his "post-divorce efforts." If defendant is able to quantify the value of his post-divorce efforts, the court must then consider that "enhanced value" as "income" to plaintiff and outside the bar in N.J.S.A. 2A:34-23(b). If this "income" to plaintiff allows her to maintain a lifestyle equal to or better than her marital lifestyle, defendant is entitled to terminate his permanent alimony obligation. We reverse and remand for limited discovery and an evidentiary hearing. 

KHASHAYAR VOSOUGH, M.D., ET AL. VS. ROGER KIERCE, M.D., ET AL. A-3017-11T1

KHASHAYAR VOSOUGH, M.D., ET AL. VS. ROGER KIERCE, M.D., ET AL. 
A-3017-11T1 
In this common law contract and tortious interference case, plaintiff doctors claimed damages on the ground that defendant hospital's bylaws were violated and not enforced by the hospital. The jury's verdict of about $1.27 million for plaintiffs is reversed because they did not have viable theories of recovery and because they did not prove compensable damages. 
The same conduct of the individual defendants (the hospital's CEO and a department chairman) that allegedly constituted their tortious interference with plaintiffs' independent contractor agreements could not also constitute their conduct on behalf of the hospital that constituted the hospital's breach of the contract. 

Furthermore, the at-will independent contractor agreements limited the doctors' claim for future lost income to 60 days, which was the time for notice by either party that the contract would be terminated. 

DYFS vs. S.I. I/M/O S.I., a minor. A-2878-12T1

DYFS vs. S.I. I/M/O S.I., a minor. 
A-2878-12T1 
We reversed an order of abuse and neglect resulting from a custodial grandparent's refusal to comply with the Division's recommendation for the twelve-year-old child to undergo a psychiatric assessment. The grandmother insisted the child was rebelling and acting out, and was not suicidal. The Division removed the child, obtained what was an unremarkable mental health assessment, and filed Title 9 complaint alleging medical neglect. 

We concluded there was no competent evidence the conduct complained of rose to the level of abuse and neglect because there was no proof the disagreement with the Division's recommendation recklessly created a substantial risk to the child's mental or physical safety, as required by N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013). The trial judge's view that an immediate mental status evaluation was necessary was based on a generalized concern for teenage suicide and untethered to the facts of the case, which was void of factual or expert evidence demonstrating the child was in imminent danger. [*Approved for Publication date] 

JAMES F. WALTERS V. YMCA A-1062-12T3

JAMES F. WALTERS V. YMCA 
A-1062-12T3 
Plaintiff sued the YMCA after he slipped and fell on steps that led to the indoor pool. The trial court granted defendant's motion for summary judgment and dismissed plaintiff's complaint based on an exculpatory clause included in the membership agreement plaintiff signed to access YMCA's facilities and physical fitness equipment. The motion judge found plaintiff's cause of action was barred under the Court's holding in Stelluti v. Casapenn Enters., Inc., 203 N.J. 286 (2010). 
  We reverse because the type of expansive exculpatory clause involved here was specifically not addressed by the 
Court in Stelluti. Applying the standard for enforceability in Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 248 (App. Div. 2004), endorsed by the Court in Stelluti, we hold the YMCA's exculpatory clause is unenforceable because it would eviscerate the common law duty of care owed by the YMCA to its invitees, regardless of the nature of the business activity involved. 

THE RIDGE AT BACK BROOK, LLC VS. W. THOMAS KLENERT A-2345-12T1

THE RIDGE AT BACK BROOK, LLC VS. W. THOMAS KLENERT 
A-2345-12T1 

Defendant represented himself from the commencement of the action, through the summary judgment stage and when final judgment was entered. Following the entry of final judgment, defendant retained counsel and unsuccessfully sought Rule 4:50 relief, arguing he could not previously afford counsel and did not understand what was required of him in responding to Rule 4:22 requests or in opposing summary judgment. In this appeal, the court vacated the order denying Rule 4:50 relief, concluding the trial judge should have more liberally indulged defendant's argument and remanding for that purpose. The court held the Rule 4:50 motion should have been treated in the same manner as such motions are treated when the moving party has been represented by a negligent attorney, as in cases such as Parker v. Marcus, 281 N.J. Super. 589, 593 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996). 

GLOBE MOTOR COMPANY AND THE MARGOLIS LAW FIRM, LLC VS. ILYA IGDALEV AND JULIA IGDALEV A-0897-12T1

GLOBE MOTOR COMPANY AND THE MARGOLIS LAW FIRM, LLC VS. ILYA IGDALEV AND JULIA IGDALEV 
A-0897-12T1 

Plaintiffs' action sought enforcement of the terms of settlement, when a portion of the funds transferred by defendants in satisfaction of their obligations was reclaimed by a Chapter 7 Bankruptcy Trustee as a fraudulent transfer of the corporate debtor's funds. Defendant Ilya Igdalev certified the bank and certified checks he gave plaintiffs were sent by his friend, who was holding Ilya's money, which he was owed. In support of summary judgment, plaintiffs attached the Trustee's adversary proceeding, emails from bankruptcy counsel suggesting, after his review, settlement was appropriate, and the final settlement of the adversary proceeding. 

J.B. v. W.B. (A-111-11


 J.B. v. W.B. (A-111-11; 069972) 

A parent seeking to modify a negotiated agreement for the support of a disabled child through the establishment of a special needs trust must present a specific plan and demonstrate how the proposed trust will benefit the disabled child. When a disabled child is the subject of a proposed special needs trust, it is within the trial court’s discretion to appoint a guardian ad litem. 

Willingboro Mall, LTD. v. 240/242 Franklin Avenue, L.L.C. (A-62-11


 Willingboro Mall, LTD. v. 240/242 Franklin Avenue, L.L.C. (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. 

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


 Karen 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. 

Harlan W. Waksal v. Director, Div. of Taxation (A-103-11;


 Harlan W. Waksal v. Director, 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. 

Paul Emma v. Jessica Evans (A-112-11

Paul Emma v. Jessica 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. 

Michael E. Hirsch v. Amper Financial Services, LLC (A-9-12

Michael E. Hirsch v. Amper Financial Services, LLC 
(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. 

Norfolk Southern Railway Company v. Intermodal Properties, LLC (A-117-11;

Norfolk Southern Railway Company v. Intermodal Properties, LLC (A-117-11; 
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. 

Ten Stary Dom Partnership v. T. Brent Mauro (A-52-11;

Ten Stary Dom Partnership v. T. Brent 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. 

Tuesday, August 12, 2014

THE RIDGE AT BACK BROOK, LLC VS. W. THOMAS KLENERT A-2345-12T1


THE RIDGE AT BACK BROOK, LLC VS. W. THOMAS
          KLENERT
A-2345-12T1
Defendant represented himself from the commencement of the action, through the summary judgment stage and when final judgment was entered. Following the entry of final judgment, defendant retained counsel and unsuccessfully sought Rule 4:50 relief, arguing he could not previously afford counsel and did not understand what was required of him in responding to Rule 4:22 requests or in opposing summary judgment. In this appeal, the court vacated the order denying Rule 4:50 relief, concluding the trial judge should have more liberally indulged defendant's argument and remanding for that purpose. The court held the Rule 4:50 motion should have been treated in the same manner as such motions are treated when the moving party has been represented by a negligent attorney, as in cases such as Parker v. Marcus, 281 N.J. Super. 589, 593 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996). 

GLOBE MOTOR COMPANY AND THE MARGOLIS LAW FIRM, LLC VS.ILYA IGDALEV AND JULIA IGDALEV A-0897-12T1

GLOBE MOTOR COMPANY AND THE MARGOLIS LAW FIRM, LLC VS.ILYA IGDALEV AND JULIA IGDALEV
A-0897-12T1
Plaintiffs' action sought enforcement of the terms of settlement, when a portion of the funds transferred by defendants in satisfaction of their obligations was reclaimed by a Chapter 7 Bankruptcy Trustee as a fraudulent transfer of the corporate debtor's funds. Defendant Ilya Igdalev certified the bank and certified checks he gave plaintiffs were sent by his friend, who was holding Ilya's money, which he was owed. In support of summary judgment,plaintiffs attached the Trustee's adversary proceeding, emails from bankruptcy counsel suggesting, after his review, settlement was appropriate, and the final settlement of the adversary proceeding.
We concluded, as did the motion judge, the documents sufficiently showed the money came from the debtor corporation and Ilya's claim his friend was to send his money did not defeat the fact his friend actually used the debtor corporation's funds. Also, Ilya never asserted the debtor owed him money.
We concluded even if Ilya was unaware of his friend's conduct, he directed the transaction and is responsible for the consequences. In accordance with the terms of settlement, defendants were liable to pay plaintiff the sum accepted by the Chapter 7 Trustee, along with attorney's fees and costs.
Judge Sapp-Peterson dissents, reasoning summary judgment should have been granted in favor of defendants on the breach of contract claim as a matter of law. As for plaintiffs' remaining claims of breach of the covenant of good faith and fair dealing, fraud, unjust enrichment and indemnification, she finds there are genuinely disputed issues of fact surrounding the source of the funds utilized to satisfy defendants' obligations under the settlement agreement, which are sufficient to defeat summary judgment. She would reverse and remand for trial on those remaining claims. 

K.A.F. VS. D.L.M. D.L.M. VS. K.A.F. AND F.D. A-0878-12T2

K.A.F. VS. D.L.M.
          D.L.M. VS. K.A.F. AND F.D.
A-0878-12T2
We hold that the consent of both fit and active legal parents to the creation of a psychological relationship between their child and a third party is not necessary for standing on the part of the third party to bring an action asserting psychological parenthood. It is sufficient if only one of the legal custodial parents has consented, and such consent need not be explicit, but may be gleaned from the circumstances. The status of the non-consenting parent, rather, is one factor among many a court should consider in determining whether the third party has established that he or she is a psychological parent, and,
page2image18664 page2image18824

if so, whether the best interests of the child warrant some form of custody or visitation. 

Sunday, August 10, 2014

I/M/O GOVERNOR CHRIS CHRISTIE'S APPOINTMENTOF MARTIN PEREZ AS PUBLIC MEMBER 7 OF THE RUTGERS UNIVERSITY BOARD OF GOVERNORS A-6047-12T3


I/M/O GOVERNOR CHRIS CHRISTIE'S APPOINTMENTOF MARTIN PEREZ AS PUBLIC MEMBER 7 OF THE RUTGERS UNIVERSITY BOARD OF GOVERNORS
A-6047-12T3

In this case, Senate President Stephen M. Sweeney challenges Governor Chris Christie's appointment of Martin Perez to the Rutgers Board of Governors. We hold that the Appellate Division has jurisdiction to hear the appeal, the appeal should not be dismissed as untimely, and the Senate President has standing to challenge the Governor's action. We also hold that Governor's appointment of Perez without the advice and consent of the State Senate is a valid exercise of authority conferred on the Governor by the New Jersey Medical and Health Services Education Restructuring Act, L. 2012, c. 45. 

R.K. VS. F.K. A-4165-11T4

 R.K. VS. F.K.
          A-4165-11T4
Under the two-step process outlined in Lepis v. Lepis, 83 N.J. 139 (1980), a movant seeking a change of custody must show a change of circumstances warranting relief to be entitled to an evidentiary hearing, but the judge must
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decide the evidentiary hearing based on the best interests of the child. After a seven-day divorce trial focused on child custody, the trial court mistakenly found no substantial change in circumstances rather than determining the best interests of the children.
The trial court also erred by relying on the Domestic Violence Act's provision that the court "shall presume that the best interests of the child are served by an award of [temporary] custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). That presumption, important in the initial FRO proceeding, has no application in a subsequent custody determination in a divorce trial, particularly once a change of circumstances has been shown. Rather, that trial is governed by N.J.S.A. 9:2-4, under which "the history of domestic violence" is one factor among several that the court must consider in determining the best interests of the children. 

DARCY J. KOLODZIEJ VS. BOARD OF EDUCATION OF SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN COUNTY A-4826-12T1


DARCY J. KOLODZIEJ VS. BOARD OF EDUCATION OF
          SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN
          COUNTY
          A-4826-12T1
We hold that maternity leave constitutes continued employment under N.J.S.A. 18A:28-5(a), entitling petitioner in this matter to tenure protection and status under the school district's Reduction In Force (RIF) plan. 

MICHAEL C. KAIN VS. GLOUCESTER CITY, ET AL. A-4854-12T2

MICHAEL C. KAIN VS. GLOUCESTER CITY, ET AL.
          A-4854-12T2
The plan or design immunity provision of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3, applies to injuries caused by "the plan or design of public property" approved "by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval . . . ." N.J.S.A. 59:4-6(a) (emphasis added). This case requires us to decide whether this provision exempts municipal defendants from liability for an allegedly dangerous condition in a pier designed by the Coast Guard and, specifically, whether the Coast Guard falls within the scope of the term, "some other body," under the statute. We decide that it does. We also conclude that the Charitable Immunity Act applies to the non-municipal defendants. 

IN RE CHALLENGE OF CONTRACT AWARD SOLICITATION 13-X-22694


IN RE CHALLENGE OF CONTRACT AWARD SOLICITATION
          13-X-22694 LOTTERY GROWTH MANAGEMENT SERVICES
          A-4629-12T4
The award of a long-term contract to a private entity for sales and marketing and other management functions of the New Jersey State Lottery did not violate the 1969 constitutional amendment that authorized the lottery or the State Lottery Law's provision "establishing a lottery to be operated by the State." N.J.S.A. 5:9-2. 

JORGE CASAL VS. HYUNDAI MOTOR AMERICA A-4487-12T3


JORGE CASAL VS. HYUNDAI MOTOR AMERICA
          A-4487-12T3
In a matter of first impression the issue is whether a manufacturer that violated the Lemon Law is required under N.J.S.A. 56:12-32a to pay counsel fees, for the work done by the consumer's attorney to cancel optional third party contracts arranged by the dealer at the time of the sale. We find this relief is required under the statute. 

CLAIR W. FLINN, ET AL. VS. AMBOY NATIONAL BANK AND AB MONMOUTH, LLC A-4216-12T1

CLAIR W. FLINN, ET AL. VS. AMBOY NATIONAL BANK AND AB MONMOUTH, LLC
A-4216-12T1
Plaintiffs, the owners of eighteen of the forty-eight constructed units in a partially-built, ninety-six-unit condominium complex, sought an order from the trial court granting them control of the condominium association's governing board. Plaintiffs relied on a provision within the New Jersey Condominium Act, N.J.S.A. 46:8B-12.1(a), which provides that "when some of the units of a condominium have been conveyed to purchasers and none of the others are being constructed or offered for sale by the developer in the ordinary course of business," then such unit owners "shall be entitled to elect all of the members of the [association's] governing board."
The trial court denied plaintiffs' request, relying upon N.J.A.C. 5:26-8.4(d), a regulation cited by defendants. The regulation states that "[a] developer may surrender control of the executive board of the [condominium] association prior to the time as specified [under the statute's percentage-based, lock-step procedures that are otherwise to be followed], provided the owners agree by a majority vote to assume control." The trial court ruled that plaintiffs were not entitled to an order transferring control because they had not agreed to assume such control by a majority vote of unit owners.
We reverse the trial court's decision because the cited regulation pertains to a developer's voluntary request to surrender control and does not pertain to the present situation of a request for involuntary surrender. In addition, the terms of the regulation cannot trump or negate the mandatory language of the statute.
The case is remanded for an evidentiary hearing to resolve the parties' factual dispute over whether or not the current developer is constructing or offering units for sale in the "ordinary course of business." In addition, in an unpublished portion of the opinion, we reversed the trial court's dismissal with prejudice of other counts of the complaint.


Borough of Merchantville v. Malik & Son A-66-12;


Borough of Merchantville v. Malik & Son, LLC, et al.
          (A-66-12; 072255)
          Prior to instituting a condemnation action, a
          condemning authority has an obligation to present an
          offer to acquire the subject property and to engage in
          bona fide negotiations only with the holder of the
          title of record or the holder of the interest sought
          to be condemned.  Therefore, the condemning authority
          here was not required to engage in negotiations with
          the holder of the final judgment of foreclosure for
          the property sought to be condemned.

Daniel Tumpson, et al. v. James Farina, et al. (A-13/14-13


Daniel Tumpson, et al. v. James Farina, et al.
          (A-13/14-13; 072813)
          The City Clerk violated the right of referendum
          guaranteed by the Faulkner Act and deprived plaintiffs
          of a substantive right protected by the Civil Rights
          Act, thus entitling them to attorney’s fees.

James P. Renner v. AT&T

James P. Renner v. AT&T (A-71-11; 068744)
          Where a Workers’ Compensation claimant fails to
          demonstrate that cardiovascular injury, disease or
          death, resulted from a work effort or strain involving
page2image13896 page2image14056 page2image14216 page2image14376 page2image14536

a substantial condition or event, he or she is not
          entitled to compensation under N.J.S.A. 34:15-7.2.

Magic Petroleum Corporation v. Exxon Mobil Corporation (A-46-12;


Magic Petroleum Corporation v. Exxon Mobil Corporation
          (A-46-12; 069083)
          Plaintiff property owners or other responsible parties
          may file contribution claims in Superior Court, and a
          court may allocate liability before the final
          resolution of a site remediation plan by the DEP.  The
          trial court may assign liability based on evidence
          presented at trial, but may not be able to issue a
          final damages award.  In addition, a party need not
          obtain written approval of the remediation plan prior
          to filing a claim for contribution.

In the Matter of Civil Commitment of D.Y. (A-42-12; 071464)


In the Matter of Civil Commitment of D.Y. (A-42-12;
          071464)
          The plain language of N.J.S.A. 30:4-27.29(c) and -
          27.31(a) requires that there be one of two alternative
          forms of representation at SVP commitment hearings:
          (1) full representation by counsel, or (2) self-
          representation by an individual who is competent to
          conduct his or her case, with standby counsel present
          throughout the hearing to assist if needed.  Standby
          counsel may advise the committee, assist the court in
          expediting the proceedings, and assume an active role
          if his or her client proves unwilling or unable to
          participate cooperatively in the hearing.

Matthew J. Barrick, Jr. v. State of New Jersey (A-8/9-13; 072795)

 Matthew J. Barrick, Jr. v. State of New Jersey
          (A-8/9-13; 072795)
The Director’s determination that the distance
          requirement was not material to the RFP was
          unassailably reasonable and the decision awarding the
          lease contract to RMB was not arbitrary, capricious,
          or unreasonable.  Under the circumstances, the Court
          declines to consider the mootness issue, but warns
          future unsuccessful bidders that sitting on the right
          to seek a stay may imperil any opportunity for a
          merits review.

Martin E. O’Boyle v. Borough of Longport (A-16-12; 070999)


Martin E. O’Boyle v. Borough of Longport (A-16-12;
          070999)
          The Court expressly adopts the common interest rule as
          articulated in LaPorta v. Gloucester County Board of
          Chosen Freeholders, 340 N.J. Super. 254 (App. Div.
          2001).  Applying that rule, the private attorney’s
          protected attorney work product remained privileged
          despite its disclosure to the third-party municipal
          attorney because the materials were shared in a manner
          calculated to preserve their confidentiality, in
          anticipation of litigation, and in furtherance of a
          common purpose.  The requestor also failed to
          articulate a particularized need for the withheld
          materials as required to obtain privileged materials
          under the common law right of access

In the Matter of Opinion No. 17-2012 of the Advisory Committee on Professional Ethics (A-22-13

In the Matter of Opinion No. 17-2012 of the Advisory
          Committee on Professional Ethics (A-22-13; 072810)
          Volunteer Lawyers for Justice’s pro bono bankruptcy
          program does not present a conflict of interest under
RPC 1.7.  With appropriate safeguards, a volunteer
          attorney can represent a low-income debtor in ano-
          asset Chapter 7 bankruptcy matter even if the
          attorney’s firm represents one or more of the debtor’s
          creditors in unrelated matters.

Tuesday, July 1, 2014

6/26/2014 BERG, ET AL. VS. HON. CHRISTOPHER J. CHRISTIE,ET AL./MICHAEL DELUCIA, ET AL. VS. STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, DIVISION OF PENSIONS AND BENEFITS A-5973-11T4/A-6002-11T4/ A-0632-12T1(CONSOLIDATED)


6/26/2014
BERG, ET AL. VS. HON. CHRISTOPHER J.
CHRISTIE,ET AL./MICHAEL DELUCIA, ET AL. VS. STATE
OF NEW JERSEY, DEPARTMENT OF THE TREASURY,
DIVISION OF PENSIONS AND BENEFITS
A-5973-11T4/A-6002-11T4/ A-0632-12T1(CONSOLIDATED)
Our opinion decides two appeals, Berg and DeLucia. In Berg, construing 1997 pension legislation, we conclude that the Legislature intended to create a contractual right to receive pension benefits, including cost of living adjustments. We find that plaintiffs' claims for payment of benefits from the pension funds is not barred by the Debt Limitation and Appropriations Clauses of the StateConstitution. We reverse the trial court's grant of summary judgment to the State, and remand to allow the parties to create an evidentiary record on whether the State can satisfy the constitutional standard it must meet to justify impairing the obligation of a contract. In DeLucia, plaintiffs raised separate arguments that we find without merit, and we affirm the trial court's decision granting summary judgment.

06/24/14 COMANDO V. NUGIEL A-2403-13T3


06/24/14 COMANDO V. NUGIEL
A-2403-13T3
We conclude RPC 1.7, addressing concurrent conflicts of interests, equally prohibits the representation of opposing parties in transactional matters. Accordingly, a concurrent conflict of interest arises when "the representation of one client will be directly adverse to another client," RPC 1.7(a)(1), such as the instant matter where counsel provided legal representation to both a corporate landlord, and its principals, as well as the corporate tenant and its principal.

06/20/14 MANATA VS. PEREIRA, ET AL. A-0506-12T4


06/20/14 MANATA VS. PEREIRA, ET AL.
A-0506-12T4
We reverse the liability finding in this verbal threshold case, because plaintiff's counsel improperly cross-examined defendant. Defendant-driver and plaintiff- pedestrian disputed whether plaintiff was walking in the cross-walk, or the middle of the block, when she was struck. Police did not investigate, but prepared a report after-the-fact. It included only plaintiff's version, although defendant said he spoke to the police, too. Without offering the report into evidence, plaintiff's counsel repeatedly used it in cross-examination and closing, to impeach defendant with his alleged omission of the version of events that he later asserted at trial. It was unclear whether the report would have been admissible under N.J.R.E. 803(c)(6), (7), (8) or (10), as it did not reflect any statement from defendant, and it apparently was prepared contrary to N.J. Motor Vehicle Commission report preparation guidelines. Cross-examination was improper since plaintiff's counsel conveyed through his questioning the substance of the unadmitted report, as evidence of defendant's alleged omission.

06/19/14 RODRIGUEZ VS. RAYMOURS FURNITURE COMPANY, INC. A-4329-12T3

06/19/14 RODRIGUEZ VS. RAYMOURS FURNITURE COMPANY,
INC.
A-4329-12T3
Plaintiff's application for employment with defendant contained a provision requiring him to file any claim or lawsuit relating to the employment within six months of the act underlying the action, and waiving any statute of limitations to the contrary. Plaintiff filed suit nine months after his alleged wrongful termination. We rejected plaintiff's unconscionability argument and enforced the provision. We therefore affirmed summary judgment in favor of defendant dismissing the complaint as time-barred.

6/30/2014 Gormley v. Wood-El (A-101/106-11; 069717)


Gormley v. Wood-El (A-101/106-11;
069717)
Under the facts of this case, a lawyer assigned to represent a client civilly committed to a state psychiatric hospital had a substantive-due-process right to be free from state-created dangers. Because that right was clearly established at the time the lawyer was attacked, the state official defendants are not entitled to qualified immunity.

6/25/14 In re: Princeton Office Park v. Plymouth Park Tax Services, LLC (A-107-11; 069521)

6/25/14
In re: Princeton Office Park v. Plymouth Park Tax
Services, LLC (A-107-11; 069521)
The Court answers the Third Circuit’s certified question in the affirmative: The purchaser of a tax sale certificate possesses a tax lien on the encumbered property.

Tuesday, June 17, 2014

05/02/14 DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY VS. G.R. A-4594-12T4


05/02/14 DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF
CHILD PROTECTION AND PERMANENCY VS. G.R.
A-4594-12T4
The Division of Child Protection and Permanency (the "Division") informed G.R. that she neglected her two-year- old son by leaving him unattended in her minivan while shopping in a Target store. G.R. immediately requested an Office of Administrative Law hearing to resolve numerous issues of disputed material facts. Five years later, the Division placed her name on the child abuse registry and issued its final agency decision, summarily concluding that G.R. neglected her son by failing to exercise a minimum degree of care as required by N.J.S.A. 9:6-8.21c(4)(b). This substantial delay was caused by agency inaction and by the misplacement of G.R.'s file by a deputy attorney general. Although G.R. timely disputed the Division's initial substantiation of neglect, she lived with the uncertainty of the outcome of her administrative challenge during  the  entire five years. We  reversed without prejudice, remanded, and directed the OAL to conduct a hearing to resolve the disputed issues of fact, and we gave G.R. the opportunity to argue on remand that the case should be dismissed as a matter of fundamental fairness.